The national disability insurance scheme handbook [1 ed.] 9780409336825, 0409336823

Table of contents :
Cover Page
Full Title
Copyright
Preface
Table of Contents
PART A Introduction
Chapter 1 Background
Summary
Commentary
Introduction
Productivity Commission reference
Productivity Commission report
The legislation
Objects and principles
Provision of assistance by the Agency
Planned review
Legislation
Rules
Chapter 2 Launch
Summary
Commentary
Introduction
Launch Transition Agency
Launch sites
Legislation
Rules
PART B Eligibility
Chapter 3 Participant Eligibility — Age
Summary
Commentary
Legislation
Rules
Chapter 4 Participant Eligibility — Residence
Summary
Commentary
Introduction
Reside in Australia
Residence during the launch phase
Residence of children
Children
Continuing residence
Australian citizen
Permanent visa holder
Protected special category visa holder
Legislation
Rules
Chapter 5 Participant Eligibility — Disability or Early Intervention
Summary
Commentary
Introduction
Disability requirement
Permanent impairment
Substantially reduced functional capacity
Listed conditions
Early intervention requirements
Criteria to be applied for early intervention
Listed conditions
Legislation
Rules
Chapter 6 Participant Eligibility — Alternative Way
Summary
Commentary
Legislation
Rules
PART C Compensation
Chapter 7 Compensation Claims and Recoveries
Summary
Commentary
Introduction
Requirement to seek compensation
Taking reasonable action
The issue of a notice
Reasonable prospects of success
Personal injury compensation
Pre-existing agreements regarding compensation
Suspension of participant’s plan
Advice in anticipation of settlements
Pursuit of compensation by CEO
Potential for conflicts of interest
If compensation is recovered
The recoverable amount
Notices to compensation payers and insurers
Legislation
Rules
PART D Applications, Plans and Providers
Chapter 8 Applications
Summary
Commentary
Access requests
Further information
Extension of time frames during launch
Deciding whether a person meets the access criteria
When a person becomes a participant
If an access request is denied
Legislation
Rules
Chapter 9 Participants’ Plans, Supports and Funding
Summary
Commentary
Matters to be included in a participant’s plan
Approving a plan
Reasonable and necessary supports
Value for money
Effective and beneficial and good practice
Reasonable family, carer and other support
Supports appropriately funded or provided through the NDIS
Information and reports for preparing and approving plans
Needs assessment
The operational guidelines: Planning and Assessment — Assessment of Participant Needs
Supports that will not be funded
When a plan is in effect
Grace periods
Suspension of plans
Managing the funding for supports
Payment of NDIS amounts
Reviewing and changing plans
Legislation
Rules
Chapter 10 Supports Providers
Summary
Commentary
Introduction
Applying
Requirements
Revocation
Legislation
Rules
PART E Powers and Decisions
Chapter 11 CEO Enquiry Powers
Summary
Commentary
CEO appointment and general powers
CEO powers relevant to access requests
CEO powers relevant to participant supports
Powers to obtain information from participants and prospective participants
Powers to obtain information from other persons
Failure to comply
Funding for review of decisions
Legislation
Rules
Chapter 12 Review of Decisions
Summary
Commentary
Reviewable decisions
Notice must be given
Form of request for review
Implementation or variation of decision
Internal review mechanism
External review mechanism
Appeals to a court
Review and appeal costs
Legislation
Rules
AAT Practice Direction
PART F Privacy
Chapter 13 Privacy
Summary
Commentary
Introduction
Protected information
Recording and disclosure
Research, analysis and policy development
Offences
Protections
Disclosure by the CEO
Enforcement of laws
Mistake of fact
Ministerial briefing
Missing or deceased person
Agencies responsible for children
Interaction with other laws
Legislation
Rules
PART G Children and Nominees
Chapter 14 Children
Summary
Commentary
Introduction
Definitions and guiding principles
Children and parental responsibility
The ‘mature minor’
Duty to children
Revocation of determinations
Legislation
Rules
Chapter 15 Nominees
Summary
Commentary
Introduction
What is a nominee?
Appointment of a nominee
Duties of a nominee
Plan nominees
Correspondence nominees
Notices to nominees about the nominees’ capacity
Notices to nominees about disposal of NDIS amounts
Notices directed to participants, despite existence of nominee
Rights of nominees
Cancelling or suspending a nominee’s appointment
Liability
Legislation
Rules
PART H Exit
Chapter 16 Ceasing to Be a Participant and Revocation
Summary
Commentary
Introduction
Death and age
Revocation
Voluntary withdrawal
Suspension
Suspension — launch phase issues
Effect of suspension
Legislation
Rules
Appendix A
Appendix B
Index

Citation preview

The National Disability Insurance Scheme Handbook

Bill Madden BA, LLB (Hons) (Macq) Legal Practitioner, Supreme Court of New South Wales

Janine McIlwraith LLB (Hons), LLM (Syd), GDLP, BMed Rad Sci (R/T) Legal Practitioner, Supreme Court of New South Wales

Ruanne Brell BA, LLB (Hons) (Syd) Legal Practitioner, Supreme Court of New South Wales and High Court of Australia

LexisNexis Butterworths Australia 2014

AUSTRALIA

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USA LexisNexis Group, New York, NEW YORK LexisNexis, Miamisburg, OHIO National Library of Australia Cataloguing-in-Publication entry Author: Title: Edition: ISBN: Notes: Subjects:

Other Authors/Contributors: Dewey Number:

Madden, Bill. The National Disability Insurance Scheme Handbook. 1st edition. 9780409336818 (pbk). 9780409336825 (ebk). Includes index. Disability insurance — Australia. People with disabilities — Australia. Social security — Australia — Finance. People with disabilities — Services for — Australia. McIlwraith, Janine F. (Janine Flora). Brell, Ruanne. 368.386.

© 2014 Reed International Books Australia Pty Limited trading as LexisNexis. This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission. Inquiries should be addressed to the publishers. Typeset in Helvetica LT Std and Garamond MT Std. Printed in Australia. Visit LexisNexis Butterworths at www.lexisnexis.com.au

Preface The National Disability Insurance Scheme Handbook is a new handbook for a novel scheme in Australia — the National Disability Insurance Scheme. Described by the agency which operates the scheme in simple terms, it is a way of providing community-linking and individualised support for people with permanent and significant disability, their families and carers. Having begun on 1 July 2013, much about the National Disability Insurance Scheme remains new to those seeking access to scheme benefits, their carers and advisors. Not all is clear. Even the number of people who will benefit from the scheme remains uncertain, though estimates in the order of 460,000 have been made. We hope that this handbook will assist by providing an explanation of scheme legislation, the accompanying rules and some commentary on how the scheme may work in practice. It is written for people with disability, their families and carers, but also for advisors such as health professionals and lawyers. Each chapter adopts a similar format: a short summary, commentary, extracts from the legislation and extracts from the relevant scheme rules. We wish to thank our publisher, LexisNexis Butterworths, for supporting this new book; in particular, Eleanor O’Connor, Cassandra Dunne and Philippa Huxley. Georgia O’Neill as editor provided helpful comments and careful corrections, all in a remarkably short period of time. We also wish to thank the many people who provided us with information and support during the writing phase. Experience gained in the launch phase of the National Disability Insurance Scheme will, we expect, influence its day-to-day operation and perhaps even lead to structural and legislative change between now and the full implementation of the scheme in 2019. We hope that if this handbook is found useful it can be updated from time to time to reflect those changes.

Ruanne Brell Janine McIlwraith Bill Madden 15 October 2013

Contents Preface PART A

Introduction

Chapter 1

Background Summary Commentary Introduction Productivity Commission reference Productivity Commission report The legislation Objects and principles Provision of assistance by the Agency Planned review Legislation Rules

Chapter 2

Launch Summary Commentary Introduction Launch Transition Agency Launch sites Legislation Rules

PART B

Eligibility

Chapter 3

Participant Eligibility — Age Summary Commentary Legislation Rules

Chapter 4

Participant Eligibility — Residence Summary Commentary Introduction Reside in Australia Residence during the launch phase Residence of children Children Continuing residence Australian citizen Permanent visa holder Protected special category visa holder Legislation Rules

Chapter 5

Participant Eligibility — Disability or Early Intervention Summary Commentary Introduction Disability requirement

Permanent impairment Substantially reduced functional capacity Listed conditions Early intervention requirements Criteria to be applied for early intervention Listed conditions Legislation Rules Chapter 6

PART C Chapter 7

Participant Eligibility — Alternative Way Summary Commentary Legislation Rules Compensation Compensation Claims and Recoveries Summary Commentary Introduction Requirement to seek compensation Taking reasonable action The issue of a notice Reasonable prospects of success Personal injury compensation Pre-existing agreements regarding compensation Suspension of participant’s plan Advice in anticipation of settlements Pursuit of compensation by CEO

Potential for conflicts of interest If compensation is recovered The recoverable amount Notices to compensation payers and insurers Legislation Rules PART D

Applications, Plans and Providers

Chapter 8

Applications Summary Commentary Access requests Further information Extension of time frames during launch Deciding whether a person meets the access criteria When a person becomes a participant If an access request is denied Legislation Rules

Chapter 9

Participants’ Plans, Supports and Funding Summary Commentary Matters to be included in a participant’s plan Approving a plan Reasonable and necessary supports Value for money Effective and beneficial and good practice

Reasonable family, carer and other support Supports appropriately funded or provided through the NDIS Information and reports for preparing and approving plans Needs assessment The operational guidelines: Planning and Assessment — Assessment of Participant Needs Supports that will not be funded When a plan is in effect Grace periods Suspension of plans Managing the funding for supports Payment of NDIS amounts Reviewing and changing plans Legislation Rules Chapter 10

PART E

Supports Providers Summary Commentary Introduction Applying Requirements Revocation Legislation Rules Powers and Decisions

Chapter 11

CEO Enquiry Powers Summary Commentary CEO appointment and general powers CEO powers relevant to access requests CEO powers relevant to participant supports Powers to obtain information from participants and prospective participants Powers to obtain information from other persons Failure to comply Funding for review of decisions Legislation Rules

Chapter 12

Review of Decisions Summary Commentary Reviewable decisions Notice must be given Form of request for review Implementation or variation of decision Internal review mechanism External review mechanism Appeals to a court Review and appeal costs Legislation Rules AAT Practice Direction

PART F Chapter 13

Privacy Privacy Summary Commentary Introduction Protected information Recording and disclosure Research, analysis and policy development Offences Protections Disclosure by the CEO Enforcement of laws Mistake of fact Ministerial briefing Missing or deceased person Agencies responsible for children Interaction with other laws Legislation Rules

PART G Chapter 14

Children and Nominees Children Summary Commentary Introduction Definitions and guiding principles Children and parental responsibility

The ‘mature minor’ Duty to children Revocation of determinations Legislation Rules Chapter 15

PART H Chapter 16

Nominees Summary Commentary Introduction What is a nominee? Appointment of a nominee Duties of a nominee Plan nominees Correspondence nominees Notices to nominees about the nominees’ capacity Notices to nominees about disposal of NDIS amounts Notices directed to participants, despite existence of nominee Rights of nominees Cancelling or suspending a nominee’s appointment Liability Legislation Rules Exit Ceasing to Be a Participant and Revocation Summary Commentary

Introduction Death and age Revocation Voluntary withdrawal Suspension Suspension — launch phase issues Effect of suspension Legislation Rules Appendix A Appendix B Index

[page 1]

PART A Introduction

[page 3]

CHAPTER 1 Background SUMMARY Introduction. The Productivity Commission reference and report. The 2013 legislation, its objects and principles. Provision of assistance by the National Disability Insurance Agency. Planned review.

COMMENTARY Introduction 1.1 In 2010 the Australian Government formed the view that the provision of support and services for people with a disability required examination with a view to improvement. As was later said on a website created for the National Disability Insurance Scheme (NDIS), the services and support people with disability, their families and carers received had depended on where they lived, what disability they had, and how they attained that disability. It was thought that no disability support arrangements in any state or territory were working well in all areas. The process for consideration of reform and the establishment of an NDIS from 1 July 2013, briefly named ‘DisabilityCare Australia’ but then changed to the National Disability Insurance Scheme, began with a reference to the

Productivity Commission, the Australian Government’s independent research and advisory body on a range of economic, social and environmental issues. The National Disability Insurance Scheme Handbook seeks to provide a description of and commentary on the NDIS as enacted. The focus is on matters relevant to persons seeking to use the NDIS and those who may assist or advise those persons. As this handbook is of necessity general in nature, it should not be taken as legal advice. Not all parts of the NDIS are referred to in this handbook. In particular, those parts of the National Disability Insurance Scheme Act 2013 (Cth) relating to reporting, planning and actuarial assessment are not discussed. [page 4]

At the time of writing, the NDIS had been in place for only a matter of months. It is a new scheme and as such changes to it are likely, so care should be taken to check for any recent developments on the NDIS website: .

Productivity Commission reference 1.2 With a view to the commencement of an inquiry in April 2010, a ‘national disability long-term care and support scheme in Australia’ was referred to the Productivity Commission, under the Productivity Commission Act 1998 (Cth). The terms of reference directed that the inquiry should assess the costs, cost effectiveness, benefits, and feasibility of an approach which: provides long-term essential care and support for eligible people with a severe or profound disability, on an entitlement basis and taking into account the desired outcomes for each person over a lifetime; is intended to cover people with disability not acquired as part of the natural process of ageing; calculates and manages the costs of long-term care and support for people with severe and profound disability;

replaces the existing system funding for the eligible population; ensures a range of support options is available, including individualised approaches; includes a coordinated package of care services which could include accommodation support, aids and equipment, respite, transport and a range of community participation and day programs available for a person’s lifetime; assists the person with disability to make decisions about their support; and provides support for people to participate in employment where possible.

Productivity Commission report 1.3 On 10 August 2011 the Productivity Commission Inquiry Report was released. Consisting of 20 chapters with 14 appendices, it is available online at the Productivity Commission website: . Although the NDIS as created by later legislation is mostly consistent with the Productivity Commission Inquiry Report, there are some variations. Accordingly, the Productivity Commission Inquiry Report should be used as a reference and not taken as an accurate description of what became the NDIS. A primary recommendation of the Commission was rec 3.1, which sets out the suggested three main functions of the NDIS: [page 5] The National Disability Insurance Scheme (NDIS) should have three main functions. It should: cost-effectively minimise the impacts of disability, maximise the social and economic participation of people with a disability, create community awareness of the issues that affect people with disabilities and facilitate community capacity building. These measures should be targeted at all Australians; provide information and referral services, which should be targeted at people with, or affected by, a disability; and

provide individually tailored, taxpayer-funded support, which should be targeted at people with significant disabilities who are assessed as needing such support (but excluding those people with newly-acquired catastrophic injuries covered by the National Injury Insurance Scheme — recommendation 18.1).

The legislation 1.4 The NDIS was created by Commonwealth Legislation: the National Disability Insurance Scheme Act 2013. References in this handbook to ‘the Act’ are references to that legislation. The Act is made available on the Austlii website: and on the Australian Government ComLaw website: . Relevant portions of the Act are reproduced in this handbook under the heading ‘Legislation’ in each chapter. As new and somewhat complex legislation, it seems likely that the Act will be the subject of amendment from time to time. Accordingly, reference should be made to the online current version, for updates which may follow the writing of this handbook. The Act provides for the making of rules, which are expected to be central to the operation of the NDIS. Section 209 creates the power for the Minister to make various National Disability Insurance Scheme rules prescribing matters required or permitted by the Act to be prescribed by the NDIS rules, or necessary or convenient to be prescribed, in order to carry out or give effect to the Act. The Act also provides for the making of regulations. Section 210 permits the Governor General to make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to the Act.

Objects and principles 1.5 Reproduced below under the heading ‘Legislation’ are a small number of sections of the Act which set out matters of general importance. They are:

the objects of the Act, in s 3; general principles guiding actions under the Act, in s 4; and [page 6]

general principles guiding actions of people who may do acts or things on behalf of others, in s 5. The objects of the Act under s 3 may have little practical day-to-day relevance, though they may be called on to assist the courts, who may later be called upon to interpret the Act. For the most part, the objects appear to set out general aims such as to support the independence and social and economic participation of people with disability. References are made to giving effect to Australia’s obligations under a number of conventions, such as the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12). Such treaties are available on the United Nations Treaty Collection website: . Section 3(2) makes clear that the objects of the Act are to be achieved by providing the foundation for governments (presumably the Commonwealth and states) to work together to develop and implement the NDIS launch and adopting an insurance-based approach, informed by actuarial analysis, to the provision and funding of supports for people with disability. A note of restraint is injected by the wording of s 3(3), by referring to the progressive implementation of the NDIS and the need to ensure its financial sustainability Section 3(3) of the Act also refers to the need for attention to other services, both mainstream and disability. The general principles guiding actions under the Act, in s 4, appear to be mostly recognition of ‘rights’ and a series of aspirational statements as to what ‘should be’. The recognised rights of people with disability are to realise their potential for physical, social, emotional and intellectual development, to respect for their worth and dignity and to live free from abuse, neglect and exploitation, to

pursue any grievance, and to determine their own best interests to the extent of their capacity. It is not clear however whether this listing of rights is intended to create rights which may in some circumstances be legally enforceable. A contrast may here be drawn with the Carer Recognition Act 2010 (Cth) s 10 which expressly provides that it does not create rights or duties that are legally enforceable in judicial or other proceedings, nor does a failure to comply with that legislation affect the validity of any decision and is not a ground for the review or challenge of any decision. Noteworthy is s 4(17), which provides that it is the intention of the Parliament that those performing functions and exercising powers under the Act are to do so in accordance with the s 4 principles, however having regard to the progressive implementation of the NDIS and the need to ensure the financial sustainability of the NDIS. The statements as to what ‘should be’ for persons with a disability include matters such as participation in and contribution to social and economic life to the extent of their ability, certainty as to care, support to exercise choice and respect for privacy and dignity. Innovation, quality, continuous improvement, contemporary best practice and [page 7]

effectiveness in the provision of supports to people with disability are to be promoted. Positive personal and social development of people with disability, including children and young people, is also to be promoted. The general principles guiding actions of people who may do acts or things on behalf of others, under s 5, again set out a series of statements as to what ‘should be’. Beginning with an aim of maximal autonomy, in that persons with a disability should be involved in decision-making processes that affect them, and where possible make decisions for themselves, the remainder of the subsections emphasise aspects such as engagement in the community, cultural circumstances and the recognition of supportive relationships. Section 5(f) refers expressly to the position of the child with a disability. That subsection asserts that the best interests of the child are paramount, and full consideration should be given to the need to protect the child from harm, to promote the child’s development and to strengthen, preserve and promote

positive relationships between the child and the child’s parents, family members and other people who are significant in the life of the child.

Provision of assistance by the Agency 1.6 ‘The Agency’ is defined in s 9 to be the National Disability Insurance Scheme Launch Transition Agency (hereinafter referred to as ‘the Agency’) established by s 117. A later announcement in September 2013 indicated that the Agency would in future be known as the National Disability Insurance Agency (NDIA). A discussion of the Agency’s functions appears in Chapter 2 of this handbook. Section 6 of the Act, prominently following the sections dealing with objects and principles, provides that the Agency may provide support and assistance. However, there are some express constraints, such as in s 200A which provides that nothing in the Act permits or requires the Agency to fund legal assistance for prospective participants or participants in relation to review of decisions made under this Act. It is noteworthy at this point that s 4(9) of the Act provides as a general principle that people with disability should be supported in all their dealings and communications with the Agency so that their capacity to exercise choice and control is maximised in a way that is appropriate to their circumstances and cultural needs. Fees can be charged by the Agency, as may be developed under s 210 of the Act.

Planned review 1.7 The potential need for changes to the NDIS is recognised in the legislation which creates it. Section 208 of the Act provides for an independent review of the operation of the Act, to take not more than six months to complete. [page 8]

That review is to be undertaken commencing on the second anniversary of the commencement of Chapter 3 of the Act, which is the substantive chapter entitled ‘Participants and their plans’.

LEGISLATION 1.8 Reproduced below are the legislative provisions relevant to the commentary in this chapter.

3 Objects of Act (1) The objects of this Act are to: (a) in conjunction with other laws, give effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12); and (b) provide for the National Disability Insurance Scheme in Australia; and (c) support the independence and social and economic participation of people with disability; and (d) provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme launch; and (e) enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and (f)

facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability; and

(g) promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the mainstream community; and (h) raise community awareness of the issues that affect the social and economic participation of people with disability, and facilitate greater community inclusion of people with disability; and (i)

in conjunction with other laws, give effect to certain obligations that Australia has as a party to: (i)

the International Covenant on Civil and Political Rights done at New York on 16 December 1966 ([1980] ATS 23); and [page 9]

(ii) the International Covenant on Economic, Social and Cultural Rights done at New York on 16 December 1966 ([1976] ATS 5); and (iii) the Convention on the Rights of the Child done at New York on 20 November 1989 ([1991] ATS 4); and (iv) the Convention on the Elimination of All Forms of Discrimination Against Women done at New York on 18 December 1979 ([1983] ATS 9); and (v) the International Convention on the Elimination of All Forms of Racial Discrimination done at New York on 21 December 1965 ([1975] ATS 40). Note:

In 2013, the text of a Convention or Covenant in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).

(2) These objects are to be achieved by: (a) providing the foundation for governments to work together to develop and implement the National Disability Insurance Scheme launch; and (b) adopting an insurance-based approach, informed by actuarial analysis, to the provision and funding of supports for people with disability. (3) In giving effect to the objects of the Act, regard is to be had to: (a) the progressive implementation of the National Disability Insurance Scheme; and (b) the need to ensure the financial sustainability of the National Disability Insurance Scheme; and (c) the broad context of disability reform provided for in: (i)

the National Disability Strategy 2010–2020 as endorsed by COAG on 13 February 2011; and

(ii) the Carer Recognition Act 2010; and (d) the provision of services by other agencies, Departments or organisations and the need for interaction between the provision of mainstream services and the provision of supports under the National Disability Insurance Scheme.

4 General principles guiding actions under this Act (1) People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development. [page 10]

(2) People with disability should be supported to participate in and contribute to social and economic life to the extent of their ability. (3) People with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime. (4) People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports. (5) People with disability should be supported to receive reasonable and necessary supports, including early intervention supports. (6) People with disability have the same right as other members of Australian society to respect for their worth and dignity and to live free from abuse, neglect and exploitation. (7) People with disability have the same right as other members of Australian society to pursue any grievance. (8) People with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives, to the full extent of their capacity. (9) People with disability should be supported in all their dealings and communications with the Agency so that their capacity to exercise choice and control is maximised in a way that is appropriate to their circumstances and cultural needs. (10) People with disability should have their privacy and dignity respected. (11) Reasonable and necessary supports for people with disability should: (a) support people with disability to pursue their goals and maximise their independence; and (b) support people with disability to live independently and to be included in the community as fully participating citizens; and (c) develop and support the capacity of people with disability to undertake activities that enable them to participate in the mainstream community and in employment. (12) The role of families, carers and other significant persons in the lives of people with disability is to be acknowledged and respected. (13) The role of advocacy in representing the interests of people with disability is to be acknowledged and respected, recognising that advocacy supports people with disability by: [page 11]

(a) promoting their independence and social and economic participation; and (b) promoting choice and control in the pursuit of their goals and the planning and delivery of their supports; and (c) maximising independent lifestyles of people with disability and their full inclusion in the mainstream community. (14) People with disability should be supported to receive supports outside the National Disability Insurance Scheme, and be assisted to coordinate these supports with the supports provided under the National Disability Insurance Scheme. (15) Innovation, quality, continuous improvement, contemporary best practice and effectiveness in the provision of supports to people with disability are to be promoted. (16) Positive personal and social development of people with disability, including children and young people, is to be promoted. (17) It is the intention of the Parliament that the Ministerial Council, the Minister, the Board, the CEO and any other person or body is to perform functions and exercise powers under this Act in accordance with these principles, having regard to: (a) the progressive implementation of the National Disability Insurance Scheme; and (b) the need to ensure the financial sustainability of the National Disability Insurance Scheme.

5 General principles guiding actions of people who may do acts or things on behalf of others It is the intention of the Parliament that, if this Act requires or permits an act or thing to be done by or in relation to a person with disability by another person, the act or thing is to be done, so far as practicable, in accordance with both the general principles set out in s 4 and the following principles: (a) people with disability should be involved in decision making processes that affect them, and where possible make decisions for themselves; (b) people with disability should be encouraged to engage in the life of the community; (c) the judgements and decisions that people with disability would have made for themselves should be taken into account; (d) the cultural and linguistic circumstances, and the gender, of people with disability should be taken into account;

[page 12] (e) the supportive relationships, friendships and connections with others of people with disability should be recognised; (f)

if the person with disability is a child—the best interests of the child are paramount, and full consideration should be given to the need to: (i)

protect the child from harm; and

(ii) promote the child’s development; and (iii) strengthen, preserve and promote positive relationships between the child and the child’s parents, family members and other people who are significant in the life of the child.

6 Agency may provide support and assistance To support people with disability to exercise choice and control in the pursuit of their goals, the Agency may provide support and assistance (including financial assistance) to prospective participants and participants in relation to doing things or meeting obligations under, or for the purposes of, this Act. Note:

For example, the Agency might assist a participant to prepare the participant’s statement of goals and aspirations by assisting the participant to clarify his or her goals, objectives and aspirations.

208 Review of operation of Act (1) The Minister must cause an independent review of the operation of this Act to be undertaken commencing on the second anniversary of the commencement of Chapter 3. (2) The review is to be undertaken by a person or persons chosen by the Minister with the agreement of the Ministerial Council. (3) The terms of reference of the review must be agreed by the Ministerial Council. (4) The person or persons undertaking the review must give the Minister a written report of the review within 6 months of the commencement of the review. (5) Upon receiving the report, the Minister must give a copy to the Ministerial Council and ask the Ministerial Council to: (a) make recommendations in response to the report; and (b) obtain COAG’s response to the report within the period of 6 months after giving the copy of the report to the Ministerial Council. (6) The Minister must consider the report.

[page 13] (7) The Minister must cause copies of the report to be tabled in each House of the Parliament within 15 sitting days of that House after receiving the report. (8) The Minister must cause copies of COAG’s response to the report to be tabled in each House of the Parliament within 6 months of giving the copy of the report to the Ministerial Council. (9) If the Minister fails to cause copies of the response to be tabled in each House of the Parliament within the period referred to in subs (8), the Minister must cause an explanation of the failure to be tabled in each House of the Parliament within 15 sitting days of that House after the end of that period.

RULES 1.9 No rules directly relevant to the matters discussed in this chapter have been published as yet.

[page 15]

CHAPTER 2 Launch SUMMARY The NDIS transitional phase launch date was 1 July 2013. The planned NDIS full roll-out date is 1 July 2019. The Agency is established to manage, advise and report on the financial sustainability of the NDIS. The Agency structure includes a Board, Independent Advisory Council and a CEO.

an

Transitional phase launch sites with geographic boundaries and age criteria have been announced.

COMMENTARY Introduction 2.1 Following the enactment of the National Disability Insurance Scheme Act 2013 (Cth), a transitional phase for the NDIS commenced on 1 July 2013. Full coverage for all Australians is projected by July 2019. It is not entirely clear how many persons will receive support under the NDIS. A preliminary website stated that once the scheme is fully rolled out it will provide support for around 460,000 people who have a significant and permanent disability that affects their communication, mobility, self-care or self-management. That number would appear to be about 2% of the Australian population.

Launch Transition Agency 2.2 Chapter 6 of the Act deals with the Agency, which is formally established by s 117 of the Act. Section 118 sets out the functions of the Agency in some detail. Unsurprisingly, the first identified function is to ‘deliver’ the NDIS. More detail appears in s 118(b), which requires the Agency to manage, advise and report on the financial sustainability of the NDIS. [page 16]

The Agency is also charged with broader functions, including to: develop and enhance the disability sector, including by facilitating innovation, research and contemporary best practice in the sector; build community awareness of disabilities and the social contributors to disabilities; collect, analyse and exchange data about disabilities and the supports for people with disability, including early intervention supports; and undertake research relating to disabilities, the supports, including early intervention supports for people with disability, and the social contributors to disabilities. The Act under ss 123 and 124 establishes a Board (a Chair and eight other part-time members appointed by the Minister), to ensure the proper, efficient and effective performance of the Agency’s functions and to determine objectives, strategies and policies to be followed by the Agency. An Independent Advisory Council (with a Principal Member and 12 other part-time members) is established by ss 143 and 144, to provide advice to the Board on its own initiative or at the written request of the Board. The advice to the Board may be about the way in which the Agency performs its functions relating to the NDIS or on related matters such as the way in which the Agency supports the independence and social and economic participation of people with

disability. A key role in the NDIS is that of the Chief Executive Officer (CEO), established under ss 158 and 159. The CEO is responsible for the day-to-day administration of the Agency, and has power to do all things necessary or convenient to be done for or in connection with the performance of his or her duties. Unsurprisingly, the CEO must act in accordance with the objectives, strategies and policies determined by the Board.

Launch sites 2.3 Locations that started from July 2013 were: the Barwon area of Victoria, for persons aged up to 65 years; the Hunter area of New South Wales, for persons aged up to 65 years; all of the state of South Australia, but only for children aged up to 14 years; and all of the state of Tasmania, but only for young persons aged 15 to 24 years. Locations that will start from July 2014 have been identified as follows: the Australian Capital Territory, for persons aged up to 65 years; and the Barkly region of the Northern Territory, for persons aged up to 65 years. Appendix A to this handbook provides more detailed information regarding the launch sites. [page 17]

LEGISLATION 2.4 Reproduced below are the legislative provisions relevant to the commentary

in this chapter.

Chapter 6 — National Disability Insurance Scheme Launch Transition Agency Part 1 — National Disability Insurance Scheme Launch Transition Agency 117 Establishment (1) The National Disability Insurance Scheme Launch Transition Agency is established by this section. (2) The Agency: (a) is a body corporate; and (b) must have a seal; and (c) may acquire, hold and dispose of real and personal property; and (d) may sue and be sued. Note:

The CAC Act applies to the Agency. That Act deals with matters relating to Commonwealth authorities, including reporting and accountability, banking and investment, and conduct of officers.

(3) The seal of the Agency is to be kept in such custody as the Board directs and must not be used except as authorised by the Board.

118 Functions of the Agency (1) The Agency has the following functions: (a) to deliver the National Disability Insurance Scheme so as to: (i)

support the independence, and social and economic participation, of people with disability; and

(ii) enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and (iii) ensure that the decisions and preferences of people with disability are respected and given appropriate priority; and (iv) promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and inclusion in the mainstream community; and

[page 18] (v) ensure that a reasonable balance is achieved between safety and the right of people with disability to choose to participate in activities involving risk; (b) to manage, and to advise and report on, the financial sustainability of the National Disability Insurance Scheme including by: (i)

regularly making and assessing estimates of the current and future expenditure of the National Disability Insurance Scheme; and

(ii) identifying and managing risks and issues relevant to the financial sustainability of the National Disability Insurance Scheme; and (iii) considering actuarial advice, including advice from the scheme actuary and the reviewing actuary; (c) to develop and enhance the disability sector, including by facilitating innovation, research and contemporary best practice in the sector; (d) to build community awareness of disabilities and the social contributors to disabilities; (e) to collect, analyse and exchange data about disabilities and the supports (including early intervention supports) for people with disability; (f)

to undertake research relating to disabilities, the supports (including early intervention supports) for people with disability and the social contributors to disabilities;

(g) any other functions conferred on the Agency by or under this Act, the regulations or an instrument made under this Act; (h) to do anything incidental or conducive to the performance of the above functions. (2) In performing its functions, the Agency must use its best endeavours to: (a) act in accordance with any relevant intergovernmental agreements; and (b) act in a proper, efficient and effective manner.

119 Powers of the Agency (1) The Agency has power to do all things necessary or convenient to be done for or in connection with the performance of its functions. (2) The Agency’s powers include, but are not limited to, the following powers: [page 19] (a) the power to enter into contracts;

(b) the power to accept gifts, devises, bequests and assignments.

120 Charging of fees (1) The Agency may charge fees in accordance with an instrument made under subsection (2). (2) The Minister may, by legislative instrument, prescribe: (a) the things that the Agency does in the performance of its functions for which it may charge fees; and (b) the amount, or a method of working out the amount, of those fees. (3) An instrument made under subsection (2) must not allow: (a) a fee to be charged in relation to an access request; or (b) a participant to be charged a fee. (4) The Minister must not make an instrument under subsection (2) unless the Commonwealth and each host jurisdiction agree to the making of the instrument. (5) A fee must not be such as to amount to taxation.

121 Minister may give directions to the Agency (1) The Minister may, by legislative instrument, give directions to the Agency about the performance of its functions. Note:

Section 42 (disallowance) and Part 6 (sunsetting) of the Legislative Instruments Act 2003 do not apply to the directions (see sections 44 and 54 of that Act).

(2) A direction given under subsection (1): (a) must not relate to a particular individual; and (b) must not be inconsistent with: (i)

this Act, the regulations or an instrument made under this Act; or

(ii) the CAC Act, or the regulations or an instrument made under that Act. (3) The Minister must not give a direction under subsection (1) unless the Commonwealth and each host jurisdiction agree to the giving of the direction. (4) The Agency must comply with a direction given under subsection (1). [page 20]

122 Agency does not have privileges and immunities of the Crown

The Agency does not have privileges and immunities of the Crown in right of the Commonwealth.

Part 3 — Independent Advisory Council Division 1 — Establishment and Function 143 Establishment The Independent Advisory Council is established by this section.

144 Function of the Advisory Council (1) The Advisory Council’s function is to provide, on its own initiative or at the written request of the Board, advice to the Board about the way in which the Agency: (a) performs its functions relating to the National Disability Insurance Scheme; and (b) supports the independence and social and economic participation of people with disability; and (c) provides reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme launch; and (d) enables people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and (e) facilitates the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability; and (f)

promotes the provision of high quality and innovative supports to people with disability; and

(g) raises community awareness of the issues that affect the social and economic participation of people with disability, and facilitates greater community inclusion of people with disability. (2) In providing advice, the Advisory Council must have regard to the role of families, carers and other significant persons in the lives of people with disability. [page 21] (3) Advice provided by the Advisory Council must not relate to: (a) a particular individual; or (b) the approval of a person or entity as a registered provider of supports or the

revocation of that approval; or (c) the corporate governance of the Agency; or (d) the money paid to, or received by, the Agency. (4) The Advisory Council has power to do all things necessary or convenient to be done for or in connection with the performance of its function.

145 Advice of the Advisory Council If the Advisory Council provides advice to the Board under subsection 144(1), the Board must: (a) have regard to the advice in performing its functions; and (b) give the Ministerial Council a copy of the advice and a statement setting out what has been done, or is to be done, in response to the advice.

RULES 2.5 No rules directly relevant to the matters discussed in this chapter have been published as yet.

[page 23]

PART B Eligibility

[page 25]

CHAPTER 3 Participant Eligibility — Age SUMMARY There are three core access criteria. Age is one of the access criteria, with a maximum age of 65 years. The NDIS rules may alter the age criteria, generally or by reference to place of residence. In the launch phase, different age constraints apply in some jurisdictions.

COMMENTARY 3.1 Persons seeking access to the NDIS under s 19 of the Act must meet certain access criteria. Section 21 identifies three core criteria, all of which must be met. They are in respect to age, residence and disability/early intervention. Relevant to age is s 22. Generally, a person meets the age requirements if the person was aged less than 65 years when the access request in relation to the person was made. The reference to birth may be unnecessary as an unborn child will not generally be a person, under the law, until their birth. Even if an unborn child is known to suffer a disability there would seem to be little point in bringing the child under the NDIS before their birth, bearing in mind that the primary scope of the scheme is the provision of care which the unborn child will not immediately require.

The child may seek access to the scheme upon its birth. In the launch phase, the age criterion in South Australia is set such that only children aged under 14 years will be eligible. In Tasmania, the age at time of application is bracketed at 15 to 24 years. Difficulties may in practice occasionally arise where the age of the applicant is not precisely known. Examples may include children born outside of Australia who later come to South Australia or Tasmania, or older persons born outside of Australia who later come to Australia. [page 26]

LEGISLATION 3.2 Reproduced below are the legislative provisions relevant to the commentary in this chapter.

21 When a person meets the access criteria (1) A person meets the access criteria if: (a) the CEO is satisfied that the person meets the age requirements (see section 22); and (b) the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and (c) the CEO is satisfied that, at the time of considering the request: (i)

the person meets the disability requirements (see section 24); or

(ii) the person meets the early intervention requirements (see section 25). (2) If the CEO is not satisfied as mentioned in subsection (1), the person meets the access criteria if the CEO is satisfied of the following: (a) at the time of considering the request, the person satisfies the requirements in relation to residence prescribed as mentioned in subsection 23(3) (whether or not the person also satisfies the requirements mentioned in subsection 23(1)); (b) the person: (i)

was receiving supports at the time of considering the request or, if another time is prescribed by the National Disability Insurance Scheme rules for the purposes of this subparagraph, at that other time; and

(ii) received the supports throughout the period (if any) prescribed by the National Disability Insurance Scheme rules for the purposes of this subparagraph; and (iii) received the supports under a program prescribed by the National Disability Insurance Scheme rules for the purposes of this subparagraph; (c) if the person becomes a participant, the person would not be entitled to receive the supports referred to in paragraph (b), or equivalent supports. (3) The CEO is taken to have decided that the prospective participant does not meet the access criteria if: [page 27] (a) the CEO does not do a thing referred to in paragraph 20(a) or (b) within the 21-day period referred to in section 20; or (b) if subsection 26(2) applies—the CEO does not do one of the things referred to in that subsection within the 14-day period referred to in that subsection. Note 1: The periods may be extended under National Disability Insurance Scheme rules made under section 204. Note 2: Notice of a decision that the CEO is taken to have made must be given because of subsection 100(1) and will be automatically reviewed because of subsection 100(5).

22 Age requirements (1) A person meets the age requirements if: (a) the person was aged under 65 when the access request in relation to the person was made; and (b) the person satisfies any other requirements in relation to age that are prescribed by the National Disability Insurance Scheme rules. (2) Without limiting paragraph (1)(b), National Disability Insurance Scheme rules made for the purposes of that paragraph: (a) may prescribe that a person must be a prescribed age on a prescribed date or a date in a prescribed period only if the person resides in a prescribed area of Australia; and (b) may prescribe different ages and different dates in relation to different areas of Australia.

RULES 3.3 Reproduced below are the rules relevant to the commentary in this chapter.

National Disability Insurance Scheme (Becoming a Participant) Rules 2013 Part 3 When does a person meet the age requirements? 3.1 Generally, a person meets the age requirements if the person was aged from birth up to 65 when the access request in relation to the person was made. This summarises paragraph 22(1)(a) of the Act.

[page 28]

3.2 However, additional age requirements apply to persons in South Australia and Tasmania as set out below. 3.3 A person who resides in South Australia will meet the age requirements only if: (a) for an access request made before 1 July 2014—the person was aged under 6 on 1 July 2013 (this includes children born after 1 July 2013); or (b) for an access request made between 1 July 2014 and 30 June 2015 (or made before 1 July 2014 and decided by the CEO on or after 1 July 2014)— the person was aged under 14 on 1 July 2014 (this includes children born after 1 July 2014); or (c) for an access request made on or after 1 July 2015 (or made before 1 July 2015 and decided by the CEO on or after 1 July 2015)—the person is aged under 15 on the date of the access request.

This is made for the purposes of paragraph 22(1)(b) of the Act. 3.4 A person who resides in Tasmania will meet the age requirements only if the person is: (a) aged at least 15, and under 25, on the date the access request was made; and (b) aged under 25 on 1 July 2013.

This is made for the purposes of paragraph 22(1)(b) of the Act.

[page 29]

CHAPTER 4 Participant Eligibility — Residence SUMMARY There are three core access criteria. Residence is one of the access criteria, with requirements that the person reside and continue to reside in Australia as a citizen, as the holder of a permanent visa or as a protected special category visa holder. The NDIS rules may prescribe other requirements in relation to residence. The NDIS rules make special provision for children. In the launch phase, additional residence requirements exist in that the person must reside in an NDIS launch area at a particular time.

COMMENTARY Introduction 4.1 Persons seeking access to the NDIS under s 19 of the Act must meet certain access criteria. Section 21 identifies three core criteria, all of which must be met. They are in respect to age, residence and disability. Relevant to residence is s 23. A person meets the residence requirements for access to the NDIS if they

reside in Australia and they are an Australian citizen, the holder of a permanent visa or the holder of a special category visa (SCV) who is a protected SCV holder.

Reside in Australia 4.2 Section 23(2) sets out a list of factors that may be relevant to determining whether or not a person resides in Australia. They are: the nature of the accommodation used by the person in Australia; the nature and extent of the family relationships the person has in Australia; the nature and extent of the person’s employment, business or financial ties with Australia; the nature and extent of the person’s assets located in Australia; [page 30]

the frequency and duration of the person’s travel outside Australia; and any other matter relevant to determining whether the person intends to remain permanently in Australia. Of particular relevance during the launch phase, the NDIS rules may require that a person reside (on a date), has resided or continues to reside in a prescribed area in order to meet the residence requirements: s 23(3)(a)–(c). The NDIS rules may also require that a person satisfy a prescribed requirement relating to either or both of the purpose for which the person resides in a particular geographical area and exceptional circumstances applying in relation to the person: s 23(3)(d).

Residence during the launch phase 4.3 The launch phase has some particular residence requirements, given that the

NDIS only applies to some parts of Australia. National Disability Insurance Scheme (Becoming a Participant) Rules 2013 r 4.4 indicates that the following areas are the 2013 NDIS launch areas: South Australia; Tasmania; the areas that comprise the following municipal districts of Victoria (as at the commencement of the NDIS rules): –

Colac-Otway Shire;

–

City of Greater Geelong;

–

Borough of Queenscliffe; and

–

Surf Coast Shire; and

the areas that comprise the following areas of New South Wales proclaimed under s 204 of the Local Government Act 1993 (NSW) as at the commencement of the NDIS rules: –

Lake Macquarie City;

–

Maitland City; and

–

Newcastle City.

Under NDIS r 4.6, a person meets the launch phase qualifying residence requirement if on 1 July 2013 they resided in a 2013 launch area, or on 1 July 2014 reside in the Australian Capital Territory. It is possible for a person to meet the qualifying residence requirement if they start to reside in the 2013 NDIS launch area after 1 July 2013, or the Australian Capital Territory after 1 July 2014. Rule 4.7 requires them to do so for the dominant purpose of accessing supports not provided under the Act (for example, education, employment, health care or family support), and exceptional circumstances apply. As to what ‘exceptional circumstances’ means, an example is provided in that the [page 31]

person would suffer significant financial or personal hardship, which could reasonably be expected to significantly undermine the person’s wellbeing or social or economic participation, by reason of not being a participant.

Residence of children 4.4 The NDIS rules specifically address the residence criterion for a child.

Children 4.5 A child is defined in s 9 of the Act as a person aged under 18 years. For further discussion, see Chapter 14 of this handbook. The qualifying residence requirement for a child may be met by the child, by one of the child’s birth parents who cares for the child or by the child’s guardian with parental responsibility. Where the child’s parents are separated, one parent with parental responsibility must meet the qualifying residence requirement. In the launch phase, NDIS r 4.8 provides that a child meets the qualifying residence requirement if at least one of the child’s birth parents who cares for that child resided in a 2013 NDIS launch area on the day the child was born. The same applies in respect of the Australian Capital Territory, after 1 July 2014. Qualifying residence will be met if the child comes to be in the care of a person who has ongoing parental responsibility for that child and who has resided in a 2013 NDIS launch area since 1 July 2013, and this will be the child’s place of residence. The same applies in respect of the Australian Capital Territory, after 1 July 2014. Where a child spends time with two separated parents, qualifying residence will be met if at least one parent meets the qualifying residence requirement at the relevant date or, alternatively, if one of the child’s parents started to reside in a 2013 NDIS launch area after 1 July 2013, or in the Australian Capital Territory after 1 July 2014, for the dominant purpose of the child accessing supports that are not provided under the Act (for example, education, employment, health care or family support). Exceptional circumstances apply, as explained above.

Continuing residence 4.6 The requirement for residence exists as at the date of the request for access to the NDIS under s 19. However, r 4.2 provides that the residence requirements continue to apply after the person becomes a participant, otherwise their status as a participant can be revoked. NDIS rr 4.9–4.11 further explain that a person meets the ongoing residence requirement at a particular time if, at that time, the person resides in an NDIS launch area. If a participant stops residing in an NDIS launch area, the person continues to satisfy the ongoing residence requirement for a period of 12 months. [page 32]

In the case of a child whose parents are separated and who spends time with each parent, the child meets the ongoing residence requirement at a particular time if, at that time, at least one of the child’s parents resides in an NDIS launch area; and for a period of 12 months if the child is a participant and both the child’s parents stop residing in an NDIS launch area.

Australian citizen 4.7 The residence requirements should be simple enough where the person is an Australian citizen residing in Australia. The Australian Government citizenship website indicates that most children born in Australia before 20 August 1986 are Australian citizens by birth unless one parent was entitled to diplomatic privileges or was a consular officer of another country. Children born after that date are only Australian citizens if at least one parent was an Australian citizen or permanent resident at the time of their birth. Children born in Australia to parents who are not Australian citizens or permanent residents automatically acquire Australian citizenship on their tenth birthday if they have lived most of their life in Australia: see .

Permanent visa holder 4.8 The reference in the Act at s 23(1) to the holder of a permanent visa is assisted by a definition. Both ‘holder’ and ‘permanent visa’ are by the definitions in s 9 given the same meaning as they have under the Migration Act 1958 (Cth). ‘Permanent visa’ in s 30(1) of the Migration Act is said to be ‘a visa to remain in Australia (whether also a visa to travel to and enter Australia), may be a visa, to be known as a permanent visa, to remain indefinitely’. ‘Holder’ simply means the person to whom it (the visa) was granted or a person included in it.

Protected special category visa holder 4.9 An SCV holder who is a protected SCV holder is also explained by a definition in s 9 of the Act: protected SCV holder: a person is a protected SCV holder if: (a)

the person was in Australia on 26 February 2001, and was a special category visa holder on that day; or

(b) the person had been in Australia for a period of, or for periods totalling, 12 months during the 2 years immediately before 26 February 2001, and returned to Australia after that day. [page 33]

LEGISLATION 4.10 Reproduced below are the legislative provisions relevant to the commentary in this chapter.

21 When a person meets the access criteria (1) A person meets the access criteria if: (a) the CEO is satisfied that the person meets the age requirements (see section 22); and (b) the CEO is satisfied that, at the time of considering the request, the person

meets the residence requirements (see section 23); and (c) the CEO is satisfied that, at the time of considering the request: (i)

the person meets the disability requirements (see section 24); or

(ii) the person meets the early intervention requirements (see section 25). (2) If the CEO is not satisfied as mentioned in subsection (1), the person meets the access criteria if the CEO is satisfied of the following: (a) at the time of considering the request, the person satisfies the requirements in relation to residence prescribed as mentioned in subsection 23(3) (whether or not the person also satisfies the requirements mentioned in subsection 23(1)); (b) the person: (i)

was receiving supports at the time of considering the request or, if another time is prescribed by the National Disability Insurance Scheme rules for the purposes of this subparagraph, at that other time; and

(ii) received the supports throughout the period (if any) prescribed by the National Disability Insurance Scheme rules for the purposes of this subparagraph; and (iii) received the supports under a program prescribed by the National Disability Insurance Scheme rules for the purposes of this subparagraph; (c) if the person becomes a participant, the person would not be entitled to receive the supports referred to in paragraph (b), or equivalent supports. [page 34] (3) The CEO is taken to have decided that the prospective participant does not meet the access criteria if: (a) the CEO does not do a thing referred to in paragraph 20(a) or (b) within the 21-day period referred to in section 20; or (b) if subsection 26(2) applies—the CEO does not do one of the things referred to in that subsection within the 14-day period referred to in that subsection. Note 1: The periods may be extended under National Disability Insurance Scheme rules made under section 204. Note 2: Notice of a decision that the CEO is taken to have made must be given because of subsection 100(1) and will be automatically reviewed because of subsection 100(5).

23 Residence requirements (1) A person meets the residence requirements if the person:

(a) resides in Australia; and (b) is one of the following: (i)

an Australian citizen;

(ii) the holder of a permanent visa; (iii) a special category visa holder who is a protected SCV holder; and (c) satisfies the other requirements that are prescribed by the National Disability Insurance Scheme rules. (2) In deciding whether or not a person resides in Australia, regard must be had to: (a) the nature of the accommodation used by the person in Australia; and (b) the nature and extent of the family relationships the person has in Australia; and (c) the nature and extent of the person’s employment, business or financial ties with Australia; and (d) the nature and extent of the person’s assets located in Australia; and (e) the frequency and duration of the person’s travel outside Australia; and (f)

any other matter relevant to determining whether the person intends to remain permanently in Australia. [page 35]

(3) Without limiting paragraph (1)(c), National Disability Insurance Scheme rules made for the purposes of that paragraph: (a) may require that a person reside in a prescribed area of Australia on a prescribed date or a date in a prescribed period in order to meet the residence requirements; and (b) may require that a person has resided in a prescribed area for a prescribed period in order to meet the residence requirements; and (c) may require that a person continue to reside in a prescribed area of Australia in order to meet the residence requirements; and (d) may require that a person satisfy a prescribed requirement relating to either or both of the following: (i)

the purpose for which the person resides in a particular geographical area;

(ii) exceptional circumstances applying in relation to the person.

RULES 4.11 Reproduced below are the rules relevant to the commentary in this chapter.

National Disability Insurance Scheme (Becoming a Participant) Rules 2013 Part 4 When does a person meet the residence requirements? 4.1 A person meets the residence requirements if they: (a) reside in Australia; and (b) are either an Australian citizen, the holder of a permanent visa, or a special category visa holder who is a protected SCV holder; and (c) meet the qualifying residence requirement—see paragraphs 4.6 to 4.8; and (d) meet the ongoing residence requirement—see paragraphs 4.9 to 4.11.

Paragraphs 4.1(a) and (b) summarise paragraphs 23(1)(a) and (b) of the Act. (A range of factors are relevant to whether a person resides in Australia: see subsection 23(2) of the Act.) Paragraphs 4.1(c) and (d) are made for the purposes of paragraph 23(1)(c) of the Act.

[page 36]

4.2 The residence requirements apply when a person seeks to become a participant in the NDIS launch, and continue to apply after the person becomes a participant. If a person stops meeting the residence requirements, their status as a participant in the

NDIS launch can be revoked. This summarises paragraph 30(1)(a) of the Act.

NDIS launch areas 4.3 Under this Part, a person can only meet the residence requirements if the person resides in a particular area of Australia (an NDIS launch area) at a particular time. 4.4 The following areas are the 2013 NDIS launch areas: (a) South Australia; (b) Tasmania; (c) the areas that comprise the following municipal districts of Victoria as at the commencement of these Rules: (i)

Colac-Otway Shire;

(ii) City of Greater Geelong; (iii) Borough of Queenscliffe; (iv) Surf Coast Shire; (d) the areas that comprise the following areas of New South Wales proclaimed under section 204 of the Local Government Act 1993 (NSW) as at the commencement of these Rules: (i)

Lake Macquarie City;

(ii) Maitland City; (iii) Newcastle City.

4.5 The 2013 NDIS launch areas, together with the Australian Capital Territory, constitute the NDIS launch areas. Paragraphs 4.4 and 4.5 define terms used in the remainder of Part 4.

The qualifying residence requirement

4.6 A person meets the qualifying residence requirement if: (a) on 1 July 2013, the person resides in a 2013 NDIS launch area; or (b) on 1 July 2014, the person resides in the Australian Capital Territory. [page 37]

4.7 A person also meets the qualifying residence requirement if: (a) at any time after 1 July 2013, the person starts to reside in a 2013 NDIS launch area; or (b) at any time after 1 July 2014, the person starts to reside in the Australian Capital Territory;

and: (c) the person starts to reside in the relevant NDIS launch area for the dominant purpose of accessing supports not provided under the Act (for example, education, employment, health care or family support); and (d) exceptional circumstances apply—for example, the person would suffer significant financial or personal hardship, which could reasonably be expected to significantly undermine the person’s wellbeing or social or economic participation, by reason of not being a participant.

4.8 A child (that is, a person aged under 18) also meets the qualifying residence requirement if: (a) the child is born after 1 July 2013, and at least one of the child’s birth parents who cares for that child resides in a 2013 NDIS launch area on the day the child is born; or (b) the child is born after 1 July 2014, and at least one of the child’s birth parents who cares for the child resides in the Australian Capital Territory on the day the child is born; or (c) at a time after 1 July 2013, the child comes to be in the care of a person who has ongoing parental responsibility for that child and who has resided in a 2013 NDIS launch area since 1 July 2013, and this will be the child’s place of residence; or (d) at a time after 1 July 2014, the child comes to be in the care of a person who has ongoing parental responsibility for that child and who has resided in the Australian Capital Territory since 1 July 2014, and this will be the child’s place of residence; or

in the case of a child whose parents are separated and who spends time with (e) each parent: (i)

at least one of the child’s parents meets the qualifying residence requirement in paragraph 4.6; or

(ii) the following apply: (A) at least one of the child’s parents started to reside in a 2013 NDIS launch area after 1 July 2013, or in the Australian Capital Territory after 1 July 2014, for the [page 38] dominant purpose of the child accessing supports that are not provided under the Act (for example, education, employment, health care or family support); and (B) exceptional circumstances apply—for example, the child would suffer significant personal hardship (including because of financial hardship to the parent), which could reasonably be expected to significantly undermine their wellbeing or social or economic participation, by reason of not being a participant.

The ongoing residence requirement 4.9 A person meets the ongoing residence requirement at a particular time if, at that time, the person resides in an NDIS launch area. 4.10 If a person who is a participant stops residing in an NDIS launch area, the person continues to satisfy the ongoing residence requirement for a period of 12 months. 4.11 In the case of a child whose parents are separated and who spends time with each parent—the child meets the ongoing residence requirement: (a) at a particular time if, at that time, at least one of the child’s parents resides in an NDIS launch area; and (b) for a period of 12 months if the child is a participant and both the child’s parents stop residing in an NDIS launch area.

[page 39]

CHAPTER 5 Participant Eligibility — Disability or Early Intervention SUMMARY There are three core access criteria. Disability is one of the access criteria, with requirements that the disability must be permanent and result in reduced functional capacity, reduced social and economic participation and a likely requirement for support. An alternative to the disability requirement is the requirement for early intervention. Certain conditions have been listed as probably meeting the necessary criteria.

COMMENTARY Introduction 5.1 Persons seeking access to the NDIS under s 19 of the Act must meet certain access criteria. Section 21 identifies three core criteria, all of which must be met. They are in respect to age, residence and disability. The disability requirements fall into two parts. The primary requirement is that of disability, but there is a subsidiary pathway based on early intervention

needs. Relevant to disability or the need for early intervention are ss 24 and 25.

Disability requirement 5.2 The s 24 disability requirement has five components. They are cumulative, in that all are required: a disability attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to one or more impairments attributable to a psychiatric condition; with a likelihood of permanence; [page 40]

resulting in a substantially reduced functional capacity, in respect of one or more of communication, social interaction, learning, mobility, self-care and self-management; affecting the person’s capacity for social and economic participation; and likely requiring support under the NDIS. Some variation in impairment intensity is envisaged under s 24(2), provided that the person is likely to require NDIS support for the person’s lifetime despite the variation. From those five components, two concepts are further explained by Pt 5 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2013 — permanent impairment and substantially reduced functional capacity.

Permanent impairment 5.3 The permanency of impairment requirement is further explored in the rules, which state at r 5.4 that 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. Impairment may be permanent even if there is fluctuating severity. So, it is

not a barrier to meeting the requirement of permanence if there may be fluctuating severity of impact on the functional capacity of the person. Similarly, it is not a barrier if there are prospects that the severity of the impact of the impairment on the person’s functional capacity, including their psychosocial functioning, may improve. Rule 5.5 deals with those matters. Medical treatment and review may sometimes be required before a decision can be made about whether the impairment is likely to be permanent. Rule 5.6 therefore makes clear that the threshold of permanent impairment is met only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated, even though the impairment may continue to be treated and reviewed after this has been demonstrated. Degenerative conditions are deemed under r 5.7 to be permanent if medical or other treatment would not, or would be not likely to, improve the condition.

Substantially reduced functional capacity 5.4 The term ‘substantially’, used in s 24 of the Act (requiring a substantially reduced functional capacity), is not defined in the Act. However, r 5.8 explains that an impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities (communication, social interaction, learning, mobility, self-care and self-management) if the result is one of the following: [page 41]

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 (other than commonly used items such as glasses) or home modifications; the person usually requires assistance (including physical assistance, guidance, supervision or prompting) 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 to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.

Listed conditions 5.5 On the NDIS website there is published a list of conditions which generally will meet the criteria of impairment, permanence and substantially reduced functional capacity. As at the time of writing those conditions were: amputations (traumatic, involving multiple body regions); Angelman syndrome; Cornelia de Lange syndrome; Cri du Chat syndrome; deafblindness; Edwards’ syndrome; Patau’s syndrome; Prader Willi syndrome; retinal disorders/defects; Rett’s syndrome/disorder; spinal cord injury — paraplegia; and spinal cord injury — tetraplegia. On the NDIS website there is also published a list of conditions which generally will meet the criteria of impairment and permanence. However, for these conditions, evidence may be required as to substantially reduced functional capacity. As at the time of writing those conditions were: Alzheimer’s disease; autism;

cerebral palsy; CHARGE syndrome; corneal disorders/defects; deaf mutism; deafness/hearing loss; dementia; [page 42]

Down syndrome; epilepsy; Fragile X syndrome; glaucoma; head injury/acquired brain damage; Huntington’s disease; intellectual disability/mental retardation; motor neurone disease; multiple sclerosis; muscular dystrophy; paralysis; Parkinson’s disease; retinal disorders/defects; sight loss; spina bifida; stroke; and Williams syndrome.

Early intervention requirements 5.6 A person may be entitled to access the NDIS despite not meeting the disability requirement, if the person meets the s 25 early intervention requirements. There are three cumulative requirements. It is noteworthy that the requirements incorporate a determination on the part of the NDIS CEO: A person has impairments likely to be permanent (being intellectual, cognitive, neurological, sensory, physical or attributable to a psychiatric condition) or is a child who has developmental delay. ‘Developmental delay’ is defined in s 9 of the Act, as explained below. Early intervention requirements are likely to benefit the person by reducing the person’s future needs for supports in relation to disability, to the satisfaction of the CEO. Early intervention requirements are likely to benefit the person by various qualitative concepts focused on improved functional capacity or by strengthening the sustainability of informal supports available to the person, including through building the capacity of the person’s carer, to the satisfaction of the CEO. ‘Carer’ is defined in s 9 of the Act, as explained below. The likely benefits to the person are explained in more detail in s 25, as follows: –

mitigating or alleviating the impact of the person’s impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self care or self management; [page 43]

–

preventing the deterioration of such functional capacity;

–

improving such functional capacity; or

–

strengthening the sustainability of informal supports available to

the person, including through building the capacity of the person’s carer. A note to the legislation at s 25 observes that in certain circumstances, a person with a degenerative condition could meet the early intervention requirements. As mentioned above, ‘developmental delay’ is defined in s 9 of the Act. The definition expressly refers to a child under six years of age: developmental delay means a delay in the development of a child under 6 years of age that: (a)

is attributable to a mental or physical impairment or a combination of mental and physical impairments; and

(b) results in substantial reduction in functional capacity in one or more of the following areas of major life activity: (i)

self-care;

(ii) receptive and expressive language; (iii) cognitive development; (iv) motor development; and (c)

results in the need for a combination and sequence of special interdisciplinary or generic care, treatment or other services that are of extended duration and are individually planned and coordinated.

‘Carer’ is defined in s 9 of the Act. The emphasis appears to be on voluntary care, which is not paid care, training or charitable voluntary work: carer means an individual who: (a)

provides personal care, support and assistance to another individual who needs it because that other individual is a person with disability; and

(b) does not provide the care, support and assistance: (i)

under a contract of service or a contract for the provision of services; or

(ii) in the course of doing voluntary work for a charitable, welfare or community organisation; or (iii) as part of the requirements of a course of education or training.

The determination by the NDIS CEO is taken to be satisfied if (though perhaps not only if) one or more of the person’s impairments are prescribed by the NDIS rules. See 5.8 below for a list of conditions published on the NDIS website which generally will meet the criteria for provision of early intervention

supports. The determination by the NDIS CEO may lead to a decision under s 25(3) that support for such a person is more appropriately funded or provided through other [page 44]

general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered as part of a universal service obligation or in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.

Criteria to be applied for early intervention 5.7 Rule 6.9 indicates that in deciding whether provision of early intervention supports is likely to benefit a person, it is expected that the CEO would consider: the likely trajectory and impact of the person’s impairment over time; the potential benefits of early intervention on the impact of the impairment on the person’s functional capacity and in reducing their future needs for supports; and evidence from a range of sources, such as information provided by the person with disability, by their family members or carers, or expert opinion obtained by the CEO.

Listed conditions 5.8 On the NDIS website there is published a list of conditions which generally will meet the criteria for provision of early intervention supports. As at the time of writing those conditions were: Angelman syndrome; Asperger’s disorder/syndrome; Autistic disorder; cerebral palsy;

CHARGE syndrome; Childhood disintegrative disorder; Cornelia de Lange syndrome; Cri du Chat syndrome; deafblindness; deafness/hearing loss — moderate or greater loss; Down syndrome; Fragile X syndrome; Kabuki syndrome; microcephaly; Pervasive developmental disorder — not otherwise specified; Prader Willi syndrome; Rett’s syndrome/disorder; vision loss — moderate or greater loss; Smith-Magenis syndrome; and Williams syndrome. [page 45]

LEGISLATION 5.9 Reproduced below are the legislative provisions relevant to the commentary in this chapter.

21 When a person meets the access criteria (1) A person meets the access criteria if: (a) the CEO is satisfied that the person meets the age requirements (see section 22); and

(b) the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and (c) the CEO is satisfied that, at the time of considering the request: (i)

the person meets the disability requirements (see section 24); or

(ii) the person meets the early intervention requirements (see section 25). (2) If the CEO is not satisfied as mentioned in subsection (1), the person meets the access criteria if the CEO is satisfied of the following: (a) at the time of considering the request, the person satisfies the requirements in relation to residence prescribed as mentioned in subsection 23(3) (whether or not the person also satisfies the requirements mentioned in subsection 23(1)); (b) the person: (i)

was receiving supports at the time of considering the request or, if another time is prescribed by the National Disability Insurance Scheme rules for the purposes of this subparagraph, at that other time; and

(ii) received the supports throughout the period (if any) prescribed by the National Disability Insurance Scheme rules for the purposes of this subparagraph; and (iii) received the supports under a program prescribed by the National Disability Insurance Scheme rules for the purposes of this subparagraph; (c) if the person becomes a participant, the person would not be entitled to receive the supports referred to in paragraph (b), or equivalent supports. (3) The CEO is taken to have decided that the prospective participant does not meet the access criteria if: [page 46] (a) the CEO does not do a thing referred to in paragraph 20(a) or (b) within the 21-day period referred to in section 20; or (b) if subsection 26(2) applies—the CEO does not do one of the things referred to in that subsection within the 14-day period referred to in that subsection. Note 1: The periods may be extended under National Disability Insurance Scheme rules made under section 204. Note 2: Notice of a decision that the CEO is taken to have made must be given because of subsection 100(1) and will be automatically reviewed because of subsection 100(5).

24 Disability requirements

(1) A person meets the disability requirements if: (a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to one or more impairments attributable to a psychiatric condition; and (b) the impairment or impairments are, or are likely to be, permanent; and (c) the impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities: (i)

communication;

(ii) social interaction; (iii) learning; (iv) mobility; (v) self-care; (vi) self-management; and (d) the impairment or impairments affect the person’s capacity for social or economic participation; and (e) the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime. (2) For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.

25 Early intervention requirements (1) A person meets the early intervention requirements if: [page 47] (a) the person: (i)

has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or

(ii) has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent; or (iii) is a child who has developmental delay; and (b) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person’s future needs for supports in relation to disability; and (c) the CEO is satisfied that provision of early intervention supports for the

person is likely to benefit the person by: (i)

mitigating or alleviating the impact of the person’s impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or

(ii) preventing the deterioration of such functional capacity; or (iii) improving such functional capacity; or (iv) strengthening the sustainability of informal supports available to the person, including through building the capacity of the person’s carer. Note:

In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.

(2) The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person’s impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection. (3) Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered: (a) as part of a universal service obligation; or (b) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.

[page 48]

RULES 5.10 Reproduced below are the rules relevant to the commentary in this chapter.

National Disability Insurance Scheme (Becoming a Participant) Rules 2013 Part 5 When does a person meet the disability requirements?

5.1 The Act sets out when a person meets the disability requirements. The requirements are met if: (a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments, or to one or more impairments attributable to a psychiatric condition; and (b) the person’s impairment or impairments are, or are likely to be, permanent (see paragraphs 5.4 to 5.7); and (c) the impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities: communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.8); and (d) the impairment or impairments affect the person’s capacity for social and economic participation; and (e) the person is likely to require support under the NDIS for the person’s lifetime.

5.2 In relation to the above, an impairment that varies in intensity (for example because the impairment is of a chronic episodic nature) may be permanent, and the person is likely to require support under the NDIS for the person’s lifetime, despite the variation. Paragraphs 5.1 and 5.2 summarise section 24 of the Act. 5.3 This Part sets out rules relating to some of the elements in paragraph 5.1 above, however, in order to meet the disability requirements, all of the requirements in that paragraph need to be satisfied.

When is an impairment permanent or likely to be permanent for the disability requirements? 5.4 An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known, available and [page 49]

appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment. 5.5 An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person’s functional capacity, including their psychosocial functioning, may improve. 5.6 An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated). 5.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve it. Paragraphs 5.4 to 5.7 are made for the purposes of paragraph 27(1)(a) of the Act.

When does an impairment result in substantially reduced functional capacity to undertake relevant activities? 5.8 An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that: (a) 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 (other than commonly used items such as glasses) or home modifications; or (b) the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or (c) the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person. [page 50]

Paragraph 5.8 is made for the purposes of paragraph 27(1)(b) of the Act.

Part 6 When does a person meet the early intervention requirements? 6.1 A person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is more appropriately funded or provided through another service system (service systems is defined in paragraph 8.4) rather than the NDIS. 6.2 However, a requirements if:

person

meets

the

early

intervention

(a) the person: (i)

has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent (see paragraphs 6.4 to 6.7); or

(ii) has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent (see paragraphs 6.4 to 6.7); or (iii) is a child who has developmental delay; and

(b) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person’s future needs for supports in relation to disability (see paragraphs 6.8 to 6.11); and (c) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by: (i)

mitigating or alleviating the impact of the person’s impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or

(ii) preventing the deterioration of such functional capacity; or (iii) improving such functional capacity; or (iv) strengthening the sustainability of informal supports available to the person, including through building the capacity of the person’s carer (see paragraphs 6.8 to 6.11).

Paragraph 6.1 summarises subsection 25(3) of the Act. Paragraph 6.2 summarises subsection 25(1) of the Act. 6.3 This Part sets out rules relating to some of the elements in paragraph 6.2 above, however, in order to meet the early intervention [page 51]

requirements, all of the requirements in that paragraph need to be satisfied.

When is an impairment permanent or likely to be permanent for the early intervention requirements? 6.4 An impairment is, or is likely to be, permanent (see paragraphs 6.2(a)(i) and (ii)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.

6.5 An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person’s functional capacity may improve. 6.6 An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated). 6.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve it. Paragraphs 6.4 to 6.7 are made for the purposes of paragraph 27(1)(a) of the Act.

Deciding whether provision of early intervention supports is likely to benefit the person 6.8 Where paragraph 6.2(a) applies to a person, the main way in which the CEO can determine whether the provision of early intervention supports is likely to benefit the person in the ways set out in paragraphs 6.2(b) and (c) above is to consider evidence going to those matters, as indicated in paragraph 6.9 below. However, young children who have an impairment resulting in developmental delay (see paragraph 6.10) or resulting from a particular condition (see paragraph 6.11) will not need to provide further evidence of the matters in paragraphs 6.2(b) and (c).

[page 52]

Where evidence is required 6.9 In deciding whether provision of early intervention supports is likely to benefit the person in the ways mentioned in paragraphs 6.2(b) and (c) above, it is expected that the CEO would consider: (a) the likely trajectory and impact of the person’s impairment over time; and (b) the potential benefits of early intervention on the impact of the impairment on the person’s functional capacity and in reducing their future needs for supports; and (c) evidence from a range of sources, such as information provided by the person with disability or their family members or carers. The CEO may also in some cases seek expert opinion.

Paragraph 6.9 does not compel the CEO to take the actions mentioned in that paragraph in any particular instance.

Early intervention in early childhood 6.10 The CEO is taken to be satisfied that provision of early intervention supports for a child under the age of 6 is likely to benefit the child in the ways mentioned in paragraphs 6.2(b) and (c) above if one or more of the child’s impairments is a mental or physical impairment which, by itself or in combination with other mental or physical impairments, results in developmental delay. Note:

Developmental delay is defined in section 9 of the Act as a delay in the development of a child under 6 years of age that:

(a) is attributable to a mental or physical impairment or a combination of mental and physical impairments; and (b) results in substantial reduction in functional capacity in one or more of the following areas of major life activity: (i)

self-care;

(ii) receptive and expressive language; (iii) cognitive development; (iv) motor development; and (c) results in the need for a combination and sequence of special interdisciplinary or generic care, treatment or other services that are of extended duration and are individually planned and coordinated.

6.11 The provision of early intervention supports is likely to benefit a child aged 6 or under in the ways mentioned in paragraphs 6.2(b) [page 53]

and (c) above in the circumstance that one or more of the child’s impairments results from a condition which is on a list of conditions published by the CEO for which evidence has established that early intervention supports will have these benefits. Paragraph 6.10 is made for the purposes of subsection 25(2) of the Act. Paragraph 6.11 is made for the purposes of paragraphs 27(1)(d), (e) and (f) of the Act.

Part 7 Assessing whether a person meets the disability or early intervention requirements 7.1 In deciding whether a prospective participant meets the disability requirements or the early intervention requirements, the CEO may, if the CEO considers it appropriate, conduct an assessment, which is to be done using an assessment tool specified in operational guidelines in accordance with this Part from time to time.

Specification of assessment tools in guidelines 7.2 The CEO may specify, in operational guidelines, assessment tools that may be used for the purposes of deciding whether a person meets the disability requirements or the early intervention requirements. 7.3 A tool specified under paragraph 7.2 may be the same as a tool specified under paragraph 4.4 of the National Disability Insurance Scheme (Supports for Participants) Rules 2013. 7.4 Without limitation, the CEO may specify: (a) different tools to be used for adults and children; and (b) tools that are specifically tailored to particular impairments.

7.5 A tool must: (a) be designed to ensure the fair and transparent assessment of whether a person meets the disability requirements or the early intervention requirements; and (b) have reference to areas of activity and social and economic participation identified in the World Health Organisation International Classification of Functions, Disability and Health as in force from time to time.

This Part is made for the purposes of subsection 209(2A) of the Act.

[page 55]

CHAPTER 6 Participant Eligibility — Alternative Way SUMMARY There are three core access criteria: age, residence and disability. A person not meeting the three access criteria may nonetheless access the scheme in limited circumstances. The limited circumstances focus on the residence criterion and the prior receipt of supports from specified programs.

COMMENTARY 6.1 Persons seeking access to the NDIS under s 19 of the Act must meet certain access criteria. Section 21 identifies three core criteria, all of which must be met. They are in respect to age, residence and disability. However, at least in the launch phases, meeting the residence criterion and the prior receipt of supports from specified programs may permit a person to be deemed to meet the access criteria and hence access the scheme. Section 21(2) deals with this alternative pathway. It applies where the NDIS CEO is not satisfied that the person meets the three core access criteria required by s 21(1), other than for the residence criteria in s 23(3).

If such a person was receiving supports under a program prescribed by the NDIS rules, yet if they became a participant the person would not be entitled to receive equivalent supports, then they will be said to meet the access criteria. The practical scope of this alternative pathway remains unclear at the time of writing. [page 56]

LEGISLATION 6.2 Reproduced below are the legislative provisions relevant to the commentary in this chapter.

21 When a person meets the access criteria (1) A person meets the access criteria if: (a) the CEO is satisfied that the person meets the age requirements (see section 22); and (b) the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and (c) the CEO is satisfied that, at the time of considering the request: (i)

the person meets the disability requirements (see section 24); or

(ii) the person meets the early intervention requirements (see section 25). (2) If the CEO is not satisfied as mentioned in subsection (1), the person meets the access criteria if the CEO is satisfied of the following: (a) at the time of considering the request, the person satisfies the requirements in relation to residence prescribed as mentioned in subsection 23(3) (whether or not the person also satisfies the requirements mentioned in subsection 23(1)); (b) the person: (i)

was receiving supports at the time of considering the request or, if another time is prescribed by the National Disability Insurance Scheme rules for the purposes of this subparagraph, at that other time; and

(ii) received the supports throughout the period (if any) prescribed by the National Disability Insurance Scheme rules for the purposes of this subparagraph; and

received the supports under a program prescribed by the National (iii) Disability Insurance Scheme rules for the purposes of this subparagraph; (c) if the person becomes a participant, the person would not be entitled to receive the supports referred to in paragraph (b), or equivalent supports. [page 57] (3) The CEO is taken to have decided that the prospective participant does not meet the access criteria if: (a) the CEO does not do a thing referred to in paragraph 20(a) or (b) within the 21-day period referred to in section 20; or (b) if subsection 26(2) applies—the CEO does not do one of the things referred to in that subsection within the 14-day period referred to in that subsection. Note 1: The periods may be extended under National Disability Insurance Scheme rules made under section 204. Note 2: Notice of a decision that the CEO is taken to have made must be given because of subsection 100(1) and will be automatically reviewed because of subsection 100(5).

RULES 6.3 Reproduced below are the rules relevant to the commentary in this chapter.

National Disability Insurance Scheme (Becoming a Participant) Rules 2013 Alternative way to meet the access criteria 7.1 If a person does not meet the age requirements, or the disability or early intervention requirements, the person nevertheless meets the access criteria if the CEO is satisfied of all of the following: (a) the person meets the qualifying residence requirement and the ongoing residence requirement in Part 4; (b) the person received supports under a program listed in the table below

(which may be a component of a broader program); (c) the person received those supports at the time set out in the table below in relation to the relevant program; (d) the person received the supports throughout the period set out in the table below in relation to the relevant program; (e) if the person becomes a participant, the person would not be entitled to receive the supports under the relevant program listed below, or equivalent supports. [page 58] Program

[program name; also include other details eg the administering Department if necessary to precisely identify the program]

NDIS launch area where program delivered Time of receiving supports

[eg ‘at the time the CEO considers the access request’ or specify another time]

Period of receiving supports

[eg 1 July 2012 – 1 January 2013]

[page 59]

PART C Compensation

[page 61]

CHAPTER 7 Compensation Claims and Recoveries SUMMARY The NDIS CEO may require a person to take action to obtain compensation, failing which the participant’s plan may be suspended. This NDIS CEO may start or take over an action to obtain compensation. The Agency may recover NDIS amounts from compensation. The NDIS CEO may disregard payments in special circumstances.

compensation

COMMENTARY Introduction 7.1 The provisions of the Act regarding compensation are relatively complex and have given rise to controversy because of the interplay between the ‘no fault’ fundamentals of the scheme and the Act’s attention to pursuit of compensation alternatives. Readers with a particular interest in this issue may wish to refer to the discussion by Professor Harold Luntz in his article ‘Compensation Recovery and the National Disability Insurance Scheme’ (2013) 20 Torts Law Journal 153–

207. The compensation provisions of the Act in Chapter 5, ss 104–116 address two broad issues. The first is the proposed recovery of compensation and the second is relevant if compensation is recovered. The relevant rules are the National Disability Insurance Scheme (Supports for Participants — Accounting for Compensation) Rules 2013. The relevant r 1.1 states that the NDIS is designed to complement, not replace, existing compensation arrangements for personal injury. The NDIS rules seek to ensure that where individuals receive compensation payments, the NDIS does not duplicate the funding for supports already provided for by these payments. In considering whether or not to approve a statement of participant supports in a plan for the participant (whether the first plan or a revised plan), the NDIS CEO is to take account of the compensation by reducing the funding for reasonable and necessary supports: r 3.5 [page 62]

Requirement to seek compensation 7.2 A person otherwise meeting the core participant eligibility elements of age, residence and disability may be precluded from access to the scheme, or at least have their access delayed or suspended, in circumstances where they have rights to receive compensation elsewhere. Compensation is defined in s 11 of the Act: compensation means a payment (with or without admission of liability) in respect of: (a)

compensation or damages in respect of personal injury; or

(b) personal injury, under a scheme of insurance or compensation under a Commonwealth, State or Territory law, including a payment under a contract entered into under such a scheme; or (c)

personal injury, in settlement of a claim for damages or a claim under such an insurance scheme;

that is wholly or partly in respect of the cost of supports that may be provided to a participant (whether or not specifically identified as such). It does not matter whether the payment is made directly to the person who sustained the personal injury or to another person in respect of that person.

Section 104 is the key section. It applies if an NDIS participant or a prospective participant is, or in the CEO’s opinion may be, entitled to compensation in respect of a personal injury and that person has taken no action or no reasonable action to claim or obtain the compensation. In those circumstances, the CEO may, by written notice, require the participant or prospective participant to take the action specified in the notice within the period specified in the notice. The action must be action that is reasonable to enable the person to claim or obtain the compensation.

Taking reasonable action 7.3 Under s 104(3), in considering whether it is reasonable to require a participant or prospective participant to take an action, the CEO must have regard to the following: the disability of the participant or prospective participant; the circumstances which give rise to the entitlement or possible entitlement to compensation; any impediments the participant or prospective participant may face in recovering compensation; any reasons given by the participant or prospective participant as to why he or she has not claimed or obtained compensation; the financial circumstances of the participant or prospective participant; and the impact of the requirement to take the action on the participant or prospective participant and his or her family. [page 63]

Those six matters are discussed in the table below. Table 7.1: Factors informing what is reasonable action Factor

Commentary

The disability of the participant or prospective participant.

This may be a reference to the capacity of the person as it may impact on their ability to instruct lawyers to pursue litigation. It may also be taken as a reference to the severity of the disability which would inform the potential quantum of compensation and hence the commercial viability of a claim.

The circumstances which give rise to the entitlement or possible entitlement to compensation.

This may be a reference to a number of factors impacting the commercial viability of a compensation claim. In a potential tort claim, for example, the circumstances may include the place of the tort as litigation in other countries may be more difficult than in Australia.

Any impediments the participant ‘Impediments’ may also be taken as a broad reference or prospective participant may to the commercial viability of a claim. Examples may face in recovering compensation. include the availability of insurance for a defendant. Equally, impediments may include the non-availability of relevant documents or witnesses. Any reasons given by the participant or prospective participant as to why he or she has not claimed or obtained compensation.

‘Any reasons’ is clearly a broad label, but this element does emphasise the intended opportunity for a participant or prospective participant to explain a decision taken by them.

The financial circumstances of the participant or prospective participant.

The financial circumstances of the participant or prospective participant may permit reference to the potential costs of litigation and the difficulty of meeting those costs should the person have limited funds. Equally, however, it may be relevant on occasion that the person is financially comfortable, such that recovery of compensation is not financially necessary for them. Another factor may be their exposure to an adverse costs order should the compensation claim fail.

The impact of the requirement to take the action on the participant or prospective participant and his or her family.

Apart from the financial burden and risk issues mentioned above, the reference to impact on the person or their family may be relevant where the potential defendant to a claim is another family member, particularly absent insurance. Examples may include the uninsured occupier of a home where an injury occurred. [page 64]

The issue of a notice

7.4 If satisfied of the matters in s 104(1), the CEO under s 104(2) may by written notice, require the participant or prospective participant to take the action specified in the notice within the period specified in the notice. The action must be action that is reasonable to enable the person to claim or obtain the compensation. Presumably the actions envisaged may include sending a letter of demand, lodging a claim form and/or issuing court proceedings. The time period is later constrained by s 104(5) to be at least 28 days.

Reasonable prospects of success 7.5 The CEO must not give a notice requiring a participant or prospective participant to take action to claim or obtain compensation unless the CEO is satisfied that the participant or prospective participant has reasonable prospects of success in claiming or obtaining the compensation: s 104(4). The phrase ‘reasonable prospects of success’ is not defined in the Act or in the rules. It is similar to a phrase appearing in the Legal Profession Act 2004 (NSW) s 345, which the New South Wales Court of Appeal has held to mean a reasonable belief that the provable facts and a reasonably arguable view of the law mean that the prospects of recovering damages or defeating a claim, or obtaining a reduction in the damages claimed, are fairly arguable: Lemoto v Able Technical Pty Ltd [2005] NSWCA 153; (2005) 63 NSWLR 300.

Personal injury compensation 7.6 The compensation, defined in s 11 (as noted above at 7.2), is ‘in respect of a personal injury’. ‘Personal injury’ is not defined in the Act. The s 11(b) definition appears to envisage compensation from sources such as criminal injury compensation schemes and transport accident schemes. Not all of these are fault based. Other forms of compensation (in the sense of court-ordered damages awards for matters other than personal injury) do not appear to be included. The s 11(a) definition of compensation does not appear to be limited to compensation recoverable from an incident in Australia, so may extend to compensation available in circumstances where a person suffers injury in another

country. This is reinforced by s 11(2) which expressly extends to payments made within or outside Australia. The relevant compensation payment is one which is wholly or partly in respect of the cost of supports that may be provided to a participant under the scheme, whether or not specifically identified as such. It does not matter whether the payment is made directly to the person who sustained the personal injury or to another person in respect of that person. This may extend for example to wrongful birth compensation recoveries for children with a disability, which are recoverable by the parents, not the child: see Cattanach v Melchior [2003] HCA 38; (2003) 215 CLR 1. [page 65]

Pre-existing agreements regarding compensation 7.7 Section 104(6) deals with pre-existing agreements. It provides that even though a participant or a prospective participant has entered into an agreement to give up his or her right to compensation, the CEO may form the opinion that the participant or prospective participant may be entitled to compensation if the CEO is satisfied that the agreement is void, ineffective or unenforceable. The reference to ‘give up his or her right to compensation’ does not expressly address giving up rights in return for a payment, albeit a modest and perhaps inadequate payment. That may be implied. An unenforceable agreement may well exist where it has been entered into with a person suffering a disability who lacks legal capacity. However, that will not always be the case. Indeed, on occasion, a court may have approved a settlement of a claim by a disabled person for no compensation sum but only for a release from exposure to an adverse costs order, where a compensation claim appears to have little merit. Where a claim for compensation was made and has been abandoned by agreement which is not void, ineffective or unenforceable, the CEO may have little choice other than to accept that, even if it appears to the CEO that the agreement was not reasonable.

Suspension of participant’s plan 7.8 Section 105 deals with the consequences of failure to comply with a requirement to take action to obtain compensation in accordance with a notice issued by the CEO. If a participant does not take the required action, their plan may be suspended. If only a prospective participant, their plan will not come into effect until the prospective participant takes the required action. The wording of the s 104(2) notice will be of importance. A notice requiring only the issue of a claim may permit easy compliance, whereas a notice requiring (for example) the pursuit of a claim through to recovery of compensation may be a much more prolonged matter, especially for an infant. If a participant or prospective participant does not take the required s 104(2) action within the period specified by the CEO’s notice, and the action is to enable the person to claim or obtain compensation ‘otherwise than under a scheme of compensation under a Commonwealth, State or Territory law’, the CEO may under s 105(4) take action to claim or obtain compensation in the name of the participant or prospective participant or take over the conduct of any existing claim. Section 105(4) does not apply to a scheme of compensation under a Commonwealth, state or territory law. It is unclear what may happen in practice where a s 104(2) notice has been issued in respect of such claims and is not complied with. Perhaps that will see the participant’s plan suspended indefinitely. [page 66]

Advice in anticipation of settlements 7.9 Under NDIS r 3.8, if requested to do so by a person who has suffered an injury and is considering a settlement the CEO may advise the person in relation to the likely compensation reduction amount, or elements of the likely compensation reduction amount, that would apply in relation to the settlement or agreement. However, under NDIS r 3.9 no action lies against the CEO or any other person in relation to advice given about the compensation reduction

amount.

Pursuit of compensation by CEO 7.10 If a participant or prospective participant does not take the required action to enable the person to claim or obtain compensation otherwise than under a scheme of compensation under a Commonwealth, state or territory law, the CEO may under s 105(4) take action to claim or obtain compensation in the name of the participant or prospective participant or take over the conduct of any existing claim. For compensation or damages in respect of personal injury generally, the existence of s 105(4) may introduce an incentive for persons not to pursue compensation claims themselves, in the hope that the CEO will choose to do so. That may be the case particularly because of s 105A(1), which deals with costs. If the CEO takes action to claim or obtain compensation, or takes over the conduct of an existing claim, the Agency becomes liable to pay all costs of and incidental to that claim that would otherwise be payable by the person who originally made the claim, or the person in whose name the claim was made, other than costs unreasonably incurred by that person. The reference to ‘all costs’ may, arguably, extend to adverse costs orders should the claim fail. Under s 105A(2) the CEO may take whatever steps are appropriate to bring the claim to a conclusion. If the claim is before a court, the CEO may settle the proceedings either with or without obtaining judgment and take such steps as are necessary to enforce a judgment. The Act includes provisions for signing of documents and the like. Under s 105B, any amount obtained as a result of a claim made or taken over by the CEO must be paid to the Agency. The Agency must deduct from the amount of those damages an amount equal to the total of all previous NDIS amounts paid to, or for the benefit of, the participant and the amount of any costs incidental to the claim paid by the Agency. The Agency must pay the balance to the participant or prospective participant.

Potential for conflicts of interest

7.11 There is perhaps some potential for conflicts to arise between the interests of the CEO/Agency and the participant. If, for example, a compensation claim is settled on a compromise basis for less than full value, s 105B nevertheless appears to [page 67]

provide for all NDIS amounts to be paid to the Agency before any payments to the participant. Such an approach may deplete other amounts recovered, such as non-economic loss (general damages) and loss of earning capacity compensation.

If compensation is recovered 7.12 Turning to circumstances where compensation is recovered, the Act facilitates the Agency’s recovery of amounts paid under the NDIS. Sections 106 and 107 apply to judgments and settlements respectively, the key difference being that judgments (s 106) generally identify each component of the compensation recovered, whereas settlements (s 107) do not. Section 106 applies in the event of a judgment given in respect of a personal injury that has to any extent caused a participant’s impairment, whether or not the participant was a participant at the time of the injury. It may be important to note that s 106 carefully refers to personal injury that has caused a participant’s impairment. It does not require that the claim be made by a participant and so, for example, would appear to extend to a wrongful birth claim brought by a parent in relation to an impairment suffered by a child. That assumes, of course, that wrongful birth claims are accepted to be personal injury claims: see Waller v James [2013] NSWSC 497 at [309]. Less likely, but perhaps not impossible given the language of s 106, is an extension to a mental harm claim, which arguably is given ‘in respect of’ a personal injury that has caused a participant’s impairment. However, a better approach may be to see the mental harm claim as secondary rather than one given in respect of a personal injury that has caused a participant’s impairment. To enable recovery under s 106, the NDIS amounts (called ‘past NDIS

amounts’) must predate the day of the judgment. Section 106(1) finally requires that the judgment specifies a portion (the past NDIS support component) of the amount of compensation to be a component for supports of a kind funded or provided under the NDIS.

The recoverable amount 7.13 Section 106(2), (4) and (5) provides a mechanism for identification of the recoverable amount. If the past NDIS support component in the judgment exceeds the past NDIS amounts then only the past NDIS amounts are payable to the Agency. If there is an apportionment of the judgment (such as perhaps may be made for contributory negligence) then the sum of the past NDIS amounts is to be reduced by the proportion corresponding to the proportion of liability that is apportioned to the participant by the judgment: s 106(3). [page 68]

An overall cap on recovery by the Agency is created by s 106(5), such that the amount recoverable cannot exceed the balance of the judgment after various other charges are deducted. These are generally in relation to charges for Medicare, Aged Care and Centrelink. As mentioned above at 7.12, ss 106 and 107 apply to judgments and settlements respectively, the key difference being that judgments (s 106) generally identify each component of the compensation recovered, whereas settlements (s 107) do not. Section 107 approaches this problem by identifying the recoverable amount as being the sum of the past NDIS amounts. As in s 106, if there is an apportionment of the judgment (such as perhaps may be made for contributory negligence) then the sum of the past NDIS amounts is to be reduced by the proportion corresponding to the proportion of liability that is apportioned to the participant by the judgment. An overall cap on recovery by the Agency is again created, such that the amount recoverable cannot exceed the balance of the

judgment after various other charges are deducted. These are generally in relation to charges for Medicare, Aged Care and Centrelink. There may arise some disincentive or danger in respect of settlements, given the differing approach of ss 106 and 107. Assume that a person has a disability at birth and is then further injured. A later compensation claim may result in an award for additional care needs, but not all care needs. The past NDIS amounts may have been for all care needs. Absent a judgment, the Agency would under s 107 be able to recover the entire past NDIS amounts. However, a discretion on the part of the CEO is available under s 116 which might be applied in circumstances such as this. The CEO may treat the whole or part of a compensation payment as not having been fixed by a judgment (including a consent judgment) or settlement, if the CEO thinks it is appropriate to do so in the special circumstances of the case.

Notices to compensation payers and insurers 7.14 To facilitate recovery from compensation payments, the Act provides for notices to be sent direct to compensation payers and insurers (s 109) and creates an offence should the compensation payer or insurer not notify the CEO in certain circumstances: s 110). Similarly, the Act provides for sending of recovery notices to compensation payers or insurers (s 111), so as to facilitate payment directly from an insurer to the Agency rather than via a participant. These processes are similar to those which have been in place for recovery of Medicare and Centrelink benefits from compensation payments. The giving of notices to an insurer may suspend the insurer’s liability to pay compensation to the person: s 112. Should payment ultimately be made by an insurer to the Agency, that will operate to the extent of the payment as a discharge of the compensation payer’s liability to pay compensation to the participant: s 113. [page 69]

Offences are created should a compensation payer or insurer, in receipt of a

notice, pay moneys direct to a participant rather than the Agency (s 114) and the compensation payer or insurer may be liable to pay the Agency anyway, despite having paid the participant: s 115.

LEGISLATION 7.15 Reproduced below are the legislative provisions relevant to the commentary in this chapter.

Chapter 5—Compensation payments Part 1—Requirement to take action to obtain compensation 104 CEO may require person to take action to obtain compensation (1) This section applies if: (a) a participant or a prospective participant is, or in the CEO’s opinion may be, entitled to compensation in respect of a personal injury; and (b) the participant or prospective participant: (i)

has taken no action to claim or obtain the compensation; or

(ii) has taken no reasonable action to claim or obtain the compensation. (2) The CEO may, by written notice, require the participant or prospective participant to take the action specified in the notice within the period specified in the notice. The action must be action that is reasonable to enable the person to claim or obtain the compensation. (3) In considering whether it is reasonable to require a participant or prospective participant to take an action, the CEO must have regard to the following: (a) the disability of the participant or prospective participant; (b) the circumstances which give rise to the entitlement or possible entitlement to compensation; (c) any impediments the participant or prospective participant may face in recovering compensation; (d) any reasons given by the participant or prospective participant as to why he or she has not claimed or obtained compensation; (e) the financial circumstances of the participant or prospective participant;

[page 70] (f)

the impact of the requirement to take the action on the participant or prospective participant and his or her family.

(4) The CEO must not give a notice under subsection (2) requiring a participant or prospective participant to take action to claim or obtain compensation unless the CEO is satisfied that the participant or prospective participant has reasonable prospects of success in claiming or obtaining the compensation. (5) The period specified by the CEO must be a period of at least 28 days after the day on which the notice is given. (5A) The CEO may, on application by the participant or prospective participant, extend the specified period. (6) Even though a participant or a prospective participant has entered into an agreement to give up his or her right to compensation, the CEO may form the opinion that the participant or prospective participant may be entitled to compensation if the CEO is satisfied that the agreement is void, ineffective or unenforceable.

105 Consequences of failure to comply with a requirement to take action to obtain compensation (1) A participant or prospective participant who is given a notice under subsection 104(2) requiring him or her to take action (the required action) to claim or obtain compensation within a specified period must take the required action within the period. (2) If a participant does not take the required action within the period, and the action is to enable the participant or prospective participant to claim or obtain compensation under a scheme of compensation under a Commonwealth, State or Territory law: (a) if a plan is in effect for the participant—the plan is suspended from the end of the specified period until the participant takes the required action; or (b) if a plan is not yet in effect for the participant—the CEO must still comply with section 32 in relation to commencing the facilitation of the preparation of the participant’s plan, but the plan does not come into effect until the participant takes the required action. (3) If a prospective participant does not take the required action within the period, the CEO is not prevented from deciding whether or not the prospective participant meets the access criteria and commencing the facilitation of the preparation of the participant’s plan, but the plan does not, despite section 37, come into effect until the participant takes the required action. [page 71]

(4) If a participant or prospective participant does not take the required action within the period, and the action is to enable the person to claim or obtain compensation otherwise than under a scheme of compensation under a Commonwealth, State or Territory law, the CEO may: (a) take action to claim or obtain compensation in the name of the participant or prospective participant; or (b) take over the conduct of any existing claim. (5) Before taking action to claim or obtain compensation, or taking over the conduct of an existing claim, the CEO must have regard to the following: (a) the disability of the participant or prospective participant; (b) the circumstances which give rise to the entitlement or possible entitlement to compensation; (c) any impediments the CEO may face if the CEO takes the action or takes over the conduct of the claim; (d) any reasons given by the participant or prospective participant as to why he or she has not claimed or obtained compensation (including in response to a notice under subsection 104(2)); (e) the impact (including any financial impact), of the CEO taking the action or taking over the conduct of the claim, on the participant or prospective participant and his or her family; (f)

any other matter the CEO considers relevant, having regard to the objects and principles set out in Part 2 of Chapter 1 of this Act.

(6) The CEO must not take any action to claim or obtain compensation, or take over the conduct of an existing claim, unless: (a) the CEO has notified the participant or prospective participant, in writing, that the action is being considered; and (b) 28 days have passed since the notice was given.

105A Matters relating to claims etc. by CEO (1) If the CEO takes action to claim or obtain compensation, or takes over the conduct of an existing claim, the Agency becomes liable to pay all costs of and incidental to that claim that would otherwise be payable by the person who originally made the claim, or the person in whose name the claim was made, other than costs unreasonably incurred by that person. [page 72] (2) The CEO may: (a) take whatever steps are appropriate to bring the claim to a conclusion; and

(b) if the claim is before a court—settle the proceedings either with or without obtaining judgement; and (c) if the claim is before a court and judgement has been obtained in favour of the plaintiff—take such steps as are necessary to enforce the judgement. (3) The participant or prospective participant must sign any document relevant to a claim made or taken over by the CEO under section 105 (including the settlement of the claim or of any proceedings arising out of the claim), being a document that CEO requires the participant or prospective participant to sign. (4) If the participant or prospective participant does not sign a document in accordance with a requirement under subsection (3): (a) if the claim is not before a court or tribunal at the time of the failure—the Federal Court of Australia may, on the application of the CEO, direct that the document be signed on behalf of the participant or prospective participant by a person appointed by CEO; and (b) otherwise—the court or tribunal in which proceedings relating to the claim are being heard may, on the application of CEO, so direct. (5) If the CEO proposes to make an application under subsection (4): (a) the CEO must notify the participant or prospective participant of that fact; and (b) the participant or prospective participant has a right of representation in the hearing of that application.

105B Recovery of amounts relating to claims etc. by CEO Any amount obtained as a result of a claim made or taken over by the CEO under section 105 (including amounts payable as a result of the settlement of such a claim) must be paid to the Agency. The Agency must deduct from the amount of those damages: (a) an amount equal to the total of all NDIS amounts paid to, or for the benefit of, the participant before the amount is paid to the Agency; and (b) the amount of any costs incidental to the claim paid by the Agency. [page 73]

The Agency must pay the balance to the participant or prospective participant.

Part 2—Agency may recover compensation fixed after

NDIS amounts have been paid 106 Recovering past NDIS amounts from certain judgements (1) This section applies if: (a) an amount of compensation is fixed under a judgement (other than a consent judgement) given in respect of a personal injury that has caused, to any extent, a participant’s impairment (whether or not the participant was a participant at the time of the injury); and (b) before the day of the judgement, NDIS amounts (the past NDIS amounts) had been paid in respect of supports in relation to the participant’s impairment; and (c) the judgement specifies a portion (the past NDIS support component) of the amount of compensation to be a component for supports of a kind funded or provided under the National Disability Insurance Scheme. (2) An amount (the recoverable amount) is payable by the participant to the Agency. The recoverable amount is an amount equal to: (a) unless subsection (4) or (5) applies—the sum of the past NDIS amounts, reduced as mentioned in subsection (3) (if applicable); or (b) if subsection (4) or (5) applies—the amount worked out in accordance with whichever of those subsections is applicable. (3) If: (a) the judgement fixes the amount of compensation on the basis that liability for the injury should be apportioned between the participant and another person; and (b) as a result, the amount of compensation is less than it would have been if liability had not been so apportioned; the sum of the past NDIS amounts is to be reduced by the proportion corresponding to the proportion of liability that is apportioned to the participant by the judgement. (4) If the recoverable amount would, apart from this subsection, exceed the past NDIS support component, the recoverable amount is taken to be the lesser of the sum of the past NDIS amounts and the past NDIS support component. (5) If the recoverable amount would, apart from this subsection, exceed the difference (if any) between: [page 74] (a) the amount of compensation fixed by the judgement; and

(b) the sum of the amounts (if any) payable in respect of the amount of compensation under the following: (i)

the Health and Other Services (Compensation) Act 1995;

(ii) the Health and Other Services (Compensation) Care Charges Act 1995; (iii) Part 3.14 of the Social Security Act 1991; (iv) a law of the Commonwealth, a State or a Territory, prescribed by the National Disability Insurance Scheme rules; the recoverable amount is taken to be the amount of the difference.

107 Recovering past NDIS amounts from consent judgements and settlements (1) This section applies if: (a) an amount of compensation is fixed under a consent judgement or settlement in respect of a personal injury that has caused, to any extent, a participant’s impairment (whether or not the participant was a participant at the time of the injury); and (b) before the day of the consent judgement or settlement, NDIS amounts (the past NDIS amounts) had been paid in respect of supports in relation to the participant’s impairment. (2) An amount (the recoverable amount) is payable by the participant to the Agency. The recoverable amount is an amount equal to: (a) unless subsection (4) applies—the sum of the past NDIS amounts, reduced as mentioned in subsection (3) (if applicable); or (b) if subsection (4) applies—the amount worked out in accordance with that subsection. (3) If: (a) the consent judgement or settlement fixes the amount of compensation on the basis that liability for the injury should be apportioned between the participant and another person; and (b) as a result, the amount of compensation is less than it would have been if liability had not been so apportioned; the sum of the past NDIS amounts is to be reduced by the proportion corresponding to the proportion of liability that is apportioned to the participant by the consent judgement or settlement. [page 75] (4) If the recoverable amount would, apart from this subsection, exceed the

difference (if any) between: (a) the amount of compensation fixed under the consent judgement or settlement; and (b) the sum of the amounts (if any) payable in respect of the amount of compensation under the following: (i)

the Health and Other Services (Compensation) Act 1995;

(ii) the Health and Other Services (Compensation) Care Charges Act 1995; (iii) Part 3.14 of the Social Security Act 1991; (iv) a law of the Commonwealth, a State or a Territory, prescribed by the National Disability Insurance Scheme rules; the recoverable amount is taken to be the amount of the difference.

108 Debts resulting from section 106 or 107 An amount payable by a person under section 106 or 107 is a debt due by the person to the Agency.

Part 3—Recovery from compensation payers and insurers 109 CEO may send preliminary notice to potential compensation payer or insurer (1) If: (a) a participant or prospective participant makes a claim against another person (the potential compensation payer) for compensation; and (b) the claim relates to the participant’s or prospective participant’s impairment; the CEO may give written notice to the potential compensation payer, stating that the CEO may wish to recover an amount from the potential compensation payer. (2) If: (a) a participant or prospective participant makes a claim against another person (the potential compensation payer) for compensation; and (b) the claim relates to the participant’s or prospective participant’s impairment; and [page 76] (c) an insurer may be liable, under a contract of insurance, to indemnify the

potential compensation payer against any liability arising from the claim for compensation; the CEO may give written notice to the insurer, stating that the CEO may wish to recover an amount from the insurer. (3) A notice under subsection (1) or (2) must contain: (a) a statement of the potential compensation payer’s or insurer’s obligation under subsection 110(1) or (2), as the case requires; and (b) a statement of the effect of section 111 (recovery) so far as it relates to the notice.

110 Offence—potential compensation payer or insurer (1) A person (the potential compensation payer) commits an offence if: (a) the potential compensation payer is given a notice under subsection 109(1) in relation to a participant or prospective participant; and (b) before or after receiving the notice, the potential compensation payer becomes liable to pay compensation to the participant or prospective participant; and (c) the potential compensation payer does not give written notice to the CEO of the liability within 7 days after becoming liable or receiving the notice, whichever is later.

Penalty: Imprisonment for 12 months or 60 penalty units, or both. Note:

If a body corporate is convicted of an offence against this section, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the pecuniary penalty stated above.

(2) An insurer commits an offence if: (a) the insurer is given a notice under subsection 109(2) in relation to a claim by a participant or prospective participant; and (b) before or after receiving the notice, the insurer becomes liable to indemnify the potential compensation payer, either wholly or partly, in relation to the claim; and (c) the insurer does not give written notice to the CEO of the liability within 7 days of becoming liable or receiving the notice, whichever is later. [page 77]

Penalty: Imprisonment for 12 months or 60 penalty units, or both. Note:

If a body corporate is convicted of an offence against this section, subsection

4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the pecuniary penalty stated above.

111 CEO may send recovery notice to compensation payer or insurer (1) If: (a) one or more NDIS amounts have been paid to a person in respect of a participant’s impairment; and (b) a person (the compensation payer): (i)

is liable to pay compensation to the participant in relation to the impairment; or

(ii) if the compensation payer is an authority of a State or Territory—has determined that a payment by way of compensation is to be made to the participant in relation to the impairment; the CEO may give written notice to the compensation payer that the CEO proposes to recover from the compensation payer the amount specified in the notice. (2) If: (a) one or more NDIS amounts have been paid to a person in respect of a participant’s impairment; and (b) an insurer is liable, under a contract of insurance, to indemnify the compensation payer against any liability arising from a claim of the participant for compensation; the CEO may give written notice to the insurer that the CEO proposes to recover from the insurer the amount specified in the notice. (3) If a compensation payer or insurer is given notice under subsection (1) or (2), the compensation payer or insurer is liable to pay to the Agency the amount specified in the notice. (4) The amount to be specified in the notice is the lesser of the following: (a) an amount equal to the sum of the NDIS amounts referred to in paragraph (1)(a) or (2)(a); (b) an amount equal to the recoverable amount in relation to the judgement, consent judgement or settlement to which the liability relates. [page 78] (5) A notice under this section must contain a statement of the effect of section 114 (offences) so far as it relates to such a notice. (6) This section applies to an amount payable by way of compensation in spite of

any law of the Commonwealth, a State or Territory (however expressed) under which the compensation is inalienable. (7) If the CEO gives a person a notice under this section that the CEO proposes to recover a specified amount from the person, the specified amount is a debt due by the person to the Agency.

112 Preliminary notice or recovery notice suspends liability to pay compensation (1) If a person (the compensation payer) has been given a notice under subsection 109(1) or 111(1) in relation to the compensation payer’s liability, or possible liability, to pay compensation, the compensation payer is not liable to pay that compensation while the notice has effect. (2) If an insurer has been given a notice under subsection 109(2) or 111(2) in relation to the insurer’s liability, or possible liability, to indemnify a compensation payer against a liability arising from a claim for compensation: (a) the insurer is not liable to so indemnify the compensation payer; and (b) the compensation payer is not liable to pay that compensation; while the notice has effect.

113 Compensation payer’s or insurer’s payment to Agency discharges liability to participant (1) Payment to the Agency of an amount that a compensation payer is liable to pay under section 111 in relation to a participant operates, to the extent of the payment, as a discharge of: (a) the compensation payer’s liability to pay compensation to the participant; and (b) the participant’s liability to pay the Agency. (2) Payment to the Agency of an amount that an insurer is liable to pay under section 111 in relation to a participant operates, to the extent of the payment, as a discharge of: (a) the insurer’s liability to the compensation payer; and (b) the compensation payer’s liability to pay compensation to the participant; and (c) the participant’s liability to pay the Agency. [page 79]

114 Offence—making compensation payment after

receiving preliminary notice or recovery notice (1) A person (the potential compensation payer) commits an offence if: (a) the potential compensation payer has been given a notice under subsection 109(1) or 111(1) in relation to the payment of compensation to a participant or prospective participant; and (b) the potential compensation payer makes the compensation payment to the participant or prospective participant.

Penalty: Imprisonment for 12 months or 60 penalty units, or both. Note:

If a body corporate is convicted of an offence against this section, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the pecuniary penalty stated above.

(2) Subsection (1) does not apply if: (a) in the case of a notice under section 109—the CEO has given the potential compensation payer written notice that the notice is revoked; or (b) in the case of a notice under section 111—the potential compensation payer has paid to the Agency the amount specified in the notice; or (c) the CEO has given the potential compensation payer written permission to pay the amount. (3) An insurer commits an offence if: (a) the insurer has been given a notice under subsection 109(2) or 111(2) in relation to a liability to indemnify a person; and (b) the insurer makes a payment in relation to that liability.

Penalty: Imprisonment for 12 months or 60 penalty units, or both. Note:

If a body corporate is convicted of an offence against this section, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the pecuniary penalty stated above.

(4) Subsection (3) does not apply if: (a) in the case of a notice under section 109—the CEO has given the insurer written notice that the notice is revoked; or (b) in the case of a notice under section 111—the insurer has paid to the Agency the amount specified in the notice; or (c) the CEO has given the insurer written permission to pay the amount. [page 80]

115 Liability to pay the Agency if there is a contravention of section 114 (1) A potential compensation payer or insurer who contravenes section 114 is, in addition to being liable under that section, liable to pay to the Agency: (a) if the contravention relates to a notice under section 109—an amount determined by the CEO; or (b) if the contravention relates to a notice under section 111—the amount specified in the notice. (2) The amount determined by the CEO under paragraph (1)(a) must not be more than the amount that would have been specified in a notice under section 111 if one had been given. (3) This section applies in relation to a payment by way of compensation in spite of any law of the Commonwealth, a State or Territory (however expressed) under which the compensation is inalienable. (4) The amount determined by the CEO under paragraph (1)(a) or specified in the notice under section 111 is a debt due by the compensation payer or the insurer to the Agency.

Part 4—CEO may disregard certain payments 116 CEO may disregard certain payments For the purposes of this Chapter, the CEO may treat the whole or part of a compensation payment as not having been fixed by a judgement (including a consent judgement) or settlement, if the CEO thinks it is appropriate to do so in the special circumstances of the case.

RULES 7.16 Reproduced below are the rules relevant to the commentary in this chapter.

National Disability Insurance Scheme (Supports for Participants — Accounting for Compensation) Rules 2013

Part 1 What these Rules are about 1.1 The NDIS is designed to complement, not replace, existing compensation arrangements for personal injury. These Rules are about ensuring that where individuals receive compensation payments, the [page 81]

NDIS does not duplicate the funding for supports already provided for by these payments. 1.2 These Rules specify how compensation payments in respect of a compensable injury suffered by a participant are taken into account by the CEO in determining the reasonable and necessary supports that will be funded or provided under the NDIS. 1.3 These Rules are related to the National Disability Insurance Scheme (Supports for Participants) Rules 2013, and set out additional factors that the CEO is to take into consideration where the impairment of a participant was caused or aggravated by a personal injury and an amount of compensation was fixed, either by judgement or settlement, or where support is being provided under a Commonwealth, State or Territory statutory scheme. These Rules also apply where a person does not receive any compensation because they entered into an agreement to give up their right to compensation. 1.4 The Act sets out a number of objects for the NDIS. The objects that are most important for these Rules are the following: (a) supporting the independence and social and economic participation of people with disability; (b) providing reasonable and necessary supports, including early intervention supports, for participants in the NDIS launch.

1.5 The Act sets out a number of principles for the NDIS. The principles that are most important for these Rules are the following: (a) people with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development; (b) people with disability should be supported to participate in and contribute to social and economic life to the extent of their ability; (c) people with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime; (d) people with disability should be supported to receive reasonable and necessary supports, including early intervention supports; (e) reasonable and necessary supports for people with disability should: (i)

support people with disability to pursue their goals and maximise their independence; and

(ii) support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment; [page 82] (f)

the role of families, carers and other significant persons in the lives of people with disability is to be acknowledged and respected;

(g) people with disability should be supported to receive supports outside the NDIS, and be assisted to coordinate these supports with the supports provided under the NDIS; and (h) the financial sustainability of the NDIS should be ensured.

Part 2 Outline of these Rules 2.1 Once a person becomes a participant in the NDIS, they develop a plan with the Agency. The plan comprises two parts: (a) the participant’s statement of goals and aspirations, which is prepared by the participant and specifies their goals, objectives, aspirations and circumstances; and (b) the statement of participant supports, which is prepared with the participant and approved by the CEO, and sets out, among other matters, the supports that will be provided or funded by the NDIS.

2.2 These Rules are about how compensation payments in respect of an injury suffered by a participant are taken into account by the CEO in determining the reasonable and necessary supports that will be funded under the NDIS.

Part 3 Compensation Application 3.1 This Part applies in relation to a person who is a participant, or who later becomes a participant, if the impairment of the person was caused to any extent by a personal injury, and one of the following cases applies: (a) the person received compensation under a judgement or settlement in respect of the injury in which: (i)

it is possible to identify the NDIS component of the amount of compensation (NDIS component is defined in paragraph 4.4); and

(ii) the component is either fixed by a non-consent judgement or is objectively identifiable (eg commutation of benefits under a statutory scheme); or (b) the person received compensation under a judgement or settlement in respect of the injury that: (i)

does not satisfy paragraph (a); and

(ii) fixes an amount of compensation in respect of the injury; or [page 83] (c) the person is receiving compensation under a scheme of insurance or compensation under a Commonwealth, State or Territory law, including a payment under a contract entered into under such a scheme; or (d) the person: (i)

entered into an agreement to give up a right to compensation in respect of the injury; and

(ii) because of that agreement, there are amounts that the person did not receive by way of a compensation payment (even if the person received other amounts by way of compensation payment in respect of the injury); and (iii) the CEO is not satisfied that it was reasonable, in the circumstances, for the person to have entered into the agreement.

3.2 For paragraph 3.1(d)(iii), in considering whether the person’s entry into the agreement was reasonable, the CEO must have regard to the following matters: (a) the disability of the participant or prospective participant, including whether the disability affected his or her ability to reasonably assess the terms of the agreement; (b) the circumstances which gave rise to the entitlement or possible entitlement to compensation; (c) any reasons given by the participant or prospective participant as to why he or she entered into the agreement; (d) the impact (including any financial impact) on the participant or prospective participant and his or her family that would have occurred if the claim for compensation had been pursued or continued; (e) any other matter the CEO considers relevant, having regard to the objects and principles set out in Part 2 of Chapter 1 of the Act.

3.3 For this Part, if the NDIS component of compensation under a judgement or settlement includes an element that consists of periodic payments, the amount attributable to that element is taken to be: (a) if the amount is specified in a judgement—that amount; or (b) if the amount is not specified in a judgement, but the CEO is satisfied that a specified amount was paid by the defendant to ensure the provision of the periodic payments—that amount; or (c) otherwise—the value of the periodic payments as assessed in accordance with accepted actuarial standards, in consultation with the scheme actuary. [page 84]

Compensation, or forgone compensation, to be taken into account 3.4 If the person is already a participant and has a participant’s plan, the CEO is to revise the plan. 3.5 In considering whether or not to approve a statement of

participant supports in a plan for the participant (whether the first plan or a revised plan), the CEO is to take account of the compensation by reducing the funding for reasonable and necessary supports that would otherwise be approved by the appropriate compensation reduction amount under paragraphs 3.11 to 3.21. 3.6 To avoid doubt, a compensation reduction amount may arise in relation to each amount of compensation fixed or foregone in respect of injury, including amounts to which different paragraphs of paragraphs 3.1(a) to (d) apply (for example, where a person receives a compensation amount awarded by a court and another amount as part of a settlement). In this case, more than 1 compensation reduction amount applies for paragraph 3.5. Paragraphs 3.15 and 3.20 set out special rules that apply when there are multiple compensation reduction amounts to which different paragraphs of paragraphs 3.1(a) to (d) apply. 3.7 The reduction in respect of: (a) an amount of compensation under a judgement, settlement or agreement mentioned in paragraph 3.1(a) (b) or (d); or (b) a lump sum received as compensation under a scheme mentioned in paragraph 3.1 (c);

may be amortised over a period no longer than the remainder of the participant’s expected lifetime in accordance with accepted actuarial standards, in consultation with the scheme actuary. 3.8 If requested to do so by a person who has suffered an injury and is considering a settlement or other agreement that might result in the application of this part, the CEO may advise the person in relation to the likely compensation reduction amount, or elements of the likely compensation reduction amount, that would apply in relation to the settlement or agreement. 3.9 No action lies against the CEO or any other person in relation to advice given under paragraph 3.8.

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Special circumstances 3.10 For the purposes of paragraph 3.5, the CEO may ignore the whole or part of a compensation reduction amount that would otherwise arise under this Part if the CEO thinks it appropriate to do so in the special circumstances of the case (which may include financial hardship suffered by the participant).

Compensation reduction amount—support component objectively identified 3.11 In the case of a judgement or settlement mentioned in paragraph 3.1(a), the CEO is to identify the compensation reduction amount as follows: (a) identify the NDIS component of the amount of compensation; (b) subtract an amount that the CEO considers equivalent to the total of the amounts that were paid by the participant for supports of that kind after the date of the judgement or settlement and before becoming a participant; (c) subtract the amount of any reduction in funding under paragraph 3.5 that occurred in relation to a previous plan of the participant.

3.12 If, by subtracting a particular amount under paragraph 3.11, the compensation reduction amount would be reduced to nil or less than nil, the CEO must: (a) only subtract so much of the amount that would reduce the compensation reduction amount to nil; and (b) not subtract any further amounts under paragraph 3.11.

Compensation reduction amount—other circumstances 3.13 In the case of a judgement or settlement mentioned in paragraph 3.1(b), the CEO is to identify the compensation reduction amount as follows:

(a)

calculate the amount of compensation fixed under the judgement or settlement;

(b) subtract the sum of the amounts (if any) payable in respect of the amount of compensation under the following: (i)

the Health and Other Services (Compensation) Act 1995;

(ii) the Health and Other Services (Compensation) Care Charges Act 1995; (iii) Part 3.14 of the Social Security Act 1991; [page 86] (iv) a law of the Commonwealth, a State or a Territory, prescribed by the National Disability Insurance Scheme rules; (c) subtract an amount that the CEO considers reflects the value of any period of preclusion: (i)

that arises from a Commonwealth, State or Territory statutory scheme of entitlements (for example, the Social Security Act 1991); and

(ii) is in respect of the injury; (d) if no preclusion period has arisen for the purposes of paragraph (c) and the CEO is satisfied that: (i)

the participant claimed damages in relation to lost earnings or lost capacity to earn; and

(ii) the amount of compensation fixed under the judgement or settlement included an amount in respect of those damages; subtract 50% of the amount of compensation; (e) if the amount after applying paragraphs (a) to (d) is greater than the value of the reasonable and necessary supports that the CEO considers would have been provided to the participant and funded under the Act over the participant’s expected lifetime, had the participant been a participant from the time of the compensable event—replace the amount by that value; (f)

subtract an amount that the CEO considers equivalent to the total of the amounts that were paid by the participant for supports, being supports of a kind funded under the Act, after the compensable event and before becoming a participant;

(g) subtract any recoverable amount payable by the participant in respect of the compensation amount pursuant to section 106 or section 107 of the Act; (h) subtract any amounts deducted by the Agency under section 105B of the Act; (i)

subtract the amount of any reduction in funding under paragraph 3.5 that occurred in relation to a previous plan of the participant.

3.14 For paragraph 3.13(e), the calculation must be in accordance with any applicable actuarial model published by the Agency on its website at the time the calculation is undertaken. 3.15 If a compensation reduction amount has also been identified in respect of the injury under paragraph 3.11, paragraph 3.13 is to be applied with the following modifications: [page 87] (a) reduce from the amount to be subtracted under paragraph 3.13(f) any amount subtracted in respect of the injury under paragraph 3.11(b); (b) reduce from the amount to be subtracted under paragraph 3.13(i) any amount subtracted in respect of the injury under paragraph 3.11(c).

3.16 If, by subtracting a particular amount under paragraph 3.13, the compensation reduction amount would be reduced to nil or less than nil, the CEO must: (a) only subtract so much of the amount that would reduce the compensation reduction amount to nil; and (b) not subtract any further amounts under paragraph 3.13.

Compensation reduction amount—participant in a Commonwealth, State or Territory statutory insurance scheme 3.17 In the case of compensation mentioned in paragraph 3.1(c), the CEO is to identify the compensation reduction amount by identifying the total value of the care and support expected to be provided to the participant under that scheme until the plan is required to be reviewed in accordance with paragraph 33(2)(c) of the Act. 3.18 For paragraph 3.17, the identification must be: (a) in accordance with any applicable actuarial model published by the Agency on its website at the time the calculation is undertaken; and

(b) done in consultation with the person or entity that administers the scheme.

Compensation reduction amount—agreement to give up compensation 3.19 In the case of an agreement mentioned in paragraph 3.1(d), the CEO is to identify the compensation reduction amount as follows: (a) assess the likely amount of the NDIS component of compensation that participant would have received under a judgement (other than a consent judgement) had the participant made a claim for compensation in respect of the personal injury (NDIS component is defined in paragraph 4.4); (b) subtract the amount of any reduction in funding under paragraph 3.5 that occurred in relation to a previous plan of the participant; (c) subtract an amount that the CEO considers equivalent to the total of the amounts that were paid by the participant for supports, being supports of a kind funded under the Act, after incurring the injury and before becoming a participant. [page 88]

3.20 If a compensation reduction amount has also been identified in respect of the injury under paragraph 3.11 or 3.13, paragraph 3.19 is to be applied with the following modifications: (a) between the steps in paragraphs 3.19(a) and (b), subtract the compensation reduction amounts identified under paragraphs 3.11 or 3.13: (b) reduce from the amount to be subtracted under paragraph 3.19(b) any amount subtracted in respect of the injury under paragraph 3.11(c) or 3.13(i); (c) reduce from the amount to be subtracted under paragraph 3.19(c) any amount subtracted in respect of the injury under paragraph 3.11(b) or 3.13(f).

3.21 If, by subtracting a particular amount under paragraph 3.19, the compensation reduction amount would be reduced to nil or less than nil, the CEO must only subtract so much of the amount that would reduce the compensation reduction amount to nil.

Part 4 Other matters

Citation 4.1 These rules may be cited as the National Disability Insurance Scheme (Supports for Participants—Accounting for Compensation) Rules 2013.

Interpretation 4.2 These Rules contain text that summarises provisions of the Act or describes expectations as to what will normally occur in practice under the NDIS, as well as operative rules. The boxed notes identify such text, which does not form an operative part of these Rules. 4.3 Terms and expressions that are used in the Act have the same meaning in these Rules unless these Rules display a contrary intention— see the Acts Interpretation Act 1901, which also contains definitions and rules of interpretation that apply to all Commonwealth legislation. (See also the Legislative Instruments Act 2003, which, among other things, applies the Acts Interpretation Act 1901 to legislative instruments such as these Rules.) For convenience, the more important definitions from the Act are identified or reproduced in paragraph 4.4. [page 89]

4.4 In these rules: Act means the National Disability Insurance Scheme Act 2013. CEO—see section 9 of the Act. compensable event means the event in which a person’s injury occurred that gave rise to the compensation payment. If the event is a course of events or conduct, the compensable event is the beginning of that course of events or conduct. compensation—see section 11 of the Act.

compensation reduction amount—see paragraph 3.5. NDIS means the National Disability Insurance Scheme (see section 9 of the Act). NDIS component, of an amount of compensation under a judgement or settlement, means the component that relates to the provision of supports of a kind that may be funded or provided under the NDIS after the date of the judgement or settlement, and may include a component that consists of periodic payments. NDIS rules means the National Disability Insurance Scheme rules (see section 9 of the Act). participant—see section 9 of the Act.

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PART D Applications, Plans and Providers

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CHAPTER 8 Applications SUMMARY A person may make an application, known as an access request, to become a participant in the NDIS. Approved forms and necessary information may be specified by the NDIS CEO. The NDIS CEO determines access requests, within set time frames. The NDIS CEO has the power to request more information, assessment reports or examination reports.

COMMENTARY Access requests 8.1 Persons seeking to become a participant in the NDIS may make a request, termed an ‘access request’, under ss 18 and 19 of the Act. An access request must be in the form approved (if any) by the NDIS CEO and include all the information and accompanying documents required by the CEO. The applicant must certify that all the information and accompanying documents required by the CEO that are in their possession have been provided with the application.

Further information 8.2 Requests are considered and determined by the CEO. Under s 20, the CEO must decide within 21 days of receiving an access application whether or not the prospective participant meets the access criteria. Alternatively, under s 26(1), the CEO may request that: the prospective participant, or another person, provide information that is reasonably necessary for deciding whether or not the applicant meets the access criteria; or the prospective participant undergo an assessment and provide the CEO with a report (in the approved form) from the person who conducts the assessment; and/or [page 94]

the prospective participant undergo examination, including medical, psychiatric, or psychological examination, by a suitably qualified person and provide to the CEO the report (in the approved form) of the person who conducts the assessment. Section 26(2) requires that if the information or report requested by the CEO is received within 28 days of the request, or longer if specified in the request, the CEO must within 14 days of receiving the last piece of requested information or report decide whether or not the applicant meets the access criteria or request further information or reports. Section 26(3) provides that if the information or report is not received by the CEO within 28 days of the request the prospective participant is taken to have withdrawn the access request unless the CEO is satisfied that it was not reasonable to comply within the specified time frame. Presumably, however, there will be no barrier to the prospective participant submitting a new request at a later time: see s 19(2).

Extension of time frames during launch

8.3 Under s 204 of the Act, the NDIS rules can provide for an increase in the time frames for decision-making. The National Disability Insurance Scheme (Timeframes for Decision Making) Rules 2013 extend the period of time available to the CEO to make a decision regarding whether a person meets the access criteria during the launch phase of the NDIS scheme. Part 3 of the rules provides that if an application is made within 12 months of 1 July 2013 for a request within a 2013 launch area, or within 12 months of 1 July 2014 in the Australian Capital Territory, the CEO will endeavour to make a decision within 21 days but must either decide a person meets the access criteria or request more information within 42 days. Where a person’s need for assistance is urgent the CEO is still required to take action within 21 days. If the CEO makes a request for further information or reports and those are received within 28 days of the request, the CEO has 28 days after the last requested information is received in which to decide whether or not the person meets the access requirements or request more information. If the person is in need of urgent assistance, that time frame is shortened to 14 days, and where assistance is not urgent the target remains 14 days but can be up to 28 days.

Deciding whether a person meets the access criteria 8.4 Under s 21(1) a person meets the access criteria if the CEO is satisfied that, at the time of making the request, the person meets the age and residence requirements and [page 95]

either the disability or the early intervention requirements. Each of these requirements is discussed in detail in a separate chapter of this handbook: see Chapter 3, ‘Participant Eligibility — Age’; Chapter 4, ‘Participant Eligibility — Residence’; and Chapter 5, ‘Participant Eligibility — Disability or Early Intervention’). Under s 26(2) if the CEO is not satisfied the prospective participant meets the

age, residence, and disability or early intervention requirements, the person may still be found to meet the access criteria if the CEO is satisfied that, at the time of considering the request, the person: satisfies the National Disability Insurance Scheme (Becoming a Participant) Rules 2013 requiring them to live in a prescribed area at a prescribed date; was receiving supports, received those supports throughout the period (if any) prescribed by the rules, and received those supports under a program prescribed by the rules for the purposes of this criteria:1 and if they become a participant, will not be entitled to receive those supports or equivalent supports. Pursuant to s 21(3) the CEO will automatically be taken to have decided the prospective participant does not meet the access criteria if the CEO does not make a decision or request more information or reports within 21 days of receiving the access request. Where further information and reports has been requested and is received with 28 days (or longer if specified by the request) of the request, the CEO will automatically be taken to have decided the prospective participant does not meet the access criteria if the CEO does not make a decision or request more information or reports within 14 days of receiving the additional information requested.

When a person becomes a participant 8.5 Section 28(1) provides that a person becomes a participant on the day the CEO decides they meet the access criteria. Under s 28(2) the CEO must give written notice of the decision to the participant stating the date on which they became a participant.

If an access request is denied 8.6 Under s 19(2) a person who makes an access request that is denied may make another access request at any time, except where the initial decision of the CEO

is under initial review (under s 100(5)) or is subject to review by the Administrative Appeals Tribunal (under s 103). Review processes are discussed further in Chapter 12. [page 96]

LEGISLATION 8.7 Reproduced below are the legislative provisions relevant to the commentary in this chapter.

18 Person may make a request to become a participant A person may make a request (an access request) to the Agency to become a participant in the National Disability Insurance Scheme launch. Note:

Once a person becomes a participant, the CEO must commence to facilitate the preparation of his or her plan (see section 32).

19 Matters relating to access requests (1) An access request must: (a) be in the form (if any) approved by the CEO; and (b) include any information, and be accompanied by any documents, required by the CEO; and (c) certify that it includes all the information, and is accompanied by all the documents, required as mentioned in paragraph (b) that are in the possession or control of the person. Note:

The CEO is not required to make a decision on the access request if this section is not complied with (see section 197).

(2) If: (a) a person has made an access request; and (b) the CEO decides that the person does not meet the access criteria, or is taken to have so decided because of subsection 21(3); the person may make another access request at any time, unless at that time either of the following has been commenced, but not finally determined:

(c) a review (the initial review) under subsection 100(5) of the CEO’s decision; (d) a review under section 103 of a decision on the initial review.

20 CEO must consider and decide access requests If a person (the prospective participant) makes an access request, the CEO must, within 21 days of receiving the access request: (a) decide whether or not the prospective participant meets the access criteria; or (b) make one or more requests under subsection 26(1). [page 97]

21 When a person meets the access criteria (1) A person meets the access criteria if: (a) the CEO is satisfied that the person meets the age requirements (see section 22); and (b) the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and (c) the CEO is satisfied that, at the time of considering the request: (i)

the person meets the disability requirements (see section 24); or

(ii) the person meets the early intervention requirements (see section 25). (2) If the CEO is not satisfied as mentioned in subsection (1), the person meets the access criteria if the CEO is satisfied of the following: (a) at the time of considering the request, the person satisfies the requirements in relation to residence prescribed as mentioned in subsection 23(3) (whether or not the person also satisfies the requirements mentioned in subsection 23(1)); (b) the person: (i)

was receiving supports at the time of considering the request or, if another time is prescribed by the National Disability Insurance Scheme rules for the purposes of this subparagraph, at that other time; and

(ii) received the supports throughout the period (if any) prescribed by the National Disability Insurance Scheme rules for the purposes of this subparagraph; and (iii) received the supports under a program prescribed by the National Disability Insurance Scheme rules for the purposes of this subparagraph;

(c) if the person becomes a participant, the person would not be entitled to receive the supports referred to in paragraph (b), or equivalent supports. (3) The CEO is taken to have decided that the prospective participant does not meet the access criteria if: (a) the CEO does not do a thing referred to in paragraph 20(a) or (b) within the 21-day period referred to in section 20; or (b) if subsection 26(2) applies—the CEO does not do one of the things referred to in that subsection within the 14-day period referred to in that subsection. [page 98] Note 1: The periods may be extended under National Disability Insurance Scheme rules made under section 204. Note 2: Notice of a decision that the CEO is taken to have made must be given because of subsection 100(1) and will be automatically reviewed because of subsection 100(5).

26 Requests that the CEO may make (1) The requests the CEO may make under this subsection after a prospective participant has made an access request (see paragraph 20(b)) are as follows: (a) that the prospective participant, or another person, provide information that is reasonably necessary for deciding whether or not the prospective participant meets the access criteria; (b) that the prospective participant do either or both of the following: (i)

undergo an assessment and provide to the CEO the report, in the approved form, of the person who conducts the assessment;

(ii) undergo, whether or not at a particular place, a medical, psychiatric, psychological or other examination, conducted by an appropriately qualified person, and provide to the CEO the report, in the approved form, of the person who conducts the examination. (2) If: (a) information or one or more reports are requested under subsection (1); and (b) the information and each such report are received by the CEO within 28 days, or such longer period as is specified in the request, after that information or report is requested; the CEO must, within 14 days after the last information or report is received: (c) decide whether or not the prospective participant meets the access criteria; or (d) make a further request under subsection (1).

(3) If: (a) information or one or more reports are requested under subsection (1); and (b) the information and each such report are not received by the CEO within 28 days, or such longer period as is specified in the request, after that information or report is requested; [page 99] the prospective participant is taken to have withdrawn the access request, unless the CEO is satisfied that it was reasonable for the prospective participant not to have complied with the request made by the CEO within that period.

28 When a person becomes a participant (1) A person becomes a participant in the National Disability Insurance Scheme launch on the day the CEO decides that the person meets the access criteria. (2) The CEO must give written notice of the decision to the participant, stating the date on which the person became a participant.

RULES 8.8 The National Disability Insurance Scheme (Becoming a Participant) Rules 2013 assist the CEO to determine who meets the access criteria by giving further detail to the age requirements (Pt 3); residence requirements (Pt 4); disability requirements (Pt 5); and early intervention requirements (Pt 6). The rules do not address the process of applying to become a participant. The National Disability Insurance Scheme (Timeframes for Decision Making) Rules 2013 increase the length of time that the CEO would otherwise have under the Act to make decisions during the launch period.

National Disability Insurance Scheme (Becoming a Participant) Rules 2013 Part 3 Timeframes for making decisions 3.1 This Part operates in relation to an access request made

within 12 months after: (a) 1 July 2013, for an access request made in relation to a 2013 NDIS launch area—see the definition in paragraph 4.3; or (b) 1 July 2014, for an access request made in relation to the Australian Capital Territory.

3.2 It is expected that: (a) where the access request was made by a person whose need for assistance is urgent, the CEO will take an action under paragraph 3.3 within 21 days after receiving the request; and [page 100] (b) in other circumstances, the CEO will endeavour to take such an action within 21 days after receiving the request, and this will normally be achieved.

3.3 The CEO must do one of the following within 42 days after receiving the request: (a) decide whether or not the person meets the access criteria; or (b) make one or more requests under subsection 26(1) of the Act—that the person provide information, or undergo an assessment or examination and provide a report of the person who conducts the assessment or examination.

Paragraph 3.3 is made for the purposes of subsection 204(1) of the Act. If an access request is made more than 12 months after the relevant day mentioned in paragraph 3.1, the timeframe of 21 days specified in section 20 of the Act will apply. 3.4 It is expected that: (a) where the access request was made by a person whose need for assistance is urgent, the CEO will take an action under paragraph 3.5 within 14 days after receiving the information and reports; and

(b) in other circumstances the CEO will endeavour to take such an action within 14 days after receiving the information and reports, and this will normally be achieved.

3.5 If the CEO makes one or more requests under subsection 26(1) of the Act and any requested information and requested reports are received by the CEO within 28 days after the CEO’s request or such longer period as is specified in the CEO’s request, the CEO must do one of the following within 28 days after the last information or report is received: (a) decide whether or not the person meets the access criteria; or (b) make a further request under subsection 26(1) of the Act.

Paragraph 3.5 is made for the purposes of subsection 204(1) of the Act. If an access request is made more than 12 months after the relevant day mentioned in paragraph 3.1, the timeframe of 14 days specified in subsection 26(2) of the Act will apply.

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Part 4 Other matters 4.3 In these Rules: 2013 NDIS launch area means: (a) South Australia; (b) Tasmania; (c) the areas that comprise the following municipal districts of Victoria as at the commencement of these Rules: (i)

Colac-Otway Shire;

(ii) City of Greater Geelong; (iii) Borough of Queenscliffe;

(iv) Surf Coast Shire; (d) the areas that comprise the following areas of New South Wales proclaimed under section 204 of the Local Government Act 1993 (NSW) as at the commencement of these Rules: (i)

Lake Macquarie City;

(ii) Maitland City; (iii) Newcastle City.

1.

At the time of writing, the NDIS rules were silent on this aspect.

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CHAPTER 9 Participants’ Plans, Supports and Funding SUMMARY Each participant in the NDIS will have a plan, prepared in consultation with the participant and approved by the NDIS CEO. A plan has two parts: –

a participant’s statement of goals and aspirations, prepared by the participant; and

–

a statement of participant supports prepared by the Agency with the participant and requiring approval by the NDIS CEO.

The plan details the supports to be provided or funded, the management of the funding and when the plan is to be reviewed. A support must be considered ‘reasonable and necessary’ to be provided or funded under the NDIS. Funding for supports may be managed by the participant, a nominee, a registered manager of funding or by the Agency. Plans may be suspended where a participant is

absent from Australia for longer than the grace period or where the NDIS CEO has given written notice requiring the participant to obtain or claim compensation and the participant fails to do so. A participant may request a review of their plan at any time.

COMMENTARY Matters to be included in a participant’s plan 9.1 Each participant in the NDIS must have a plan, developed with the Agency: the Act s 32. Section 33 provides that a plan has two parts. The first part is the participant’s statement of goals and aspirations. The statement is prepared by the participant and must set out their goals, aspirations and objectives. The statement must also detail the participant’s living environment and personal context including details of their [page 104]

living arrangements, community supports and social and economic participation. The statement need not be prepared in writing, however the Agency has an obligation to record it in writing: s 33(8). The second part of the plan, the statement of participant supports, is to be prepared by the Agency with the participant and must be approved by the NDIS CEO: s 33(2). The statement of participant supports must state: the general supports to be provided to the participant; the reasonable and necessary supports that will be funded under the NDIS; when the plan is to be reviewed;

the management of the funding of the plan; and the management of other aspects of the plan. The plan may contain additional matters; for example, provision for ongoing contact with the Agency: s 33(7). 9.2 Section 33(3) indicates that the supports that will be funded by the NDIS may be specifically identified or generally described. The participant will have a high degree of flexibility over the implementation of supports where the supports are described generally. If a support is specifically identified, the plan may state the type of support to be funded and the way in which the support is to be provided so as to ensure the expected outcomes for the participant. In contrast to generally described supports, such specific supports are required to be purchased in the manner detailed in the plan. There are a number of criteria the CEO must have regard to in deciding whether to describe a particular support generally or specifically: s 33(5). The CEO must consider: financial implications such as the cost of the support and any expected savings in costs or returns from providing the support; any risks associated with the support; whether the success of other supports or the achievement of goals is contingent on the provision of a particular support; whether the participant accessed the NDIS via the early intervention provisions; and whether the participant requires a specialist, evidence-informed support provided by a qualified person or a particular delivery method. Wherever the CEO considers that it would be more cost effective for a support to be provided by the Agency, the statement of participant supports must state that the support will be provided by the Agency. Where the CEO considers a participant requires a support for which the Agency has entered into a funding agreement with a provider to provide that support, the statement of participant supports must state that the support will

be provided by that nominated provider, if the CEO considers that is an effective and efficient manner in which to provide the requisite support. [page 105]

A statement of supports may provide for a support to be provided by a particular person if the CEO considers the participant’s disability requires specialist, evidence-informed support provided by a qualified person. Additionally, if the CEO considers the participant’s disability requires a support to be provided in a particular delivery mode, the statement of supports may provide for a support to be provided in that delivery mode. The rules do not define what matters will be relevant to whether a support will be considered a ‘specialist, evidence-informed’ support. If the support was previously provided to a participant by the Commonwealth, a state, or territory and a funding agreement exists to cover the provision of that support, then the statement of participant supports must record that the support is to be funded by a source other than the Agency. Where funding for supports under a participant’s plan is to be managed by the Agency, the plan must provide for the supports to be provided only by a registered provider: s 33(6). 9.3 The CEO must facilitate preparation of a plan: s 32. The time frame for commencing the preparation of plans is prescribed by the NDIS rules. Given the phased launch of the scheme, the time frames are complicated. At the time of writing there are separate rules for each of New South Wales, Victoria, Tasmania and South Australia.1 Generally speaking, the rules set out the circumstances in which the facilitation of the preparation of plans will commence. Participants are being phased into the NDIS. Those people within launch sites who were receiving certain disability services as of the launch of the NDIS are prioritised to be transitioned to the NDIS first. New clients are to have their plans facilitated as soon as reasonably practical after becoming a participant. For more detailed information on the time frames for facilitating the preparation of participants’ plans, see Appendix B of this handbook, which contains the rules for each state in this regard.

Approving a plan 9.4 The CEO must make a decision as to whether or not to approve a statement of participant supports as soon as is reasonably practicable, which may be after further information or reports are obtained: s 32(3). [page 106]

Under s 33(5) the CEO is obligated to have regard to the following matters when deciding whether or not to approve a statement of participant supports: the participants statement of goals and aspirations; assessments conducted; the principle that a participant shall manage their own plan to the extent that they desire to do so; and the operation and effectiveness of any previous plan. The CEO must also be satisfied that the reasonably necessary supports and the general supports that are proposed meet the criteria specified by s 34 and must also apply the criteria set out in rules as to how the reasonable and necessary reports are to be funded.

Reasonable and necessary supports 9.5 Section 34 requires that the CEO must be satisfied of eight matters before approving the general supports to be provided and/or the reasonable and necessary supports to be funded under a statement of participant supports. The CEO must be satisfied that the support will assist the participant to pursue the goals, objectives and aspirations detailed in their statement of goals and aspirations and undertake activities so as to facilitate their social and economic participation. The CEO must be satisfied the support is likely to be beneficial and effective having regard to current good practice. With regard to funding, the CEO must be satisfied that:

the support represents value for money when the benefits achieved and cost of alternative supports are considered; what it is reasonable to expect families, carers, the community and informal networks to provide has been considered in deciding to provide or fund the support; and the most appropriate funding for the support is through the NDIS and it is not more appropriately funded through other general systems of service delivery or support; that it is not funded as part of a universal service obligation or under reasonable adjustments required as a result of a law dealing with discrimination on the grounds of disability. The funding of the support must comply with the methods or criteria prescribed by the rules for deciding the reasonable and necessary supports that will be funded under the NDIS. Finally, the CEO must be sure the support is not one that is prescribed by the rules as a support that will not be funded or provided under the NDIS. Each of the eight matters that the CEO must consider are elaborated upon in the National Disability Insurance Scheme (Supports for Participants) Rules 2013. [page 107]

Value for money 9.6 In determining whether a support represents value for money the CEO must consider: whether there are comparable supports that would achieve the same outcome at a considerably lower cost; whether there is evidence that the support will substantially improve the life stage outcomes of the participant and be of long-term value; whether provision of or funding for the support is likely to reduce the cost of funding of supports in the long term;

where the support involves the provision of equipment or modifications, the comparative cost of purchasing or leasing the equipment or modifications; whether, where the support involves the provision of equipment or modifications, there are likely to be any improvements in the participant’s condition or advances in technology in the short term that would make the funding of equipment or modifications inappropriate; whether the cost of the support is comparable to the cost of the same kinds of support in the area where the participant lives; and whether the support will increase the participant’s independence and reduce their need for other supports.

Effective and beneficial and good practice 9.7 The CEO must take into account, and if necessary seek, expert opinion in deciding whether a support will be beneficial and effective for a participant, having regard to current good practice. In addition, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. The relevant evidence may include consensus of expert opinion and published and refereed literature. But it may also include the lived experience of the participant or their carer/s or anything the Agency has learnt through the delivery of the NDIS.

Reasonable family, carer and other support 9.8 The criteria for deciding whether provision or funding of a support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide differs for children and adult participants, save for the one criterion, which requires the CEO to take account of the desirability of supporting and developing potential contributions of informal networks and supports within the participant’s community. For children, the CEO must take account of the fact that it is normal for parents to provide substantial care and support for children but must consider whether the child’s care needs are substantially greater than other children of the same age as a

[page 108]

result of their disability. The CEO must also take account of any risks to the wellbeing of the child’s family or carers. Finally the CEO is required to consider whether the provision of or funding for a support would improve the child’s present or future capacity or would reduce any risk to the child’s wellbeing. For adults, the CEO must first consider the extent of any risk to the wellbeing of the participant of them relying on family, carers, informal networks and the community. The CEO must also consider the extent to which informal supports contribute to reduce a participant’s independence and other outcomes. The suitability of family members, carers, informal networks and community to provide the required supports must also be considered. This includes consideration of factors such as: the age and capacity of the participant’s family and carers, including the extent to which family and community supports are available to help them maintain their role as carer; whether it is age and gender appropriate for the family member or carer to provide the care given the type and intensity of the required support; and the extent of any risk to the long term wellbeing of the family member or carer.

Supports appropriately funded or provided through the NDIS 9.9 There are 10 matters that the CEO is required to consider when determining whether a support is most appropriately provided or funded through the NDIS, rather than through other service systems. The matters are detailed in Sch 1 to the National Disability Insurance Scheme (Supports for Participants) Rules 2013 under the following headings: Health; Mental health; Child protection and family support; Early childhood development;

School education; Higher education and vocational education and training; Employment; Housing and community infrastructure; Transport; and Justice. 9.10 In relation to matters of health, the NDIS will provide supports related to a person’s ‘ongoing functional impairment’ where the supports allow the person to complete activities of daily living and are integrally linked to the care that person requires to live in the community and participate in education and employment. However, the rules expressly provide that the NDIS will not provide support for such things as clinical diagnosis or treatment of health conditions; doctor, allied health, dental or hospital services; palliative care; rehabilitation or post-acute services; or [page 109]

where the predominant purpose is treatment directly related to the participant’s health status. 9.11 Mental health is dealt with separately. The NDIS will provide supports or funding for supports that enable a person with a mental illness to undertake activities of daily living and participate in community life. The NDIS will not provide clinical care; early intervention supports for mental health; residential care where the primary purpose is for inpatient care or rehabilitation or where the staff are predominantly clinically trained; or supports related to a comorbidity that is clearly the responsibility of another service system (for example, drug and alcohol issues). 9.12 Where a child requires personalised supports as a result of their disability or developmental delay and those requirements are beyond the needs of children of similar age, the NDIS will fund or provide such early childhood development supports. The NDIS will provide or fund early interventions for children with a

disability or developmental delay that are specifically aimed at enhancing the child’s functioning to undertake activities of daily living and those supports that are likely to reduce the child’s future support needs. The NDIS will not fund or provide the early education and care needs of a child that enable the child to participate in early childhood or care settings. Neither will the NDIS provide or fund supports which are clinical in nature and provided in the health system, including newborn follow-up. The NDIS will fund or provide support for children, family and carers that is required as a direct result of the child’s disability, where those supports will enable the family and carer to maintain their carer role in a sustainable way. Such supports might include additional respite care, therapeutic or behavioural supports, or aids and equipment. Where a child is in out-of-home care, the NDIS will fund or provide supports that are specific to the child’s disability or developmental delay and are additional to the needs of other children of similar age; the reasonable and necessary supports should reflect the needs of the individual child. The NDIS will not provide or fund statutory child protection services or general parenting programs. 9.13 In terms of schooling (and higher education or vocational training) the NDIS will fund or provide supports that are associated with the functional impact of their disability on their schooling. Such supports might include transport to and from school, specialist supports for transition to further education or training that is required because of the participant’s disability. However, the personalisation of learning or the provision of supports related primarily to attaining an education will not be funded or provided by the NDIS. The types of things that might fall into that category include teaching assistance, building modifications and transport between school activities. 9.14 In relation to employment, supports that are required for daily living, irrespective of whether a person is looking for work or engaged in work, will be funded or provided by the NDIS. Where a person is unlikely to be able to find work in the open market but has some work capacity, the NDIS will provide or fund supports that assist [page 110]

the person to obtain and maintain employment. The NDIS will also fund or provide individualised assistance to assist a person to transition into employment where their needs are as a result of their functional impairment and additional to the needs of all Australians. In contrast, the NDIS will not be responsible for work arrangements or the working environment. The NDIS will not fund or provide employment services to provide advice to people as to how to find and maintain employment, even where those services are disability-targeted. Neither will the NDIS fund or provide incentives to prospective employers to encourage them to hire people with a disability. 9.15 In relation to housing, the NDIS will fund or provide supports that assist a person with a disability to live independently in the community. Such supports might include home modifications or user’s costs of capital where a person requires an integrated housing and support model and the cost of the accommodation component exceeds a reasonable contribution from the participant. Supports may also include behaviour management and support to build the capacity to maintain a tenancy. However, the NDIS will not be responsible for providing appropriate housing for a person with a disability or the accommodation of people in need of housing assistance. The NDIS has no role in ensuring publicly-funded housing stock incorporates Liveable Housing Design or in improving community infrastructure for accessibility, where this is managed through other regulatory and planning mechanisms. Further, the NDIS will not provide or fund homelessness services. 9.16 In relation to transport, the NDIS will fund or provide supports to enable a participant to travel independently either on public transport, personal aids or equipment, or through modifications to a private vehicle. For those not able to travel independently, the NDIS will fund the reasonable costs of taxis or other private transport options. However, the NDIS is not responsible for ensuring the accessibility of public transport, such as via the funding of concessions. Further, the NDIS has no role in ensuring transport providers and operators comply with laws relating to disability and travel. Ensuring transport infrastructure is also outside the remit of the NDIS where provision of the infrastructure forms part of a universal service obligation. 9.17 Where a person is not in a custodial setting but is subject to the justice system, the NDIS will provide and fund supports on the same basis it does for

other participants. Examples of such situations might include where a person is on bail, parole or home detention or where a person is subject to a community order that places controls on their behaviour to manage any risk to the public. Where a person is in a custodial setting the NDIS will be responsible for reasonable and necessary supports appropriate in the circumstances and transition supports. Persons on remand or in a youth detention centre, training facility or secure mental health institution will be considered to be in a custodial setting. Transition supports are defined as those that are both reasonably necessary and required as a result of the person’s functional [page 111]

impairment to transition the person to the community from a custodial setting. The NDIS will not provide general supports or the day-to-day care and support needs of a person in custody. Ensuring the accessibility of criminal justice system services including appropriate communication mechanisms and alterations to the built environment are not the responsibility of the NDIS. The NDIS is not responsible for the management of correctional facilities, secure mental health institutions that are primarily clinical in nature, or supervision of participants on community orders. Further, the NDIS has no responsibility for programs to prevent re-offending or the diversion of people from the criminal justice system. 9.18 Schedule 9.1 is reproduced at the end of this chapter to provide greater detail and clarity. Even where supports are set out in the Schedule as being appropriately funded under the NDIS, the CEO must still be satisfied the eight general requirements for approval mentioned earlier under the heading ‘Reasonable and necessary supports’ (at 9.5) have been met.

Information and reports for preparing and approving plans 9.19 Under s 36 of the Act, the CEO is empowered to request information, assessment reports or examination reports be obtained in order to prepare or

decide whether to approve a statement of participant supports. To that end, the CEO may request a participant or another person to provide information deemed reasonably necessary. The CEO may also request that the participant undergo assessment and/or medical, psychiatric, psychological or other examination and provide the CEO with the report of that assessment or examination. However, so long as the participant has been afforded a reasonable opportunity to provide the requested information or reports, the CEO need not wait to receive them before preparing or approving a statement of participant supports: s 36(3).

Needs assessment 9.20 The National Disability Insurance Service (Supports for Participants) Rules 2013 set out the methods and tools to be utilised in assessing a participant’s needs. Under r 4.1, the CEO must do four things when deciding whether or not to approve a plan; identify the participant’s goals, circumstances and context;

aspirations,

capacity,

strengths,

assess any limitations, restrictions on participation or support needs arising from the participant’s disability; assess safeguards and risks in relation to the participant; and relate the support needs to the participant’s statement of goals and aspirations. [page 112]

The CEO is required to specify in operational guidelines the tools to be used in assessing matters relating to a decision about participant supports. Tools may be different for adults and children and may be tailored for specific impairments. A tool must have reference to the areas of social and economic participation and activity identified by the World Health Organisation International Classification of Functioning, Disability and Health as in force from time to time. In addition,

any tool must be designed to ensure transparent and fair assessment of the participant’s reasonable and necessary supports. The CEO is then expressly required to utilise any appropriate tools specified in the operational guidelines in making an assessment of the participant’s needs. In so doing, the CEO is obligated to ensure the tools are applied appropriately, ensuring participants are not assessed on matters not relevant to them.

The operational guidelines: Planning and Assessment — Assessment of Participant Needs 9.21 The CEO has approved two tools to assist in making decisions about a participant’s support needs: the NDIS Adult Planning and Assessment Toolkit and the NDIS Child Planning and Assessment Toolkit. The assessment tools identify 10 domains of functional capacity and questions are designed to guide a conversation to evaluate a participant’s needs in relation to each. The operational guidelines entitled Planning and Assessment — Supports in the Plan require a plan to be tested against the reference package and lifetime cost calculator, to assess whether the participant’s annual plan funding is comparable with the expected funding level of the participant and the schemes annual and lifetime costs. Further consideration of the plan will be required by a senior delegate where the recommended funded support is outside the boundaries of the expected level of support.

Supports that will not be funded 9.22 Supports that would be contrary to a law of the Commonwealth or a law of the state or territory in which they are to be provided will not be provided or funded under the NDIS. Supports that consist of income replacement will also not be funded under the NDIS. Further, a support will not be provided or funded if it relates to the day-to-day living costs that are not attributable to the person’s disability support needs (for example, rent, utilities and food). However, any additional costs incurred by a participant solely and directly as a result of their disability support needs or costs that are ancillary to another support that is provided or funded under the NDIS that the participant would not otherwise incur, are not considered day-to-day living costs and will be funded. There are

three additional circumstances in which provision for or funding of a support will not be available under the NDIS, those circumstances being where the support: [page 113]

is likely to pose a risk to others or cause harm to the participant; is not related to the participant’s disability; or duplicates other supports funded through the NDIS.

When a plan is in effect 9.23 A plan will be effective once the CEO has received the participant’s statement of goals and aspirations and has approved the statement of participant supports: s 37. Once a plan has become effective it cannot be varied. However, a plan can be replaced (s 37(2)), as discussed below at 9.30. The participant must be provided with a copy of the plan within seven days of it becoming effective: s 38. A plan will cease to be effective when the participant ceases to be a participant or the plan is replaced, whichever occurs first. The Agency is compelled to comply with the statement of participant supports contained in a plan in effect: s 39.

Grace periods 9.24 Under s 40, a participant may be temporarily absent from Australia for a grace period without the plan being affected. The grace period is defined as six weeks or, if the CEO is satisfied it is appropriate for the grace period to be longer, such longer period as the CEO deems appropriate. In deciding whether to extend the grace period and by how long the CEO is required to have regard to a list of general and specific criteria set out in the National Disability Insurance Scheme (Plan Management) Rules 2013, Pt 5. It is expected that the grace

period would be extended wherever one of the specific criteria are met or where there are humanitarian purposes. There are six general criteria, namely: the proposed length of absence from Australia; any previous decisions to extend the grace period; the supports provided under the participant’s plan; the ability of the participant to continue to access supports while abroad; the ability of the Agency to facilitate the provision of supports and maintain a relationship with the participant while the participant is overseas; and whether undue hardship would result from a refusal to extend the grace period. There are five specific circumstances the CEO is required to consider in relation to extending the grace period. The first is that of overseas study. Where a participant is to conduct a course of study outside Australia that is an element of a course of study the participant is undertaking at an Australian secondary or tertiary institution the period of the course of studies is a specific consideration. Similarly, if a participant is to [page 114]

complete an exchange program that is part of a recognised program of international exchanges the period of the overseas exchange is a specific consideration. The second specific consideration is temporary employment. If a participant, spouse or family member is required to travel overseas for the purpose of temporary employment, the duration of that employment will be a specific consideration. The third specific consideration relates to reserve forces involvement. Where a participant is a member of the reserve forces and is required to travel overseas as

part of their role, the period of deployment will be a specific consideration. Similarly, the period of deployment will be a specific consideration where a spouse or family member of the participant is a member of the reserve forces and is required to be temporarily absent from Australia to fulfil their role. The reserve forces are expressly defined to include the Naval Reserve, Army Reserve and Air Force Reserve. Another specific criterion is established for medical treatment or therapy. Where a participant is temporarily absent from Australia so as to undergo clinically appropriate medical treatment or therapy that is not available in Australia, the period of treatment plus a reasonable period to allow for recuperation is a specific consideration. ‘Clinically appropriate’ is not defined in the rules. Finally, if a participant is prevented from returning to Australia for a reason outside of their control, what period will be reasonable to allow for their return will be a specific consideration. Some examples of what will be considered reasons outside the participants control include: natural disasters; war, political unrest or industrial dispute (so long as the participant is not willingly involved); health reasons, such as where the participant, their spouse or a family member is involved in a serious accident, becomes seriously ill or is hospitalised; and legal reasons, such as where the participant, their spouse or a family member is the victim of a serious crime, is party to custody proceedings or is required to remain overseas in connection with criminal proceedings.

Suspension of plans 9.25 Under s 41, if a participant is absent from Australia for longer than the grace period their plan is suspended from the end of the grace period until their return to Australia. A participant’s absence will be considered temporary if, throughout their absence, they remain a resident of Australia.

There are two situations in which a statement of participant supports will be suspended. First, where a participant is temporarily absent from Australia for a period of more than six weeks, unless the CEO has deemed it appropriate for the [page 115]

participant to be absent for longer the plan will be suspended until the participant returns to Australia. Second, a statement of participant supports will be suspended where a participant fails to take action to claim or obtain compensation under a Commonwealth, state or territory law as required by a written notice from the CEO. The statement of participant supports will be suspended until the participant takes the required action. Where a statement of participant supports is suspended, the plan remains in effect. However, during the suspension the participant is not entitled to be paid NDIS amounts that would otherwise have been paid in that period for reasonable and necessary supports. Further, the CEO is not required to provide or fund other supports under the plan but may do so if it is considered appropriate. A participant may not apply for a review of their plan while a suspension of the statement of participant supports is in effect.

Managing the funding for supports 9.26 The phrase ‘managing the funding for supports’ is defined under s 42 of the Act to incorporate three things: purchasing the supports identified by the plan; receiving and managing funding provided by the Agency; and acquitting any funding provided by the agency. 9.27 The statement of participant supports must specify the management of funding for supports. The statement must specify who the funding is to be managed by and whether that is wholly or partly managed (to a specified extent). The four options are for the funding to be managed either by the participant, the Agency, a nominee or a registered plan management provider.

A participant is entitled to make a request while their plan is being made or while it is in effect as to who is to manage the funding, termed a ‘plan management request’: s 43. The participant may request that they manage the funding for supports, either wholly or to the extent specified, themselves. They may request that a registered plan management provider nominated by them or a person specified by the Agency manage the funding for supports either wholly or to the extent specified. Where a participant does not make a plan management request the funding for supports is to be managed by the Agency or a registered plan management provider specified by the Agency, and the plan must specify which option has been chosen. The participant’s wishes must be considered in specifying who is to manage the funding for supports. Generally, a statement of participant supports must give effect to a participant’s plan management request. There are two exceptions: first, if the participant has a plan nominee the statement must provide that the funding for supports will be managed in accordance with the plan nominee’s appointment; and second, where the participant is prevented from managing the funding of supports under s 44 of the Act. [page 116]

Section 44 provides that a participant may not manage the funding for supports to any extent if they are an insolvent under administration. In addition, a participant may not manage the funding for supports to the extent specified by the CEO, if the CEO is satisfied that to do so would present an unreasonable risk to the participant. 9.28 The National Disability Insurance Scheme (Plan Management) Rules set out the circumstances in which it is to be considered that there is an unreasonable risk to the participant if the participant, their nominee or child’s representative were to manage the funding for supports. Where the participant is a child or is represented by a nominee, the CEO must have regard to three criteria: the capacity of the child’s representative or nominee to manage the

funding; whether there are grounds upon which a reasonable person could consider that the child’s representative or nominee might spend NDIS amounts other than in accordance with the participant’s plan; or any safeguards or strategies the Agency could put in place to mitigate any risk. Where the participant is an adult and does not have a nominee, the CEO must consider a more extensive list of criteria, including: the participant’s ability to make decisions; the participant’s capacity to manage finances; the vulnerability of the participant to harm (physical, mental or financial), exploitation or undue influence; whether, taking into account the nature of supports provided, material harm (including material financial harm) could be caused to the participant if they were to manage the funding; whether the participant’s finances are to be managed wholly or partly by another person as the result of an order of a court or tribunal under Commonwealth, state or territory law; and the extent to which any risks could be mitigated by the participant’s informal support network or any safeguards the Agency could put in place. Safeguards are expressly stated to include: reducing the time frame before the plan is reviewable; stipulating regular contact between the participant and the Agency; and funding supports that would assist the participant to manage their own plan. There are also operational guidelines entitled Planning and Assessment — Risks and Safeguards. The guidelines discuss varying levels of safeguards that might be employed, and promote the autonomy of the participant in deciding the

appropriate safeguard measures. Further, there are operational guidelines entitled Planning and Assessment — The Plan Management Decision, available on the NDIS website. These guidelines include two tables to support decision-making on whether there is an unreasonable risk to a participant or an unreasonable risk to a child participant and participants who have a nominee. [page 117]

Payment of NDIS amounts 9.29 Amounts payable under the NDIS to fund reasonable and necessary supports are termed ‘NDIS amounts’: s 45. An NDIS amount payable to a participant, or to a person managing the funding for supports under the participant’s plan, may be paid in a single payment or in instalments. If payments are in instalments, and the CEO has requested information or documentation from the participant relating to the expenditure of the previous instalment, the CEO is precluded from making payment of further instalments until the requested information is provided. The only option for payment of NDIS amounts is via direct deposit. A participant must provide the CEO with the details of an account with a financial institution and the CEO must pay NDIS amounts into that account. Section 46 requires that NDIS amounts must be spent in accordance with the participant’s plan. While the Act makes provision for the rules to proscribe record-keeping and retention requirements in relation to NDIS amounts, at the time of writing no such rules had been enacted.

Reviewing and changing plans 9.30 A participant may change their statement of goals and aspirations at any time: s 47. If a participant gives the CEO a changed statement of goals and aspirations their plan is taken to be replaced by the changed statement of goals and aspirations together with the existing statement of participant supports. The Agency is required to provide the participant with a copy of the new plan within seven days of receiving the changed statement of goals and aspirations: s 47(3).

Under s 48, a participant may request a review of their plan at any time. The CEO must decide, within 14 days of receiving the request, whether or not to conduct a review. If the CEO does not make a decision within the time frame he or she is taken to have decided not to conduct a review. If the CEO decides to conduct a review the CEO must start to facilitate the review within 14 days after making the decision and must conduct the review as soon as reasonably practicable. The CEO may also conduct a review on his or her own initiative at any time. The CEO is also obligated to conduct a review before the plan’s review date and in circumstances specified in the plan, if any. Where the CEO conducts a review of a participant’s plan he or she must also facilitate the preparation of a new plan. If the participant does not wish to change their statement of goals and aspiration the existing statement forms part of the new plan. In keeping with the CEO’s investigative powers in relation to the establishment of a plan, the CEO is empowered in reviewing a plan to request a participant or another person to provide information deemed reasonably necessary. The CEO may also request that the participant undergo assessment and/or medical, psychiatric, psychological [page 118]

or other examination and provide the CEO with the report of that assessment or examination. The CEO is required to give the participant a reasonable time to provide the requested information or reports but may review the plan without receiving them. In the event that the information or reports are provided after the plan is reviewed, the plan may be reviewed again if necessary.

LEGISLATION 9.31 Chapter 3 of the Act (Participants and their Plans) in Pt 2 contains the provisions with regard to participants’ plans. Division 1, s 31 sets out the principles relating to plans. Division 2, which consists of ss 32–41, deals with the preparation of participants’ plans, including the matters that must be dealt with in a plan, what will be considered a reasonable and necessary support, when

a plan is in effect, suspension of plans, and the effect of a temporary absence from Australia on a participant’s plan. Division 3, comprising ss 42–46, covers the management of funding for supports under a participant’s plan. Issues covered in these sections include the meaning of ‘managing the funding for supports’, giving effect to a participant’s choice of manager of funds, circumstances in which a participant cannot self-manage the funds and the payment and acquittal of NDIS amounts. Division 4, which includes ss 47–50, sets out the requirements with regard to reviewing and changing a participant’s plan.

Part 2—Participants’ plans Division 1—Principles relating to plans 31 Principles relating to plans The preparation, review and replacement of a participant’s plan, and the management of the funding for supports under a participant’s plan, should so far as reasonably practicable: (a) be individualised; and (b) be directed by the participant; and (c) where relevant, consider and respect the role of family, carers and other persons who are significant in the life of the participant; and (d) where possible, strengthen and build capacity of families and carers to support participants who are children; and (da) if the participant and the participant’s carers agree—strengthen and build the capacity of families and carers to support the participant in adult life; and [page 119] (e) consider the availability to the participant of informal support and other support services generally available to any person in the community; and (f)

support communities to respond to the individual goals and needs of participants; and

(g) be underpinned by the right of the participant to exercise control over his or her own life; and (h) advance the inclusion and participation in the community of the participant with the aim of achieving his or her individual aspirations; and

(i)

maximise the choice and independence of the participant; and

(j)

facilitate tailored and flexible responses to the individual goals and needs of the participant; and

(k) provide the context for the provision of disability services to the participant and, where appropriate, coordinate the delivery of disability services where there is more than one disability service provider.

Division 2—Preparing participants’ plans 32 CEO must facilitate preparation of participant’s plan (1) If a person becomes a participant, the CEO must facilitate the preparation of the participant’s plan. (2) The CEO must commence facilitating the preparation of the participant’s plan in accordance with the National Disability Insurance Scheme rules. (3) If National Disability Insurance Scheme rules made for the purposes of subsection (2) do not require the CEO to commence facilitating the preparation of a participant’s plan within a prescribed period or in prescribed circumstances, the CEO must commence facilitating the preparation of the plan as soon as reasonably practicable, having regard to the obligations of the CEO under the rules to commence facilitating the preparation of other participants’ plans.

32A Rules about preparation of plans (1) Without limiting subsection 32(2), National Disability Insurance Scheme rules made for the purposes of that subsection may require the CEO to commence facilitating the preparation of the plan of a participant included in a class prescribed by the rules: [page 120] (a) within a period prescribed by the rules; or (b) in circumstances prescribed by the rules. (2) Without limiting the classes that may be prescribed as mentioned in subsection (1), a class may be prescribed by reference to one or more of the following: (a) whether the participant’s name is included on a prescribed waiting list; (b) whether the participant is receiving support from a prescribed service provider or under a prescribed program; (c) whether, when the participant first made an access request, he or she was not receiving supports other than informal supports in relation to his or her disability;

the place of residence of the participant on a prescribed date or throughout (d) a prescribed period; (e) whether, when the participant first made an access request, he or she had left, or was reasonably likely to leave, school at a prescribed time or during a prescribed period; (f)

the participant’s age;

(g) other matters. (3) Despite subsection 32(2) and subsection (1) of this section, if the CEO is satisfied that, because of the urgency of the circumstances, it is appropriate to commence facilitating the preparation of a participant’s plan at a particular time: (a) the CEO may do so; and (b) if doing so means that it is necessary not to commence facilitating the preparation of the plans of one or more other participants—the CEO may delay commencing such facilitation, so far as is reasonably necessary. (4) The National Disability Insurance Scheme rules may prescribe matters to which the CEO is to have regard in deciding for the purposes of subsection (3) whether or not he or she is satisfied that, because of the urgency of the circumstances, it is appropriate to commence facilitating the preparation of a participant’s plan. (5) If the CEO commences or delays facilitating the preparation of a participant’s plan in accordance with subsection (3), the CEO does not breach subsection 32(2), or National Disability Insurance Scheme rules made for the purposes of that subsection, in relation to the participants concerned. [page 121] (6) Without limiting subsection 32(2) of this section, National Disability Insurance Scheme rules made for the purposes of that subsection (including as mentioned in subsection (1) of this section) may do one or more of the following: (a) prescribe a class by reference to a decision of the CEO about a matter prescribed by the rules; (b) prescribe a period or circumstances by reference to a decision of the CEO; (c) prescribe matters by reference to a decision of the CEO. (7) The CEO does not have a duty to consider whether to exercise a discretion conferred upon the CEO by: (a) subsection (3); or (b) National Disability Insurance Scheme rules made for the purposes of subsection 32(2) (including as mentioned in subsection (1) of this section).

33 Matters that must be included in a participant’s plan

(1) A participant’s plan must include a statement (the participant’s statement of goals and aspirations) prepared by the participant that specifies: (a) the goals, objectives and aspirations of the participant; and (b) the environmental and personal context of the participant’s living, including the participant’s: (i)

living arrangements; and

(ii) informal community supports and other community supports; and (iii) social and economic participation. (2) A participant’s plan must include a statement (the statement of participant supports), prepared with the participant and approved by the CEO, that specifies: (a) the general supports (if any) that will be provided to, or in relation to, the participant; and (b) the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme; and (c) the date by which, or the circumstances in which, the Agency must review the plan under Division 4; and [page 122] (d) the management of the funding for supports under the plan (see also Division 3); and (e) the management of other aspects of the plan. (3) The supports that will be funded or provided under the National Disability Insurance Scheme may be specifically identified in the plan or described generally, whether by reference to a specified purpose or otherwise. (4) The CEO must endeavour to decide whether or not to approve the statement of participant supports as soon as reasonably practicable, including what is reasonably practicable having regard to section 36 (information and reports). (5) In deciding whether or not to approve a statement of participant supports under subsection (2), the CEO must: (a) have regard to the participant’s statement of goals and aspirations; and (b) have regard to relevant assessments conducted in relation to the participant; and (c) be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and (d) apply any methods and have regard to any criteria prescribed by the National Disability Insurance Scheme rules in relation to the manner in

which the reasonable and necessary supports will be funded; and (e) have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and (f)

have regard to the operation and effectiveness of any previous plans of the participant.

(6) To the extent that the funding for supports under a participant’s plan is managed by the Agency, the plan must provide that the supports are to be provided only by a registered provider of supports. (7) A participant’s plan may include additional matters, including such additional matters as are prescribed by the National Disability Insurance Scheme rules. Note:

For example, a participant’s plan may include arrangements for ongoing contact with the Agency. [page 123]

(8) A participant’s statement of goals and aspirations need not be prepared by the participant in writing, but if it is prepared other than in writing, the Agency must record it in writing. Note:

Section 38 requires a copy of a participant’s plan to be provided to him or her.

34 Reasonable and necessary supports For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support: (a) the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations; (b) the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation; (c) the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support; (d) the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice; (e) the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide; (f)

the support is most appropriately funded or provided through the National

Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered: (i)

as part of a universal service obligation; or

(ii) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability; (g) the support is not prescribed by the National Disability Insurance Scheme rules as a support that will not be funded or provided under the National Disability Insurance Scheme; [page 124] (h) the funding of the support complies with the methods or criteria (if any) prescribed by the National Disability Insurance Scheme rules for deciding the reasonable and necessary supports that will be funded under the National Disability Insurance Scheme.

35 National Disability Insurance Scheme rules for statement of participant supports (1) The National Disability Insurance Scheme rules may prescribe: (a) a method for assessing, or criteria for deciding, the reasonable and necessary supports or general supports that will be funded or provided under the National Disability Insurance Scheme; and (b) reasonable and necessary supports or general supports that will not be funded or provided under the National Disability Insurance Scheme; and (c) reasonable and necessary supports or general supports that will or will not be funded or provided under the National Disability Insurance Scheme for prescribed participants. (2) The methods or criteria prescribed by the National Disability Insurance Scheme rules for assessing or deciding the reasonable and necessary supports that will be funded may include methods or criteria relating to the manner in which the supports are to be funded and by whom the supports so funded are to be provided. (3) The methods or criteria prescribed by the National Disability Insurance Scheme rules for assessing or deciding the general supports that will be provided may include methods or criteria relating to the manner in which the supports are to be provided. (4) The methods or criteria prescribed by the National Disability Insurance Scheme rules for assessing or deciding the reasonable and necessary supports that will be funded under the National Disability Insurance Scheme may include methods

or criteria relating to how to take into account: (a) lump sum compensation payments that specifically include an amount for the cost of supports; and (b) lump sum compensation payments that do not specifically include an amount for the cost of supports; and (c) periodic compensation payments that the CEO is satisfied include an amount for the cost of supports. [page 125] (5) The methods or criteria prescribed by the National Disability Insurance Scheme rules for assessing or deciding the reasonable and necessary supports that will be funded under the National Disability Insurance Scheme may include methods or criteria relating to how to take into account amounts that a participant or prospective participant did not receive by way of a compensation payment because he or she entered into an agreement to give up his or her right to compensation.

36 Information and reports for the purposes of preparing and approving a participant’s plan (1) For the purposes of preparing a statement of participant supports, or deciding whether to approve a statement of participant supports, the CEO may make one or more requests under subsection (2). (2) The requests the CEO may make are as follows: (a) that the participant, or another person, provide information that is reasonably necessary for the purposes of preparing the statement of participant supports, or deciding whether to approve the statement of participant supports; (b) that the participant do either or both of the following: (i)

undergo an assessment and provide to the CEO the report, in the approved form, of the person who conducts the assessment;

(ii) undergo, whether or not at a particular place, a medical, psychiatric, psychological or other examination, conducted by an appropriately qualified person, and provide to the CEO the report, in the approved form, of the person who conducts the examination. (3) The CEO may prepare the statement of participant supports, or decide whether to approve a statement of participant supports, before all the information and reports requested under subsection (2) are received by the CEO, but must give the participant a reasonable opportunity to provide them. Note:

If information or reports are provided after the plan is approved, the plan can be

reviewed and if necessary replaced.

37 When plan is in effect (1) A participant’s plan comes into effect when the CEO has: [page 126] (a) received the participant’s statement of goals and aspirations from the participant; and (b) approved the statement of participant supports. (2) A participant’s plan cannot be varied after it comes into effect, but can be replaced under Division 4. Note:

Under Division 4, a participant may request a review of his or her plan at any time and may revise the participant’s statement of goals and aspirations at any time, which results in the replacement of the plan.

(3) A participant’s plan ceases to be in effect at the earlier of the following times: (a) when it is replaced by another plan under Division 4; (b) when the participant ceases to be a participant.

38 Copy of plan to be provided The CEO must provide a copy of a participant’s plan to the participant within 7 days after the plan comes into effect.

39 Agency must comply with the statement of participant supports The Agency must comply with the statement of participant supports in a participant’s plan.

40 Effect of temporary absence on plans (1) A participant for whom a plan is in effect may be temporarily absent from Australia for the grace period for the absence without affecting the participant’s plan. (2) The grace period for a temporary absence of a participant is: (a) 6 weeks beginning when the participant leaves Australia; or (b) if the CEO is satisfied that it is appropriate for the grace period to be longer than 6 weeks—such longer period as the CEO decides, having regard to

the criteria (if any) prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph. (3) If a participant for whom a plan is in effect is temporarily absent from Australia after the end of the grace period for the absence, the participant’s plan is suspended from the end of the grace period until the participant returns to Australia. (4) For the purposes of this section, a person’s absence from Australia is temporary if, throughout the absence, the person does not cease to reside in Australia (within the meaning of paragraph 23(1)(a)). [page 127]

41 Suspension of plans (1) A statement of participant supports in a participant’s plan is suspended: (a) as mentioned in subsection 40(3) (which deals with temporary absence from Australia); and (b) as mentioned in compensation).

subsection

105(2)

(which

deals

with

obtaining

(2) The effect of suspension of a statement of participant supports in a participant’s plan is that the plan remains in effect but, during the period of suspension: (a) the person is not entitled to be paid NDIS amounts, so far as the amounts relate to reasonable and necessary supports that would otherwise have been funded in respect of that period; and (b) the Agency is not required to provide or fund other supports under the plan, but is not prevented from doing so if the CEO considers it appropriate; and (c) the participant is not entitled to request a review of the plan under subsection 48(1).

Division 3—Managing the funding for supports under participants’ plans 42 Meaning of managing the funding for supports under a participant’s plan (1) For the purposes of this Act, managing the funding for supports under a participant’s plan means: (a) purchasing the supports identified in the plan (including paying any applicable indirect costs, such as taxes, associated with the supports); and (b) receiving and managing any funding provided by the Agency; and

(c) acquitting any funding provided by the Agency. (2) For the purposes of the statement of participant supports in a participant’s plan, in specifying the management of the funding for supports under the plan as mentioned in paragraph 33(2)(d), the plan must specify that such funding is to be managed wholly, or to a specified extent, by: (a) the participant; or (b) a registered plan management provider; or [page 128] (c) the Agency; or (d) the plan nominee.

43 Choice for the participant in relation to plan management (1) A participant for whom a plan is in effect or is being prepared may make a request (a plan management request): (a) that he or she manage the funding for supports under the plan wholly or to the extent specified in the request; or (b) that the funding for supports under the plan be managed wholly, or to the extent specified in the request, by a registered plan management provider he or she nominates; or (c) that the funding for supports under the plan be managed wholly, or to the extent specified in the request, by a person specified by the Agency. (2) A statement of participant supports in a participant’s plan must give effect to the plan management request other than as follows: (a) if the participant is prevented from managing the funding for supports under the plan to any extent by section 44—the statement must make provision in accordance with subsection (3) of this section; (b) if the participant has a plan nominee—the statement must provide that the funding for supports under the plan is to be managed in accordance with the terms of the plan nominee’s appointment. (3) If the participant is prevented from managing the funding for supports under the plan wholly, or to a specified extent, by section 44, the statement of participant supports in the plan must provide that: (a) the funding for supports under the plan is to be managed in accordance with the plan management request, to the extent that the participant is not prevented from managing it; and (b) the remainder of the funding for supports under the plan is to be managed

by: (i)

a registered plan management provider specified by the Agency; or

(ii) the Agency. (4) If a participant does not make a plan management request, the statement of participant supports in the plan must provide that the funding for supports under the plan is to be managed by: [page 129] (a) a registered plan management provider specified by the Agency; or (b) the Agency. (5) If the funding for supports under a participant’s plan is to be managed to any extent by a registered plan management provider specified by the Agency, or by the Agency, the CEO must, so far as reasonably practicable, have regard to the wishes of the participant in specifying who is to manage the funding for supports under the plan to that extent.

44 Circumstances in which participant must not manage plan to specified extent (1) The statement of participant supports in a participant’s plan must not provide that the participant is to manage the funding for supports under his or her plan to any extent if the participant is an insolvent under administration. (2) The statement of participant supports in a participant’s plan must not provide that the participant is to manage the funding for supports under his or her plan to a particular extent if the CEO is satisfied that management of the plan to that extent would: (a) present an unreasonable risk to the participant; or (b) permit the participant to manage matters that are prescribed by the National Disability Insurance Scheme rules as being matters that must not be managed by a participant. (3) The National Disability Insurance Scheme rules may prescribe criteria to which the CEO is to have regard in considering whether a participant managing the funding for supports under the plan would present an unreasonable risk to the participant.

45 Payment of NDIS amounts (1) An NDIS amount that is payable to a participant, or to a person who is managing the funding for supports under a participant’s plan, is to be paid: (a) at the time or times determined by the CEO in accordance with the National

Disability Insurance Scheme rules; and (b) in the manner (if any) prescribed by the National Disability Insurance Scheme rules. (2) Without limiting paragraph (1)(b), the National Disability Insurance Scheme rules may provide that: [page 130] (a) an NDIS amount is to be paid to the credit of a bank account nominated and maintained by the person to whom it is to be paid; and (b) an NDIS amount is not payable to the person until the person nominates an account.

46 Acquittal of NDIS amounts (1) A participant who receives an NDIS amount, or a person who receives an NDIS amount on behalf of a participant, must spend the money in accordance with the participant’s plan. (2) The National Disability Insurance Scheme rules may make provision for and in relation to the retention of records of NDIS amounts paid to participants and other persons, including requiring that prescribed records be retained for a prescribed period.

Division 4—Reviewing and changing participants’ plans 47 Participant may change participant’s statement of goals and aspirations at any time (1) A participant may give the CEO a changed version of the participant’s statement of goals and aspirations at any time. Note:

The participant may also request a review of his or her plan at any time under subsection 48(1) and the CEO may review a participant’s plan at any time under subsection 48(4).

(2) If a participant gives a changed version of the participant’s statement of goals and aspirations to the CEO, the plan is taken to be replaced by a new plan comprising: (a) the changed version of the participant’s statement of goals and aspirations; and (b) the statement of participant supports in the existing plan. (3) The Agency must provide a copy of the new plan to the participant within 7 days of receiving the changed version of the participant’s statement of goals and

aspirations.

48 Review of participant’s plan (1) A participant may request that the CEO conduct a review of the participant’s plan at any time. (2) The CEO must decide whether or not to conduct the review within 14 days after receiving the request. If the CEO does not make a decision within that period, he or she is taken to have decided not to conduct the review. [page 131] Note 1: The period may be extended under National Disability Insurance Scheme rules made under section 204. Note 2: Notice of a decision that the CEO makes, or is taken to have made, must be given because of subsection 100(1), and a decision the CEO is taken to have made will be automatically reviewed because of subsection 100(5). (3) If the CEO decides to conduct a review under subsection (1), the CEO must commence to facilitate the review within 14 days after so deciding and must complete the review as soon as reasonably practicable. (4) The CEO may, on the CEO’s initiative, conduct a review of a participant’s plan at any time. (5) The CEO must conduct a review of a participant’s plan before the plan’s review date and in the circumstances, if any, specified in the plan. (6) The CEO must conduct a review of a participant’s plan in the circumstances (if any) prescribed by the National Disability Insurance Scheme rules.

49 Outcome of review If the CEO conducts a review of a participant’s plan under section 48, the CEO must facilitate the preparation of a new plan with the participant in accordance with Division 2. Note 1: If the participant does not wish to change the participant’s statement of goals and aspirations, the statement remains unchanged and forms part of the new plan. Note 2: Because the new plan is prepared in accordance with Division 2, a decision to approve the statement of participant supports in the plan would be made under subsection 33(2) and be reviewable under paragraph 99(d).

50 Information and reports for the purposes of reviewing a participant’s plan

(1) For the purposes of reviewing a participant’s plan, the CEO may make one or more requests under subsection (2). (2) The requests the CEO may make are as follows: (a) that the participant, or another person, provide information that is reasonably necessary for the purposes of reviewing the participant’s plan; or (b) that the participant do either or both of the following: [page 132] (i)

undergo an assessment and provide to the CEO the report, in the approved form, of the person who conducts the assessment;

(ii) undergo, whether or not at a particular place, a medical, psychiatric, psychological or other examination, conducted by an appropriately qualified person, and provide to the CEO the report, in the approved form, of the person who conducts the examination. (3) The CEO may review a participant’s plan before all the information and reports requested under subsection (2) are received by the CEO, but must give the participant a reasonable opportunity to provide them. Note:

If information or reports are provided after the plan is reviewed, the plan can be reviewed again and if necessary replaced.

RULES 9.32 The National Disability Insurance Scheme (Supports for Participants) Rules 2013 set out the criteria against which the CEO must assess the reasonable and necessary supports to be funded under the NDIS. Part 3 sets out the criteria for assessing proposed supports. Part 4 outlines the methods and tools to be utilised in undertaking a needs assessment of a participant. Part 5 sets out the general criteria for when supports will not be funded under the NDIS and also details what supports will not be funded or provided. Schedule 1 sets out the matters to be considered in deciding whether a support is most appropriately funded through the NDIS. The National Disability Insurance Scheme (Plan Management) Rules 2013 provide detail as to how the management of funding will be allocated. Part 3 details when self-management of funding will be considered to pose an

unreasonable risk. Part 4 deals with the timing and manner of payment of NDIS amounts. Part 5 details the general and specific considerations in determining whether the grace period for temporary absence from Australia should be extended. Part 6 addresses whether supports should be generally or specifically described in a participant’s statement of supports and how supports should be described where there is a cost-effectiveness issue or a person’s disability requires a particular service provider or delivery mode. [page 133]

National Disability Insurance Scheme (Supports for Participants) Rules 2013 Part 3 Assessing proposed supports Value for money 3.1 In deciding whether the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support, the CEO is to consider the following matters: (a) whether there are comparable supports which would achieve the same outcome at a substantially lower cost; (b) whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long-term benefit to, the participant; (c) whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports); (d) for supports that involve the provision of equipment or modifications: (i)

the comparative cost of purchasing or leasing the equipment or modifications; and

(ii) whether there are any expected changes in technology or the participant’s circumstances in the short term that would make it inappropriate to fund the equipment or modifications; (e) whether the cost of the support is comparable to the cost of supports of the

same kind that are provided in the area in which the participant resides; (f)

whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports (for example, some home modifications may reduce a participant’s need for home care).

Effective and beneficial and current good practice 3.2 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include: [page 134] (a) published and refereed literature and any consensus of expert opinion; (b) the lived experience of the participant or their carers; or (c) anything the Agency has learnt through delivery of the NDIS.

3.3 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary seek, expert opinion.

Reasonable family, carer and other support 3.4 In deciding whether funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide, the CEO is to consider the following matters: (a) for a participant who is a child: (i)

that it is normal for parents to provide substantial care and support for children; and

(ii) whether, because of the child’s disability, the child’s care needs are substantially greater than those of other children of a similar age; and (iii) the extent of any risks to the wellbeing of the participant’s family members or carer or carers; and (iv) whether the funding or provision of the support for a family would improve the child’s capacity or future capacity, or would reduce any risk

to the child’s wellbeing; (b) for other participants: (i)

the extent of any risks to the wellbeing of the participant arising from the participant’s reliance on the support of family members, carers, informal networks and the community; and

(ii) the suitability of family members, carers, informal networks and the community to provide the supports that the participant requires, including such factors as: (A) the age and capacity of the participant’s family members and carers, including the extent to which family and community supports are available to sustain them in their caring role; and (B) the intensity and type of support that is required and whether it is age and gender appropriate for a particular family member or carer to be providing that care; and [page 135] (C) the extent of any risks to the long term wellbeing of any of the family members or carers (for example, a child should not be expected to provide care for their parents, siblings or other relatives or be required to limit their educational opportunities); and (iii) the extent to which informal supports contribute to or reduce a participant’s level of independence and other outcomes; (c) for all participants—the desirability of supporting and developing the potential contributions of informal supports and networks within their communities.

Supports appropriately funded or provided through the NDIS 3.5 Schedule 1 sets out matters for the CEO to have regard to in considering whether supports are most appropriately funded or provided through the NDIS, rather than through other service systems (service systems is defined in paragraph 6.4). 3.6 The matters to have regard to are set out under the following headings in the Schedule: (a) Health (excluding mental health); (b) Mental health; (c) Child protection and family support;

(d) Early childhood development; (e) School education; (f)

Higher education and vocational education and training;

(g) Employment; (h) Housing and community infrastructure; (i)

Transport;

(j)

Justice.

3.7 Where particular supports are set out in the Schedule as being appropriately funded or provided through the NDIS, the CEO must still be satisfied of a number of other matters in order for the supports to be funded or provided (see paragraphs 2.3(a)– (e) of these Rules and paragraphs 34(a)–(e) of the Act).

Part 4 Needs assessment Method 4.1 When deciding whether or not to approve a statement of participant supports under section 33 of the Act, the CEO is to: [page 136] (a) identify the participant’s goals, aspirations, strengths, capacity, circumstances and context; and (b) assess activity limitations, participation restrictions and support needs arising from a participant’s disability; and (c) assess risks and safeguards in relation to the participant; and (d) relate support needs to the participant’s statement of goals and aspirations.

Use of assessment tools 4.2 When following the method in paragraph 4.1, the CEO is to make assessments of the matters that relate to the decision using any appropriate tools that are specified in operational guidelines in accordance with this Part from time to time. 4.3 The CEO is to ensure that tools are applied appropriately to each participant. For example, a participant should not be

assessed on matters that are not relevant to them.

Specification of assessment tools in guidelines 4.4 The CEO is to specify, in operational guidelines, assessment tools to be used under paragraph 4.2 to make assessments of matters relating to a decision about participant supports. 4.5 Without limitation, the CEO may specify: (a) different tools to be used for adults and children; and (b) tools that are specifically tailored to particular impairments.

4.6 A tool must: (a) be designed to ensure the fair and transparent assessment of reasonable and necessary supports for participants (including early intervention supports); and (b) have reference to areas of activity and social and economic participation identified in the World Health Organisation International Classification of Functioning, Disability and Health as in force from time to time.

Part 5 General criteria for supports, and supports that will not be funded or provided General criteria for supports 5.1 A support will not be provided or funded under the NDIS if: (a) it is likely to cause harm to the participant or pose a risk to others; or [page 137] (b) it is not related to the participant’s disability; or (c) it duplicates other supports delivered under alternative funding through the NDIS; or (d) it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.

5.2 The day-to-day living costs referred to in paragraph 5.1(d) do not include the following (which may be funded under the NDIS if they relate to reasonable and necessary supports):

(a) additional living costs that are incurred by a participant solely and directly as a result of their disability support needs; (b) costs that are ancillary to another support that is funded or provided under the participant’s plan, and which the participant would not otherwise incur.

Supports that will not be funded or provided 5.3 The following supports will not be provided or funded under the NDIS: (a) a support the provision of which would be contrary to: (i)

a law of the Commonwealth; or

(ii) a law of the State or Territory in which the support would be provided; (b) a support that consists of income replacement.

Schedule 1 Considerations relating to whether supports are most appropriately funded through the NDIS 7.1 The Act limits the supports that can be provided or funded under the NDIS to supports that are not more appropriately funded or provided through other service systems, for example as part of a universal services obligation or in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability. 7.2 The considerations set out in this Schedule must be taken into account by the CEO in deciding whether a support is more appropriately provided or funded by the NDIS or another service system. 7.3 For the avoidance of doubt, while this Schedule sets out considerations relevant to whether a support should be considered to be more appropriately provided or funded through another service [page 138]

system, it does not purport to impose any obligations on another

service system to fund or provide particular supports. Note:

The considerations set out in this Schedule are derived from the Principles to determine the responsibilities of the NDIS and other service systems, agreed to by the Council of Australian Governments, and dated Friday 19 April 2013. That document also includes principles relating to aged care. They are not relevant to this Schedule, but are given effect to in section 19 of the Act, and the National Disability Insurance Scheme (Becoming a Participant) Rules 2013.

Health (excluding mental health) 7.4 The NDIS will be responsible for supports related to a person’s ongoing functional impairment and that enable the person to undertake activities of daily living, including maintenance supports delivered or supervised by clinically trained or qualified health practitioners where these are directly related to a functional impairment and integrally linked to the care and support a person requires to live in the community and participate in education and employment. 7.5 The NDIS will not be responsible for: (a) the diagnosis and clinical treatment of health conditions, including ongoing or chronic health conditions; or (b) other activities that aim to improve the health status of Australians, including general practitioner services, medical specialist services, dental care, nursing, allied health services (including acute and post-acute services), preventive health, care in public and private hospitals and pharmaceuticals or other universal entitlements; or (c) funding time-limited, goal-oriented services and therapies: (i)

where the predominant purpose is treatment directly related to the person’s health status; or

(ii) provided after a recent medical or surgical event, with the aim of improving the person’s functional status, including rehabilitation or postacute care; or (d) palliative care.

Mental health 7.6 The NDIS will be responsible for supports that are not clinical in nature and that focus on a person’s functional ability, including supports that enable a person with a mental illness or psychiatric

condition to undertake activities of daily living and participate in the community and social and economic life. [page 139]

7.7 The NDIS will not be responsible for: (a) supports related to mental health that are clinical in nature, including acute, ambulatory and continuing care, rehabilitation/recovery; or (b) early intervention supports related to mental health that are clinical in nature, including supports that are clinical in nature and that are for child and adolescent developmental needs; or (c) any residential care where the primary purpose is for inpatient treatment or clinical rehabilitation, or where the services model primarily employs clinical staff; or (d) supports relating to a co-morbidity with a psychiatric condition where the comorbidity is clearly the responsibility of another service system (eg treatment for a drug or alcohol issue).

Early childhood development 7.8 The NDIS will be responsible for personalised supports, specific to a child’s disability (or developmental delay), which are additional to the needs of children of a similar age and beyond the reasonable adjustment requirements of early childhood development service providers. 7.9 The NDIS will be responsible for early interventions for children with disability (or developmental delay) which are: (a) specifically targeted at enhancing a child’s functioning to undertake activities of daily living, but not supports which are specifically for the purpose of accessing a universal service such as school readiness programs that prepare a child for education; and (b) likely to reduce the child’s future support needs, which would otherwise require support from the NDIS in later years, including through a combination and sequence of supports.

7.10 The NDIS will not be responsible for: (a) meeting the early childhood education and care needs of a child with a developmental delay or disability required by children of a similar age

including through inclusion supports that enable children to participate in early childhood education and care settings; or (b) supports, which are clinical in nature provided in the health system, including acute, ambulatory or continuing care; or (c) new-born follow-up provided in the health system, including child and maternal health services. [page 140]

Child protection and family support 7.11 The NDIS will be responsible for: (a) supports for children, families and carers, required as a direct result of a child’s disability, that enable families and carers to sustainably maintain their caring role, including community participation, therapeutic and behavioural supports and additional respite and aids and equipment; and (b) where a child is in out-of-home care—supports specific to the child’s disability (or developmental delay), which are additional to the needs of children of similar ages, in similar out-of-home care arrangements. The diversity of outof-home care arrangements is recognised and the level of reasonable and necessary supports will reflect the circumstances of the individual child.

7.12 The NDIS will not be responsible for: (a) statutory child protection services required by families who have entered, or are at risk of entering, the statutory child protection system; or (b) general parenting programs, counselling or other supports for families, which are provided to families at risk of child protection intervention and to the broader community, including making them accessible and appropriate for families with disability; or (c) funding or providing out-of-home care or support to carers of children in outof-home care where these supports are not additional to the needs of children of similar age in similar out-of-home care arrangements.

School education 7.13 The NDIS will be responsible for supports that a student requires that are associated with the functional impact of the student’s disability on their activities of daily living (that is, those not primarily relating to education or training attainment), such as personal care and support, transport to and from school and

specialist supports for transition from school education to further education, training or employment that are required because of the student’s disability. Any supports funded by the NDIS will recognise the operational requirements and educational objectives of schools. 7.14 The NDIS will not be responsible for personalising either learning or supports for students that primarily relate to their educational [page 141]

attainment (including teaching, learning assistance and aids, school building modifications and transport between school activities).

Higher education and vocational education and training 7.15 The NDIS will be responsible for supports that a student requires which are associated with the functional impact of the student’s disability on their activities of daily living (that is, those not primarily relating to education or training attainment), such as personal care and support, transport to and from the education or training facility and specialist supports for transition from education or training to employment that are required because of the person’s disability. 7.16 The NDIS will not be responsible for the learning and support needs of students that primarily relate to their education and training attainment (including teaching, learning assistance and aids, building modifications, transport between education or training activities and general education to employment transition supports).

Employment 7.17 The NDIS will be responsible for:

(a) supports related to daily living that a person would require irrespective of whether they are working or looking for work (including personal care and support and transport to and from work); and (b) frequent and ongoing supports that assist a person with disability to take part in work where the person has work capacity and is unlikely to be able to find or retain work in the open market, including with the assistance of employment services; and (c) individualised assistance to support a person with disability to transition into employment, where these support needs are additional to the needs of all Australians and specifically required as a result of a person’s functional impairment, eg training on workplace relationships, communication skills, dress, punctuality and attendance, and travelling to and from work.

7.18 The NDIS will not be responsible for: (a) work-specific support related to recruitment processes, work arrangements or the working environment, including workplace modifications, work-specific aids and equipment, transport within work activities and work-specific support required in order to comply with laws dealing with discrimination on the basis of disability; or [page 142] (b) the funding or provision of employment services and programs, including both disability-targeted and open employment services, to provide advice and support to: (i)

people with disability to prepare for, find and maintain jobs; or

(ii) employers to encourage and assist them to hire and be inclusive of people with disability in the workplace (ie support, training and resources, funding assistance to help employers make reasonable adjustments, and incentives for hiring people with disability, eg wage subsidies).

Housing and community infrastructure 7.19 The NDIS will be responsible for: (a) supports to assist a person with disability to live independently in the community, including by building their capacity to maintain a tenancy, and support for appropriate behaviour management; and (b) home modifications for accessibility for a person in private dwellings; and (c) home modifications for accessibility for a person in legacy public and community housing dwellings on a case-by-case basis but not to the extent that it would compromise the responsibility of housing authorities to develop,

maintain and refurbish stock that meets the needs of people with disability; and (d) user costs of capital in some situations where a person requires an integrated housing and support model and the cost of the accommodation component exceeds a reasonable contribution from individuals.

7.20 The NDIS will not be responsible for: (a) the provision of accommodation for people in need of housing assistance, including routine tenancy support and ensuring that appropriate and accessible housing is provided for people with disability; or (b) ensuring that new publicly-funded housing stock, where the site allows, incorporates Liveable Housing Design features; or (c) homelessness-specific services including homelessness prevention and outreach, or access to temporary or long term housing for participants who are homeless or at risk of homelessness; or (d) the improvement of community infrastructure, ie accessibility of the built and natural environment, where this is managed through [page 143] other planning and regulatory systems and through building modifications and reasonable adjustment where required.

Transport 7.21 The NDIS will be responsible for: (a) supports for a person that enable independent travel, including through personal transport-related aids and equipment, or training to use public transport; and (b) modifications to a private vehicle (ie not modifications to public transport or taxis); and (c) the reasonable and necessary costs of taxis or other private transport options for those not able to travel independently.

7.22 The NDIS will not be responsible for: (a) ensuring that public transport options are accessible to a person with disability, including through the funding of concessions to people with disability to use public transport; or (b) compliance of transport providers and operators with laws dealing with discrimination on the basis of disability, including the Disability Standards for

Accessible Public Transport 2002; or (c) transport infrastructure, including road and footpath infrastructure, where this is part of a universal service obligation or reasonable adjustment (including managing disability parking and related initiatives).

Justice 7.23 In sections 7.24 and 7.25: person not in custody means a person who is subject to the justice system (including relevant elements of the civil justice system), but is not in a custodial setting (for example, a person on bail, a person under a community based order that places controls on the person to manage risks to the individual or to the community, a former prisoner on parole, or a person in home detention). person in custody means a person in a custodial setting, whether on remand or as a result of a sentence or other court order (including in a youth detention and training facility), or in a secure mental health facility. transition supports, for a person in a custodial setting, means supports to facilitate the person’s transition from the custodial setting to the community that: [page 144] (a) are reasonable and necessary; and (b) are required specifically as a result of the person’s functional impairment.

7.24 The NDIS will be responsible for: (a) in relation to a person not in custody—reasonable and necessary supports on the same basis as all other persons; and (b) in relation to a person in custody: (i)

reasonable and necessary supports other than those mentioned in paragraph 7.25(a), to the extent appropriate in the circumstances of the person’s custody; and

(ii) transition supports.

7.25 The NDIS will not be responsible for: (a) the day-to-day care and support needs of a person in custody, including supervision, personal care and general supports; or (b) ensuring that criminal justice system services are accessible for people with disability including appropriate communication and engagement mechanisms, adjustments to the physical environment, accessible legal assistance services and appropriate fee waivers; or (c) general programs for the wider population, including programs to prevent offending and minimise risks of offending and re-offending and the diversion of young people and adults from the criminal justice system; or (d) the management of community corrections, including corrections-related supervision for offenders on community based orders; or (e) the operation of secure mental health facilities that are primarily clinical in nature.

National Disability Insurance Management) Rules 2013

Scheme

(Plan

Part 3 When self-management of funding will pose unreasonable risk to participant 3.1 A participant’s plan includes a statement of participant supports that specifies, among other things: (a) the reasonable and necessary supports (if any) that will be funded under the NDIS; and (b) the management of the funding for supports under the plan. [page 145]

3.2 A participant is able, during the planning process, to make a plan management request that specifies who the participant wishes to manage the funding for supports under the plan. The plan must specify that the funding is to be managed wholly, or to an extent specified in the plan, by any of the participant, a registered plan management provider, the Agency or the plan nominee. 3.3 There are some restrictions under the Act on the extent to

which participants are able to self-manage the funding for supports under their plan. 3.4 A participant will not be able to self-manage the funding for supports under their plan to any extent if they are an insolvent under administration. 3.5 Nor will a participant be able to manage the funding for supports under their plan to a particular extent if the CEO is satisfied that this would present an unreasonable risk to the participant. 3.6 This Part relates to deciding whether there would be an unreasonable risk to the participant if the participant (or the participant’s plan nominee or child’s representative) were to manage the funding for supports to the extent proposed. Paragraphs 3.1 to 3.6 summarise subsection 33(2) and sections 42, 43 and 44 of the Act. Division 3 of Part 2 of Chapter 3 of the Act provides further details relating to managing the funding for supports under a participant’s plan.

Unreasonable risk if the participant is a child or is represented by a nominee 3.7 If the participant is a child, or is represented by a plan nominee, the CEO is to have regard to the following: (a) the capacity of the child’s representative or the plan nominee to manage finances; (b) whether the child’s representative or the plan nominee has an interest that could lead a reasonable person to consider that NDIS amounts within their control might be spent other than in accordance with the participant’s plan;

[page 146] (c) whether, and the extent to which, any risks could be mitigated by any safeguards or strategies the Agency could put in place through the participant’s plan.

Unreasonable risk in other cases 3.8 Otherwise, the CEO is to have regard to the following: (a) whether material harm, including material financial harm, to the participant could result if the participant were to manage the funding for supports to the extent proposed, taking into account the nature of the supports identified in the plan; (b) the vulnerability of the participant to: (i)

physical, mental or financial harm; or

(ii) exploitation; or (iii) undue influence; (c) the ability of the participant to make decisions; (d) the capacity of the participant to manage finances; (e) whether a court or a tribunal has made an order under Commonwealth, State or Territory law under which the participant’s property (including finances) or affairs are to be managed, wholly or partly, by another person; (f)

whether, and the extent to which, any risks could be mitigated by: (i)

the participant’s informal support network; or

(ii) any safeguards or strategies the Agency could put in place through the participant’s plan.

3.9 The safeguards referred to in paragraph 3.8(f)(ii) could include, for example: (a) setting a shorter period before the participant’s plan is reviewed; or (b) setting out regular contacts between the Agency and the participant; or (c) providing funding for supports (for example, budgeting training) that would assist the participant to manage their own plan.

Part 4 Payment of NDIS amounts 4.1 A participant’s plan specifies, among other things, the reasonable and necessary supports (if any) that will be funded

under the NDIS. Amounts paid under the NDIS in respect of such supports are known as NDIS amounts. [page 147]

4.2 NDIS amounts are to be paid to the participant, or to a person who is managing the funding for supports under a participant’s plan, in accordance with this Part. Paragraphs 4.1 and 4.2 summarise paragraph 33(2)(b) and section 45 of the Act.

Timing for payments of NDIS amounts 4.3 The CEO may pay an NDIS amount: (a) in a single payment; or (b) by instalments.

4.4 If: (a) the CEO is paying an NDIS amount by instalments; and (b) the CEO requires the participant to provide information or a document relating to expenditure of previous instalments;

the CEO may make a payment of an instalment only after the information or document has been provided.

Manner of paying NDIS amounts 4.5 A participant must provide the CEO with details of an account with a financial institution into which NDIS amounts can be paid. 4.6 The CEO must pay NDIS amounts into the account nominated by the participant.

Part 5 Grace period for temporary absences from

Australia 5.1 For people with disability, as with other members of Australian society, travel abroad, including extended holidays, can be considered to be an ordinary part of life. Under the NDIS, a participant for whom a plan is in effect may be temporarily absent from Australia for a certain period without affecting their plan. This period is known as the grace period. 5.2 If the participant is temporarily absent from Australia after the end of the grace period, their plan is suspended from the end of the grace period until they return to Australia. 5.3 The general rule is that the grace period is 6 weeks, beginning when the participant leaves Australia. 5.4 However, the CEO may extend the grace period for a particular participant if the CEO is satisfied that it is appropriate. [page 148]

Paragraphs 5.1 to 5.4 summarise the effect of section 40 of the Act. 5.5 When deciding whether, and by how much, to extend the grace period, the CEO is to have regard to: (a) the general considerations in paragraph 5.8; and (b) any relevant specific considerations in paragraphs 5.9 to 5.15.

5.6 It is expected that the CEO would ordinarily extend the grace period if a participant is, or is to be, temporarily absent from Australia for: (a) a period to which one of the specific considerations applies; or (b) humanitarian purposes.

Paragraph 5.6 does not compel the CEO to extend the grace period in any particular instance.

General considerations relating to extending the grace period 5.7 The general considerations are relevant in the case of any participant who is to be temporarily absent for more than 6 weeks (including a participant who is on an extended holiday that lasts for more than 6 weeks). 5.8 The general considerations are the following: (a) the proposed length of absence from Australia; (b) any previous decisions that the grace period should be extended; (c) the supports provided to the participant under their plan; (d) the participant’s ability to continue to access supports while they are absent from Australia; (e) the Agency’s ability to facilitate the provision of supports to, and maintain a relationship with, the participant while they are absent from Australia; (f)

whether the refusal to extend the grace period would cause undue hardship to the participant.

Specific considerations relating to extending the grace period Overseas study 5.9 If the participant is to complete an exchange program or course of studies outside Australia that is: [page 149] (a) an element of a course that the participant is undertaking at an Australian secondary or tertiary educational institution; or (b) part of a recognised program of international exchanges;

a specific consideration is the period of the overseas exchange program or course of studies. Temporary employment 5.10 If the absence is because the participant, a spouse or family member is required to travel overseas for the purposes of temporary employment, a specific consideration is the period of employment. Reserve forces 5.11 If the participant is a member of the reserve forces and is required to be temporarily absent from Australia to fulfil their duties in this role, a specific consideration is the period of deployment. 5.12 If the absence is because a spouse or family member of the participant: (a) is a member of the reserve forces; and (b) is required to be temporarily absent from Australia to fulfil duties in this role; a specific consideration is the period of deployment.

5.13 In paragraphs 5.11 and 5.12, reserve forces means: (a) the Naval Reserve established under the Naval Defence Act 1910; and (b) the Army Reserve established under the Defence Act 1903; and (c) the Air Force Reserve established under the Air Force Act 1923.

Medical treatment or therapy 5.14 If the absence is so that the participant can receive clinically appropriate medical treatment or therapy that is not available in Australia, a specific consideration is the period of treatment plus a reasonable period to allow for recuperation. Participant prevented from returning to Australia 5.15 If the participant is prevented from returning to Australia for a reason that is beyond their control, a specific consideration is what period will be reasonable to allow the participant to return to

Australia. [page 150]

5.16 The following are examples of reasons beyond the participant’s control: (a) while temporarily absent from Australia, the participant, their spouse, or a family member of the participant: (i)

is involved in a serious accident; or

(ii) becomes seriously ill; or (iii) is hospitalised; or (iv) is the victim of a serious crime; or (v) is a party in custody proceedings; or (vi) is required to remain overseas in connection with criminal proceedings; (b) war, industrial action, or social or political unrest in which the participant is not willingly participating; (c) natural disaster.

Part 6 Describing supports in participant’s plan 6.1 A participant’s statement of participant supports (referred to as the statement in this Part) specifies, among other things: (a) the general supports (if any) that will be provided to, or in relation to, the participant; and (b) the reasonable and necessary supports (if any) that will be funded under the NDIS.

6.2 Some supports in the statement may be described generally, whether by reference to a specified purpose or otherwise. For such supports, the participant will have a high degree of flexibility over the implementation of the supports. 6.3 In contrast, some supports may be specifically identified in the statement. In the case of reasonable and necessary supports, the statement could specify the type of supports that are to be funded and the way in which they are to be provided, where to do so would help ensure that the expected outcomes from the supports

are attained by the participant. Such supports will have to be purchased in the way described in the statement. Paragraphs 6.1 to 6.3 summarise paragraphs 33(2)(a) and (b), and subsections 33(3) and 35(2) and (3) of the Act.

[page 151]

Whether supports should be specifically identified or described generally 6.4 When deciding whether the support should be described generally or more specifically in the statement, the CEO is to have regard to the following: (a) the cost of the support; (b) any expected return or saving in costs from providing the support; (c) any risks associated with the supply of the support such as the need for the support to conform to State or Territory laws; (d) whether achievement of other goals in the plan or the effectiveness of other supports is contingent on a particular support being procured or used; (e) whether a participant’s disability requires a specialist, evidence-informed support provided by a qualified person or a particular delivery mode; (f)

whether the participant accessed the NDIS by satisfying the early intervention requirements.

Describing supports where more cost-effective for agency to provide 6.5 If the CEO considers that it is more cost-effective for the support to be provided directly by the Agency (for example, using bulk purchasing of goods), the statement is to record that the support will be provided by the Agency.

Describing supports where most efficient and effective to be provided by particular provider 6.6 If: (a) the CEO is considering approving a particular support for a particular participant; and (b) the Agency has entered into a funding arrangement with a provider to provide that support; and (c) the CEO considers that the support is most efficiently and effectively provided to the participant by that provider; the statement is to record that the support will be provided by that provider. [page 152]

Describing supports where disability requires particular service provider or delivery mode 6.7 If: (a) the CEO considers that a participant’s disability requires: (i)

specialist, evidence-informed support provided by a qualified person; or

(ii) a support to be provided in a certain delivery mode; and (b) the CEO considers that the support is most efficiently and effectively provided to the participant by a particular person or through a particular delivery mode; the statement is to record that the support will be provided by that qualified person or in that delivery mode.

Describing supports previously provided by the Commonwealth, a State or a Territory 6.8 If the support was previously provided to the participant by the Commonwealth, or by a State or a Territory, and there is a funding agreement that relates to the support that is in force, the statement is to record that the support will be provided by a person other than the Agency in accordance with the funding agreement.

______________________________ 1.

National Disability Insurance Scheme (Facilitating the Preparation of Participants’ Plans — New South Wales) Rules 2013; National Disability Insurance Scheme (Facilitating the Preparation of Participants’ Plans — South Australia) Rules 2013; National Disability Insurance Scheme (Facilitating the Preparation of Participants’ Plans — Tasmania) Rules 2013; National Disability Insurance Scheme (Facilitating the Preparation of Participants’ Plans — Victoria) Rules 2013.

[page 153]

CHAPTER 10 Supports Providers SUMMARY A person or entity may apply to the NDIS CEO to be a registered provider of supports and/or manager of funding for supports. Applications are assessed against criteria set out in the NDIS rules. Registered providers have ongoing obligations of a reporting nature to the Agency. The Act provides four mechanisms by which a registered provider may have their approval revoked and the rules provide a list of circumstances that will warrant revocation.

COMMENTARY Introduction 10.1 In order to be a supports provider for a registered participant a person or entity must apply for and be granted registration under s 69 of the Act. A person or entity may apply to be registered in relation to the management of funding for supports under plans and/or the actual provision of supports.

Applying 10.2 Section 69(2) requires that an application to be a registered provider be in writing to the NDIS CEO, utilising the form approved by the CEO (available for download on the NDIS website) and include any information or documents required by the CEO. Under s 70(1) the CEO is required to approve a person or entity as a registered provider if the CEO is satisfied that person meets the criteria set out by Pt 3 of the National Disability Insurance Scheme (Registered Providers of Supports) Rules 2013. Pursuant to s 70(2) an approval is to be issued as a written instrument. Under s 70(3) an approval can be limited in scope to a particular class of supports or particular class of persons. Part 3 of the National Disability Insurance Scheme (Registered Provider of Supports) Rules 2013 sets out the criteria for approval as a registered provider of [page 154]

supports. The criteria require an applicant to have an ABN1 and an account with a financial institution.2 An applicant must also declare: agreement to be bound by the Agency’s terms of business; compliance with all workplace health and safety laws that apply to the applicant and have in place mechanisms to ensure ongoing compliance; the applicant has mechanisms in place to ensure any contractors engaged also comply with all applicable employment and workplace health and safety laws; and the applicant and its staff comply with all laws that apply to the provision of supports or the management of funding for supports the contravention of which is punishable by criminal penalty, and the applicant has in place mechanisms by which to ensure ongoing compliance; Further, under r 3.12 an applicant for registration as a provider of supports or as a manager of funding for supports under a plan must be a suitable person or

entity to provide the kinds of services they propose to provide. The following considerations are stated as relevant to that determination: the qualifications and approvals relevant to the provision of the specified kinds of supports or management of funding; the applicant’s capacity to provide those kinds of supports or manage the funding; the applicant’s experience in providing those kinds of supports or managing the funding; and if a particular participant has been nominated, whether that participant considers the applicant to be suitable. Rule 3.14 explicitly states that if a person or entity is applying for registration as both a provider of supports and manager of funds for supports under a plan, each of the criteria must be met for each role. Further, under r 3.15 such an applicant must also have mechanisms in place for dealing with conflicts of interest when performing both of those roles for the same participant. [page 155]

Requirements 10.3 Under Pt 4 of the National Disability Insurance Scheme (Registered Provider of Supports) Rules 2013, a registered provider of supports must notify the Agency as soon as becoming aware of any of the following matters: a complaint has been made to a responsible authority3 about the ‘standard, effectiveness or safety’ of the provision of supports by the provider, or an employee or contractor of the provider, and the authority has taken action as a result; a responsible authority has taken adverse action against a provider, or an employee or contractor of the provider, in relation to their provision of supports or management of the funding for supports, regardless of whether those supports are funded under the Act;

a responsible authority has taken an adverse action against a provider, or an employee or contractor of the provider, in relation to an approval held; the provider becomes an insolvent under administration; the provider, or a contractor of the provider, has failed to comply with a workplace health and safety or employment law; an employee or contractor has failed to comply with a law that applies to the provision of supports or management of funding for supports, the contravention of which is punishable by a criminal penalty.

Revocation 10.4 Pursuant to s 72 of the Act, an approval may be revoked were the CEO is satisfied that one of four criteria have been met: the registered provider no longer meets the criteria prescribed by the rules for registration; the person or entity’s application contained information that was false or misleading in a material respect; a circumstance exists that presents an unreasonable risk to participant/s; or a circumstance prescribed by the rules. [page 156]

Part 5 of the National Disability Insurance Scheme (Registered Provider of Supports) Rules 2013 sets out the circumstances in which a registered provider’s approval can be revoked. Those circumstances are where the provider (or an employee or contractor of the provider): has contravened the Agency’s terms of business; is subject of an adverse action by a responsible authority relating to their provision of supports or management of funding for supports, regardless of whether those supports are funded under the Act;

is the subject of an adverse action by a responsible authority in relation to an approval held; is an insolvent under administration; contravenes a workplace health and safety or employment law; does not have in place suitable mechanisms to ensure contractors engaged by the provider for the provision of supports or the management of funding for supports comply with all workplace health and safety and employment laws that apply to the contractor in the provision of those services; has failed to comply with a law that applies to the provision of supports or management of funding for supports, the contravention of which is punishable by a criminal penalty; or fails to notify the Agency as required by Pt 4. Section 72(2) requires the CEO to notify a registered provider in writing of the intention to cease the registration before revoking the instrument. The notice must provide reasons for considering the revocation and invite the registered support provider to make written submissions to the CEO within 28 days of receiving the notice. Further, the notice must inform the support provider that if no submissions are received within the 28 days the revocation may take effect seven days after the time frame for lodging submissions has ended. The CEO is obliged, under s 72(3), to consider any submissions made and provide written notice (pursuant to s 72(4)) of the decision within 28 days of the closing date for submissions. Under s 72(5), if written notice of the decision is not provided within that time frame the CEO will be taken to have decided not to revoke the instrument. Under s 71, a person or entity ceases to be a registered provider if the instrument approving their registration is revoked under s 72, or if the instrument states a cessation date, then on that date.

LEGISLATION

10.5 Chapter 4 (Administration), Pt 3 contains the provisions with regard to registered providers of supports. Section 69 sets out the requirements for applying [page 157]

to be a registered provider and s 70 deals with the CEO’s obligations in dealing with applications. Circumstances under which a support provider can have their approval revoked and the process of revocation are dealt with in s 72. While s 71 defines the timing of revocation of approval, s 73 provides for rules to be made to further define the approval and revocation criteria.

Chapter 4—Administration Part 3 Registered providers of supports 69 Application to be a registered provider of supports (1) A person or entity may apply in writing to the CEO to be a registered provider of supports in relation to either or both of the following: (a) managing the funding for supports under plans; (b) the provision of supports. Note 1: If the funding for supports under a plan is managed by the Agency, supports are to be provided only by a registered provider of supports (see subsection 33(6)). Note 2: A registered plan management provider of supports may in certain circumstances manage the funding for supports under a plan (see subsection 42(2)). (2) The application must: (a) be in the form (if any) approved by the CEO; and (b) include any information, and be accompanied by any documents, required by the CEO. Note:

The CEO is not required to make a decision on the application if this subsection is not complied with (see section 197).

70 Registered providers of supports (1) The CEO must approve a person or entity as a registered provider of supports in relation to either or both of the following:

(a) managing the funding for supports under plans; (b) the provision of supports; if: (c) the person or entity (the applicant) makes an application under section 69; and (d) the CEO is satisfied that the applicant meets the criteria prescribed by the National Disability Insurance Scheme rules. [page 158] (2) An approval of a person or entity as a registered provider of supports must be by written instrument. (3) The instrument may specify that the person or entity is a registered provider of supports in respect of: (a) a class of supports specified in the instrument; or (b) a class of person specified in the instrument. (4) The instrument may specify that it ceases to be in effect on a specified day.

71 When a person or entity ceases to be a registered provider of supports A person or entity ceases to be a registered provider of supports on the earlier of the following days: (a) if the instrument approving the person or entity as a registered provider of supports is revoked under section 72—the day on which the revocation takes effect; (b) if the instrument specifies that it ceases to be in effect on a specified day—that day.

72 Revocation of approval as a registered provider of supports (1) The CEO may revoke an instrument approving a person or entity as a registered provider of supports if the CEO is satisfied that: (a) the person or entity no longer meets the criteria prescribed by the National Disability Insurance Scheme rules for the purposes of paragraph 70(1)(d); or (b) the application by the person or entity for approval contained information that was false or misleading in a material particular; or

(c) a circumstance exists that: (i)

is a circumstance prescribed by National Disability Insurance Scheme rules for the purposes of this paragraph; and

(ii) presents an unreasonable risk to one or more participants. (1A) Without limiting the circumstances that may be prescribed by National Disability Insurance Scheme rules made for the purposes of paragraph (1)(c), such circumstances may relate to: (a) a contravention by a person or entity that is a registered provider of supports, or an employee or contractor of such a person or entity, of a law or other requirement; or [page 159] (b) a complaint made, or action taken, in relation to such a person or entity, or an employee or contractor of such a person or entity; or (c) such a person or entity being an insolvent under administration. (2) Before deciding to revoke the instrument, the CEO must notify the person or entity that revocation is being considered. The notice must be in writing and must: (a) include the CEO’s reasons for considering the revocation; and (b) invite the person or entity to make submissions, in writing, to the CEO within 28 days after receiving the notice; and (c) inform the person or entity that if no submissions are made within that period, any revocation may take effect as early as 7 days after the end of the period referred to in paragraph (b). (3) In deciding whether to revoke the instrument, the CEO must consider any submissions given to the CEO within the period referred to in paragraph (2)(b). (4) The CEO must notify the person or entity, in writing, of the decision. (5) The notice under subsection (4) must be given within 28 days after the end of the period for making submissions. If the notice is not given within this period, the CEO is taken to have decided not to revoke the instrument.

73 National Disability Insurance Scheme rules for registered providers of supports (1) The National Disability Insurance Scheme rules may make provision in connection with the approval of persons or entities as registered providers of supports, including by prescribing criteria relating to: (a) compliance with prescribed safeguards; and (b) compliance with prescribed quality assurance standards and procedures;

and (c) qualifications of persons or entities or employees of persons or entities; and (d) processes to deal with conflicts of interest, or perceived conflicts of interest. (2) The National Disability Insurance Scheme rules may make provision in connection with registered providers of supports, including by prescribing: [page 160] (a) the consequences of registered providers of supports failing to comply with this Act, the regulations or the National Disability Insurance Scheme rules; and (b) requirements with which registered providers of supports must comply, including in relation to the following: (i)

governance;

(ii) business practice; (iii) accounting practice; and (c) the obligations of registered providers of supports in relation to the monitoring of compliance; and (d) the process for handling complaints involving registered providers of supports; and (da) obligations relating to dealing with conflicts of interest, or perceived conflicts of interest; and (e) auditing requirements in relation to registered providers of supports.

RULES 10.6 The National Disability Insurance Scheme (Registered Providers of Supports) Rules 2013 set out the criteria against which the CEO must assess an application for registration as a registered provider of supports and the requirements that apply to registered providers. Part 3 sets out the criteria for approval. Part 4 outlines the requirements of registered providers and Part 5 deals with revocation of approval as a registered provider.

National Disability Insurance Scheme (Registered

Providers of Supports) Rules 2013 Part 3 Criteria for approval as a registered provider of supports The criteria 3.7 The applicant is to have: (a) an ABN (ABN means an Australian Business Number, as shown in the Australian Business Register established under the A New Tax System (Australian Business Number) Act 1999); and (b) an account with a financial institution (paragraph 6.4 defines financial institution). [page 161]

3.8 The applicant is to declare its agreement to be bound by the Agency’s terms of business (as in force from time to time). 3.9 The applicant is to declare that it complies with, and has mechanisms in place to ensure ongoing compliance with, all employment and workplace health and safety laws that apply to the applicant (for example, if the Fair Work Act 2009 applies to an applicant, the applicant must not represent to an individual that his or her contract of employment with the applicant is, or would be, a contract for services under which the individual is engaged as an independent contractor: see subsection 357(1) of the Fair Work Act 2009). 3.10 The applicant is to declare that it has mechanisms in place to ensure that any contractors engaged for the provision of supports or the management of funding for supports comply with all employment and workplace health and safety laws that apply to the contractors in that provision or management. 3.11 The applicant is to declare that the applicant and its staff comply with, and that the applicant has mechanisms in place to ensure ongoing compliance with, all laws:

(a) that apply to the applicant and its staff in the provision of supports or the management of funding for supports (as the case requires); and (b) the contravention of which is punishable by a criminal penalty.

3.12 For an applicant for registration in relation to the provision of supports the applicant is to be a suitable person or entity to provide the kinds of supports that they propose to provide, having regard to the following considerations: (a) the qualifications and approvals relevant to the provision of those kinds of supports held by the applicant and the applicant’s staff (paragraph 6.4 defines approvals); (b) the applicant’s capacity to provide those kinds of supports; (c) the applicant’s experience in providing those kinds of supports; (d) if the applicant proposes to provide supports to a particular participant — whether that participant has stated that he or she considers the applicant to be suitable to provide those supports.

3.13 For an applicant for registration in relation to managing the funding for supports under plans the applicant is to be a suitable [page 162]

person or entity to manage such funding, having regard to the following considerations: (a) the qualifications and approvals relevant to the management of funding for supports held by the applicant and the applicant’s staff (paragraph 6.4 defines approvals); (b) the applicant’s capacity to manage the funding for supports; (c) the applicant’s experience in managing the funding for supports; (d) if the applicant proposes to manage funding for a particular participant— whether that participant has stated that he or she considers the applicant to be suitable to manage that funding.

3.14 To avoid doubt, if a person or entity applies to be a registered provider of supports in relation to both the provision of supports and managing the funding of supports under plans, the criteria in both of paragraphs 3.12 and 3.13 apply.

Conflict of interest 3.15 If an applicant seeks approval in relation to both the provision of supports and managing the funding for supports under plans, the applicant is to have mechanisms in place for dealing with conflicts of interest when performing both of those roles in relation to the same participant.

Part 4 Requirements for registered providers 4.1 A registered provider of supports must notify the Agency if: (a) a complaint has been made to a responsible authority about the standard, effectiveness or safety of the provision of supports by the provider, or an employee or contractor of the provider, and the authority has taken action as a result of the complaint (other than a decision not to investigate the complaint); or (b) the provider, or an employee or contractor of the provider, has been the subject of adverse action by a responsible authority relating to their provision of supports or management of the funding for supports, regardless of whether those supports are provided or funded under the Act; or (c) the provider, or an employee or contractor of the provider, has been the subject of adverse action by a responsible authority in respect of an approval held by the provider or the employee or contractor (paragraph 6.4 defines approval); or (d) the provider becomes an insolvent under administration; or [page 163] (e) the provider becomes aware that it has failed to comply with an employment or workplace health and safety law that applies to the provider (including, for example, the Fair Work Act 2009 if that Act applies to the provider); or (f)

the provider becomes aware that a contractor engaged for the provision of supports or the management of funding for supports has failed to comply with an employment or workplace health and safety law that applies to the contractor in that provision or management; or

(g) the provider becomes aware that the provider or an employee or contractor of the provider has failed to comply with a law of a kind mentioned in paragraph 3.11.

4.2 The provider must notify the Agency of the matter as soon as possible after becoming aware of the matter.

4.3 If paragraph 4.1(a) applies, the provider must also notify the Agency of the action that the provider takes in relation to the complaint (for example, to resolve or address the complaint).

Part 5 Revocation 5.1 There are 3 grounds on which the CEO may revoke the approval of a person or entity as a registered provider of supports. The first is that they no longer meet the approval criteria in Part 3. The second is that their application for approval contained information that was false or misleading in a material particular. The third is that: (a) a circumstance set out in this Part exists; and (b) that circumstance presents an unreasonable risk to one or more participants.

5.2 The circumstances are the following: (a) the person or entity (the provider) contravenes the Agency’s terms of business (as in force from time to time) (the provider agrees to be bound by the Agency’s terms of business as part of its approval: see paragraph 3.8); (c) the provider, or an employee or contractor of the provider, is the subject of adverse action by a responsible authority relating to their provision of supports or management of funding for supports, regardless of whether those supports are provided or funded under the Act; [page 164] (d) the provider, or an employee or contractor of the provider, is the subject of adverse action by a responsible authority in respect of an approval held by the provider or the employee or contractor (paragraph 6.4 defines approval); (e) the provider is an insolvent under administration; (f)

the provider contravenes an employment or workplace health and safety law that applies to the provider (including, for example, the Fair Work Act 2009 if that Act applies to the provider);

(g) the provider does not have suitable mechanisms in place to ensure that any contractors engaged for the provision of supports or the management of funding for supports comply with all employment and workplace health and safety laws that apply to the contractors in that provision or management; (i)

the provider, or an employee or contractor of the provider, contravenes a law of a kind mentioned in paragraph 3.11;

(j)

the provider contravenes a requirement in Part 4.

______________________________ 1.

Under the Rules, ‘ABN’ means an Australian Business Number, as shown in the Australian Business Register established under A New Tax System (Australian Business Number) Act 1999 (Cth).

2.

Under the Rules, ‘financial institution’ is defined as ‘(a) an ADI (short for authorised deposit-taking institution) for the purposes of the Banking Act 1959; or (b) the Reserve Bank of Australia; or (c) a State bank, meaning a person who carries on State banking within the meaning of paragraph 51(xiii) of the Constitution’.

3.

Under the Rules, ‘responsible authority’ is defined as ‘a body which, under a law of the Commonwealth or of a State or Territory, can receive complaints about, or take action against, a person or entity in providing supports to a person with disability (regardless of how the functions and powers of the body are expressed in that law). For example, a body regulating the provision of disability supports could be a responsible authority; so could a body charged with general fair trading and consumer protection functions’.

[page 165]

PART E Powers and Decisions

[page 167]

CHAPTER 11 CEO Enquiry Powers SUMMARY The NDIS CEO has powers in the context of access requests, to request information and medical and similar assessments. The NDIS CEO has powers in the context of development of participant supports, to request information and medical and similar assessments. The NDIS CEO has broad powers to obtain information from participants and prospective participants to ensure the integrity of the NDIS. The NDIS CEO has broad powers to obtain information from other persons to ensure the integrity of the NDIS, and a criminal offence may be committed if there is non-compliance. Legal assistance for review of CEO decisions is not funded.

COMMENTARY CEO appointment and general powers 11.1 Section 158 of the Act establishes the position of a Chief Executive Officer

of the Agency, responsible for the day-to-day administration of the Agency. Appointment of the CEO, who cannot be a Board member, is firstly by the Minister and thereafter by the Board for a period not exceeding three years, but the CEO can then be reappointed: s 160. Under s 159, the CEO must act in accordance with the objectives, strategies and policies determined by the Board in accordance with the Board’s functions under s 124(1)(b). The CEO, subject to written direction from the Board, has a wide-ranging power to do all things necessary or convenient to be done for or in connection with the performance of his or her duties. The CEO under s 202 may delegate his or her powers and function to a member of staff of the Agency. [page 168]

CEO powers relevant to access requests 11.2 Perhaps the most frequently considered powers of the CEO will be those which can be used in the context of an access request. Section 20 provides that if a person makes an access request, the CEO must within 21 days of receiving the access request decide whether or not the prospective participant meets the access criteria; or make one or more requests under s 26(1). Framed broadly, the s 26 powers extend to: requests for provision of information, which may be from the participant or from another person; and requests for the participant to undergo an assessment and/or to attend for a medical, psychiatric, psychological or other examination, conducted by an appropriately qualified person. The information requested must be information that is reasonably necessary for deciding whether or not the prospective participant meets the access criteria. The term ‘reasonably necessary’ is not defined, nor is that qualifier used in the

Act to limit the power of the CEO to request that the prospective participant undergo an assessment or a medical, psychiatric, psychological or other examination. Compliance with a CEO’s request is not compulsory. However, if information and/or examination reports are requested but not received within the specified period, the prospective participant is taken to have withdrawn the access request, unless the CEO is satisfied that it was reasonable for the prospective participant not to have complied with the request made by the CEO within that period.

CEO powers relevant to participant supports 11.3 For the purposes of preparing a statement of participant supports, or deciding whether to approve a statement of participant supports, the CEO has powers under s 36 to make requests. Framed broadly, the powers extend to: requests for provision of information, which may be from the participant or from another person; and requests for the participant to undergo an assessment and/or to attend for a medical, psychiatric, psychological or other examination, conducted by an appropriately qualified person. The CEO may prepare the statement of participant supports, or decide whether to approve a statement of participant supports, before all the information and reports requested under subs (2) are received by the CEO, but must give the participant a reasonable opportunity to provide them. The phrase ‘reasonable opportunity’ is not defined in the Act. [page 169]

In any event, if information or reports are provided after the plan is approved, the plan can be reviewed and if necessary replaced. Note that the term ‘replacement’ is used rather than ‘varied’ or ‘amended’, by reason of s 37 which provides that a participant’s plan cannot be varied after it comes into effect, but can be replaced.

Powers to obtain information from participants and prospective participants 11.4 In accordance with the tailored powers referred to above in the context of access requests and participant supports, the Act provides the CEO with general powers to obtain information from participants and prospective participants to ensure the integrity of the NDIS: s 53. If the CEO has reasonable grounds to believe that a participant or a prospective participant has information, or has custody or control of a document, that may be relevant to certain identified matters, the CEO may require that they give the information, or produce the document, to the Agency. The identified matters appear to cover misapplication, fraud and double recovery, as follows: the monitoring of supports funded for, or provided to, a participant; whether NDIS amounts paid to the participant or to another person have been spent in accordance with the participant’s plan; determining whether the participant was not entitled to be paid NDIS amounts because of the misleading statements or fraud of any person; whether the participant or other person has complied with s 46, which requires that a participant who receives an NDIS amount, or a person who receives an NDIS amount on behalf of a participant, must spend the money in accordance with the participant’s plan; and whether the participant or prospective participant receives supports or funding through a statutory compensation scheme or a statutory care or support scheme; or any other disability or early intervention supports. Section 54 provides that written notice of at least 14 days’ duration is necessary for the CEO’s requirement under s 53, specifying: the nature of the information or document that is required to be given or produced; how the person is to give the information or produce the document;

the period within which the person is to give the information or produce the document to the Agency; the officer to whom the information is to be given or the document is to be produced; and that the notice is given under s 54. [page 170]

Unlike in relation to the CEO’s powers to obtain information from other persons, an offence is not created for non-compliance by participants and prospective participants.

Powers to obtain information from other persons 11.5 Similar to the powers of the CEO to obtain information from participants and prospective participants to ensure the integrity of the NDIS are the powers of the CEO under s 55 of the Act to obtain information from the broadly framed ‘other persons’. If the CEO has reasonable grounds to believe that a person other than a participant or a prospective participant has information, or has custody or control of a document, that may be relevant to certain identified matters, the CEO may require the person to give the information, or produce the document, to the Agency. The identified matters for the purposes of s 55 are different to those set out in s 53, which provides the power to obtain information from participants and prospective participants. The identified matters include participant misapplication, fraud and double recovery. However, they extend to matters relevant to registered providers of supports and, in a widely-framed provision, the functions of the Agency, as follows: whether a prospective participant meets the access criteria; whether a participant continues to meet the access criteria;

whether a person purporting to act on a person’s behalf for the purposes of the Act has the authority to do so; the preparation or review of a participant’s plan; the monitoring of supports funded for, or provided to, a participant; whether NDIS amounts paid to the participant or to another person have been spent in accordance with the participant’s plan; whether a participant or other person has complied with s 46, which requires that a participant who receives an NDIS amount, or a person who receives an NDIS amount on behalf of a participant, must spend the money in accordance with the participant’s plan; whether a participant receives supports or funding through a statutory compensation scheme or a statutory care or support scheme; or any other disability support; whether an applicant for approval as a registered provider of supports meets the criteria for approval; whether a registered provider of supports continues to meet the criteria for approval; and the functions of the Agency. [page 171]

Again, written notice of at least 14 days’ duration is necessary for the CEO’s requirement under s 55, specifying: the nature of the information or document that is required to be given or produced; how the person is to give the information or produce the document; the period within which the person is to give the information or produce the document to the Agency; the officer to whom the information is to be given or the document is to be produced; and

that the notice is given under s 56.

Failure to comply 11.6 Under s 57, an offence is created for application in circumstances where a person refuses or fails to comply with a requirement to give information or to produce a document, under s 55. The non-complying person as a defendant may escape liability if they have a reasonable excuse, which they would bear the burden of proving. Section 57(3) expressly provides that it is a reasonable excuse for an individual to refuse or fail to give information or produce a document on the ground that to do so might tend to incriminate the individual or expose the individual to a penalty.

Funding for review of decisions 11.7 The Agency is not required to fund, and indeed under s 200A is not permitted to fund, legal assistance for prospective participants or participants in relation to review of decisions made under the Act. This is further discussed in Chapter 12 of this handbook.

LEGISLATION 11.8 Reproduced below are the legislative provisions relevant to the commentary in this chapter.

20 CEO must consider and decide access requests If a person (the prospective participant) makes an access request, the CEO must, within 21 days of receiving the access request: (a) decide whether or not the prospective participant meets the access criteria; or (b) make one or more requests under subsection 26(1).

[page 172]

26 Requests that the CEO may make (1) The requests the CEO may make under this subsection after a prospective participant has made an access request (see paragraph 20(b)) are as follows: (a) that the prospective participant, or another person, provide information that is reasonably necessary for deciding whether or not the prospective participant meets the access criteria; (b) that the prospective participant do either or both of the following: (i)

undergo an assessment and provide to the CEO the report, in the approved form, of the person who conducts the assessment;

(ii) undergo, whether or not at a particular place, a medical, psychiatric, psychological or other examination, conducted by an appropriately qualified person, and provide to the CEO the report, in the approved form, of the person who conducts the examination. (2) If: (a) information or one or more reports are requested under subsection (1); and (b) the information and each such report are received by the CEO within 28 days, or such longer period as is specified in the request, after that information or report is requested; the CEO must, within 14 days after the last information or report is received: (c) decide whether or not the prospective participant meets the access criteria; or (d) make a further request under subsection (1). (3) If: (a) information or one or more reports are requested under subsection (1); and (b) the information and each such report are not received by the CEO within 28 days, or such longer period as is specified in the request, after that information or report is requested; the prospective participant is taken to have withdrawn the access request, unless the CEO is satisfied that it was reasonable for the prospective participant not to have complied with the request made by the CEO within that period. [page 173]

36 Information and reports for the purposes of preparing and approving a participant’s plan

(1) For the purposes of preparing a statement of participant supports, or deciding whether to approve a statement of participant supports, the CEO may make one or more requests under subsection (2). (2) The requests the CEO may make are as follows: (a) that the participant, or another person, provide information that is reasonably necessary for the purposes of preparing the statement of participant supports, or deciding whether to approve the statement of participant supports; (b) that the participant do either or both of the following: (i)

undergo an assessment and provide to the CEO the report, in the approved form, of the person who conducts the assessment;

(ii) undergo, whether or not at a particular place, a medical, psychiatric, psychological or other examination, conducted by an appropriately qualified person, and provide to the CEO the report, in the approved form, of the person who conducts the examination. (3) The CEO may prepare the statement of participant supports, or decide whether to approve a statement of participant supports, before all the information and reports requested under subsection (2) are received by the CEO, but must give the participant a reasonable opportunity to provide them. Note:

If information or reports are provided after the plan is approved, the plan can be reviewed and if necessary replaced.

53 Power to obtain information from participants and prospective participants to ensure the integrity of the National Disability Insurance Scheme (1) If the CEO has reasonable grounds to believe that a participant or a prospective participant has information, or has custody or control of a document, that may be relevant to one or more of the matters mentioned in subsection (2), the CEO may require the participant or prospective participant to give the information, or produce the document, to the Agency. (2) The matters are as follows: (a) the monitoring of supports funded for, or provided to, a participant; [page 174] (b) whether NDIS amounts paid to the participant or to another person have been spent in accordance with the participant’s plan; (c) determining whether the participant was not entitled to be paid NDIS amounts because of the misleading statements or fraud of any person;

(d) whether the participant or other person has complied with section 46; (e) whether the participant or prospective participant receives: (i)

supports or funding through a statutory compensation scheme or a statutory care or support scheme; or

(ii) any other disability or early intervention supports.

54 Written notice of requirement (1) A requirement under section 53 must be made by written notice given to the person of whom the requirement is made. (2) The notice must specify: (a) the nature of the information or document that is required to be given or produced; and (b) how the person is to give the information or produce the document; and (c) the period within which the person is to give the information or produce the document to the Agency; and (d) the officer to whom the information is to be given or the document is to be produced; and (e) that the notice is given under this section. (3) The period specified under paragraph (2)(c) must be at least 14 days beginning on the day on which the notice is given.

55 Power to obtain information from other persons to ensure the integrity of the National Disability Insurance Scheme (1) If the CEO has reasonable grounds to believe that a person other than a participant or a prospective participant has information, or has custody or control of a document, that may be relevant to one or more of the matters mentioned in subsection (2), the CEO may require the person to give the information, or produce the document, to the Agency. (2) The matters are as follows: (a) whether a prospective participant meets the access criteria; (b) whether a participant continues to meet the access criteria; [page 175] (c) whether a person purporting to act on a person’s behalf for the purposes of this Act has the authority to do so;

(d) the preparation or review of a participant’s plan; (e) the monitoring of supports funded for, or provided to, a participant; (f)

whether NDIS amounts paid to the participant or to another person have been spent in accordance with the participant’s plan;

(g) whether a participant or other person has complied with section 46; (h) whether a participant receives: (i)

supports or funding through a statutory compensation scheme or a statutory care or support scheme; or

(ii) any other disability support; (i)

whether an applicant for approval as a registered provider of supports meets the criteria for approval;

(j)

whether a registered provider of supports continues to meet the criteria for approval;

(k) the functions of the Agency.

56 Written notice of requirement (1) A requirement under section 55 must be made by written notice given to the person of whom the requirement is made. (2) The notice must specify: (a) the nature of the information or document that is required to be given or produced; and (b) how the person is to give the information or produce the document; and (c) the period within which the person is to give the information or produce the document to the Agency; and (d) the officer to whom the information is to be given or the document is to be produced; and (e) that the notice is given under this section. (3) The period specified under paragraph (2)(c) must be at least 14 days beginning on the day on which the notice is given. (4) The notice may require the person to give the information by appearing before a specified officer to answer questions. (5) If the notice requires the person to appear before an officer, the notice must specify a time and place at which the person is to appear. The time must be at least 14 days after the notice is given. [page 176]

57 Offence—refusal requirement

or

failure

to

comply

with

(1) A person must not refuse or fail to comply with a requirement under section 55 to give information or produce a document.

Penalty: 30 penalty units. Note:

If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the penalty stated above.

(2) Subsection (1) does not apply if the person has a reasonable excuse. Note:

A defendant bears an evidential burden in relation to the matter in this subsection: see subsection 13.3(3) of the Criminal Code.

(3) It is a reasonable excuse for an individual to refuse or fail to give information or produce a document on the ground that to do so might tend to incriminate the individual or expose the individual to a penalty.

58 Obligations not affected by State or Territory laws (1) Subject to subsection (2), nothing in a law of a State or a Territory prevents a person from: (a) giving information; or (b) producing a document; or (c) giving evidence; that the person is required to give or produce to the Agency or an officer for the purposes of this Act. (2) Despite subsection (1), a person is not required to give information, produce a document or give evidence to the Agency or an officer for the purposes of this Act if: (a) the person would, apart from subsection (1), be prevented from doing so under a law of a State or Territory; and (b) the law of the State or Territory is prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph.

59 Interaction with Commonwealth laws This Part does not require a person to give information or produce a document to the extent that in doing so the person would contravene a law of the Commonwealth.

158 Establishment There is to be a Chief Executive Officer of the Agency. [page 177]

159 Functions of the CEO (1) The CEO is responsible for the day-to-day administration of the Agency. (2) The CEO has power to do all things necessary or convenient to be done for or in connection with the performance of his or her duties. (3) The CEO is to act in accordance with the objectives, strategies and policies determined by the Board under paragraph 124(1)(b). (4) The Board may give written directions to the CEO about the performance of the CEO’s duties. (5) The CEO must comply with a direction under subsection (4). (6) A direction under subsection (4) is not a legislative instrument. (7) The CEO must give the Board a copy of any significant actuarial report or advice he or she receives, as soon as reasonably practicable after receiving it.

160 Appointment of the CEO (1) The CEO is to be appointed by the Board. (2) The appointment is to be made by written instrument. (3) The CEO holds office on a full-time basis. (4) The CEO holds office for the period specified in the instrument of appointment. The period must not exceed 3 years. Note:

For reappointment, see section 33AA of the Acts Interpretation Act 1901.

(5) The CEO must not be a member of the Board. (6) Despite subsection (1), the first CEO is to be appointed by the Minister. (7) Before the Minister makes an appointment under subsection (6), the Minister must consult the host jurisdictions about the appointment. (8) This Part (other than subsection (1)) applies to the CEO appointed under subsection (6) as if the CEO had been appointed under subsection (1).

161 Acting appointments The Board may, by written instrument, appoint a person (other than

a Board member) to act as the CEO: (a) during a vacancy in the office of the CEO, whether or not an appointment has previously been made to the office; or (b) during any period, or during all periods, when the CEO: [page 178] (i)

is absent from duty or from Australia; or

(ii) is, for any reason, unable to perform the duties of the office. Note:

For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.

200A Legal assistance for review not funded Nothing in this Act permits or requires the Agency to fund legal assistance for prospective participants or participants in relation to review of decisions made under this Act.

RULES 11.9 No rules directly relevant to the CEO and enquiry powers have been published as yet.

[page 179]

CHAPTER 12 Review of Decisions SUMMARY Certain decisions of the NDIS CEO are expressly identified as reviewable. The first review process is an internal review by a reviewer. Decisions of the reviewer may be further reviewed by the Administrative Appeals Tribunal. For decisions of the Administrative Appeals Tribunal there is a right of appeal to the Federal Court, at least on questions of law.

COMMENTARY Reviewable decisions 12.1 Section 99 of the Act sets out a list of the decisions of the NDIS CEO that are reviewable. Those decisions and their corresponding section numbers are set out in Table 12.1 below.

Notice must be given 12.2 Where the CEO makes a decision that is reviewable, s 100 requires that the CEO must give written notice of a reviewable decision to each person directly

affected by the reviewable decision. The notice must include a statement that the person may request the CEO to review the reviewable decision under s 103. The time frame for making a request is three months after receiving the notice. Should the CEO’s decision be made because of s 21(3), which relates to a decision of the CEO that a prospective participant does not meet the access criteria for failing to do certain things (provide information or undergo an assessment) within a 21-day period, then the notice given by the CEO must include a statement that the decision will be reviewed automatically. Similarly, should the CEO’s decision be made because of s 48(2), which relates to the taking of a decision as to whether or not to conduct a review of a participant’s [page 180]

plan within 14 days after receiving a request from the participant, then the notice given by the CEO must include a statement that the decision will be reviewed automatically. A failure of the CEO to give written notice of a reviewable decision to each person directly affected by the reviewable decision does not affect the validity of the reviewable decision or the right of a person directly affected to request review of the decision.

Form of request for review 12.3 A request may be made by sending or delivering a written request to the CEO; or making an oral request, in person or by telephone or other means, to the CEO: s 100(3). A request for review of a reviewable decision may be withdrawn by sending or delivering a written notice to the CEO or contacting the CEO and withdrawing the request orally, whether in person, by telephone or by other means: s 102.

Implementation or variation of decision

12.4 A request for review of a reviewable decision, or a requirement to review a reviewable decision that the CEO is taken to have made, does not affect the operation of the decision or prevent the taking of action to implement the decision: s 100(7). If a request is made for review of a reviewable decision and before a decision on the review is made, the reviewable decision is varied, the request for review is taken to be for review of the reviewable decision as varied: s 101.

Internal review mechanism 12.5 If the CEO receives a request for review of a reviewable decision or the CEO is taken to have made a reviewable decision because of s 21(3) or s 48(2), then the CEO must cause the reviewable decision to be reviewed by a person (the reviewer) to whom the CEO’s powers and functions under this section are delegated; and who was not involved in making the reviewable decision: s 100(5). Although the term ‘reviewer’ is defined in s 9 of the Act, the definition merely points back to the provision now under discussion, by stating that ‘reviewer’ has the meaning given by s 100(5). The reviewer must, as soon as reasonably practicable, make a decision confirming, varying or setting aside the reviewable decision and substituting a new decision: s 100(6).

External review mechanism 12.6 Section 103 provides that applications may be made to the Administrative Appeals Tribunal (AAT) for review of a decision made by a reviewer under s 100(6). A note to the legislation reminds the reader that under the Administrative Appeals [page 181]

Tribunal Act 1975 (Cth), notice must be given to persons whose interests are affected by a decision of the reviewer.

The AAT provides independent review of a wide range of administrative decisions made by the Australian Government and some non-government bodies. Section 33 of the Administrative Appeals Tribunal Act requires that proceedings of the tribunal be conducted with as little formality and technicality, and with as much expedition, as the requirements of the Act and a proper consideration of the matters before the tribunal permit. The tribunal is not bound by the rules of evidence and can inform itself in any manner it considers appropriate. On 5 August 2013 the Attorney-General announced the appointment of four new members to the AAT to hear NDIS matters. The new members were appointed in each of the launch states: Professor Ronald McCallum AO in New South Wales; Ms Lynne Coulson Barr in Victoria; Ms Sandra Taglieri in Tasmania; and Mr Ian Thompson in South Australia. 12.7 The Tribunal has developed a number of practice directions and jurisdictional guides that outline the general procedures for managing applications. These are supplemented by practice directions on specific issues. These documents are available online: . A specific practice direction has been published by the AAT tailored to reviews in the NDIS setting, which is reproduced at the end of this chapter. Application forms and related documents .

are

available

online:

A series of fact sheets have also been published by the AAT relevant to the review of NDIS decisions. These address: applying for review; what happens at a case conference; what happens at conciliation; what happens at a hearing; and

what is a fast-track hearing. The fact sheets are available online: .

Appeals to a court 12.8 For most AAT decisions there is a right of appeal to the Federal Court of Australia or the Federal Circuit Court of Australia, but such appeals may be of limited scope. [page 182]

Under the Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5, the Federal Court or the Federal Circuit Court can review a decision on any one or more of the following grounds: that a breach of the rules of natural justice occurred in connection with the making of the decision; that procedures that were required by law to be observed in connection with the making of the decision were not observed; that the person who purported to make the decision did not have jurisdiction to make the decision; that the decision was not authorised by the enactment in pursuance of which it was purported to be made; that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made; that the decision involved an error of law, whether or not the error appears on the record of the decision; that the decision was induced or affected by fraud; that there was no evidence or other material to justify the making of the

decision; and/or that the decision was otherwise contrary to law.

Review and appeal costs 12.9 Section 200A expressly notes that nothing in the Act permits or requires the Agency to fund legal assistance for prospective participants or participants in relation to review of decisions made under this Act. For internal reviews, it is not yet clear whether an application fee will be charged (as permitted by s 120) and, if so, the circumstances in which it may be waived or reduced. However it may be relevant to note that s 120(3) appears to prevent a participant being charged a fee. For external review by the AAT, fees are usually payable; however, there are some decisions which under the Administrative Appeals Tribunal Regulations 1976 (Cth) Sch 3 do not attract an application fee. A decision under the National Disability Insurance Scheme Act is now listed, hence there should be no fee payable to the AAT. Costs associated with obtaining independent legal advice and assistance are not provided for the AAT or the Federal Court of Australia, but may be available under legal aid schemes. [page 183]

Table 12.1: Section 99 reviewable decisions Nature of decision

Section/s

Person does not meet the access criteria.

20(a), 21(3), 26(2)(c)

Not to specify a period for a prospective claimant to provide information or to undergo an assessment and provide a report.

26(2)(b)

Revocation of a person’s status as a participant.

30

To approve the statement of participant supports.

33(2)

Not to extend a grace period in respect of a temporary absence from 40(2)(b) Australia by a participant, without affecting the participant’s plan. Not to review a participant’s plan at the request of a participant.

48(2)

Refusal to approve a person or entity as a registered provider of supports.

70

To revoke an instrument approving a person or entity as a registered 72 provider of supports. To make, or not to make, a determination in relation to a person to do things under the Act for a child.

74(1)(b)

Not to make a determination that s 74(1) and (2) do not apply to a child.

74(4)(c)

To make, or not to make, a determination that a person has parental responsibility for a child.

75(2), (3)

To appoint a plan nominee.

86

To appoint a correspondence nominee.

87

To cancel or suspend, or not to cancel or suspend, the appointment of a nominee.

89, 90, 91

To give a notice to require a person to take reasonable action to claim or obtain compensation.

104

To give a notice that the CEO proposes to recover an amount.

111

Not to treat the whole or part of a compensation payment as not having been fixed by a judgment or settlement.

116

Not to write off or waive a debt.

190, 192, 193, 195 [page 184]

LEGISLATION 12.10 Reproduced below are the legislative provisions relevant to the commentary in this chapter.

Chapter 4—Administration Part 6—Review of decisions 99 Reviewable decisions Each of the following decisions of the CEO is a reviewable decision: (a) a decision under paragraph 20(a), subsection 21(3) or paragraph 26(2)(c) that a

person does not meet the access criteria; (b) a decision under paragraph 26(2)(b) not to specify a period; (c) a decision under section 30 to revoke a person’s status as a participant; (d) a decision under subsection 33(2) to approve the statement of participant supports in a participant’s plan; (e) a decision under paragraph 40(2)(b) not to extend a grace period; (f)

a decision under subsection 48(2) not to review a participant’s plan;

(g) a decision under section 70 to refuse to approve a person or entity as a registered provider of supports; (h) a decision under section 72 to revoke an instrument approving a person or entity as a registered provider of supports; (i)

a decision under paragraph 74(1)(b) to make, or not to make, a determination in relation to a person;

(j)

a decision under paragraph 74(5)(c) not to make a determination that subsections 74(1) and (2) do not apply to a child;

(k) a decision under subsection 75(2) or (3) to make, or not to make, a determination that a person has parental responsibility for a child; (l)

a decision under section 86 to appoint a plan nominee;

(m) a decision under section 87 to appoint a correspondence nominee; (n) a decision under section 89, 90 or 91 to cancel or suspend, or not to cancel or suspend, the appointment of a nominee; (o) a decision under section 104 to give a notice to require a person to take reasonable action to claim or obtain compensation; [page 185] (oa) a decision under subsection 104(5A) to refuse to extend a period; (ob) a decision under paragraph 105(4)(a) to take action to claim or obtain compensation; (oc) a decision under paragraph 105(4)(b) to take over the conduct of a claim; (p) a decision under section 111 to give a notice that the CEO proposes to recover an amount; (q) a decision under section 116 not to treat the whole or part of a compensation payment as not having been fixed by a judgement or settlement; (r)

a decision under section 190 not to write off a debt;

(s) a decision under section 192 that the CEO is not required to waive a debt; (t)

a decision under section 193 not to waive a debt;

(u) a decision under subsection 194(3) or (4) that the CEO is not required to waive a debt; (v) a decision under section 195 not to waive a debt.

100 Review of reviewable decisions (1) The CEO must give written notice of a reviewable decision to each person directly affected by the reviewable decision. The notice must include a statement: (a) that: (i)

the person may request the CEO to review the reviewable decision; or

(ii) if the CEO is taken to have made the reviewable decision because of subsection 21(3) or 48(2)—the decision will be reviewed automatically; and (b) that the person may seek further review under section 103. (2) A person who is directly affected by a reviewable decision may request the CEO to review the reviewable decision. If the person is given a notice under subsection (1) the person must make the request within 3 months after receiving the notice. (3) A request may be made by: (a) sending or delivering a written request to the CEO; or (b) making an oral request, in person or by telephone or other means, to the CEO. [page 186] (4) If a person makes an oral request in accordance with paragraph (3)(b), the person receiving the oral request must: (a) make a written record of the details of the request; and (b) note on the record the day the request is made. (5) If: (a) the CEO receives a request for review of a reviewable decision; or (b) the CEO is taken to have made a reviewable decision because of subsection 21(3) or 48(2); the CEO must cause the reviewable decision to be reviewed by a person (the reviewer): (c) to whom the CEO’s powers and functions under this section are delegated; and (d) who was not involved in making the reviewable decision.

(6) The reviewer must, as soon as reasonably practicable, make a decision: (a) confirming the reviewable decision; or (b) varying the reviewable decision; or (c) setting aside the reviewable decision and substituting a new decision. (7) A request for review of a reviewable decision, or a requirement to review a reviewable decision that the CEO is taken to have made, does not affect the operation of the decision or prevent the taking of action to implement the decision. (8) A failure of the CEO to comply with subsection (1) does not affect the validity of the reviewable decision or the right of a person directly affected to request review of the decision. (9) To the extent that this provision relates to a decision referred to in paragraph 99(g) or (h), a reference in this section to a person includes a reference to an entity.

101 Variation of reviewable decision before review completed If: (a) a request is made for review of a reviewable decision; and (b) before a decision on the review is made, the reviewable decision is varied; the request for review is taken to be for review of the reviewable decision as varied. [page 187]

102 Withdrawal of request for review (1) A request for review of a reviewable decision may be withdrawn by: (a) sending or delivering a written notice to the CEO; or (b) contacting the CEO and withdrawing the request orally, whether in person, by telephone or by other means. (2) If a request is withdrawn in accordance with paragraph (1)(b), the person receiving the oral withdrawal must make a written record of the details of the withdrawal and note on the record the day the withdrawal is made.

103 Applications Tribunal

to

the

Administrative

Appeals

Applications may be made to the Administrative Appeals Tribunal

for review of a decision made by a reviewer under subsection 100(6). Note:

Under the Administrative Appeals Tribunal Act 1975, notice must be given to persons whose interests are affected by a decision of the reviewer.

RULES 12.11 No rules directly relevant to the review of decisions have been published as yet.

AAT PRACTICE DIRECTION 12.12 The AAT Review of DisabilityCare Australia Decisions Practice Direction is available online: . The Practice Direction available at the time of writing made reference to the superseded name ‘DisabilityCare Australia’, hence that name is used in the extract below.

Review of DisabilityCare Practice Direction

Australia

Decisions

1 July 2013 This Practice Direction explains what we will do when we review a decision made by DisabilityCare Australia under the National Disability Insurance Scheme Act 2013 (NDIS Act). It also explains what an applicant and DisabilityCare Australia must do. These procedures apply to all kinds of decisions that we review under the NDIS Act. (1) When this Practice Direction refers to ‘You’ it means the applicant, his or her nominee, representative or support person. When it refers to ‘We’ or ‘Us’ it means the Administrative Appeals

Tribunal (AAT). [page 188]

1. When we receive an application What we will do We will write to you confirming we have received your application. We will assign a Contact Officer who will be your AAT contact throughout the review. The Contact Officer will contact you within 3 working days to discuss: what will happen with your application; your contact details and how you would like us to communicate with you; who is helping you with your application; any assistance you will need to participate in the review process including assistive technology, interpreters or other access requirements; the most suitable times and places for you to attend a Case Conference, Conciliation or Hearing. We will tell DisabilityCare Australia we have received your application and ask them to send us all the documents they have that are relevant to your application. (These are called the Tdocuments.) What you must do You do not have to do anything at this stage but you can contact your Contact Officer at any time for information about your application. What DisabilityCare Australia must do As soon as possible after being notified that we have received

your application, DisabilityCare Australia must send a copy of the T-documents to you and to us. 2. When we receive the T-documents What we will do We will consider the best way to process your application. In most cases, we will ask you and a representative of DisabilityCare Australia to attend a Case Conference which will be held 2 to 4 weeks after we receive the T-documents. If we think there are special circumstances why your application should proceed directly to a Hearing, we will refer your application to an AAT Member and arrange a Directions Hearing to discuss with you and DisabilityCare Australia how your application will proceed. We will tell you and DisabilityCare Australia the date, time and place of the next step in the review and what you need to do before then. [page 189]

What you must do You must prepare for the next step in the review. (See below for how to prepare for a Case Conference, Conciliation and a Hearing.) What DisabilityCare Australia must do DisabilityCare Australia must prepare for the next step in the review. 3. The Case Conference A Case Conference is an informal meeting to discuss whether you and DisabilityCare Australia can reach agreement and, if agreement is not possible, to plan how your application will proceed.

Preparing for the Case Conference WHAT WE WILL DO Your Contact Officer will discuss with you the date, time and place of the Case Conference, what will happen at the Case Conference and how you can prepare for it. WHAT YOU MUST DO You must: read the T-documents and identify any further information you think is relevant to your application and, where possible, obtain that information and send it to us and to DisabilityCare Australia; think about what outcome you want from your application; be ready to tell us the dates that are suitable to you for any future Conciliation or Hearing; decide whether you want to ask for a Fast-Track Hearing (see below). WHAT DISABILITYCARE AUSTRALIA MUST DO DisabilityCare Australia must: review the T-documents, identify any further material they think is relevant to your application and, where possible, gather and send that information to us and to you; consider how your application might be resolved; consider the dates that will be suitable for any future Conciliation or Hearing; tell us if your case raises any novel or complex issues which may require a specially constituted tribunal;

ensure that their representative at the Case Conference will have full authority to settle the case if agreement is reached. [page 190]

At the Case Conference WHAT WE WILL DO An AAT Conference Registrar or Member will help you and DisabilityCare Australia reach agreement if that is possible. If you reach agreement, we will record your agreement in writing. If there is no agreement, we will discuss with you and DisabilityCare Australia whether your application should be listed for Conciliation and a Hearing, or proceed straight to a Hearing. We will prepare a written Case Plan setting out: any issues that have been resolved and any issues that remain in dispute; what will happen next; the dates and places of the Conciliation or Hearing; any additional material that you or DisabilityCare Australia must give us; who will be attending the Conciliation or Hearing; what information you and DisabilityCare Australia will present at a Hearing and whether there are other persons, such as family members, carers or doctors, who you will want us to hear from; any accessibility and communication needs you have; anything else that will ensure the process is as fair and as quick as possible.

WHAT YOU MUST DO You must come prepared, and willing to reach agreement with DisabilityCare Australia if at all possible, and: bring any relevant documents that you have not already given us or are not already in the T-documents; be ready to discuss what you want to include in your Case Plan if you do not reach agreement; decide if you want a Fast-Track Hearing (see below). WHAT DISABILITYCARE AUSTRALIA MUST DO DisabilityCare Australia must come prepared, and willing to reach agreement with you if at all possible, and bring any relevant documents they have not already given us or are not already in the T-documents; be ready to discuss how the matter should proceed if agreement is not reached. [page 191]

4. Requesting a Fast-Track Hearing What we will do We will give you a Fast-Track Hearing if you ask for it and if: you will have all the relevant information necessary for a decision to be made about your application by the date of the Hearing; and we are satisfied that a Fast-Track Hearing would not disadvantage you or DisabilityCare Australia. We will schedule a Fast-Track Hearing within 6 weeks after the Case Conference.

If we schedule a Fast-Track Hearing, we will expect you and DisabilityCare Australia to be ready on the day set for the Hearing. We will not ordinarily adjourn a Fast-Track Hearing unless there are very good reasons. What you must do You must give us any further information or evidence you want us to consider no later than 14 days before the Hearing. We will not ordinarily allow you to submit evidence after that time unless there are very good reasons. To help us to understand what decision you want us to make, you may send us a written summary of your position no later than 7 days before the Hearing. If you send us any further information or evidence, or a summary of your position, you must also send a copy to DisabilityCare Australia. If you need help to send documents to DisabilityCare Australia, your Contact Officer can help you. What DisabilityCare Australia must do DisabilityCare Australia must give us any further relevant information or evidence no later than 14 days before the Hearing. We will only allow DisabilityCare Australia to submit material after that time if there are very good reasons. DisabilityCare Australia may send us and you a written summary of its position no later than 7 days before the Hearing. 5. Conciliation If your Case Plan includes Conciliation, it will usually be scheduled within 4 weeks after your Case Conference. Conciliation is a form of alternative dispute resolution that will be used when we review DisabilityCare Australia decisions. What we will do Your Contact Officer will confirm the date, time and place of the Conciliation and will discuss what you need to do to be ready.

[page 192]

At the Conciliation, an AAT Conference Registrar or Member will work with you and DisabilityCare Australia to help you reach agreement if possible. If you and DisabilityCare Australia reach agreement, we will record your agreement in writing. If you do not reach agreement, or only reach agreement about some parts of your application, we will confirm the date and place of the Hearing. We will record this on your Case Plan and send you a copy. What you must do You must do all of the things that the Case Plan requires you to do before the Conciliation, and come to the Conciliation willing and prepared to reach agreement with DisabilityCare Australia if possible. If there is any information you have not already given us about your application, you must bring it to the Conciliation. What DisabilityCare Australia must do DisabilityCare Australia must do all of the things that the Case Plan requires them to do before the Conciliation and come to the Conciliation willing and prepared to reach agreement with you if possible. DisabilityCare Australia must ensure that their representative at the Conciliation will have full authority to settle the case if agreement is reached. 6.The Hearing The hearing is an opportunity for you and DisabilityCare Australia to tell your sides of the case to an AAT Member who will make a

decision. What we will do Your Contact Officer will contact you between 7 and 14 days before the Hearing to confirm the date, time and place of the Hearing and discuss what will happen at the Hearing. At the Hearing, the Member will ask you about your application and what decision you want. The Member will ask DisabilityCare Australia to do the same. The Member will consider all of the information that you and DisabilityCare Australia present. Generally, this will mean the documents you and DisabilityCare Australia have provided about your case. You and DisabilityCare Australia have the right to call witnesses but often that will be unnecessary. The Member will usually only hear from other persons such as family members, carers, doctors or other experts if you or DisabilityCare Australia want and ask for that. The Member will control the procedure in the Hearing, which will be as informal as possible. We will not allow the formalities that usually apply in [page 193]

courts. The rules of evidence that apply in courts do not apply in the AAT. We will consider all the evidence that is relevant to the issues to be determined unless there is a legal reason why we cannot consider it. If there are expert witnesses, such as specialist doctors, we will expect them to give their evidence at the same time. For more information about this, see Guidelines for the Use of Concurrent Evidence in the AAT on our website. The Member will give you a decision at the end of the Hearing if that is possible. If he or she cannot make a decision immediately, the Member will write his or her decision and we will send it to you as soon as possible. Even if your case involves novel or

complex issues, we will give you our decision no later than 60 days after the Hearing. What you must do You must do everything that the Case Plan requires you to do before the Hearing and be ready to proceed on the day of the Hearing. You must give us any further documents or evidence you want us to consider no later than 14 days before the Hearing. We will only allow you to submit documents after this time if there are very good reasons. If you wish to send us a written summary of your position, you should do so no later than 7 days before the Hearing. You must make sure any witnesses who will give evidence at the Hearing on your behalf will be available on the day and at the time of the Hearing. If you send us any additional material, or a summary of your position, you must send a copy to DisabilityCare Australia as well. If you need help to send documents to DisabilityCare Australia, your Contact Officer can help you. What DisabilityCare Australia must do DisabilityCare Australia must: do all of the things that the Case Plan requires to be done before the Hearing; be ready to proceed on the day of the Hearing; send you and us any further documents or evidence at least 14 days before the Hearing. We will only allow DisabilityCare Australia to submit documents after this time if there are very good reasons.

send you and us a copy of a summary of their position no later than 7 days before the Hearing. [page 194]

send you and us a list of any cases they will refer to during the Hearing at least 2 days before the Hearing; make sure any witnesses who will give evidence at the Hearing are going to be available on the day and at the time of the Hearing. 7. Other matters Adjournments You and DisabilityCare Australia must be ready to proceed on the day of the Case Conference, Conciliation or Hearing. We will only grant an adjournment if there are very good reasons to do so. If you do not attend, or do not comply with directions If you fail to attend a Case Conference, Conciliation or Hearing, or do not do something we have directed you to do, and you do not have a good reason, we may dismiss your application. Directions Hearings Sometimes we will need to have a Directions Hearing to discuss with you and DisabilityCare Australia how best to proceed. If this happens, we will contact you and DisabilityCare Australia to tell you why we think a Directions Hearing is needed and to arrange a suitable time. You or DisabilityCare Australia may request a Directions Hearing at any time. A request for a Directions Hearing should be in writing and explain why a Directions Hearing is necessary. Directions Hearings are normally held by telephone. Consent decisions

You and DisabilityCare Australia can come to an agreement about your application at any stage of the review. If this happens, DisabilityCare Australia will record your agreement in writing and send you a copy to sign. If we are satisfied with the agreement, we will make written orders and send you a copy. If we think there is a problem with the agreement, we will contact you and DisabilityCare Australia to discuss the problem. Justice Duncan Kerr President This practice direction is made under subsections 20(2), 34A(2) and (3), and 34C(2) of the Administrative Appeals Tribunal Act 1975. It applies from 1 July 2013. FOOTNOTE (1) These procedures may be altered to suit individual cases but only by a specific direction of an AAT Member or Conference Registrar.

[page 195]

PART F Privacy

[page 197]

CHAPTER 13 Privacy SUMMARY Information about a person can be obtained, recorded, disclosed or used in accordance with the Act, essentially to enable the Agency to administer the Act, except for any of the prescribed offences under the Act. The NDIS CEO is allowed to disclose information about a person in certain limited circumstances, including to an authorised person, a Commonwealth authority, a state or territory department or an individual’s nominee.

COMMENTARY Introduction 13.1 The administration of the NDIS will necessarily involve the collection of a large amount of personal information. Sections 60–68 of the Act and the National Disability Insurance Scheme (Protection and Disclosure of Information) Rules 2013 set out the measures that must be taken to protect that personal information. The purpose of these provisions is to maintain the primacy of privacy of information for all individuals.

Protected information 13.2 Protected information is defined in s 9 of the Act as: (a)

information about a person that is or was held in the records of the Agency; or

(b) information to the effect that there is no information about a person that is held in the records of the agency.

Recording and disclosure 13.3 Section 60 permits protected information to be obtained, recorded, disclosed or otherwise used if it is for the purposes of the Act, including disclosure by the NDIS CEO under s 66, or if the disclosure is expressly or impliedly authorised by the person to whom the information relates. Section 60(2)(e) also allows the information to be [page 198]

recorded or disclosed where the person doing so reasonably believes it is necessary to prevent or reduce a serious threat to someone’s life, health or safety. This language is similar to that used in other Commonwealth legislation, such as the Privacy Act 1988 (Cth),1 and also echoes the ethical duty in the Good Medical Practice Code of Conduct that applies to medical professionals.2 A similar ethical duty also applies to lawyers in some states and territories.3 These codes follow a decision of the Supreme Court of California in Tarasoff v Regents of the University of California 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14 (1976), where it was held that the duty of confidentiality did not prevent a psychologist disclosing to the person threatened or to police that a patient had threatened harm against someone else, as they had a duty to protect the intended victim. The wording of s 60(2)(e) of the Act reflects that concept of there being a duty to protect others, which overrides the duty of confidentiality.

Research, analysis and policy development

13.4 The purposes of the Act include research, actuarial analysis and policy development where the CEO reasonably believes disclosure is necessary for any one of those circumstances. There is no explanation of the ways in which this will be applied, and no analogous provision in the legislative instruments for similar schemes such as the New South Wales Lifetime Care and Support Scheme. Presumably, the intention is that this purpose allows information to be disclosed where it is in the public benefit and not just for the benefit of individuals. This may be particularly true for information gathered in the launch sites, where that information could be used to inform how the scheme should be administered when rolled out fully across Australia. An example might be gathering information about the cost of care and services provided to participants at these sites to amend and enhance the actuarial model initially used to assess those costs. The first of perhaps a number of studies has already been announced. It will be carried out by the National Institute of Labour Studies (NILS) at Flinders University and commissioned by the Australian Government to evaluate the roll out of the scheme and monitor and evaluate participants, their families and carers, service providers and disability care workers in the Australian Capital Territory, New South Wales, Victoria, [page 199]

Tasmania and South Australia over the first three years. In carrying out this study, NILS will specifically rely upon s 60(2)(d) and (3) of the Act.

Offences 13.5 There are four offences stipulated in the Act; namely, where someone: accesses protected information without authorisation (s 61); records, discloses or uses protected information without authorisation (s 62); solicits the disclosure of protected information, whether or not such

information is actually disclosed (s 63); and offers to supply protected information about someone else (s 64). The offence under s 64 does not apply to an officer acting in accordance with his or her functions or duties. As explained in the Explanatory Memorandum to the Act, the rationale for all four offences is that unauthorised access to personal information can cause severe injury to an individual.4 The penalty for all four offences is two years’ imprisonment or 120 penalty units,5 or both. If a body corporate is convicted of an offence under any of these sections, the court can impose a fine of up to 600 penalty units (five times that stated) in accordance with s 4B(3) of the Crimes Act 1914 (Cth).

Protections 13.6 Under s 65, a person is prohibited from being required to produce any document, matter or thing of which the person had notice of to a court, tribunal, authority or a person with the authority of any of those bodies, except for the purposes of the Act. This section is described in the NDIS rules at r 4.1 as being one of the provisions that restricts the circumstances in which information the Agency holds about a person can be disclosed. No specific examples or explanation are provided in the Act, rules or the Explanatory Memorandum.

Disclosure by the CEO 13.7 Despite ss 62 and 65, s 66 gives power to the CEO to disclose information in certain limited circumstances. This includes if the CEO certifies that it is necessary in the public interest to do so in an individual case or in a particular class of cases. The example given in the Explanatory Memorandum is if it is necessary for the investigation of a criminal offence. [page 200]

The CEO can disclose information, under subs (1)(b), to any of the following: the head of a Department of State of the Commonwealth; the head of a Commonwealth authority, including Medicare or Centrelink; the head of a Department of State of a state or territory; or someone who is expressly or impliedly authorised by the person to whom the information relates. Section 66(3) also allows the CEO to disclose information to a participant’s nominee where the information relates to the participant and is or was held in the records of the Agency.6 In disclosing any information, the CEO must act in accordance with rules made for the purposes of s 67. The National Disability Insurance Scheme (Protection and Disclosure of Information Rules) 2013 set out the general considerations that a CEO must follow when deciding whether to issue a certificate permitting disclosure of the information. First, the CEO must consider whether or not the information can be obtained from a source other than the Agency and whether the recipient of the information has sufficient interest to justify disclosure. Paragraph 4.4 of the rules states that someone has ‘sufficient interest’ if they have a genuine and legitimate interest in the information or if they are a Commonwealth, state or territory Minister. The rules give some examples of where the CEO might be able to give a certificate permitting disclosure. These include: enforcement of laws; mistake of fact; ministerial briefing; missing and deceased persons; and agencies responsible for children. Examples and further explanation is given in the National Disability Insurance Scheme (Protection and Disclosure of Information) Rules 2013 in

respect of each of these areas as set out below.

Enforcement of laws 13.8 Enforcement of laws applies where disclosure is necessary for the enforcement of a criminal law, a law where there is a pecuniary penalty or to prevent an act that would have significant negative impact on public revenue. It also applies where disclosure relates to an offence or the threat of an offence against an officer of the Commonwealth, or a state or territory; property of the Commonwealth, a state or territory; or premises occupied by the Agency. The example given in the rules is where the information to be disclosed is about the whereabouts of a person suspected of [page 201]

committing an offence of breaching a relevant law. One such example may be where someone is suspected of defrauding the Agency.

Mistake of fact 13.9 Mistake of fact applies where a mistake of fact has occurred in the administrative process, and it may compromise the integrity of the NDIS if not corrected, or it relates to a matter that was or will be published whether by, with or without the consent of the person to whom the information relates. The example given is where the information to be disclosed relates to how a person’s requirements have been handled by the Agency.

Ministerial briefing 13.10 Ministerial briefing applies where information must be disclosed to a Commonwealth, state or territory Minister in order to brief them in relation to: any complaints or issues to be discussed and responded to; any issue to be raised publicly which involves the Minister correcting a mistake of fact, misleading impression or perception or a misleading statement; an error or delay by the Agency; or

an unusual or anomalous operation of the Act, Regulations or rules. The example given for this is the same as that for mistake of fact, being a description of how the Agency has handled someone’s requirements under the Act.

Missing or deceased person 13.11 Missing or deceased person applies where a person has been reported missing or dead, there are no reasonable grounds to believe the person would not want the information disclosed, and where the disclosure is necessary to assist to locate the person, or to assist a court, coroner, royal commission or inquiry of a state or territory department or authority, or an authority administering a disability support scheme in another country, in relation to locating the person. In relation to a deceased person, the information may also be disclosed where it is necessary for the administration of that person’s estate. Examples of this type of disclosure provided in the rules are information about whether a person is dead or alive or information about a person’s whereabouts.

Agencies responsible for children 13.12 Agencies responsible for children applies to situations where disclosure is necessary to assist a child welfare agency to contact the parent or relative in relation to a child, or where it is necessary to assist the agency in protecting the welfare, safety and wellbeing of a child. [page 202]

A child welfare agency is defined in the rules to include any Commonwealth, state or territory agency, or non-government agency or institution, that has responsibilities in relation to the welfare, safety and wellbeing of children (even if the agency also has responsibilities for the care of adults). Examples given in the rules include schools, child protection agencies and public and private health facilities. An example of permissible disclosure in this area includes where the information is about a child’s welfare or the whereabouts of a relevant person.

The CEO can make a disclosure either at the request of anyone listed in s 66(1)(b) or at the CEO’s own initiative. If disclosure is made, the CEO must record what information was disclosed, to whom it was disclosed and the purpose for disclosure.7

Interaction with other laws 13.13 Section 69 states that this Act does not alter the operation of the Freedom of Information Act 1982 (Cth). There is no equivalent section in relation to the operation of other Commonwealth, or state and territory legislation such as the various Privacy statutes. There are provisions to this effect in relation to the previous Part, regarding disclosure of documents to the Agency and giving evidence (ss 58 and 59) and the rules specifically list the relevant state and territory Privacy Acts stating that the effect of those Acts is not altered by the NDIS legislative provisions in that Part. The Privacy statement for the NDIS specifically states that it is subject to the privacy principles in the Privacy Act 1988 (Cth) and the equivalent Acts of the various states and territories. In March 2014, the changes to the Commonwealth privacy legislation brought about by the Privacy Amendment (Enhancing Privacy) Act 2012 (Cth) will come into effect and will introduce standard Australian Privacy Principles that will also apply to the NDIS Agency. In New South Wales, the Health Records and Information Privacy Act 2002 (NSW) will also apply, because the sorts of information to be collected by the Agency would be captured by the definition of ‘health information’ in s 6 and ‘personal information’ in s 5(1) and is not covered by any of the exemptions to ‘personal information’ under s 5(3). [page 203]

LEGISLATION 13.14 Reproduced below are the legislative provisions relevant to the commentary in this chapter.

Chapter 4 —Administration Part 2—Privacy 60 Protection of information held by the Agency etc. (1) A person may obtain protected information for the purposes of this Act. (2) A person may: (a) make a record of protected information; or (b) disclose such information to any person; or (c) otherwise use such information; if: (d) the making of the record, or the disclosure or use of the information, by the person is made: (i)

for the purposes of this Act; or

(ii) for the purpose for which the information was disclosed to the person under section 66; or (iii) with the express or implied authorisation of the person to whom the information relates; or (e) the person believes on reasonable grounds that the making of the record, or the disclosure or use of the information, by the person is necessary to prevent or lessen a serious threat to an individual’s life, health or safety. (3) Without limiting subsections (1) and (2), the obtaining, recording, disclosure or use of information by a person is taken to be for the purposes of this Act if the CEO believes, on reasonable grounds, that it is reasonably necessary for one or more of the following purposes: (a) research into matters relevant to the National Disability Insurance Scheme; (b) actuarial analysis of matters relevant to the National Disability Insurance Scheme; (c) policy development. [page 204]

61 Offence—unauthorised information A person commits an offence if: (a) the person obtains information; and

access

to

protected

(b) the person is not authorised or required by or under this Act to obtain the information; and (c) the information is protected information.

Penalty: Imprisonment for 2 years or 120 penalty units, or both. Note:

If a body corporate is convicted of an offence against this section, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the pecuniary penalty stated above.

62 Offence—unauthorised protected information

use

or

disclosure

of

A person commits an offence if: (a) the person: (i)

makes a record of information; or

(ii) discloses information to any other person; or (iii) otherwise makes use of information; and (b) the person is not authorised or required by or under this Act to make the record, disclosure or use of the information that is made by the person; and (c) the information is protected information.

Penalty: Imprisonment for 2 years or 120 penalty units, or both. Note:

If a body corporate is convicted of an offence against this section, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the pecuniary penalty stated above.

63 Offence—soliciting information

disclosure

of

protected

A person (the first person) commits an offence if: (a) the first person solicits the disclosure of information from an officer or another person, whether or not any protected information is actually disclosed; and (b) the disclosure would be in contravention of this Part; and (c) the information is protected information. [page 205]

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

Note:

If a body corporate is convicted of an offence against this section, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the pecuniary penalty stated above.

64 Offence—offering to supply protected information (1) A person commits an offence if: (a) the person offers to supply (whether to a particular person or otherwise) information about another person; and (b) the person knows the information is protected information.

Penalty: Imprisonment for 2 years or 120 penalty units, or both. Note:

If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the pecuniary penalty stated above.

(2) A person commits an offence if: (a) the person holds himself or herself out as being able to supply (whether to a particular person or otherwise) information about another person; and (b) the person knows the information is protected information.

Penalty: Imprisonment for 2 years or 120 penalty units, or both. Note:

If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the pecuniary penalty stated above.

(3) Subsections (1) and (2) do not apply to an officer acting in the performance or exercise of his or her duties, functions or powers under this Act.

65 Protection of certain production to court etc.

documents

etc.

from

A person must not, except for the purposes of this Act, be required: (a) to produce any document in his or her possession because of the performance or exercise of his or her duties, functions or powers under this Act; or (b) to disclose any matter or thing of which he or she had notice because of the performance or exercise of such duties, functions or powers;

to a court, tribunal, authority or person that has power to require the production of documents or the answering of questions. [page 206]

66 Disclosure of information by CEO (1) Despite sections 62 and 65, the CEO may: (a) if the CEO certifies that it is necessary in the public interest to do so in a particular case or class of cases—disclose information acquired by a person in the performance of his or her functions or duties or in the exercise of his or her powers under this Act to such persons and for such purposes as the CEO determines; or (b) disclose any such information: (i)

to the Secretary of a Department of State of the Commonwealth, or to the head of an authority of the Commonwealth, for the purposes of that Department or authority; or

(ii) to a person who is expressly or impliedly authorised by the person to whom the information relates to obtain it; or (iii) to the Chief Executive Centrelink for the purposes of a centrelink program; or (iv) to the Chief Executive Medicare for the purposes of a medicare program; or (v) to the chief executive (however described) of a Department of State of a State or Territory, or to the head of an authority of a State or Territory, for the purposes of that Department or authority. (2) In certifying for the purposes of paragraph (1)(a) or disclosing information for the purposes of subparagraph (1)(b)(i) or (v), the CEO must act in accordance with any National Disability Insurance Scheme rules made for the purposes of section 67. (3) Despite any other provision of this Part, the CEO may disclose protected information to a participant’s nominee if the protected information: (a) relates to the participant; and (b) is or was held in the records of the Agency.

67 National Disability Insurance Scheme rules for exercise of CEO’s disclosure powers The National Disability Insurance Scheme rules may make provision for and in relation to the exercise of either or both of the following: (a) the CEO’s power to certify for the purposes of paragraph 66(1)(a); [page 207]

(b) the CEO’s power under subparagraph 66(1)(b)(i) or (v) to disclose information to a person.

68 Part does not affect the operation of the Freedom of Information Act 1982 The provisions of this Part that relate to the disclosure of information do not affect the operation of the Freedom of Information Act 1982.

RULES 13.15 Reproduced below are the rules relevant to the commentary in this chapter.

National Disability Insurance Scheme (Protection and Disclosure of Information) Rules 2013 Part 1 What these Rules are about 1.1 These Rules are about safeguarding the privacy of people whose information is held by the Agency. 1.2 The Rules deal with the circumstances in which a State or Territory law may prevent the disclosure of information or a document by a person to the Agency, and the ability of the CEO of the Agency to disclose information in the public interest or to a Commonwealth, State or Territory Department or authority. 1.3 The Act sets out a number of principles for the NDIS. The following are particularly relevant to these Rules: (a) people with disability have the same right as other members of Australian society to respect for their worth and dignity and to live free from abuse, neglect and exploitation; (b) people with disability should have their privacy and dignity respected.

Part 2 Outline of these Rules 2.1 Part 3 relates to the circumstances in which a person may be required to give information, produce a document, or give evidence to the Agency for the purposes of the Act. Part 3 deals with the circumstances in which a State or Territory law can affect whether or not a person is required to give this information or evidence, or produce a document. [page 208]

2.2 Part 4 deals with the power of the CEO to disclose information collected under the Act where it is necessary to do so in the public interest. 2.3 Part 5 deals with the circumstances in which the CEO may disclose information to the heads of other Commonwealth, State or Territory Departments or authorities. 2.4 Part 6 deals with other matters, including interpretation of these Rules.

Part 3 Effect of State and Territory laws on a requirement to give information or evidence or produce documents 3.1 A person (for example, a participant or prospective participant) may be required, in certain circumstances, to give particular information or evidence, or produce documents, to the Agency or an officer for the purposes of the Act. 3.2 Generally, a requirement under the Act to give information or evidence, or to produce documents, to the Agency is not affected by State or Territory laws. That is, the general rule is that nothing in a State or Territory law excuses a person from complying with the requirement.

Paragraph 3.2 summarises subsection 58(1) of the Act. 3.3 However, by exception to this general rule, a person is not required to give information, produce a document, or give evidence to the Agency for the purposes of the Act if: (a) the person would be prevented from doing so under a law of a State or Territory; and

Paragraph 3.3(a) summarises paragraph 58(2)(a) of the Act. (b) the law of the State or the Territory is one of the following laws:

Victoria Accident Compensation Act 1985, section 61A, subsection 65(3) Assisted Reproductive Technology Act 2008, section 72 Audit Act 1994, sections 12, 20A Australian Crime Commission (State Provisions) Act 2003, section 44 [page 209]

Child Employment Act 2003, section 46 Children, Youth and Families Act 2005, sections 129–131, 180, 191, 209, 213, 552 Corrections Act 1986, section 36 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, section 62

Disability Act 2006, section 128 Emergency Management Act 1986, subsection 21G(2) Equal Opportunity Act 2010, section 176 Freedom of Information Act 1982, section 63D Health Services Act 1988, section 63D Housing Act 1983, section 128 Independent Broad-based Anti-corruption Commission Act 2011, Divisions 2 and 3 of Part 2; sections 50, 166, 177 Major Crime (Investigative Powers) Act 2004, sections 20, 68 Mental Health Act 1986, sections 35, 63, 117, 120A Ombudsman Act 1973, sections 16L, 20; Part VA Police Regulation Act 1958, sections 86ZG, 86ZH Protected Disclosure Act 2012, sections 52, 53 Terrorism (Community Protection) Act 2003, sections 12, 23 Victorian Civil and Administrative Tribunal Act 1998, section 34 Victorian Inspectorate Act 2011, Divisions 2 and 3 of Part 2 Witness Protection Act 1991, section 10

New South Wales Assisted Reproductive Technology Act 2007, section 32B Children and Young Persons (Care and Protection) Act 1998, section 29 Crime Commission Act 2012, section 80 Independent Commission Against Corruption Act 1988, section 111 Ombudsman Act 1974, section 34 [page 210]

Parliamentary Electorates and Elections Act 1912, section 48 Police Integrity Commission Act 1996, section 56 Privacy and Personal Information Protection Act 1998, section 67 Royal Commission (Police Service) Act 1994, section 30 State Records Act 1998, section 73 Terrorism (Police Powers) Act 2002, section 26P Witness Protection Act 1995, sections 24, 32, 33

South Australia Children’s Protection Act 1993, section 13 Health Care Act 2008, section 73

Tasmania Adoption Act 1975, section 75 Archives Act 1983, section 16 Children, Young Persons and Their Families Act 1997, sections 16, 40, 111A Commission of Inquiry Act 1995, sections 10, 14 Community Protection (Offender Reporting) Act 2005, section 45 Guardianship and Administration Act 1995, section 86 Health Act 1997, section 4 Health Complaints Act 1995, sections 37, 65 Health Practitioners Tribunal Act 2010, section 54 HIV/AIDS Preventive Measures Act 1993, section 18 Integrity Commission Act 2009, section 94 Magistrate’s Court (Children’s Division) Act 1998, section 12 Mental Health Act 1996, sections 85, 90

Obstetric and Paediatric Mortality and Morbidity Act 1994, section 15 Ombudsman Act 1978, section 26 Public Health Act 1997, sections 61, 147 Public Interest Disclosures Act 2002, section 23 [page 211]

Relationships Act 2003, section 22 Witness Protection Act 2000, section 13 Youth Justice Act 1997, sections 22, 31, 45

Australian Capital Territory Australian Crime Commission Act 2003, section 46 Children and Young People Act 2008, sections 846, 847 Drugs of Dependence Act 1989, section 201 Electoral Act 1992, section 63 Epidemiological Studies (Confidentiality) Act 1992, sections 4, 5, 6, 7, 8 Human Rights Commission Act 2005, section 66 Inquiries Act 1991, section 17 Judicial Commission Act 1994, section 28 Legal Aid Act 1997, section 92 Ombudsman Act 1989, section 33 Royal Commissions Act 1991, section 20 Territory Records Act 2002, section 52 Witness Protection Act 1996, section 23. Note:

The list of laws prescribed above is subject to ongoing review and the Minister

may amend these Rules to alter the list.

Paragraph 3.3(b) is made for the purposes of paragraph 58(2)(b) of the Act. 3.4 A person is not required to give information or produce a document under Part 1 of Chapter 4 of the Act to the extent that in doing so the person would contravene a Commonwealth law. Paragraph 3.4 summarises section 59 of the Act.

[page 212]

Part 4 Disclosure of information by the CEO in the public interest 4.1 The Act restricts the circumstances in which information that the Agency has about a person, and certain other information, can be disclosed. However, the CEO may disclose information acquired by a person in the performance of his or her functions or duties or in the exercise of his or her powers under the Act (NDIS information), including information about a person, if the CEO certifies that it is necessary in the public interest to do so in a particular case or class of cases. The NDIS information can in these circumstances be disclosed to such persons and for such purposes as the CEO determines. Paragraph 4.1 summarises sections 62 and 65 and paragraph 66(1)(a) of the Act.

4.2 This Part sets out guidance for the CEO in the exercise of the power to certify that disclosure is necessary in the public interest —that is, to give a public interest certificate—in particular classes of cases. These Rules are not intended to limit the circumstances in which the CEO may give a public interest certificate under paragraph 66(1)(a) of the Act.

General considerations 4.3 In cases where this Part applies, identified below, the CEO may give a public interest certificate for the disclosure of NDIS information if: (a) the information cannot reasonably be obtained from a source other than the Agency; and (b) the person to whom the information will be disclosed has sufficient interest in the information.

4.4 A person has sufficient interest in the NDIS information if: (a) the CEO is satisfied that, in relation to the purpose of the disclosure, the person has a genuine and legitimate interest in the information; or (b) the person is a Commonwealth, State or Territory Minister.

4.5 In considering whether to give a public interest certificate under paragraph 4.3 to disclose information about a particular person, the CEO should have regard to whether the person would be likely to be in a position to seek assistance themselves or give notice of their circumstances. [page 213]

Enforcement of laws 4.6 This Part applies to cases where: (a) the disclosure is necessary: (i)

for the enforcement of a criminal law; or

(ii) for the enforcement of a law imposing a pecuniary penalty; or (iii) to prevent an act that may have a significant adverse effect on the public revenue; or (b) the disclosure relates to an offence or threatened offence: (i)

against an officer of the Commonwealth, a State or a Territory; or

(ii) against Commonwealth, State or Territory property; or (iii) in premises occupied by the Agency. Note:

An example of the type of information that may be disclosed in these cases is information about the whereabouts of a person suspected of committing an offence or breaching a relevant law.

Mistake of fact 4.7 This Part applies to cases where: (a) the disclosure is necessary to correct a mistake of fact in relation to the administration of the NDIS; and (b) either: (i)

the integrity of the NDIS will be at risk if the mistake of fact is not corrected; or

(ii) the mistake of fact relates to a matter that was, or will be, published (whether by, or with or without the consent of, the person to whom the information relates). Note:

An example of the type of information that may be disclosed in these cases is a description of how the Agency has handled a person’s requirements under the NDIS.

Ministerial briefing 4.8 This Part applies to cases where the disclosure of the NDIS information is necessary to brief a Commonwealth, State or Territory Minister: (a) so that the Minister can be advised of complaints or issues raised by or on behalf of a person with the Minister (in writing or orally), and if necessary respond to that person in relation to the complaints or issues; or [page 214] (b) in relation to issues raised or proposed to be raised publicly by or on behalf of the person to whom the relevant information relates so that the Minister can

respond by correcting a mistake of fact, a misleading perception or impression, or a misleading statement; or (c) about an error or delay on the part of the Agency; or (d) about an instance of an anomalous or unusual operation of the Act, regulations made under the Act or the NDIS rules. Note:

An example of the type of information that may be disclosed in these cases is a description of how the Agency has handled a person’s requirements under the NDIS.

Missing and deceased persons 4.9 This Part applies to cases where: (a) the information is about a person who is, or has been reported to be, missing or dead; and (b) there is no reasonable ground to believe that the person would not want the information disclosed; and (c) the disclosure is necessary: (i)

to locate a person (including the missing or dead person him or herself, or a relative or beneficiary of the person); or

(ii) to assist a court, a coronial enquiry, a royal commission or commission of inquiry (however described), a Department or other authority of a State or Territory, or an authority responsible for administering a disability support scheme in another country, in relation to its inquiries about the person; or (iii) in relation to a dead person—to assist a person responsible for the administration of the estate of the dead person in relation to the administration of the estate of the person. Note:

Examples of the types of information that may be disclosed in these cases are information about the whereabouts of a missing person and information regarding whether a person is dead or alive.

Agencies responsible for children 4.10 This Part applies to cases where: (a) the disclosure is necessary to assist a child welfare agency contact a parent or relative in relation to a child; or (b) the disclosure is necessary to assist a child welfare agency to carry out its responsibilities relating to the safety, welfare or wellbeing of a child. [page 215]

4.11 A child welfare agency includes a Commonwealth, State or Territory agency, or a non-government agency or institution, that has responsibilities relating to the safety, welfare or wellbeing of children or that provides care for children (even if it also provides care for adults). Examples include child protection agencies, schools, and public and private health facilities. Note:

Examples of the types of information that may be disclosed in these cases are information about a child’s welfare and information about a relevant person’s whereabouts.

Paragraphs 4.3 to 4.11 are made for the purposes of paragraph 67(a) of the Act.

Part 5 Disclosure of information by the CEO to Secretaries, chief executives and heads of authorities 5.1 Under the Act, the CEO may disclose NDIS information to the Secretary of a Commonwealth Department, the chief executive (however described) of a State or Territory Department, or the head of an authority of the Commonwealth or of a State or Territory for the purposes of the relevant Department or authority. Paragraph 5.1 summarises subparagraphs 66(1)(b)(i) and (v) of the Act. 5.2 This Part sets out matters relating to the exercise of this power by the CEO. 5.3 The CEO may disclose NDIS information to a Secretary, chief executive (however described) or head of an authority if the Secretary, chief executive or head of the authority requests that the relevant information be disclosed to them for one or more

purposes of the Department or authority described in the request. 5.4 The CEO may also disclose NDIS information to a Secretary, chief executive (however described) or head of an authority on the CEO’s own initiative. 5.5 If the CEO discloses relevant information to a Secretary, chief executive (however described) or head of an authority for the purposes of the Department or authority, the CEO must make a record of: [page 216] (a) the information that was disclosed; and (b) the Secretary, chief executive (however described) or head of authority to whom the information was disclosed; and (c) where relevant, the purpose for which the disclosure was requested by the Secretary, chief executive (however described) or head of authority or, if the information was disclosed on the CEO’s own initiative, the purpose for which the information was disclosed.

Paragraphs 5.3 to 5.5 are made for the purposes of paragraph 67(b) of the Act.

Part 6 Other matters Citation 6.1 These Rules may be cited as the National Disability Insurance Scheme (Protection and Disclosure of Information) Rules 2013.

Interpretation 6.2 These Rules include text that summarises provisions of the Act. The boxed notes identify such text, which does not form an operative part of these Rules.

6.3 Terms and expressions that are used in the Act have the same meaning in these Rules unless these Rules display a contrary intention—see the Acts Interpretation Act 1901 and the Legislative Instruments Act 2003, which include definitions and rules of interpretation that apply to all Commonwealth legislation. For convenience, the more important definitions from the Act are identified or reproduced in paragraph 6.4. 6.4 In these Rules: Act means the National Disability Insurance Scheme Act 2013. Agency—see section 9 of the Act. CEO—see section 9 of the Act. child—see section 9 of the Act. criminal law means: [page 217] (a) for Australia—a criminal law of the Commonwealth or of a State or Territory; and (b) for a place outside Australia—a criminal law that may be recognised under an extradition arrangement to which Australia is a party.

NDIS means the National Disability Insurance Scheme (see section 9 of the Act). NDIS information—see paragraph 4.1. NDIS rules means the National Disability Insurance Scheme rules (see section 9 of the Act). participant—see section 9 of the Act. penalty unit has the same meaning as in section 4AA of the Crimes Act 1914.

______________________________ 1.

See s 14, Information Privacy Principle 10(1)(c).

2.

‘Good Medical Practice: A Code of Conduct for Doctors in Australia’ is endorsed by the medical boards in all Australian states and territories and by the Medical Council of Australia. It is available online at .

3.

See, for example, r 9.2.5 of the Australian Solicitors’ Conduct Rules, adopted by the Law Society of South Australia in July 2011 and by the Queensland Law Society in June 2012.

4.

NDIS Explanatory Memorandum, p 27.

5.

The current value of one penalty unit is $170, effective from 28 December 2012 and to be reviewed next in 2015: s 4AA(1) and (1A) of the Crimes Act 1914 (Cth).

6.

See Chapter 15 of this handbook (‘Nominees’) for further information.

7.

Clause 5.5 of the National Disability Insurance Scheme (Protection and Disclosure of Information) Rules 2013.

[page 219]

PART G Children and Nominees

[page 221]

CHAPTER 14 Children SUMMARY A child is anyone under the age of 18. Generally the child’s parent or parents will be responsible for making the decisions for the child required by the Agency. The NDIS CEO may decide someone other than the person or persons with parental responsibility should be making decisions for the child, or that the child is capable of making their own decisions. There is an overarching duty to ascertain the wishes of the child and act in the child’s best interests.

COMMENTARY Introduction 14.1 Given the scope and purpose of the National Disability Insurance Scheme, a significant proportion of participants in the scheme will likely be children. In fact, the launch site in South Australia is only for children from 0–14 years of age and in Tasmania, it is for young people aged 15–24. The age range for the launch sites in Victoria and New South Wales is for anyone up to age 65 and therefore will also involve children. Part 4 of the Act and the National Disability Insurance Scheme (Children) Rules 2013 set out how the role of children is to be addressed in administering the scheme.

Definitions and guiding principles 14.2 A child is defined in s 9 to be a person who is under 18 years of age. A number of the objects and principles of the Act outlined in ss 3, 4 and 5 are particularly relevant to children. Subsections 4(12) and 4(17) in particular recognise the role of families in the network of people supporting people with disabilities. Section 5(f) reinforces the general principle embodied in the International Convention on the Rights of the Child1 that the best interests of the child are always paramount and that [page 222]

full consideration should be given to protecting the child from harm, promoting the child’s development and strengthening the child’s relationships with others, including their parents, family members and other significant people in the child’s life.

Children and parental responsibility 14.3 As a starting point, s 74(1) of the Act states that anything required or permitted to be done by or in relation to a child is to be done by the person, or persons, with parental responsibility. Parental responsibility is defined in s 75, which states that a person has parental responsibility for a child if they are the child’s parent and have not stopped having parental responsibility for that child under the Family Law Act 1975 (Cth). The meaning of ‘parent’ is drawn from the Family Law Act 1975 (Cth)2 and is specifically said not to limit who might be considered a parent. Accordingly, s 75(1)(b) states that the person with parental responsibility might be someone who has a parenting order in place which states that the child lives or spends time with that person and they have responsibility for the child’s care, welfare and development. This is set out further in rr 4.1 and 4.2, the latter of which sets out two parental conditions which must be met where there is no parent or guardian for the child. If someone has guardianship of a child under a Commonwealth, state or territory law, then that person has parental responsibility for the child, unless

determined otherwise by the NDIS CEO.3 Where more than one person would have parental responsibility under s 74(1), the CEO may determine that one or more of those people have parental responsibility for the purposes of the Act.4 Subsection 75(4) makes provision for the rules to prescribe the process the CEO must follow in these situations, and also in circumstances where the CEO considers that it is not appropriate for the person or people with parental responsibility to be doing what is required or permitted under the Act for a child. The rules suggest this may occur where there is significant doubt about who has parental responsibility for a child. In that case, s 74(1)(b) provides for the CEO to determine in writing that someone else has parental responsibility. If parental responsibility rests with a state or territory Minister, then the CEO has to have written agreement from the Minister before making a determination under s 74(1)(b). Paragraph 3.4 of the rules states that the Minister would usually delegate parental responsibility and therefore, once delegated, that responsibility may also include the power to make the agreement under the Act for a child participant. [page 223]

The outcome of the above process determines who will be the child’s representative for the purpose of the Act, as outlined in para 3.1 of the rules. This is said to only occur in exceptional circumstances and the CEO must have regard to the following matters set out in r 3.5: the preferences (if any) of the child; the desirability of preserving family relationships and informal support networks of the child; who is best placed to carry out the duties to the child set out in the Act and rules; for a particular person that the CEO is considering appointing: –

any existing arrangements between that person and the child;

–

whether that person has day-to-day responsibility for the child;

–

whether that person can work in conjunction with other people for

the child’s best interests; –

any information provided by that person at the CEO’s request, or refusal to provide information requested;

–

any relevant conviction under Commonwealth, state or territory law; and

–

the suitability of that person to work with children.

Where the CEO is making a determination regarding a child under the guardianship of a Minister, r 4.6 states that the CEO must consult, in writing, with the child’s guardian and have regard to the following: the preferences (if any) of the child; the principle that the child’s guardian should be the child’s representative unless the CEO is satisfied that this is not appropriate; whether the child’s guardian recommends that another person should be the child’s representative; the extent to which the child’s guardian is willing and able to perform the functions of the child’s representative set out in s 76 of the Act and Pt 6 of the rules; and whether a person who satisfies parental condition 1 or parental condition 2 is more willing and able to carry out the duties to children set out in s 76 of the Act and Pt 6 of the rules. For a child who does not have a guardian, then any person who satisfies parental condition 1 or 2 has parental responsibility for the child. Where this is more than one person, the CEO can determine that one or more people have parental responsibility. This is discretionary and r 4.9 sets out how the CEO decides whether or not to make any such determination. Under that rule, the CEO is to have regard to a series of considerations which are essentially a combination of those applying to determinations about parental responsibility and those about guardians. These are set out in full in r 4.9 at the end of this chapter.

[page 224]

In each situation, the matters which the CEO must consider embody the general principles set out in ss 4 and 5 of the Act, adhering in particular to the Convention on the Rights of the Child and the principles in other legislation, such as the Family Law Act, where the best interests of the child are paramount. These matters also recognise the central role that the family and support network of a disabled child have always played in caring for that child. One such person in that network could be the child’s carer. This will not always be the child’s parent or person with parental responsibility. Rule 7.5 stipulates that nothing in the rules should impact upon the role and obligations of carers appointed by an appropriate state or territory authority. Such carers will have been appointed under a relevant state or territory Act and will have delegated functions, powers and duties and have corresponding obligations under the relevant Act.

The ‘mature minor’ 14.4 The CEO can also decide that the child is capable of making their own decisions under s 74(5)(a). Rule 5.1 states that for this to apply the CEO must first determine that the child is capable of making their own decisions and that it is appropriate that the child does certain things for themselves. The CEO then must make a formal determination to that effect. Rule 5.2 states that the CEO has to consult with the child and the child’s representative and must have regard to whether the child is able to: understand information of the kind relevant to making decisions under the NDIS; use information of that kind when making decisions; understand the consequences of decisions required under the NDIS; and communicate decisions in some way. The CEO must also have regard to whether the child has people in their life

that can support them in making their own decisions. The kinds of considerations the CEO should make are a reflection of the general principle outlined in para 1.2 of the rules, which states ‘that a child’s ability to undertake acts and make decisions on their own behalf increases as they develop’. This concept was considered by the House of Lords in the case of Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, where it was ultimately held that a patient under 18 years of age could consent to medical treatment if they had sufficient understanding, intelligence and maturity to understand fully the nature and consequences of the treatment proposed. This principle came to be known as the [page 225]

‘Gillick competence’ test, and was later adopted in Australia5 and has been considered and applied in a number of Australian cases since. The matters to be considered in that test are similar to those set out in r 5.2, although notably the child’s level of understanding is not qualified by the word ‘fully’ as it is in the Gillick competence test. The necessary considerations also refer to the child’s support network, another foundation that runs through the Act and rules relating to children.

Duty to children 14.5 Once parental responsibility has been determined, s 76(1) of the Act imposes a duty on the person with that role to ascertain the wishes of the child and to act in their best interests. Subsections 76(2) and 76(3) state that the duty in subs (1) is not breached if the person had a reasonable belief they acted in accordance with the duty when doing something or refraining from doing something in connection with the Act. Section 76(4) provides that the rules may establish other duties, including duties requiring the person to support the child’s own decision-making and have regard to, and giving appropriate weight to, the views of the child. Rule 6.4 picks up on this and states that a child’s representative also has a duty to consult, where practicable, with:

a child’s guardian or a person that satisfies parental condition 1 or 2; or any other person who assists the child to manage their day-to-day affairs and make decisions. Section 76(4) allows for these rules to be added to if additional duties are identified, which may occur during the launch phase of the scheme.

Revocation of determinations 14.6 Section 77 allows the CEO to revoke a determination about who has parental responsibility under s 74(1)(b) where the person in question asks the CEO to do so, or the CEO is satisfied the determination is no longer appropriate. This must be done in writing and the CEO must give the person a copy of the written instrument. The need for such a revocation is more likely to occur where the process of making the determination itself was more complex, and also recognises that a child’s circumstances may change over time. It does not appear to allow for the child themselves to apply to the CEO for the determination to be revoked, but this may otherwise be encompassed within the general principles in the Act and the rules about the increasing autonomy of the child as he or she grows older. [page 226]

LEGISLATION 14.7 Reproduced below are the legislative provisions relevant to the commentary in this chapter.

Chapter 4—Administration Part 4—Children 74 Children (1) If this Act requires or permits a thing to be done by or in relation to a child, the

thing is to be done by or in relation to: (a) the person who has, or the persons who jointly have, parental responsibility for the child; or (b) if the CEO is satisfied that this is not appropriate—a person determined in writing by the CEO. (1A) If a State or Territory Minister has parental responsibility for the child, the CEO must not make a determination under paragraph (1)(b) in relation to the child unless the State or Territory Minister has agreed in writing to the making of the determination. (2) If a person mentioned in subsection (1) makes a plan management request for a participant who is a child, the person may request: (a) that the person manage the plan wholly or to the extent specified in the request; or (b) that the plan be managed wholly, or to the extent specified in the request, by a registered plan management provider nominated by the person to manage the plan; or (c) that the plan be managed wholly, or to the extent specified in the request, by the Agency or a person specified by the Agency. (3) The statement of participant supports in the plan must give effect to the plan management request, except as mentioned in subsections (4) and (5). (4) The statement of participant supports in a participant’s plan must not provide that the person referred to in paragraph (2)(a) is to manage the funding for supports under the participant’s plan: (a) to any extent, if the person is an insolvent under administration; or (b) to a particular extent, if the CEO is satisfied that management of the plan to that extent would: (i)

present an unreasonable risk to the participant; or [page 227]

(ii) permit the person to manage matters that are prescribed by the National Disability Insurance Scheme rules as being matters that must not be managed by the person. (5) Subsections (1) and (2) of this section do not have effect in relation to a participant who is a child if: (a) the CEO is satisfied that the child is capable of making decisions for himself or herself; and (b) the CEO is satisfied that it is appropriate in the circumstances for those subsections not to apply to the child; and (c) the CEO makes a determination that those subsections do not apply to the

child. (6) The National Disability Insurance Scheme rules may prescribe criteria to which the CEO is to have regard in deciding the following: (a) whether to make a determination under paragraph (1)(b); (b) whether a person managing the funding for supports under a participant’s plan would present an unreasonable risk to the participant as mentioned in paragraph (4)(b); (c) whether a child is capable of making decisions for himself or herself as mentioned in paragraph (5)(a); (d) whether it is appropriate for subsections (1) and (2) not to apply to a child as mentioned in paragraph (5)(b). (7) A determination made under paragraph (5)(c) is not a legislative instrument.

75 Definition of parental responsibility (1) For the purposes of this Act, a person has parental responsibility for a child if: (a) the person is the child’s parent and has not ceased to have parental responsibility for the child because of an order made under the Family Law Act 1975 or a law of a State or Territory; or (b) under a parenting order (within the meaning of the Family Law Act 1975): (i)

the child is to live with the person; or

(ii) the child is to spend time with the person; or (iii) the person is responsible for the child’s long-term or day-to-day care, welfare and development. (2) Despite subsection (1), if, under a law of the Commonwealth, a State or a Territory, a person has guardianship of a child, that [page 228] person has parental responsibility for the child, unless the CEO determines that one or more of the persons referred to in subsection (1) instead have parental responsibility for the child. (3) If subsection (1) would result in more than one person having parental responsibility for a child, the CEO may determine that one or more of those persons have parental responsibility for the child for the purposes of this Act. (3A) If a State or Territory Minister has guardianship of the child, the CEO must not make a determination under subsection (2) or (3) in relation to the child unless the State or Territory Minister has agreed in writing to the making of the determination. (4) The National Disability Insurance Scheme rules may prescribe criteria to which

the CEO is to have regard in deciding whether to make a determination under subsection (2) or (3). (5) A determination under subsection (2) or (3) must be in writing. (6) A determination under subsection (2) or (3) is not a legislative instrument.

76 Duty to children (1) It is the duty of a person who may do a thing because of section 74 to ascertain the wishes of the child concerned and to act in the best interests of the child. (2) A person does not breach the duty imposed by subsection (1) by doing a thing if, when the thing is done, the person reasonably believes that: (a) he or she has ascertained the wishes of the child in relation to the thing; and (b) the doing of the thing is in the best interests of the child. (3) A person does not breach the duty imposed by subsection (1) by refraining from doing a thing if, at the relevant time, the person reasonably believes that: (a) he or she has ascertained the wishes of the child in relation to the thing; and (b) not doing the thing is in the best interests of the child. (4) The National Disability Insurance Scheme rules may prescribe other duties of a person who may do a thing in relation to a child because of section 74, including duties requiring the person: (a) to support decision-making by the child personally; or (b) to have regard to, and give appropriate weight to, the views of the child. [page 229]

77 Revocation of determinations under section 74 (1) The CEO may, by written instrument, revoke a determination that is in effect under paragraph 74(1)(b) in relation to a person if: (a) the person requests the CEO in writing to do so; or (b) the CEO is satisfied that it is no longer appropriate for the determination to remain in effect. (2) The CEO must give the person a copy of the instrument.

RULES

14.8 Reproduced below are the rules relevant to the commentary in this chapter.

National Disability Insurance Scheme (Children) Rules 2013 Part 1 What these Rules are about 1.1 These Rules are about persons who are responsible for undertaking acts and making decisions in relation to the Act on behalf of a child (referred to as child’s representatives in these Rules). 1.2 It is recognised (for example, in the Convention on the Rights of the Child) that a child’s ability to undertake acts and make decisions on their own behalf increases as they develop. This principle is given effect by various provisions of the Act and these Rules that relate to child’s representatives, including rules that require children to be consulted in relation to, and involved in, decision-making that affects them, and in the ability of the CEO to decide that a particular child does not need a child’s representative (and to determine that the child will be able to undertake acts and make decisions on their own behalf). 1.3 The existence of a child’s representative for the purposes of the Act does not affect duties or responsibilities of other carers who are responsible for undertaking acts and making decisions on behalf of children. 1.4 The Act sets out a number of principles for the NDIS. The following principles are particularly relevant to these Rules: (a) the role of families, carers and other significant persons in the lives of people with disability is to be acknowledged and respected; [page 230] (b) where acts or things are done on behalf of a child with disability, the best interests of the child are paramount, and full consideration should be given to the need to: (i)

protect them from harm; and

(ii) promote their development; and (iii) strengthen, preserve and promote positive relationships between them and their parents, family members and other people who are significant in their life; (c) positive personal and social development of people with disability, including children and young people, is to be promoted; (d) where acts or things are done on behalf of a person with disability: (i)

they should be involved in decision-making that affects them, including making decisions for themselves, to the extent possible; and

(ii) they should be encouraged to engage in the life of the community; and (iii) the judgements and decisions they would have made for themselves should be taken into account; and (iv) their cultural and linguistic circumstances, and gender, should be taken into account; and (v) their supportive relationships, friendships and connections with others should be recognised.

Part 2 Outline of these Rules 2.1 A child’s representative is usually a person with parental responsibility. Part 3 deals with determining whether a person other than a person with parental responsibility should be the child’s representative. 2.2 Part 4 deals with determining who has parental responsibility. 2.3 In some cases, a child does not need a child’s representative, and is able to make decisions for himself or herself for the purposes of the NDIS. Part 5 deals with determining whether a child does not need a child’s representative. 2.4 Part 6 deals with the duties of a child’s representative. 2.5 Part 7 deals with other matters, including interpretation of these Rules. [page 231]

Part 3 Who is the child’s representative?

3.1 A child’s representative need not be an individual, and could, for example, be a State or Territory government agency. 3.2 The child’s representative will normally be the person who has, or the persons who jointly have, parental responsibility for the child. (See section 75 of the Act and Part 4 of these Rules for how to determine who has parental responsibility.) 3.3 However, in exceptional circumstances, the CEO might be satisfied that this is not appropriate. (For example, in a particular case, there might be a substantial degree of doubt as to what persons have parental responsibility under section 75 of the Act, and in view of this doubt, the CEO might be satisfied that it is not appropriate for the persons referred to in paragraph 3.2 to be the child’s representative.) In such circumstances, the CEO may determine that the child’s representative should be a different person, or a different group of persons. A person determined by the CEO in this way need not have parental responsibility. 3.4 There is a special rule that applies in relation to such a determination when a State or Territory Minister, or the head of a Department of State of a State or Territory, has parental responsibility for the child. In such a case, the CEO is able to make this determination only with the written agreement of that person. A Minister or departmental head will normally delegate powers relating to parental responsibility. A delegation might include the power to make the agreement on that person’s behalf. Paragraphs 3.1 to 3.4 summarise the effect of subsections 74(1) and (1A) of the Act. 3.5 In deciding whether to make such a determination, the CEO is to have regard to the following: (a) the preferences (if any) of the child;

the desirability of preserving family relationships and informal support (b) networks of the child; (c) who is best placed to carry out the duties set out in section 76 of the Act and Part 6 of these Rules; [page 232] (d) for a particular person that the CEO is considering appointing: (i)

any existing arrangements that are in place between that person and the child; and

(ii) whether that person has responsibility for day-to-day parenting decisions; and (iii) whether that person can act in conjunction with other representatives and supporters of the child in the best interests of the child; and (iv) where the CEO has asked the person to answer any questions or provide any information in relation to the possible appointment of that person as a child’s representative (including requesting the person to consent to the release of information concerning their criminal history or suitability to work with children): (A) any answers or information that have been provided by the person; and (B) any refusal by the person to provide answers or information; and (v) any relevant conviction for an offence under Commonwealth, State or Territory law; and (vi) any relevant information relating to the suitability of the person to work with children.

Part 4 Who has parental responsibility? 4.1 There are different rules for determining who has parental responsibility, depending on whether or not the child has a guardian. Under these rules, in each case, the person with parental responsibility will either be: (a) the child’s guardian; or (b) 1 or more of the persons who satisfy parental condition 1 or parental condition 2.

4.2 The parental conditions are as follows: parental condition 1 is that the person:

(a) is a parent of the child; and (b) has not ceased to have parental responsibility for the child because of an order made under the Family Law Act 1975 or a law of a State or a Territory. [page 233] parental condition 2 is that, under a parenting order (within the meaning of the Family Law Act 1975): (a) the child is to live with the person; or (b) the child is to spend time with the person; or (c) the person is responsible for the child’s long-term or day-to-day care, welfare and development.

Persons who satisfy parental condition 1 or parental condition 2 will also satisfy paragraph 75(1)(a) or (b) of the Act.

Children who have guardians 4.3 If a child has a guardian, the guardian normally has parental responsibility for the child (and will therefore normally be the child’s representative—see paragraph 3.2). 4.4 However, the CEO is able to determine instead that 1 or more of the persons who satisfy parental condition 1 or parental condition 2 have parental responsibility for the child. 4.5 In some cases, a State or Territory Minister, or the head of a Department of State of a State or Territory, will have guardianship of the child. If so, the CEO is able to make this determination only with the written agreement of that person. Paragraphs 4.1 to 4.5 summarise the operation of subsections 75(1) to (3A)

of the Act. 4.6 When deciding whether to make such a determination, the CEO is to: (a) consult, in writing, with the child’s guardian; and (b) have regard to the following: (i)

the preferences (if any) of the child;

(ii) the principle that the child’s guardian should be the child’s representative unless the CEO is satisfied that this is not appropriate; (iii) whether the child’s guardian recommends that another person should be the child’s representative; [page 234] (iv) the extent to which the child’s guardian is willing and able to perform the functions of child’s representative set out in section 76 of the Act and Part 6 of these Rules; (v) whether a person who satisfies parental condition 1 or parental condition 2 is more willing and able to carry out the duties to children set out in section 76 of the Act and Part 6 of these Rules.

Children who do not have guardians 4.7 If a child does not have a guardian, then any person who satisfies parental condition 1 or parental condition 2 has parental responsibility for the child. 4.8 Where this results in more than 1 person having parental responsibility for a child, the CEO is able to determine that 1 or more of those persons have parental responsibility for the child for the purposes of the Act. This is discretionary; the CEO does not need to make this determination. Paragraphs 4.7 and 4.8 summarise subsections 75(1) and (3) of the Act.

4.9 When deciding whether to make a determination referred to in paragraph 4.8, the CEO is to have regard to the following: (a) the preferences (if any) of the child; (b) the views of any person who has parental responsibility for the child; (c) whether 1 or more of those persons are best placed to carry out the duties to children set out in section 76 of the Act and Part 6 of these Rules, taking into account: (i)

existing arrangements that are in place between those persons and the child; and

(ii) which persons have responsibility for day-to-day parenting decisions; and (iii) which persons can act in conjunction with other representatives and supporters of the child in the best interests of the child; (d) whether 1 or more of those persons are willing and able to work together in the best interests of the child; (e) the desirability of preserving family relationships and informal support networks of the child; [page 235] (f)

for any of the persons: (i)

where the CEO has asked the person to answer any questions or provide any information in relation to making a determination that applies to that person (including requesting the person to consent to the release of information concerning their criminal history or suitability to work with children): (A) any answers or information that have been provided by the person; and (B) any refusal by the person to provide answers or information; and

(ii) any relevant conviction for an offence under Commonwealth, State or Territory law; and (iii) any relevant information relating to the suitability of the person to work with children.

Part 5 When a child does not need a child’s representative 5.1 Under the Act, a child will sometimes be able to do things for

himself or herself. For this to be the case, the CEO must: (a) be satisfied that the child is capable of making their own decisions; and (b) be satisfied that it is appropriate in the circumstances for certain provisions of the Act not to apply to the child (essentially, the CEO must be satisfied that it is appropriate for the child to do things for himself or herself); and (c) make a determination about these matters.

Paragraph 5.1 summarises subsection 74(5) of the Act. 5.2 When making a decision in relation to the matter referred to in paragraph 5.1(a) above, the CEO is to: (a) consult with the child and the child’s representative; and (b) have regard to the following: (i)

whether the child: (A) is able to understand the kind of information relevant to decisions that need to be made under the NDIS; and (B) is able to use information of that kind when making decisions; and [page 236] (C) is able to understand the consequences of decisions that need to be made under the NDIS; and (D) is able to communicate decisions in some way;

(ii) whether there are people in the child’s life who can support them to make their own decisions.

5.3 When making a decision in relation to the matter referred to in paragraph 5.1(b) above, the CEO is to: (a) consult with the child and the child’s representative; and (b) have regard to the following: (i)

the preferences (if any) of the child;

(ii) whether there are other people in the child’s life who would be willing and able to assist them in carrying out actions and making decisions under

the NDIS; (iii) the need to preserve existing family relationships; (iv) any existing arrangements in place under Commonwealth, State and Territory schemes.

Part 6 Duties of child’s representatives 6.1 The Act provides guidance as to how a child’s representative is to act under the NDIS. 6.2 One duty of a child’s representative is to: (a) ascertain the wishes of the child; and (b) act in a manner that promotes the best interests of that child.

6.3 This duty is not breached if the child’s representative does a thing, or refrains from doing a thing, so long as: (a) the child’s representative reasonably believes that they have ascertained the wishes of the child in relation to the thing; and (b) the child’s representative reasonably believes that doing the thing, or refraining from doing the thing, promotes the best interests of the child.

The duty set out in paragraph 6.2 and the qualification set out in paragraph 6.3 summarise subsections 76(1) to (3) of the Act. 6.4 A child’s representative also has a duty to consult, wherever practicable, with the following in relation to doing things under, or for the purposes of, the Act: [page 237] (a) the guardian of the child (if any) and any other person who satisfies parental condition 1 or parental condition 2 (see paragraph 4.2) in relation to the child; (b) any other person who assists the child to manage their day-to-day activities and make decisions.

Part 7 Other matters Citation 7.1 These Rules may be cited as the National Disability Insurance Scheme (Children) Rules 2013.

Interpretation 7.2 These Rules include text that summarises provisions of the Act. The boxed notes identify such text, which does not form an operative part of these Rules. 7.3 Terms and expressions that are used in the Act have the same meaning in these Rules unless these Rules display a contrary intention—see the Acts Interpretation Act 1901 and the Legislative Instruments Act 2003, which include definitions and rules of interpretation that apply to all Commonwealth legislation. For convenience, the more important definitions from the Act are identified or reproduced in paragraph 7.4. 7.4 In these Rules: Act means the National Disability Insurance Scheme Act 2013. CEO—see section 9 of the Act. child—see section 9 of the Act. child’s representative means a person referred to in subsection 74(1) of the Act. Convention on the Rights of the Child means the treaty known as the Convention on the Rights of the Child done at New York on 20 November 1989. The text of the Convention is set out in the Australian Treaty Series 1991 No. 4. guardian means a guardian appointed under a law of the Commonwealth, a State or a Territory, and guardianship has a corresponding meaning. NDIS means the National Disability Insurance Scheme (see

section 9 of the Act). [page 238]

parental responsibility—see section 9 of the Act. parental condition 1—see paragraph 4.2 of these Rules. parental condition 2—see paragraph 4.2 of these Rules. Appointment of child’s representative does not affect other duties or functions of carers 7.5 In some cases, carers will have been appointed by an appropriate State or Territory body. Some such carers will have been delegated powers, functions or duties, and will have corresponding obligations under the State or Territory law. Nothing in these Rules is intended to impact on obligations of that nature.

______________________________ 1.

Referred to in s 3(1)(i)(iii) of the Act.

2.

Section 4 of the Family Law Act 1975 (Cth) states the meaning of parent includes the adoptive parent of an adopted child and also refers to Subdivision D of the Family Law Act which outlines who a parent in a number of different scenarios, which then apply under the definition of who is a parent for the purposes of the NDIS Act and Agency.

3.

Section 75(2) of the Act.

4.

Section 75(3) of the Act.

5.

Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) [1992] HCA 15; (1992) 106 ALR 385.

[page 239]

CHAPTER 15 Nominees SUMMARY A nominee can be appointed at the request of a participant or on the initiative of the NDIS CEO. A nominee can be a plan nominee or a correspondence nominee, or both, and can be appointed indefinitely or for a fixed period of time or specified event. A nominee owes a duty to the participant to ascertain their wishes and act in a manner that promotes the participant’s social and emotional wellbeing. Appointments must be confirmed by the CEO in writing and can be cancelled or suspended by the CEO for a number of reasons, including a breach of the nominee’s duty or if the nominee has caused, or is likely to cause, the participant physical, mental or financial harm

COMMENTARY Introduction 15.1 It is assumed that people with a disability accessing the NDIS will have

capacity to make their own decisions and act on their own behalf. However, where this is not the case, Pt 5 of the Act sets out who can act and make decisions on behalf of a participant. There are also rules regarding nominees which provide the practical framework for the appointment of nominees and their duties and functions.

What is a nominee? 15.2 A nominee is defined in s 9 of the Act as the plan nominee of a participant or the correspondence nominee of a participant. These terms are then separately defined as being the person appointed as a nominee under the respective sections, being s 86 for plan nominees and s 87 for correspondence nominees. Under these sections, a plan nominee or a correspondence nominee is the person appointed by the NDIS CEO in writing either at the participant’s request or on the CEO’s own initiative. The same person can be appointed as the plan nominee and the [page 240]

correspondence nominee and both can be appointed indefinitely or for a fixed term, which may be a fixed period of time or a specified event.1 Just as for anyone acting on behalf of children discussed in the previous chapter, nominees are also bound by the general principles set out in s 5. That section requires that if the National Disability Insurance Scheme Act requires or permits an act or thing to be done by or in relation to a person with disability by another person, the act or thing is to be done, so far as practicable, in accordance with both the general principles set out in s 4 and the s 5 principles. The s 5 principles state that: the person with disability should be involved in decision-making that affects them, including making decisions for themselves, to the extent this is possible; the person with disability should be encouraged to engage in the life of the community;

the judgements and decisions that people with disability would have made for themselves should be taken into account; the cultural and linguistic circumstances of the person with disability should be taken into account; and the supportive relationships, friendships and connections of others to the person with disability should be recognised. These general principles are reflected in Pt 3 of the rules regarding nominees. These rules state that it is only in exceptional cases that a nominee will be appointed, and usually at the request of a participant. It is envisaged that a nominee will not be appointed where the capacity of the participant can be built up over time, and with appropriate support, so that they can continue to make their own decisions. If a participant has not requested that a nominee be appointed but such an appointment is necessary, the CEO can exercise their initiative under ss 86(2)(b) and 87(2)(b) to appoint one. Rule 3.15 provides an example of where this might occur, being where the participant is unable to request the appointment of a nominee but where the CEO considers one is necessary. In such a case, the initial approach to the CEO regarding a nominee being appointed may come from the participant’s carer or another person who offers to be the nominee, and not from the participant themselves.

Appointment of a nominee 15.3 In accordance with r 3.12, if a participant has requested the appointment of a nominee, one should ordinarily be appointed. In doing so, the CEO should have regard to the following matters set out in r 3.13: [page 241] (a)

the principle that the person the participant has requested should ordinarily be appointed;

(b) any evidence that indicates that the person might have unduly or improperly induced or influenced the participant to request the appointment; (c)

any conflicts of interest.

In addition, under s 88 the CEO must also have regard to: whether the person is willing and able to comply with the duties stipulated for nominees (set out in s 80 of the Act and Pt 5 of the rules, discussed below at 15.4); whether there is a person appointed as guardian of the participant under a Commonwealth, state or territory law; and whether there is a person appointed by order of a court, tribunal, board or panel who has power to make decisions for the participant and whose responsibilities are relevant to the duties of a nominee. If there is a court-appointed or participant-appointed representative, and the functions and duties of that person are similar to those of a nominee under the Act, then the presumption provided by r 4.8(a) is that that person should be appointed as the nominee. It would only be if, for some reason, that person did not meet the other criteria stipulated in the Act and rules that the CEO would determine someone else should be the nominee. This would likely only happen in very rare circumstances and may lead to a review of that person’s appointment as the participant’s representative in that other capacity. The obvious intention of the Act and rules is that the person who has the most natural and practical relationship with the participant is the person who should be appointed as their nominee. This is demonstrated further in the list of considerations set out in r 4.8(b) (set out in full in the rules below) under which the CEO must have regard to the degree to which: the participant knows and is in a relationship of trust with the person; the person is willing and able to consult with the participant in decisionmaking, act in conjunction with other people involved in the participant’s care to maximise their wellbeing and carry out the functions that may be required of them as nominee; and the person understands and is committed to the role and duties of the nominee.

The nominee must also be sensitive to the cultural and linguistic circumstances of the participant and be familiar with and able to use any assistive technology or communication aids used by the participant. This ties in to the other considerations mentioned above, as without this ability the nominee would be unable to fulfil a number of the requirements, such as needing to consult with and ascertain the participant’s wishes and understanding of the matters dealt with by the nominee. [page 242]

Again, this demonstrates the practical motivations underpinning the appointment and functions of a nominee. Under r 4.8, the CEO must have regard to any criminal convictions of the proposed nominee and whether they have refused to answer any questions posed by the CEO or any information given in answer to such questions. The CEO must also ascertain the views of any carers or other support persons for the participant and consider any conflicts of interest concerning the person and the participant. Rule 4.4 stipulates that a nominee cannot be under 18 years of age and cannot be the Agency or an individual associated with the Agency, except in their personal capacity. This is presumably to maintain the appropriate distinction between the functions and duties of the Agency and its staff, and the best interests of individual participants in the scheme. The CEO must not appoint a nominee without the written consent of person to be appointed and must take into account the wishes, if any, of participant regarding the making of the appointment: s 88(2). Once appointment is made, s 88(5) requires the CEO to cause a copy of appointment document to be given to the participant and to the nominee.

the the the the

If the appointment is only to be for a fixed period of time or a specified event, the CEO is to have regard to the views of the participant, any carers and other support people involved in the participant’s day-to-day life. Rule 4.10 provides some examples of when an appointment might only be for a fixed time or a certain event, including where:

the CEO considers a review is appropriate after a certain period of time to see whether the participant still needs a nominee; an appointed decision-maker may be appointed in the near future, so the CEO appoints a nominee in the intervening period; the person who the participant wants as their nominee is not available (for example, is overseas) so someone else is appointed in the interim; or the nominee appointed is the court-appointed or participant-appointed decision-maker and so the appointment as nominee should lapse if the appointment as decision-maker lapses. This is not an exhaustive list, and the range of situations where an appointment for a fixed time or event may be made by the CEO will likely expand during the launch phase of the scheme. This may lead to amendments to the rules to include further examples to assist future participants. Finally, r 4.13 clarifies that a body corporate can be appointed as a nominee, but where this occurs an officer or employee of the corporate entity must be identified as the person who will be closely involved in performing the functions of the nominee and that officer or employee then stands in the role of ‘person’ where referred to in the Act and rules. [page 243]

Duties of a nominee 15.4 The objects and principles set out in the rules drawn from the general principles of the Act underpin the overriding duty of a nominee in s 80 and r 5.3. This duty to a participant under s 80(1) is: … to ascertain the wishes of the participant and to act in a manner that promotes the personal and social wellbeing of the participant.

The duty gives guidance to nominees as to how to act and what to do and is a relevant consideration for the CEO when deciding who to appoint as a participant’s nominee. Any breach of this duty is also a matter for consideration by the CEO if cancelling or suspending a nominee’s appointment.

It is not presently clear whether the reference to a duty in s 80 will be seen to create a legal duty. If so, the section gives rise to the potential for a participant to later bring a claim against a nominee for somehow breaching that duty. Under s 81(2) and (3) it is not a breach of the duty if the nominee does something, or refrains from doing something, so long as the nominee reasonably believed they had ascertained the participant’s wishes and reasonably believed that it promoted the participant’s social and personal wellbeing. As provided for under s 80(4), the rules outline further matters that form part of the nominee’s duty. These include duties to: consult with any court-appointed or participant-appointed decision-maker and any other person who assists the participant to manage their day-today activities and make decisions (r 5.8); consult the other people where more than one person has been appointed as the participant’s plan nominee before doing anything under the Act or for the purposes of the Act (r 5.9); develop the capacity of the participant to make their own decisions, using their best endeavours, to the point where a nominee is no longer necessary (r 5.10); and avoid and manage any conflicts of interest between the participant and the nominee and inform the CEO if such a conflict does arise (r 5.12). The conflict of interest is further explained in r 5.13 by confirming that a conflict exists if the nominee is involved in receiving any fee or reward for any services provided to the participant, either directly or indirectly and in a professional or administrative capacity. This essentially means that a nominee cannot profit from or be paid for their role as a nominee, at least without notifying the CEO. Corporate nominees are under a duty to fulfil the requirements outlined above in r 4.13, which means they need to appoint an officer or employee to be closely involved with the participant and to inform the CEO as to the identity of that person.

[page 244]

Plan nominees 15.5 Plan nominees are under a further duty in accordance with rr 5.6 and 5.7 to only act, or refrain from acting, where the participant themselves is incapable of doing or not doing the act in question, or is capable but does not wish to do, or refrain from doing, the act themselves. Section 78(1) sets out what plan nominees can do in more detail, permitting them to do any act relating to: the preparation, review or replacement of the participant’s plan; and the management of funding for supports under the plan. However, this is subject to any limitations in the instrument appointing the plan nominee which is further explained in r 3.8. The example given is that a CEO could state in the instrument of appointment that a plan nominee is not permitted to specify the goals, aspirations and objectives of the participant. The CEO could appoint more than one plan nominee and outline different roles for each of them in the instrument of appointment. These are examples only and these provisions are sufficiently broad for the CEO to be able to determine what, if any, limitations are necessary in each individual situation. A plan nominee may make any request that a participant can make, and can do any act, and the request and acts are taken to have been done by the participant themselves for the purposes of the Act: s 78(2)–(3). However, if the CEO gives a notice to a participant that requires an act to be done by the participant personally, then s 78(1) does not apply: s 78(4). Under s 78(5), where the plan nominee was appointed on the CEO’s initiative, a plan nominee can only carry out those tasks outlined above regarding s 78(1) if the nominee considers that the participant is not capable of doing the act themselves.

Correspondence nominees

15.6 The role of a correspondence nominee is significantly narrower than that of a plan nominee in that the correspondence nominee cannot do anything relating to those matters in s 78(1). As the name suggests, the role of a correspondence nominee is essentially to deal with paper work, making requests to the CEO and receiving notices on behalf of the participant. Section 81 sets out the practicalities for correspondence nominees. Section 81(1) states that any notice that the CEO can or must give to a participant must be given to their correspondence nominee. The notice must be the same in every respect as if it was being given to the participant and can be given to the correspondence nominee personally, by post or by any other means approved by the CEO. [page 245]

Under s 82, if a notice is given to a participant’s correspondence nominee: the notice is taken to have been given to the participant on the day it was given to the correspondence nominee; any requirement to provide the CEO with information or documentation may be satisfied by the correspondence nominee; any act to satisfy a requirement can be done by the correspondence nominee and is taken to have been done by the participant; and if the correspondence nominee fails to satisfy such a requirement then the participant is taken to have failed to comply. Subsections 82(2) and (3) clarify s 82(1) to state that the participant will be taken to have complied with a requirement if the correspondence nominee informs the CEO of a matter or provides information or documentation within the time specified. If this is not done within the specified time period by the correspondence nominee, then the participant will be taken to have not complied with the requirement. This illustrates the importance of the obligation to act as a nominee.

Notices to nominees about the nominees’ capacity 15.7 Under s 83 the CEO can issue a notice directly to a nominee that requires the nominee to inform the Agency if: an event or change in circumstances has occurred or is likely to occur; and that event or change in circumstances is likely to affect: –

the ability of the nominee to act in their capacity as plan or correspondence nominee or to comply with notices given under the Act; or

–

the ability of the CEO to give notices to the nominee under the Act.

Any such notice must specify how the nominee is to inform the Agency and the time period within which this must be done. This must be at least 14 days from the day on which the event or change in circumstances happens, or is likely to happen. Under s 83(3), a notice is still considered effective if it did not outline how the nominee must inform the Agency. Section 83(4) states that the section extends to acts, omissions, matters and things outside Australia, whether or not in a foreign country; and all people irrespective of their nationality or citizenship.

Notices to nominees about disposal of NDIS amounts 15.8 For plan nominees, under s 84 the CEO can also issue a notice requiring the nominee to provide a statement to the Agency relating to the disposal of an NDIS amount paid to the nominee on behalf of the participant.2 Any such notice must state [page 246]

how the plan nominee is to give the statement to the Agency and the time period within which this must be done, which cannot be less than 14 days after

the notice was given. If the plan nominee fails to comply with the notice, or refuses to do so, they will have committed an offence for which the penalty is 30 penalty units.3 The offence is not made out if the nominee has a reasonable excuse, which includes if by complying the nominee might incriminate themselves or expose themself to a penalty. The offence is one of strict liability4 in accordance with s 84(8).

Notices directed to participants, despite existence of nominee 15.9 The CEO’s power to issue notices to participants who have nominees is not affected by these nominee provisions, according to s 95. If any such notice is issued under a different part of the Act, then s 96 allows the CEO to notify a participant’s correspondence nominee if they have issued a notice to the participant. If the CEO has given a notice to a participant which relates to the preparation, management or review of their plan, then the CEO must notify the participant’s plan nominee of the fact that the notice has been given and the contents of the notice.

Rights of nominees 15.10 There is one right given to nominees in the Act, under s 85, which states that a nominee may attend any assessment or examination which the participant has been asked to attend. This applies if the participant wants the nominee to attend and if the person conducting the examination or assessment consents. The Act and rules do not address what happens if consent is not given by the examiner or assessor, but presumably this is unlikely to occur, particularly in circumstances where the participant provides their consent and where the attendance of the nominee would be necessary, or at least beneficial, for effective communication during the assessment or examination. If there was a significant incidence of the examiner or assessor refusing to give their consent in these circumstances during the launch period, this may be something that would need to be addressed through an amendment to the rules, to establish a process for resolving these situations.

Cancelling or suspending a nominee’s appointment 15.11 The Act outlines a number of situations where the CEO can or must cancel or suspend a nominee’s appointment, which are confirmed in the rules. [page 247]

Under s 89 and r 6.2 the CEO must cancel an appointment if: the nominee was appointed at the participant’s request and the participant requests that the CEO cancel the appointment; or where the nominee tells the CEO they no longer wish to be a participant. The request for cancellation does not need to be in writing but if not, the CEO must make a written record of the request. The notice of cancellation needs to be in written form, as soon as practicable, and a copy must be given to the nominee and the participant. Under s 90 and r 6.3 the CEO has discretion to suspend or cancel a nominee’s appointment in the following circumstances: if the ability of the person to act as nominee becomes compromised; or the CEO believes on reasonable grounds that the person has caused or is likely to cause physical, mental or financial harm to the participant. In addition, if the nominee was appointed on the CEO’s initiative and the participant asks the CEO to cancel the appointment, the CEO may do so: s 90(1). As above, the request does not need to be in writing, but needs to be recorded in writing by the CEO, and any cancellation must be in writing. The CEO must make a decision within 14 days of receiving such a request and if they decide not to cancel the appointment written notice of that decision must be given to the participant and the nominee. This provision does not state that the CEO must give reasons for the decision. If a notice is issued under s 90(1) of the Act suspending a person’s

appointment, the nominee has 28 days to respond with a written statement setting out the reasons why their appointment should not be cancelled by the CEO: s 90(2)(b). The CEO must then decide whether or not to cancel the nominee’s appointment as soon as practicable after the statement is received. If the CEO decides not to cancel the person’s appointment, then the suspension ends and the participant and the nominee must be given notice in writing of the CEO’s decision: s 90(5). If the nominee does not provide a written statement within the 28-day period, then the CEO must cancel the person’s appointment and give the person and the participant written notice of the decision: s 90(6). Again, none of these provisions require the CEO to provide reasons for the decision to cancel or not to cancel the appointment. If the nominee’s appointment is cancelled, they are still bound by the obligation under s 46(2) requiring them to keep records of any amount of money they received to be spent for the participant under their plan. Under s 92(3) the CEO can use the powers under ss 86 or 87 to appoint someone else to act as the participant’s nominee for the period of the suspension. Section 93 provides for the NDIS rules to prescribe further requirements for the CEO to follow when suspending or cancelling a nominee’s appointment. This has been done in rule 6.5 which lists the following matters for the CEO to take into account when suspending or cancelling an appointment: [page 248]

any breach of a duty of the nominee to the participant under the Act or rules; the previous conduct of the nominee towards the participant; the results of any review of the participant’s plan; the views of the participant, and of any person who cares for or supports the participant; the impact any cancellation or suspension of appointment would have on the participant; whether the nominee has been convicted of a criminal offence that is

reasonably likely to compromise the ability of the person to act as nominee; and whether the participant still needs a nominee. These are similar to the matters that the CEO must take into account when considering a nominee’s appointment and demonstrate again that the focus of any appointment, or cancellation of that appointment, is the best interests and wishes of the participant.

Liability 15.12 Section 97 stipulates that a participant cannot be guilty of an offence against the Act for any act or omission of the nominee. Equally, a nominee cannot be criminally liable for any act or omission of the participant, or for anything they themselves did in good faith in their capacity as a nominee: s 98(1). This is subject to the offence outlined in s 84(6) above regarding a plan nominee’s statement about disposal of money.

LEGISLATION 15.13 Reproduced below are the legislative provisions relevant to the commentary in this chapter.

Chapter 4—Administration Part 5—Nominees Division 1—Functions and responsibilities of nominees 78 Actions of plan nominee on behalf of participant (1) Any act that may be done by a participant under, or for the purposes of, this Act that relates to: (a) the preparation, review or replacement of the participant’s plan; or (b) the management of the funding for supports under the participant’s plan;

[page 249] may be done by the participant’s plan nominee, other than to the extent specified in the instrument of appointment of the plan nominee. Note 1: For the appointment of plan nominees, see section 86. Note 2: This subsection is subject to section 85 (which deals with the right of the nominee to attend with a participant) and subsection (4) of this section. (2) Without limiting subsection (1), a request that may be made under this Act by a participant may be made by the participant’s plan nominee on behalf of the participant. (3) An act done by a participant’s plan nominee because of this section has effect, for the purposes of this Act (other than this Part), as if it had been done by the participant. (4) If, under this Act, the CEO gives a notice to a participant who has a plan nominee, subsection (1) does not extend to an act that is required by the notice to be done by the participant personally. (5) If the participant’s plan nominee was appointed on the initiative of the CEO, the plan nominee may only do an act in relation to: (a) the preparation, review or replacement of the participant’s plan; or (b) the management of the funding for supports under the participant’s plan; if the nominee considers that the participant is not capable of doing the act.

79 Actions of correspondence nominee on behalf of participant (1) Any act that may be done by a participant under, or for the purposes of, this Act may be done by the participant’s correspondence nominee, other than an act that relates to: (a) the preparation, review or replacement of the participant’s plan; or (b) the management of the funding for supports under the participant’s plan. Note 1: For the appointment of correspondence nominees, see section 87. Note 2: This subsection is subject to section 85 (which deals with the right of the nominee to attend with a participant) and subsection (4) of this section. (2) Without limiting subsection (1), a request that may be made under this Act by a participant may be made by the participant’s correspondence nominee on behalf of the participant. [page 250]

(3) An act done by a participant’s correspondence nominee because of this section has effect, for the purposes of this Act (other than this Part), as if it had been done by the participant. (4) If, under this Act, the CEO gives a notice to a participant who has a correspondence nominee, subsection (1) does not extend to an act that is required by the notice to be done by the participant personally.

80 Duty of nominee to participant (1) It is the duty of a nominee of a participant to ascertain the wishes of the participant and to act in a manner that promotes the personal and social wellbeing of the participant. (2) A nominee does not breach the duty imposed by subsection (1) by doing an act if, when the act is done, the nominee reasonably believes that: (a) he or she has ascertained the wishes of the participant in relation to the act; and (b) the doing of the act promotes the personal and social wellbeing of the participant. (3) A nominee does not breach the duty imposed by subsection (1) by refraining from doing an act if, at the relevant time, the nominee reasonably believes that: (a) he or she has ascertained the wishes of the participant in relation to the act; and (b) not doing the act promotes the personal and social wellbeing of the participant. (4) The National Disability Insurance Scheme rules may prescribe other duties of a nominee, including duties requiring the nominee: (a) to support decision-making by the participant personally; or (b) to have regard to, and give appropriate weight to, the views of the participant.

81 Giving of notices to correspondence nominee (1) Any notice that the CEO is authorised or required by this Act to give to a participant must be given by the CEO to the participant’s correspondence nominee. (2) The notice: (a) must, in every respect, be in the same form, and in the same terms, as if it were being given to the participant; and (b) may be given to the correspondence nominee personally, by post or by any other means approved by the CEO.

[page 251] (3) If: (a) under subsection (1), the CEO gives a notice (the nominee notice) to a participant’s correspondence nominee; and (b) the CEO has already given, or afterwards gives, the participant a notice that: (i)

is expressed to be given under the same provision of this Act as the nominee notice; and

(ii) makes the same requirement of the participant as the nominee notice; section 82 ceases to have effect, or does not come into effect, as the case requires, in relation to the nominee notice.

82 Compliance by correspondence nominee (1) If, under section 81, a notice is given to a participant’s correspondence nominee, the following paragraphs have effect: (a) for the purposes of this Act, other than this Part, the notice is taken: (i)

to have been given to the participant; and

(ii) to have been so given on the day the notice was given to the correspondence nominee; (b) any requirement made of the participant to: (i)

inform the CEO of a matter; or

(ii) give information, or produce a document, to an officer; may be satisfied by the correspondence nominee; (c) any act done by the correspondence nominee for the purposes of satisfying such a requirement has effect, for the purposes of this Act, as if it had been done by the participant; (d) if the correspondence nominee fails to satisfy such a requirement, the participant is taken, for the purposes of this Act, to have failed to comply with the requirement. (2) To avoid doubt, for the purposes of this Act, the participant is taken to have complied with a requirement if: (a) the requirement imposes an obligation on the participant to inform the CEO of a matter, or give information or produce a document, within a specified period; and (b) the correspondence nominee does so within that period. (3) To avoid doubt, for the purposes of this Act, the participant is taken not to have complied with a requirement if:

[page 252] (a) the requirement imposes an obligation on the participant to inform the CEO of a matter, or give information or produce a document, within a specified period; and (b) the correspondence nominee does not do so within that period.

83 Nominee to inform Agency of matters affecting ability to act as nominee (1) The CEO may give a nominee of a participant a written notice that requires the nominee to inform the Agency if: (a) either: (i)

an event or change of circumstances happens; or

(ii) the nominee becomes aware that an event or change of circumstances is likely to happen; and (b) the event or change of circumstances is likely to affect: (i)

the ability of the nominee to act as the plan nominee or correspondence nominee of the participant (as the case may be); or

(ii) the ability of the CEO to give notices to the nominee under this Act; or (iii) the ability of the nominee to comply with notices given to the nominee by the CEO under this Act. (2) A notice under subsection (1) must specify: (a) how the nominee is to inform the Agency; and (b) the period within which the nominee is to inform the Agency, which must be a period of at least 14 days beginning on whichever of the following days is applicable: (i)

the day on which the event or change of circumstances happens;

(ii) the day on which the nominee becomes aware that the event or change of circumstances is likely to happen. (3) A notice under subsection (1) is not ineffective only because it does not comply with paragraph (2)(a). (4) This section extends to: (a) acts, omissions, matters and things outside Australia, whether or not in a foreign country; and (b) all persons, irrespective of their nationality or citizenship. [page 253]

84 Statement by plan nominee regarding disposal of money (1) The CEO may give the plan nominee of a participant a notice that requires the nominee to give the Agency a statement about a matter relating to the disposal by the nominee of an NDIS amount paid to the nominee on behalf of the participant. (2) A notice under subsection (1): (a) must specify how the plan nominee is to give the statement to the Agency; and (b) must specify the period within which the plan nominee is to give the statement to the Agency. (3) A notice under subsection (1) is not ineffective only because it does not comply with paragraph (2)(a). (4) The period specified under paragraph (2)(b) must not end earlier than 14 days after the day the notice is given. (5) A statement given in response to a notice under subsection (1) must be in accordance with a form approved by the CEO. (6) A person commits an offence if: (a) the person is a plan nominee; and (b) the person refuses or fails to comply with a notice under subsection (1). Penalty: 30 penalty units. (7) Subsection (6) does not apply if the person has a reasonable excuse. Note:

A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

(7A) It is a reasonable excuse for an individual to refuse or fail to comply with a notice under subsection (1) on the ground that to do so might tend to incriminate the individual or expose the individual to a penalty. (8) An offence against subsection (6) is an offence of strict liability. Note:

For strict liability, see section 6.1 of the Criminal Code.

(9) This section extends to: (a) acts, omissions, matters and things outside Australia, whether or not in a foreign country; and (b) all persons, irrespective of their nationality or citizenship. [page 254]

85 Right of nominee to attend with participant (1) If: (a) under this Act, the CEO makes a request of a participant who has a nominee; and (b) the request is that the participant undergo an assessment or examination; the nominee may accompany the participant while the assessment or examination is being conducted: (c) if the participant so wishes; and (d) to the extent that the person conducting the assessment or examination consents. (2) If a participant’s nominee is a body corporate, the last reference in subsection (1) to the nominee is to be read as a reference to an officer or employee of the nominee.

Division 2—Appointment and cancellation or suspension of appointment 86 Appointment of plan nominee (1) The CEO may, in writing, appoint a person to be the plan nominee of a participant for the purposes of this Act. Note:

The CEO must make the appointment in accordance with section 88.

(2) An appointment may be made: (a) at the request of the participant; or (b) on the initiative of the CEO. (3) An appointment may limit the matters in relation to which the person is the plan nominee of the participant. (4) An appointment may provide that it has effect for a specified term. (5) Without limiting the manner of specifying a term for the purposes of subsection (4), it may be specified by reference to the expiry of a specified period or the occurrence of a specified event.

87 Appointment of correspondence nominee (1) The CEO may, in writing, appoint a person to be the correspondence nominee of a participant for the purposes of this Act. Note:

The CEO must make the appointment in accordance with section 88.

(2) An appointment may be made: (a) at the request of the participant; or (b) on the initiative of the CEO. [page 255] (3) An appointment may provide that it has effect for a specified term. (4) Without limiting the manner of specifying a term for the purposes of subsection (3), it may be specified by reference to the expiry of a specified period or the occurrence of a specified event.

88 Provisions relating to appointments (1) A person may be appointed as the plan nominee and the correspondence nominee of the same participant. (2) The CEO must not appoint a person as a nominee of a participant under section 86 or 87 except: (a) with the written consent of the person to be appointed; and (b) after taking into consideration the wishes (if any) of the participant regarding the making of the appointment. (3) In appointing a person as a nominee of a participant under section 86 or 87, the CEO must consider whether the person is able to comply with section 80. (4) In appointing a nominee of a participant under section 86 or 87, the CEO must have regard to whether there is a person who, under a law of the Commonwealth, a State or a Territory: (a) has guardianship of the participant; or (b) is a person appointed by a court, tribunal, board or panel (however described) who has power to make decisions for the participant and whose responsibilities in relation to the participant are relevant to the duties of a nominee. (5) The CEO must cause a copy of an appointment under section 86 or 87 to be given to: (a) the nominee; and (b) the participant. (6) The National Disability Insurance Scheme rules may prescribe: (a) persons who must not be appointed as nominees; and (b) criteria to which the CEO is to have regard in considering the appointment of a nominee.

89 Circumstances in which the CEO must cancel appointment of nominees At the request of a participant (1) If: (a) a person is appointed as a nominee of a participant under section 86 or 87 at the request of the participant; and (b) the participant requests the CEO to cancel the appointment; [page 256] the CEO must, as soon as practicable, cancel the appointment by written instrument. (2) A request under paragraph (1)(b) need not be made in writing. If the request is not made in writing, the CEO must make a written record of the request.

Nominee no longer wishes to be a nominee (3) If: (a) a person is appointed as a nominee of a participant under section 86 or 87; and (b) the person informs the CEO in writing that the person no longer wishes to be a nominee under that appointment; the CEO must, as soon as practicable, cancel the appointment by written instrument.

Copy of instrument of cancellation to be given (4) If the appointment of a person as a nominee of a participant is cancelled under this section, the CEO must give the person and participant a copy of the instrument of cancellation.

90 General circumstances in which CEO may cancel or suspend appointment of nominees At the request of a participant (1) If: (a) a person is appointed as a nominee of a participant under section 86 or 87 on the initiative of the CEO; and

(b) the participant requests the CEO to cancel the appointment; the CEO may, by written instrument, cancel the appointment. (2) A request under paragraph (1)(b) need not be made in writing. If the request is not made in writing, the CEO must make a written record of the request. (3) If a request is made under paragraph (1)(b): (a) the CEO must decide whether to cancel the appointment within 14 days after receiving the request; and (b) if the CEO decides not to cancel the appointment—the CEO must give the person and participant written notice of the CEO’s decision.

Ability to act as a nominee affected (4) The CEO may, by written instrument, suspend or cancel one or more of a nominee’s appointments if: [page 257] (a) the CEO gives the nominee a notice under section 83; and (b) the nominee informs the Agency that an event or change of circumstances has happened or is likely to happen and is likely to have an effect referred to in paragraph 83(1)(b).

Failure to comply with a notice under section 83 or 84 (5) The CEO may, by written instrument, suspend or cancel one or more of a nominee’s appointments if: (a) the CEO gives the nominee a notice under section 83 or 84; and (b) the nominee does not comply with a requirement specified in the notice.

Copy of instrument of cancellation or suspension to be given (6) If the appointment of a person as a nominee of a participant is cancelled or suspended under this section, the CEO must give the person and participant a copy of the instrument of cancellation or suspension.

91 Suspension etc. of appointment of nominees in cases of physical, mental or financial harm Suspension of appointment (1) The CEO may, by written instrument, suspend the appointment of a person as a nominee of a participant if the CEO has reasonable grounds to believe that the

person has caused, or is likely to cause, physical, mental or financial harm to the participant. (2) If the person’s appointment is suspended under subsection (1), the CEO must: (a) give the person and participant a copy of the instrument of suspension; and (b) by written notice given to the person, request the person to give the CEO, within 28 days after the notice is given, a statement setting out reasons why the person’s appointment should not be cancelled by the CEO under this section.

Cancellation of appointment following suspension (3) If the person gives the CEO the statement within the 28-day period, the CEO may, by written instrument, cancel the person’s appointment. (4) The CEO must decide whether to cancel the person’s appointment under subsection (3) as soon as practicable after receiving the statement. (5) If the CEO decides not to cancel the person’s appointment under subsection (3): [page 258] (a) the suspension of the person’s appointment ends; and (b) the CEO must give the person and participant written notice of the CEO’s decision. (6) If the person does not give the CEO the statement within the 28-day period, the CEO must, by written instrument, cancel the person’s appointment as soon as practicable after that period ends. Copy of instrument of cancellation to be given (7) If the person’s appointment is cancelled under this section, the CEO must give the person and participant a copy of the instrument of cancellation.

92 Other matters relating suspension of appointment

to

cancellation

or

Cancellation of appointment (1) If: (a) the National Disability Insurance Scheme rules made for the purposes of subsection 46(2) apply in relation to a person who is a nominee; and (b) the appointment of the person as a nominee is cancelled under section 89, 90 or 91; those rules continue to apply in relation to the person as if the appointment had not been cancelled.

Suspension of appointment (2) While a person’s appointment as a nominee is suspended, the appointment has no effect for the purposes of this Act. (3) If a person’s appointment as a nominee of a participant is suspended under section 90 or 91, the CEO may appoint another person under section 86 or 87 to be the nominee of the participant for a period specified in the instrument of appointment.

93 National Disability Insurance Scheme rules may prescribe requirements etc. The National Disability Insurance Scheme rules may prescribe: (a) requirements with which the CEO must comply relating to the appointment of nominees or the cancellation or suspension of the appointment of nominees; and (b) matters to which the CEO is to have regard in appointing nominees or cancelling or suspending the appointment of nominees. [page 259]

94 CEO’s powers of revocation Nothing in this Part is an expression of a contrary intention for the purposes of subsection 33(3) of the Acts Interpretation Act 1901.

Division 3—Other matters relating to nominees 95 CEO’s powers to give notices to participant Nothing in this Part is intended in any way to affect the CEO’s powers under other provisions of this Act to give notices to, or make requirements of, a participant who has a nominee.

96 Notification of nominee where notice is given to participant (1) If, under this Act (other than this Part), the CEO gives a notice to a participant who has a correspondence nominee, the CEO may inform the correspondence nominee of the giving of the notice and of the terms of the notice. (2) If, under this Act (other than this Part):

(a) the CEO gives a notice to a participant who has a plan nominee; and (b) the notice relates to the preparation, management or review of the participant’s plan; the CEO must inform the plan nominee of the giving of the notice and of the terms of the notice.

97 Protection of participant against liability for actions of nominee Nothing in this Part renders a participant guilty of an offence against this Act in relation to any act or omission of the participant’s nominee.

98 Protection of nominee against criminal liability (1) A nominee of a participant is not subject to any criminal liability under this Act in relation to: (a) any act or omission of the participant; or (b) anything done, in good faith, by the nominee in his or her capacity as nominee. (2) This section has effect subject to section 84 (which deals with a statement by a plan nominee regarding the disposal of money).

[page 260]

RULES 15.14 Reproduced below are the rules relevant to the commentary in this chapter.

National Disability Insurance Scheme (Nominees) Rules 2013 Part 1 What these Rules are about 1.1 These Rules are about nominees, and deal with whether a

nominee should be appointed, who should be appointed as a nominee, the term of the appointment, duties of nominees, and cancellation and suspension of nominees. These Rules apply to all nominees, whether appointed at the request of a participant or on the initiative of the CEO. 1.2 The Act sets out a number of objects and principles for the NDIS. The following are particularly relevant to these Rules:

Objects (a) to enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports;

Principles (b) people with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports; (c) people with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives, to the full extent of their capacity; (d) people with disability should be supported in all their dealings and communications with the Agency so that their capacity to exercise choice and control is maximised in a way that is appropriate to their circumstances and cultural needs; (e) the role of families, carers and other significant persons in the lives of people with disability is to be acknowledged and respected; (f)

where acts or things are done on behalf of persons with disability: (i)

they should be involved in decision-making that affects them, including making decisions for themselves, to the extent possible; and

(ii) they should be encouraged to engage in the life of the community; and [page 261] (iii) the judgements and decisions they would have made for themselves should be taken into account; and (iv) their cultural and linguistic circumstances, and gender, should be taken into account; and

their supportive relationships, friendships and connections with others (v) should be recognised.

Part 2 Outline of these Rules 2.1 People with disability usually do not need a nominee for the purposes of the NDIS. Part 3 deals with determining whether it is necessary for a nominee to be appointed. 2.2 Part 4 deals with who should be appointed as a nominee and the term of the appointment. 2.3 Part 5 deals with how nominees are expected to act, and prescribes additional duties of nominees. 2.4 Part 6 deals with appointments of nominees.

suspension

and

cancellation

of

2.5 Part 7 deals with other matters, including interpretation of these Rules.

Part 3 Whether it is necessary to appoint nominee 3.1 People with disability are presumed to have capacity to make decisions that affect their own lives. This is usually the case, and it will not be necessary to appoint a nominee where it is possible to support, and build the capacity of, participants to make their own decisions for the purposes of the NDIS. 3.2 However, the Act recognises that there may be circumstances where it is necessary for a person to be appointed as a nominee of a participant, and to act on behalf of, or make decisions on behalf of, a participant. 3.3 Appointments of nominees will be justified only when it is not possible for participants to be assisted to make decisions for themselves. Appointments of nominees usually come about as a result of a participant requesting that a nominee be appointed.

3.4 It is only in rare and exceptional cases that the CEO will find it necessary to appoint a nominee for a participant who has not requested that an appointment be made. In appointing a nominee [page 262]

in such circumstances, the CEO will have regard to the participant’s wishes and the participant’s circumstances (including their formal and informal support networks). 3.5 This Part deals with the issue of whether it is necessary for a nominee to be appointed.

Types of nominee 3.6 Under the NDIS, there are 2 types of nominee: a plan nominee and a correspondence nominee. A single person can be appointed as both plan nominee and correspondence nominee. Either type of nominee can be appointed either indefinitely or for a specified term.

Plan nominee 3.7 Usually, a plan nominee is able to do any act that may be done by a participant under, or for the purposes of, the Act, that relates to: (a) the preparation, review or replacement of the participant’s plan; or (b) the management of funding for supports under the participant’s plan.

3.8 In some circumstances, it may be appropriate to limit the matters that a plan nominee is appointed to deal with. The CEO is able to specify limitations in the instrument of appointment. For example, the appointment might be restricted so as to prevent the nominee from specifying the goals, objectives and aspirations of the participant. In such a case, the nominee might still have authority with respect to the management of funding under a plan.

Alternatively, the CEO might appoint 2 or more plan nominees, and, in each instrument of appointment, limit the matters in relation to which each person is the plan nominee.

Correspondence nominee 3.9 In contrast, the role of a correspondence nominee is significantly narrower. Although a correspondence nominee is able to do a range of acts on behalf of a participant under the NDIS, they are not able to do any of the acts referred to in paragraph 3.7 above. The acts that a correspondence nominee is able to do include making requests to the Agency (for example, requests for information), and receiving notices from the Agency, on behalf of the participant. 3.10 The matters the correspondence nominee is able to deal with cannot be limited further by the instrument of appointment. [page 263]

Paragraphs 3.1 to 3.10 summarise the operation of sections 78 and 79, and subsection 86(4), of the Act. These sections contain further details relating to actions of nominees.

How appointment of nominee comes about 3.11 A plan nominee or a correspondence nominee may be appointed: (a) at the request of the participant; or (b) on the initiative of the CEO.

Paragraph 3.11 summarises subsections 86(2) and 87(2) of the Act. The Act contains further provisions relating to the appointment of a nominee, which have not been summarised in these Rules.

Appointment at request of participant 3.12 If the participant has requested that a nominee be appointed, the CEO is to have regard to the principle that a nominee should ordinarily be appointed if the participant requests one. 3.13 If the participant has requested that a particular person be appointed as nominee, the CEO is to have regard to the following: (a) the principle that the person the participant has requested should ordinarily be appointed; (b) any evidence that indicates that the person might have unduly or improperly induced or influenced the participant to request the appointment; (c) any conflicts of interest.

Appointment without a request from the participant 3.14 If the participant has not requested that a nominee be appointed, the CEO, when deciding whether to appoint a nominee, is to: (a) consult with the participant; and (b) have regard to the following: (i)

whether the participant would be able to participate effectively in the NDIS without having a nominee appointed;

(ii) the principle that a nominee should be appointed only when necessary, as a last resort, and subject to appropriate safeguards;

[page 264] (iii) whether the participant has a court-appointed decision-maker or a participant-appointed decision-maker; (iv) whether the participant has supportive relationships, friendships or connections with others that could be: (A) relied on or strengthened to assist the participant to make their own decisions; or (B) improved by appointment of an appropriate person as a nominee; (v) any relevant views of: (A) the participant; and (B) any person (including a carer) who assists the participant to manage their day-to-day activities and make decisions; and (C) any court-appointed decision-maker.

decision-maker

or

participant-appointed

3.15 An example of a circumstance in which a nominee might be appointed without a request from the participant is where the CEO considers that the participant needs a nominee, but is unable to request appointment himself or herself, even with support. In such circumstances, the initiative might come from a carer or other person who offers to be the nominee.

Part 4 Who should be appointed as nominee? 4.1 This Part deals with the issue of who should be appointed as a nominee. 4.2 Under the NDIS, the CEO is responsible for deciding who should be appointed as a nominee.

Persons that cannot be appointed as nominee 4.3 The Act envisages that there are some persons who it would be inappropriate to appoint as a nominee. Paragraphs 4.1 to 4.3 summarise the

operation of the Act.

4.4 The following persons must not be appointed as a nominee: (a) a person under 18 years of age; (b) the Agency; [page 265] (c) any individual associated with the Agency, other than in their personal capacity.

Matters to take into account when deciding who to appoint as nominee 4.5 There are several matters the CEO is required to take into account when deciding whether to appoint a particular person as a nominee. These are set out below. 4.6 The CEO is to: (a) take into consideration the wishes (if any) of the participant regarding the making of the appointment; and (b) have regard to those wishes, however they are expressed (for example, a participant might express a wish in a non-verbal manner, or might express a wish to a third party, such as a disability support worker); and (c) have regard to: (i)

whether the participant has a court-appointed decision-maker or a participant-appointed decision-maker; and

(ii) if so—the views of that person.

Paragraphs 4.6(a) and 4.6(c)(i) (to the extent that it relates to a person who has guardianship of the participant) summarise the requirements of paragraph 88(2)(b)

and subsection 88(4) of the Act. Paragraphs 4.6(b), 4.6(c)(i) (other than to the extent that it relates to a person who has guardianship of the participant) and 4.6(c)(ii) prescribe further matters to which the CEO is to have regard when appointing a nominee.

4.7 The CEO is also to: (a) have regard to whether the person is willing; and (b) consider whether the person is able;

to comply with the duties of a nominee to a participant (these are set out in section 80 of the Act and also Part 5 of these Rules). Paragraph 4.7, so far as it relates to paragraph (b), summarises the requirement of subsection 88(3) of the Act.

[page 266]

4.8 The CEO is also to have regard to the following: (a) the presumption that, if the participant has a court-appointed decision-maker or a participant-appointed decision-maker, and the powers and responsibilities of that person are comparable with those of a nominee, that person should be appointed as nominee; (b) the degree to which the person: (i)

knows, and is in a relationship of trust with, the participant; and

(ii) is willing and able to:

act in conjunction with other representatives and supporters of, and (A) carers for, the participant to maximise the participant’s wellbeing; and (B) undertake the kinds of activities that a nominee is required to undertake in performing their functions under the Act (for example, a plan nominee might be required to enter into contracts on behalf of the participant); and (C) involve the participant in decision-making processes; and (D) assist the participant to make decisions for himself or herself; and (E) ascertain what judgements and decisions the participant would have made for him or herself; and (iii) understands and is committed to performing the duties of a nominee; and (iv) is sensitive to the cultural and linguistic circumstances of the participant; and (v) is familiar with, and able to work with, any communication system or other technological supports of the participant; (c) the desirability of preserving family relationships and informal support networks of the participant; (d) any existing arrangements that are in place between the person and the participant; (e) where the CEO has asked the person to answer any questions or provide any information in relation to the possible appointment of that person as a nominee (including requesting the person to consent to the release of information concerning their criminal history or to disclose any conflict of interest in relation to the person and the participant): (i)

any answers or information that have been provided by the person; and

(ii) any refusal by the person to provide answers or information; [page 267] (f)

any relevant views of: (i)

carers who assist the participant to manage their day-to-day activities and make decisions; and

(ii) other persons who provide support to the participant; (g) any relevant conviction for an offence under Commonwealth, State or Territory law; (h) any conflict of interest in relation to the person and the participant.

Term of appointment of nominee 4.9 Under the Act, the CEO is able to appoint a plan nominee or a correspondence nominee indefinitely, or for a specified term. An appointment that is for a specified term can expire either on the expiry of a specified period, or on the occurrence of a specified event. Paragraph 4.9 summarises the operation of subsections 86(4) and (5) of the Act.

4.10 The following are examples of when the CEO might decide that an appointment for a specified term is appropriate: (a) the CEO considers that it would be desirable to review the appointment of a nominee after a period to see whether the participant still needs a nominee; (b) the CEO has cause to believe that an appointed decision-maker could be appointed, and appoints a nominee in the interim; (c) the person that the participant would like as a nominee is presently not in a position to act (for example, they might be overseas or hospitalised), and the CEO appoints a nominee until that person is available; (d) the person appointed as nominee is a court-appointed or participantappointed decision-maker, and the CEO considers it appropriate that the appointment as nominee should lapse if the appointment as decision-maker lapses.

4.11 When appointing a nominee, the CEO is to have regard to the views of: (a) the participant; and (b) any carers who assist the participant to manage their day-to-day activities and make decision; and (c) other persons who provide support to the participant; [page 268]

in deciding: (d) whether the appointment should be for a specified term; and (e) what that term should be.

Requirements with which the CEO is to comply when appointing nominee 4.12 The CEO is to consult, in writing, with any court-appointed decision-maker or participant-appointed decision-maker in relation to any appointment. 4.13 If the CEO is deciding whether to appoint as a nominee a person that is a body corporate: (a) the CEO is required to request the person to identify an officer or employee who will be closely involved in performance of the nominee functions under the NDIS; and (b) the rules set out in this Part (other than this rule) apply as if references to the person include references to the officer or employee.

Part 5 How nominees are expected to act 5.1 The Act provides guidance as to how nominees are to act under the NDIS. This guidance applies both to nominees appointed at the request of a participant and nominees appointed on the initiative of the CEO. 5.2 Nominees have duties to participants under the Act. These duties operate under the NDIS in 3 principal ways: (a) these duties, which are stated in general terms, provide guidance as to how nominees are expected to perform in the role of nominee; and (b) when appointing a person as a nominee, the CEO is required to consider whether the person is willing and able to comply with these duties; and (c) any breach of these duties is a matter to which the CEO is to have regard in cancelling or suspending the appointment of a nominee.

Paragraphs 5.1 and 5.2 set out

background information.

[page 269]

Duty to ascertain wishes, and promote personal and social wellbeing, of participant 5.3 A nominee has a duty to: (a) ascertain the wishes of the participant; and (b) act in a manner that promotes the personal and social wellbeing of the participant.

5.4 This duty is not breached if the nominee does an act, or refrains from doing an act, so long as: (a) the nominee reasonably believes that they have ascertained the wishes of the participant; and (b) the nominee reasonably believes that doing the act, or not doing the act, will promote the personal and social wellbeing of the participant.

The duty set out in paragraph 5.3 and the qualification set out in paragraph 5.4 summarise subsections 80(1), (2) and (3) of the Act.

Plan nominee to act only if participant not capable 5.5 A plan nominee appointed on the initiative of the CEO is able to do an act on behalf of the participant only if the nominee considers that the participant is not capable of doing the act. Paragraph 5.5 summarises subsection 78(5) of the Act. This is

not described as a duty under the Act.

5.6 A plan nominee appointed at the request of the participant has a duty to refrain from doing an act unless satisfied that: (a) it is not possible for the participant to do, or to be supported to do, the act himself or herself; or (b) it is possible for the participant to do the act himself or herself, but the participant does not want to do the act himself or herself.

5.7 This is not intended to affect any obligations or restrictions that impact on a plan nominee and which apply under State or Territory law (including obligations or restrictions that impact on them in their capacity as a court-appointed decision-maker or a participant-appointed decision-maker). [page 270]

See also section 207 of the Act, which deals with the concurrent operation of State and Territory laws with the Act.

Duty to consult 5.8 A nominee has a duty to consult with the following in relation to doing acts under, or for the purposes of, the Act: (a) any court-appointed decision-maker or any participant-appointed decisionmaker; (b) any other person who assists the participant to manage their day-to-day activities and make decisions (for example, a person who cares for the participant).

5.9 If more than 1 person is appointed as plan nominee, a further duty of each of them is to consult with the others before doing any act under, or for the purposes of, the Act.

Duty to develop capacity of participant 5.10 A nominee has a duty to apply their best endeavours to developing the capacity of the participant to make their own decisions, where possible to a point where a nominee is no longer necessary. 5.11 It is expected that the Agency will assist nominees in fulfilling this duty.

Duty to avoid or manage conflicts of interest 5.12 A nominee has a duty to the participant to: (a) avoid or manage any conflict of interest in relation to the nominee and the participant; and (b) inform the CEO of any such conflict of interest as it arises.

5.13 Without limiting paragraph 5.12, a conflict arises if the nominee is, in a professional or administrative capacity, directly or indirectly responsible for, or involved in, the provision of any services for fee or reward to the participant.

Duty for corporate nominee to inform CEO if person closely involved in performance of nominee functions changes 5.14 A nominee that is a body corporate has a duty, in relation to each participant in respect of which the person is the nominee, to: [page 271] (a) ensure that there is an officer or employee who is closely involved in performance of the nominee functions under the NDIS; and

inform the CEO of who that officer or employee is (including if a different (b) officer or employee takes on that responsibility).

Part 6 Suspension and cancellation of appointment of nominee 6.1 Under the Act, there are several situations in which the CEO is able, or is required, to suspend or cancel the appointment of a nominee. 6.2 The CEO is required to cancel an appointment if: (a) the nominee was appointed at the request of the participant, and the participant requests the CEO to cancel the appointment; or (b) the nominee informs the CEO that they no longer wish to be a nominee.

6.3 The CEO is able, but not required, to cancel an appointment if the nominee was appointed on the initiative of the CEO, and the participant requests the CEO to cancel the appointment. 6.4 The CEO is able, but not required, to cancel or suspend the appointment of a nominee if: (a) the ability of the person to act as nominee becomes compromised; or (b) the CEO has reasonable grounds to believe that the nominee has caused, or is likely to cause, physical, mental or financial harm to the participant.

Paragraphs 6.1 to 6.4 summarise sections 89, 90 and 91 of the Act. The provisions in the Act contain further details of the grounds of suspension and cancellation, and should be consulted where appropriate. The Act specifies a number of detailed procedural and other requirements that must be followed for these grounds of cancellation or

suspension to be relied on.

6.5 When cancelling or suspending the appointment of a nominee in the situations described in paragraph 6.3 or paragraph 6.4, the CEO is to have regard to the following: (a) any breach of a duty of the nominee to the participant under the Act or these Rules; (b) the previous conduct of the nominee in relation to the participant; [page 272] (c) the results of any review of the participant’s plan; (d) the views of the participant, and of any person who cares for or supports the participant; (e) the impact on the participant of any cancellation or suspension of appointment; (f)

whether the nominee has been convicted of a criminal offence that is reasonably likely to compromise the ability of the person to act as nominee;

(g) whether the participant still needs a nominee, having regard to the considerations mentioned in paragraph 3.14(b).

Part 7 Other matters Citation 7.1 These Rules may be cited as the National Disability Insurance Scheme (Nominees) Rules 2013.

Interpretation 7.2 These Rules include text that summarises provisions of the Act. The boxed notes identify such text, which does not form an operative part of these Rules. 7.3 Terms and expressions that are used in the Act have the same meaning in these Rules unless these Rules display a

contrary intention—see the Acts Interpretation Act 1901 and the Legislative Instruments Act 2003, which include definitions and rules of interpretation that apply to all Commonwealth legislation. For convenience, the more important definitions from the Act are identified or reproduced in paragraph 7.4. 7.4 In these Rules: Act means the National Disability Insurance Scheme Act 2013. Agency—see section 9 of the Act. court-appointed decision-maker: a person is a courtappointed decision-maker in relation to a participant if the person, under a law of the Commonwealth, a State or a Territory: (a) has guardianship of the participant; or (b) is a person appointed by a court, tribunal, board or panel (however described) who has power to make decisions for the participant and whose responsibilities in relation to the participant are relevant to the duties of a nominee. [page 273]

A court-appointed decision-maker is a person referred to in paragraph 88(4)(a) or (b) of the Act. CEO—see section 9 of the Act. conflict of interest, in relation to a person and a participant, means any conflict between: (a) the interests of: (i)

the person; or

(ii) in the case of a person that is a body corporate—any officer or employee of the person who is closely involved in performance of the nominee

functions under the NDIS (see paragraph 4.13(a)); and (b) the interests of the participant;

that would impact on the person’s ability to carry out their role as nominee. correspondence nominee—see section 9 of the Act. NDIS means the National Disability Insurance Scheme (see section 9 of the Act). nominee—see section 9 of the Act. participant—see section 9 of the Act. participant-appointed decision-maker: a person is a participant-appointed decision-maker in relation to a participant if the participant has entered into a formal arrangement with the person under which the person is able to make a decision on the participant’s behalf (for example, a power of attorney, an advance health directive or appointment as an enduring guardian under State or Territory law). plan nominee—see section 9 of the Act.

______________________________ 1.

See s 86(4) and (5)| for plan nominees and s 87(3) and (4) for correspondence nominees; see also s 88(1) of the Act and r 3.6 of the National Disability Insurance Scheme (Nominees) Rules 2013.

2.

See s 84(1) of the Act.

3.

Currently, the value of one penalty unit is $170, so the penalty would be $5100. The current value was effective from 28 December 2012 and is to be reviewed next in 2015: s 4AA(1) and (1A) of the Crimes Act 1914 (Cth).

4.

This means that the person would be found to be responsible even if they were not at fault, in accordance with s 6.1 of the Criminal Code 1995 (Cth).

[page 275]

PART H Exit

[page 277]

CHAPTER 16 Ceasing to Be a Participant and Revocation SUMMARY A person may cease to be an NDIS participant by reason of death, age, revocation or voluntary withdrawal. Revocation may arise from failure to meet the residence requirements. Revocation may arise from failure to meet the disability or the early intervention requirements. Temporary absence is permitted for a period of grace without impacting the residence requirements, beyond which a participant’s plan may be suspended.

COMMENTARY Introduction 16.1 Section 29 of the Act sets out four circumstances in which a person ceases to be an NDIS participant. A person is not entitled to be paid NDIS amounts for reasonable and necessary supports that would otherwise have been funded in respect of a period after which the person ceased to be a participant.

Death and age 16.2 The most common circumstances under which a person will cease as an NDIS participant will presumably be death or age. In relation to age, the person will cease to be a participant if the person enters a residential care service on a permanent basis, or starts being provided with community care on a permanent basis and this first occurs only after the person turns 65 years of age. The term ‘residential care service’ is defined as per the Aged Care Act 1997 (Cth), which in Sch 1 is broadly described: ‘residential care service means an undertaking through which residential care is provided’. Residential care has the meaning given by s 41-3 of that Act: [page 278] 41-3 Meaning of residential care (1) Residential care is personal care or nursing care, or both personal care and nursing care, that: (a)

is provided to a person in a residential facility in which the person is also provided with accommodation that includes: (i)

appropriate staffing to meet the nursing and personal care needs of the person; and

(ii) meals and cleaning services; and (iii) furnishings, furniture and equipment for the provision of that care and accommodation; and (b) meets any other requirements specified in the Residential Care Subsidy Principles. (2) However, residential care does not include any of the following: (a)

care provided to a person in the person’s private home;

(b) care provided in a hospital or in a psychiatric facility; (c)

care provided in a facility that primarily provides care to people who are not frail and aged;

(d) care that is specified in the Residential Care Subsidy Principles not to be residential care.

The term ‘community care service’ is defined as per the Aged Care Act 1997 (Cth), which in Sch 1 is broadly described: ‘community care service means an undertaking through which community care is provided’. Community care has the meaning given by s 45-3 of that Act: 45-3 Meaning of community care (1) Community care is care consisting of a package of personal care services and other personal

assistance provided to a person who is not being provided with residential care. (2) The Community Care Subsidy Principles may specify care that: (a)

constitutes community care for the purposes of this Act; or

(b) does not constitute community care for the purposes of this Act.

The reference to ‘permanent basis’ seems likely to exclude respite care.

Revocation 16.3 Section 29 refers also to the possibility of revocation of the participant’s status by the NDIS CEO under s 30 of the Act. [page 279]

The CEO may revoke a person’s status as a participant in the NDIS if satisfied that the person does not meet the residence requirements, as discussed in Chapter 4 of this handbook. The CEO may also revoke a person’s status as a participant in the NDIS if satisfied that the person does not meet either the disability requirements or the early intervention requirements, as discussed in Chapters 5 of this handbook. Written notice of the decision must be given to the participant. In relation to review of decisions, see Chapter 12 of this handbook.

Voluntary withdrawal 16.4 A person may voluntarily notify the CEO that he or she no longer wishes to be a participant: s 29(1)(d).

Suspension 16.5 Temporary absence from Australia is provided for by s 40, which permits a participant to be temporarily absent for a grace period without affecting the participant’s plan. The grace period is usually six weeks, with a discretion for the

CEO to nominate a longer period. Absence for a longer period than the grace period results in a suspension of the plan until the person returns to Australia. A person’s absence from Australia is temporary if, throughout the absence, the person does not cease to reside in Australia within the meaning of s 23(1)(a) of the Act. That section provides that a person meets the residence requirements if the person resides in Australia and is either an Australian citizen, the holder of a permanent visa or a special category visa (SCV) holder who is a protected SCV holder; and satisfies the other requirements in relation to residence that are prescribed by the NDIS rules.

Suspension — launch phase issues 16.6 There appears to be no specific provision in the Act, relevant during the launch phase, for temporary absence from a launch site. However, this is dealt with in the National Disability Insurance Scheme (Becoming a Participant) Rules 2013 at rr 4.9–4.10 under the heading ‘The ongoing residence requirement’. If a participant stops residing in an NDIS launch area, the person continues to satisfy the ongoing residence requirement for a period of 12 months. In the case of a child whose parents are separated and who spends time with each parent, the participant child meets the ongoing residence requirement for a period of 12 months if both the child’s parents stop residing in an NDIS launch area. [page 280]

Effect of suspension 16.7 If there is a suspension the participant’s plan remains in effect, but during the period of suspension the person is not entitled to be paid NDIS amounts, so far as the amounts relate to reasonable and necessary supports that would otherwise have been funded in respect of that period. The Agency is not required to provide or fund other supports under the plan, but is not prevented from doing so if the CEO considers it appropriate.

The participant is not during a suspension entitled to request a review of the plan under s 48(1).

LEGISLATION 16.8 Reproduced below are the legislative provisions relevant to the commentary in this chapter.

29 When a person ceases to be a participant (1) A person ceases to be a participant in the National Disability Insurance Scheme launch when: (a) the person dies; or (b) the person enters a residential care service on a permanent basis, or starts being provided with community care on a permanent basis, and this first occurs only after the person turns 65 years of age; or (c) the person’s status as a participant is revoked under section 30; or (d) the person notifies the CEO in writing that he or she no longer wishes to be a participant. Note:

Residential care service and community care have the same meanings as in the Aged Care Act 1997.

(2) A person is not entitled to be paid NDIS amounts so far as the amounts relate to reasonable and necessary supports that would otherwise have been funded in respect of a period after he or she ceased to be a participant.

30 Revocation of participant status (1) The CEO may revoke a person’s status as a participant in the National Disability Insurance Scheme launch if: (a) the CEO is satisfied that the person does not meet the residence requirements (see section 23); or [page 281] (b) the CEO is satisfied that the person does not meet at least one of the following: (i)

the disability requirements (see section 24);

(ii) the early intervention requirements (see section 25). (2) The CEO must give written notice of the decision to the participant, stating the date on which the revocation takes effect.

40 Effect of temporary absence on plans (1) A participant for whom a plan is in effect may be temporarily absent from Australia for the grace period for the absence without affecting the participant’s plan. (2) The grace period for a temporary absence of a participant is: (a) 6 weeks beginning when the participant leaves Australia; or (b) if the CEO is satisfied that it is appropriate for the grace period to be longer than 6 weeks—such longer period as the CEO decides, having regard to the criteria (if any) prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph. (3) If a participant for whom a plan is in effect is temporarily absent from Australia after the end of the grace period for the absence, the participant’s plan is suspended from the end of the grace period until the participant returns to Australia. (4) For the purposes of this section, a person’s absence from Australia is temporary if, throughout the absence, the person does not cease to reside in Australia (within the meaning of paragraph 23(1)(a)).

41 Suspension of plans (1) A statement of participant supports in a participant’s plan is suspended: (a) as mentioned in subsection 40(3) (which deals with temporary absence from Australia); and (b) as mentioned in compensation).

subsection

105(2)

(which

deals

with

obtaining

(2) The effect of suspension of a statement of participant supports in a participant’s plan is that the plan remains in effect but, during the period of suspension: (a) the person is not entitled to be paid NDIS amounts, so far as the amounts relate to reasonable and necessary supports that would otherwise have been funded in respect of that period; and [page 282] (b) the Agency is not required to provide or fund other supports under the plan, but is not prevented from doing so if the CEO considers it appropriate; and (c) the participant is not entitled to request a review of the plan under

subsection 48(1).

RULES 16.9 Reproduced below are the rules relevant to the commentary in this chapter.

National Disability Insurance Scheme (Becoming a Participant) Rules 2013 The ongoing residence requirement 4.9 A person meets the ongoing residence requirement at a particular time if, at that time, the person resides in an NDIS launch area. 4.10 If a person who is a participant stops residing in an NDIS launch area, the person continues to satisfy the ongoing residence requirement for a period of 12 months. 4.11 In the case of a child whose parents are separated and who spends time with each parent—the child meets the ongoing residence requirement: (a) at a particular time if, at that time, at least one of the child’s parents resides in an NDIS launch area; and (b) for a period of 12 months if the child is a participant and both the child’s parents stop residing in an NDIS launch area.

[page 283]

APPENDIX A NATIONAL DISABILITY INSURANCE SCHEME (BECOMING A PARTICIPANT) RULES 2013 PT 4 NDIS launch areas 4.3 Under this Part, a person can only meet the residence requirements if the person resides in a particular area of Australia (an NDIS launch area) at a particular time. 4.4 The following areas are the 2013 NDIS launch areas: (a)

South Australia;

(b) Tasmania; (c)

the areas that comprise the following municipal districts of Victoria as at the commencement of these Rules: (i)

Colac-Otway Shire;

(ii) City of Greater Geelong; (iii) Borough of Queenscliffe; (iv) Surf Coast Shire; (d) the areas that comprise the following areas of New South Wales proclaimed under section 204 of the Local Government Act 1993 (NSW) as at the commencement of these Rules:

(i)

Lake Macquarie City;

(ii) Maitland City; (iii) Newcastle City. 4.5 The 2013 NDIS launch areas, together with the Australian Capital Territory, constitute the NDIS launch areas. Paragraphs 4.4 and 4.5 define terms used in the remainder of Part 4.

[page 285]

APPENDIX B NATIONAL DISABILITY INSURANCE SCHEME (FACILITATING THE PREPARATION OF PARTICIPANTS’ PLANS — NEW SOUTH WALES) RULES 2013 National Disability Insurance Scheme Act 2013 (the Act) The Act establishes the National Disability Insurance Scheme (NDIS). People who are participants in the NDIS will be assisted to develop a personal, goal-based plan about how they will be provided with general supports and reasonable and necessary supports. The NDIS will respect the interests of people with disability in exercising choice and control about matters that affect them. National Disability Insurance Scheme (Facilitating the Preparation of Participants’ Plans — New South Wales) Rules 2013 These Rules are made for the purposes of sections 32 and 32A (other than subsection 32A(4)) of the Act. These Rules are about the circumstances in which the facilitation of the preparation of participants’ plans will commence in the State of New South Wales. These Rules commence on 1 July 2013.

The Hon Jenny Macklin MP Minister for Families, Community Services and Indigenous Affairs Minister for Disability Reform 24 June 2013

Contents National Disability Insurance Scheme (Facilitating the Preparation of Participants’ Plans-New South Wales) Rules 2013 Part 1 Part 2 Part 3

What these Rules are about Preparation of plans for residents of New South Wales Other matters [page 286]

Citation Interpretation

Part 1 What these Rules are about 1.1 Each participant in the NDIS launch will have a plan, prepared by and with the participant and approved by the CEO of the Agency. Among other things, a participant’s plan sets out the supports that will be funded for the participant. 1.2 To enable an orderly launch, participants will be phased into the NDIS. There are two steps involved in accessing supports under the NDIS. The first is to become a participant: the prospective participant makes an access request and the CEO decides that they meet the access criteria. The second is for the participant to have a plan approved by the CEO of the Agency. These Rules relate to the second step, and the order in which the CEO will commence the facilitation of the preparation of plans for different groups,

known as classes, of participants. 1.3 In New South Wales, the NDIS launch will initially be restricted to particular launch areas, being Newcastle City, Lake Macquarie City and Maitland City: see the National Disability Insurance Scheme (Becoming a Participant) Rules 2013. This is because one of the access criteria for participants or prospective participants in New South Wales is that they reside in one of those areas. 1.4 These Rules explain how participants in New South Wales who are receiving certain disability services from the Commonwealth or New South Wales will be phased into the NDIS. That phasing is generally done on the basis of the launch area or residential centre in which a participant resides. New clients — including those not receiving disability services from the Commonwealth or New South Wales — will have their plans facilitated as soon as reasonably practicable after they become participants. 1.5 The phasing process is based on an agreement that has been reached between the Government of the Commonwealth and the Government of New South Wales (the Intergovernmental Agreement for the National Disability Insurance Scheme (NDIS) Launch, Schedule A — Bilateral Agreement for NDIS Launch between the Commonwealth and New South Wales) and is intended to give effect to that agreement. 1.6 The Act sets out a number of objects and principles for the NDIS, to which these Rules give effect. In giving effect to the objects, regard is to be had to the progressive implementation of the NDIS and the need to ensure the financial sustainability of the NDIS.

Part 2 Preparation of plans for residents of New South Wales 2.1 Once a person becomes a participant, the CEO can commence facilitating the preparation of a plan for the person. The process for commencing the facilitation of the preparation of plans for participants in New South Wales is detailed below.

[page 287]

2.2 The table in paragraph 2.7 sets out five classes of New South Wales participants and sets out the circumstances in, or periods within, which the CEO is to commence the facilitation of the preparation of those participants’ plans. Most classes are dealt with sequentially; facilitation for a class will usually be commenced once the CEO has decided that the Agency has the capacity to do so, in light of the number of participants in previous classes whose plans have been dealt with, and the number yet to be dealt with. 2.3 The CEO’s decisions to commence facilitating the preparation of plans for classes are tied to particular dates. Sometimes the decision must be made before a particular date; sometimes the decision must be made after a particular date. 2.4 Otherwise, the sequence of classes is generally flexible. The CEO need not be satisfied that all participants in a particular class have had their plans facilitated before moving on to the next class; for example, the Agency has the capacity to commence the facilitation of plans in Class 2 before having fully completed that task for Class 1. Further, the classes do not close at any point in time. For example, a person in Class 1 who becomes a participant after the Agency has started to facilitate plans for Class 2 participants can still have their plan facilitated while participants in Class 2 are having their plans facilitated. 2.5 If a participant who is a resident of an NDIS launch area in New South Wales is a new client (see paragraph 3.4), the CEO is to commence facilitating the preparation of the participant’s plan as soon as reasonably practicable having regard to the CEO’s obligations to commence facilitating the preparation of other participants’ plans. Such participants are not part of the phasing sequence set out in the table; their plans will be facilitated as soon as reasonably practicable after they become participants. This ensures equity of access to the NDIS for such participants, who include those who are not receiving Commonwealth disability services or New South Wales disability services.

Paragraph 2.5 summarises the effect of subsection 32(3) of the Act. 2.6 In urgent circumstances, the CEO can commence the facilitation of the preparation of a participant’s plan at a particular time, despite the sequence set out in the table in paragraph 2.7. If the CEO does so, the CEO is able to delay the commencement of the facilitation of the preparation of other participants’ plans, so far as is reasonably necessary, even if that delay would be contrary to that sequence. Paragraph 2.6 summarises the effect of subsection 32(3A) of the Act.

[page 288]

2.7 The five classes of participants, and the circumstances in, or period within, which the CEO is to commence facilitating the preparation of plans for participants in those classes, are as follows: Class

Participants in the class (who must be residents of an NDIS launch area in New South Wales)

Circumstances in, or period within, which the CEO is to commence facilitating the preparation of the participants’ plans

Class 1

Persons who reside in Newcastle City and receive Commonwealth disability services or New South Wales disability services, other than residents of the Stockton Large Residential Centre

As soon as practicable after the participants become participants

Class 2

Persons who reside in the Stockton Large Residential Centre

The CEO decides (on or after 1 January 2014) that the Agency has the capacity to commence the facilitation of the preparation of the participants’ plans, in light of the number of participants in Class 1 whose

plans have been dealt with and the number yet to be dealt with Class 3

Persons who reside in Lake Macquarie City and receive Commonwealth disability services or New South Wales disability services, other than residents of the Kanangra Large Residential Centre

The CEO decides (no later than 30 June 2014) that, having regard to the capacity of the Agency to commence the facilitation of the preparation of the participants’ plans in light of the number of participants in Classes 1 and 2 whose plans have been dealt with and the number yet to be dealt with, it is appropriate to commence facilitating the preparation of the plans

Class 4

Persons who reside in the Kanangra Large Residential Centre

The CEO decides (on or after 1 July 2014) that the Agency has the capacity to commence the facilitation of the preparation of the participants’ plans, in light of the number of participants in Classes 1, 2 and 3 whose plans have been dealt with and the number yet to be dealt with

Class 5

Persons who reside in Maitland City and receive Commonwealth disability services or New South Wales disability services

Between the beginning of 1 July 2015 and the end of that day

[page 289]

Subclasses 2.8 Among the participants in Class 1, 3 or 5 (a main class), the CEO may decide that there are one or more classes (subclasses) of participants, constituted by reference to: (a)

the identity of the provider of services to the participants; or

(b) the kind of services provided to the participants; or (c)

for supported accommodation residents-the home or facility in which they reside.

2.9 For each subclass, the CEO is to commence facilitating the preparation of plans for participants in the subclass when the CEO decides that it is appropriate to do so, having regard to the progress of the preparation of plans for participants in the relevant main class.

2.10 In making a decision under paragraph 2.8 or 2.9, or considering whether to make such a decision, the CEO must have regard to the following principles: (a)

that the commencement of the facilitation of the preparation of plans for persons who have individual funding arrangements for disability services with the State of New South Wales should be prioritised;

(b) that the facilitation of the preparation of plans for supported accommodation residents should be done in a way that: (i)

takes into account the intensive planning and support required for that facilitation; and

(ii) enables, where practicable, participants who reside in the same home or facility to have their plans facilitated contemporaneously; (c)

that where practicable, participants receiving services from the same provider should have their plans facilitated contemporaneously;

(d) that among subclasses constituted by reference to the identity of a provider, subclasses for providers who operate in one local government area only should be prioritised over subclasses for providers who operate in more than one local government area; (e)

that the Agency should retain the capacity to facilitate the preparation of plans of participants who do not receive Commonwealth disability services or New South Wales disability services.

2.11 Paragraph 2.10 does not limit the matters that the CEO may take into account in making a decision.

Consultation 2.12 In making a decision under paragraph 2.8 or 2.9, or considering whether to make such a decision, the CEO must also, where practicable, seek the views of the Government of New South Wales and have regard to those views (if any). [page 290]

2.13 If the table in paragraph 2.7 requires that a decision be made on or after a particular date, and the CEO is considering making that decision after that date, the CEO must, as early as possible: (a)

seek the views of the Government of New South Wales and of the Commonwealth Department that administers the Act about the proposed decision (including their views about the effect that making the decision would have on arrangements agreed between the Commonwealth and New South Wales for the funding of the NDIS); and

(b) use his or her best endeavours to reach an agreement with those entities about the proposed decision.

Part 3 Other matters Citation 3.1 These Rules may be cited as the National Disability Insurance Scheme (Facilitating the Preparation of Participants’ Plans — New South Wales) Rules 2013.

Interpretation 3.2 These Rules include text that summarises provisions of the Act. The boxed notes identify such text, which does not form an operative part of these Rules. 3.3 Terms and expressions that are used in the Act have the same meaning in these Rules unless these Rules display a contrary intention — see the Acts Interpretation Act 1901 and the Legislative Instruments Act 2003, which include definitions and rules of interpretation that apply to all Commonwealth legislation. For convenience, the more important definitions from the Act are identified or reproduced in paragraph 3.4. 3.4 In these Rules: Act means the National Disability Insurance Scheme Act 2013. Agency—see section 9 of the Act.

CEO—see section 9 of the Act. child—see section 9 of the Act. Commonwealth disability services means the following programs, services or allowances: (a)

Australian Disability Enterprises;

(b) Helping Children with Autism; (c)

the Better Start for Children with Disability initiative;

(d) the Continence Aids Payment Scheme; (e)

Support for Day to Day Living in the Community — A Structured Activity Program;

(f)

Disability Employment Services — Work Based Personal Assistance; [page 291]

(g) Hearing Services Program; (h) Improved Support for People with Younger Onset Dementia; (i)

Targeted Community Care — Mental Health;

(j)

Respite: Carer Support and Personal Helpers and Mentors component;

(k) National Auslan Interpreter Booking and Payment Service; (l)

After School Hours Care for Teenagers with Disability;

(m) Partners in Recovery: Coordinated Support and Flexible Funding for people with severe and persistent mental illness and complex needs; (n) Respite Support for Carers of Young People with Severe or Profound Disability; (o)

mobility allowance.

Lake Macquarie City means the area proclaimed as such under the Local Government Act 1993 (NSW). local government area means an area constituted under the Local

Government Act 1993 (NSW). Maitland City means the area proclaimed as such under the Local Government Act 1993 (NSW). NDIS—see section 9 of the Act. NDIS launch area has the same meaning as in the National Disability Insurance Scheme (Becoming a Participant) Rules 2013. Newcastle City means the area proclaimed as such under the Local Government Act 1993 (NSW). new client means a participant who is a resident of New South Wales but does not fall within a class set out in the table in paragraph 2.7. The term new client reflects the fact that these participants are people who are not receiving Commonwealth disability services or New South Wales disability services. New South Wales disability services means services provided or funded under the Disability Services Act 1993 (NSW). NDIS rules—see section 9 of the Act. participant—see section 9 of the Act.

[page 292]

NATIONAL DISABILITY INSURANCE SCHEME (FACILITATING THE PREPARATION OF PARTICIPANTS’ PLANS — SOUTH AUSTRALIA) RULES 2013 National Disability Insurance Scheme Act 2013 (the Act) The Act establishes the National Disability Insurance Scheme (NDIS). People who are participants in the NDIS will be assisted to develop a personal, goal-based plan about how they will be provided with general supports and reasonable and necessary supports. The NDIS will respect the interests of people with disability in exercising choice and control about matters that affect them. National Disability Insurance Scheme (Facilitating the Preparation of Participants’ Plans — South Australia) Rules 2013 These Rules are made for the purposes of sections 32 and 32A (other than subsection 32A(4)) of the Act. These Rules are about the circumstances in which the facilitation of the preparation of participants’ plans will commence in the State of South Australia. These Rules commence on 1 July 2013. The Hon Jenny Macklin MP Minister for Families, Community Services and Indigenous Affairs Minister for Disability Reform 24 June 2013

Contents National Disability Insurance Scheme (Facilitating the Preparation of Participants’ Plans-South Australia) Rules 2013 Part 1 Part 2 Part 3

What these Rules are about Preparation of plans for residents of South Australia Other matters Citation Interpretation

Part 1 What these Rules are about 1.1 Each participant in the NDIS launch will have a plan, prepared by and with the participant and approved by the CEO of the Agency. Among other things, a participant’s plan sets out the supports that will be funded for the participant. [page 293]

1.2 To enable an orderly launch, participants will be phased into the NDIS. There are two steps involved in accessing supports under the NDIS. The first is to become a participant: the prospective participant makes an access request and the CEO decides that they meet the access criteria. The second is for the participant to have a plan approved by the CEO of the Agency. These Rules relate to the second step, and the order in which the CEO will commence the facilitation of the preparation of plans for different classes of participants. 1.3 In South Australia, the NDIS launch will initially be restricted to persons in particular age groups: see the National Disability Insurance Scheme (Becoming a Participant) Rules 2013. For the first year of the NDIS (1 July 2013 to 30 June 2014), only persons under the age of 6 can become participants. In the second year, the NDIS will become accessible to persons aged under 14, and from the third year, to persons aged under 15.

1.4 These Rules explain how participants in South Australia in the first year of the NDIS will be phased into the NDIS. The Rules set out the process for working out when the CEO must commence facilitating the preparation of the plan of a participant in South Australia. It is intended that future rules will deal with the phasing in of participants who meet the access criteria in the second and third years of the NDIS (those aged under 15). 1.5 The phasing process is based on an agreement that has been reached between the Government of the Commonwealth and the Government of South Australia (the Intergovernmental Agreement for the National Disability Insurance Scheme (NDIS) Launch, Schedule C — Bilateral Agreement for NDIS Launch between the Commonwealth and South Australia), and is intended to give effect to that agreement. 1.6 The Act sets out a number of objects and principles for the NDIS, to which these Rules give effect. In giving effect to the objects, regard is to be had to the progressive implementation of the NDIS and the need to ensure the financial sustainability of the NDIS.

Part 2 Preparation of plans for residents of South Australia 2.1 Once a person becomes a participant, the CEO can commence facilitating the preparation of a plan for the person. The process for commencing the facilitation of the preparation of plans for participants in South Australia is detailed below. 2.2 This Part deals with the birth to age 5 group of participants. From 1 July 2014, the NDIS will become accessible to persons in other age groups in South Australia. For persons in these other age groups, it is intended that future rules will deal with how the facilitation of the preparation of their plans is to commence. 2.3 The table in paragraph 2.7 sets out four classes of South Australian participants and sets out the circumstances in which the CEO is to commence the facilitation of those participants’ plans. The CEO will deal with each class sequentially;

[page 294]

facilitation for a class will be commenced once the CEO has decided that the Agency has the capacity to do so, in light of the number of participants in previous classes whose plans have been dealt with, and the number yet to be dealt with. 2.4 The CEO cannot make a decision to commence facilitating the preparation of plans for a class before the date specified in the table for that class. Those dates are set on a quarterly basis. Otherwise, the sequence of classes is flexible. The CEO need not be satisfied that all participants in a particular class have had their plans facilitated before moving on to the next class; the Agency might have the capacity to commence the facilitation of plans in Class 2 before having fully completed that task for Class 1. Further, the classes do not close at any point in time. For example, a person in Class 1 who becomes a participant after the Agency has started to facilitate plans for Class 2 participants can still have their plan facilitated while participants in Class 2 are having their plans facilitated. 2.5 If a participant who is a resident of South Australia does not fall within one of the classes in the table, the CEO is to commence facilitating the preparation of the participant’s plan as soon as reasonably practicable having regard to the CEO’s obligations to commence facilitating the preparation of other participants’ plans. Such participants are not part of the phasing sequence set out in the table; their plans will be facilitated as soon as reasonably practicable after they become participants. This ensures equity of access to the NDIS for such participants, who include those who are not receiving disability services provided or funded by the Commonwealth or South Australia. Paragraph 2.5 summarises the effect of subsection 32(3) of the Act. 2.6 In urgent circumstances, the CEO can commence the facilitation of the preparation of a participant’s plan at a particular time, despite the sequence

set out in the table in paragraph 2.7. If the CEO does so, the CEO is able to delay the commencement of the facilitation of the preparation of other participants’ plans, so far as is reasonably necessary, even if that delay would be contrary to that sequence. Paragraph 2.6 summarises the effect of subsection 32A(3) of the Act.

[page 295]

2.7 The four classes of participants, and the circumstances in which the CEO is to commence the facilitation of plans for participants in those classes, are as follows: Class

Participants in the class (who are residents of South Australia)

Circumstances in which the CEO is to commence the preparation of the facilitation of the participants’ plans

Class 1

Persons who, on 1 July 2013, As soon as practicable after the participants are aged under 3 years and become participants who are receiving disability services provided or funded by the Commonwealth or South Australia

Class 2

Persons who, on 1 July 2013, are aged at least 3 years and under 4 years and who are receiving disability services provided or funded by the Commonwealth or South Australia

The CEO decides (on or after 1 October 2013) that the Agency has the capacity to commence the facilitation of the preparation of the participants’ plans, in light of the number of participants in Class 1 whose plans have been dealt with and the number yet to be dealt with

Class 3

Persons who, on 1 July 2013, are aged at least 4 years and under 5 years and who are receiving disability services provided or funded by the Commonwealth or South Australia

The CEO decides (on or after 1 January 2014) that the Agency has the capacity to commence the facilitation of the preparation of the participants’ plans, in light of the number of participants in Classes 1 and 2 whose plans have been dealt with and the number yet to be dealt with

Class 4

Persons who, on 1 July 2013, The CEO decides (on or after 1 April 2014) are aged at least 5 years and that the Agency has the capacity to

under 6 years and who are receiving disability services provided or funded by the Commonwealth or South Australia

commence the facilitation of the preparation of the participants’ plans, in light of the number of participants in Classes 1, 2 and 3 whose plans have been dealt with and the number yet to be dealt with

Sequential facilitation within a class based on participants’ areas of residence 2.8 If the CEO considers that the Agency’s facilitation of the preparation of plans for participants in a class described in the table in paragraph 2.7 (a main class) would be best managed by commencing that facilitation sequentially in different areas of South Australia, the CEO may decide that, among the participants of the main class, there is to be one or more classes (subclasses) comprised of participants who reside in particular areas. [page 296]

2.9 For each subclass, the CEO is to commence facilitating the preparation of the plans of participants in the subclass when the CEO decides that it is appropriate to do so. Such a decision must be made: (a)

no earlier than the time at which the CEO decides that the Agency has the capacity to commence facilitating the preparation of plans for participants in the main class; and

(b) no later than the time at which the CEO decides that the Agency has the capacity to commence facilitating the preparation of plans for participants in the next main class (for Class 2, the subsequent main class is Class 3).

Separate commencement of facilitation for participants in remote and regional areas 2.10 Despite paragraph 2.7, the CEO may decide that all participants who reside in a particular remote or regional area constitute a class. The CEO may only make such a decision if he or she considers that, because of the low number of participants in the area, the preparation of those participants’ plans would be best facilitated together. If the CEO makes such a decision, the

CEO is to commence facilitating the preparation of those participants’ plans when the CEO decides that the Agency has the capacity to do so.

Consultation 2.11 In making a decision under paragraph 2.8, 2.9 or 2.10, or considering whether to make such a decision, the CEO must, where practicable, seek the views of the Government of South Australia and have regard to those views (if any). 2.12 If the CEO is considering making a decision referred to in the third column of the table in paragraph 2.7 after the date mentioned in that column, the CEO must, as early as possible: (a)

seek the views of the Government of South Australia and of the Commonwealth Department that administers the Act about the proposed decision (including their views about the effect that making the decision would have on arrangements agreed between the Commonwealth and South Australia for the funding of the NDIS); and

(b) use his or her best endeavours to reach an agreement with those entities about the proposed decision.

Part 3 Other matters Citation 3.1 These Rules may be cited as the National Disability Insurance Scheme (Facilitating the Preparation of Participants’ Plans — South Australia) Rules 2013. [page 297]

Interpretation 3.2 These Rules include text that summarises provisions of the Act. The boxed notes identify such text, which does not form an operative part of these Rules.

3.3 Terms and expressions that are used in the Act have the same meaning in these Rules unless these Rules display a contrary intention — see the Acts Interpretation Act 1901 and the Legislative Instruments Act 2003, which include definitions and rules of interpretation that apply to all Commonwealth legislation. For convenience, the more important definitions from the Act are identified or reproduced in paragraph 3.4. 3.4 In these Rules: Act means the National Disability Insurance Scheme Act 2013. Agency—see section 9 of the Act. CEO—see section 9 of the Act. child—see section 9 of the Act. disability services: (a)

provided or funded by South Australia — means the following programs or services: (i)

Attendant Care/Personal Care;

(ii)

Behaviour/Specialist Intervention;

(iii)

Centre-based Respite/Respite Homes;

(iv)

Counselling;

(v)

Early Childhood Intervention;

(vi)

Host Family Respite/Peer Support Respite;

(vii)

In-Home Accommodation Support;

(viii)

Learning and Life Skills Development;

(ix)

Other Community Support;

(x)

Other Support Services;

(xi)

Recreation/Holiday Programs;

(xii)

Regional Resource and Support Teams;

(xiii)

Therapy Support for Individuals;

(xiv)

other programs and services funded under the National Disability Agreement;

(xv)

Home and Community Care — Personal care;

(xvi)

Home and Community Care — Respite;

(xvii)

Other-Home and Community Care;

(xviii)

Disability Equipment;

(xix)

Other — Transport/Health/Education; and [page 298]

(b) provided or funded by the Commonwealth — means the following programs, services or allowances: (i)

Australian Disability Enterprises;

(ii)

Helping Children with Autism;

(iii)

the Better Start for Children with Disability initiative;

(iv)

the Continence Aids Payment Scheme;

(v)

Support for Day to Day Living in the Community — A Structured Activity Program;

(vi)

Disability Employment Services — Work Based Personal Assistance;

(vii)

Hearing Services Program;

(viii)

Improved Support for People with Younger Onset Dementia;

(ix)

Targeted Community Care-Mental Health;

(x)

Respite: Carer Support and Personal Helpers and Mentors component;

(xi)

National Auslan Interpreter Booking and Payment Service;

(xii)

After School Hours Care for Teenagers with Disability;

(xiii)

Partners in Recovery: Coordinated Support and Flexible Funding for people with severe and persistent mental illness and complex needs;

(xiv)

Respite Support for Carers of Young People with Severe or Profound Disability;

(xv)

mobility allowance.

NDIS—see section 9 of the Act. NDIS launch area has the same meaning as in the National Disability Insurance Scheme (Becoming a Participant) Rules 2013. NDIS rules—see section 9 of the Act. participant—see section 9 of the Act. South Australia has the same meaning as in the National Disability Insurance Scheme (Becoming a Participant) Rules 2013.

[page 299]

NATIONAL DISABILITY INSURANCE SCHEME (FACILITATING THE PREPARATION OF PARTICIPANTS’ PLANS — TASMANIA) RULES 2013 National Disability Insurance Scheme Act 2013 (the Act) The Act establishes the National Disability Insurance Scheme (NDIS). People who are participants in the NDIS will be assisted to develop a personal, goal-based plan about how they will be provided with general supports and reasonable and necessary supports. The NDIS will respect the interests of people with disability in exercising choice and control about matters that affect them. National Disability Insurance Scheme (Facilitating the Preparation of Participants’ Plans — Tasmania) Rules 2013 These Rules are made for the purposes of sections 32 and 32A (other than subsection 32A(4)) of the Act. These Rules are about the circumstances in which the facilitation of the preparation of participants’ plans will commence in the State of Tasmania. These Rules commence on 1 July 2013. The Hon Jenny Macklin MP Minister for Families, Community Services and Indigenous Affairs Minister for Disability Reform 24 June 2013

Contents National Disability Insurance Scheme (Facilitating the Preparation of Participants’ Plans-Tasmania) Rules 2013 Part 1 Part 2 Part 3

What these Rules are about Preparation of plans for residents of Tasmania Other matters Citation Interpretation

Part 1 What these Rules are about 1.1 Each participant in the NDIS launch will have a plan, prepared by and with the participant and approved by the CEO of the Agency. Among other things, a participant’s plan sets out the supports that will be funded for the participant. [page 300]

1.2 To enable an orderly launch, participants will be phased into the NDIS. There are two steps involved in accessing supports under the NDIS. The first is to become a participant: the participant makes an access request and the CEO decides that they meet the access criteria. The second is for the participant to have a plan approved by the CEO of the Agency. These Rules relate to the second step, and the order in which the CEO will commence the facilitation of the preparation of plans for different groups, known as classes, of participants. 1.3 In Tasmania, the NDIS launch will initially be restricted to persons who are between 15 and 24 years old when they make an access request, and were also under the age of 25 on 1 July 2013: see the National Disability Insurance Scheme (Becoming a Participant) Rules 2013. 1.4 These Rules explain how participants in Tasmania will be phased into the

NDIS. The Rules set out the process for working out when the CEO must commence facilitating the preparation of the plan of a participant in Tasmania. It is intended that future rules will deal with the phasing in of participants who meet the access criteria in the second and subsequent years of the NDIS (those who turn 15 after 30 June 2014). 1.5 The phasing process is based on an agreement that has been reached between the Government of the Commonwealth and the Government of Tasmania (the Intergovernmental Agreement for the National Disability Insurance Scheme (NDIS) Launch, Schedule D — Bilateral Agreement for NDIS Launch between the Commonwealth and Tasmania), and is intended to give effect to that agreement. 1.6 The Act sets out a number of objects and principles for the NDIS, to which these Rules give effect. In giving effect to the objects, regard is to be had to the progressive implementation of the NDIS and the need to ensure the financial sustainability of the NDIS.

Part 2 Preparation of plans for residents of Tasmania 2.1 Once a person becomes a participant, the CEO can commence facilitating the preparation of a plan for the person. The process for commencing the facilitation of the preparation of plans for participants in Tasmania is detailed below. 2.2 The table in paragraph 2.6 sets out five classes of Tasmanian participants and sets out the circumstances in which the CEO is to commence the facilitation of those participants’ plans. The CEO will deal with each class sequentially; facilitation for a class will be commenced once the CEO has decided that the Agency has the capacity to do so, in light of the number of participants in previous classes whose plans have been dealt with, and the number yet to be dealt with. [page 301]

The CEO cannot make a decision to commence facilitating the preparation 2.3 of plans for a class before the date specified in the table for that class. Otherwise, the sequence of classes is flexible. In general, participants in each class commence preparation of their plans sequentially; however, the CEO may open the next class even if not all participants in the previous class have commenced preparation of their plans. For example, the Agency might have the capacity to commence facilitating the preparation of plans in Class 2 before having fully completed the facilitation of plans for Class 1. Also, once a class has opened, it remains open. For example, a person in Class 1 who becomes a participant after the Agency has started to facilitate plans for Class 2 participants can still have their plan facilitated while participants in Class 2 are having their plans facilitated. 2.4 If a participant who is a resident of an NDIS launch area in Tasmania does not fall within one of the classes in the table, which includes those who are not receiving services from a program described in the table, the CEO is to commence facilitating the preparation of the participant’s plan as soon as reasonably practicable having regard to the CEO’s obligations to commence facilitating the preparation of other participants’ plans. Such participants are not part of the phasing sequence set out in the table; their plans will be facilitated as soon as reasonably practicable after they become participants. This ensures equity of access to the NDIS for such participants. Paragraph 2.4 summarises the effect of subsection 32(3) of the Act. 2.5 In urgent circumstances, the CEO can commence the facilitation of the preparation of a participant’s plan at a particular time, despite the sequence set out in the table in paragraph 2.6. If the CEO does so, the CEO is able to delay the commencement of the facilitation of the preparation of other participants’ plans, so far as is reasonably necessary, even if that delay would be contrary to that sequence. Paragraph 2.5 summarises the effect of

subsection 32A(3) of the Act. 2.6 The five classes of participants, and the time at which the CEO is to commence the facilitation of the preparation of plans for participants in those classes, are as follows: [page 302] Class

Class 1

Class 2

Participants in the class (who are residents of Tasmania) a)

students with disability who have finished, or are expected to finish, school in 2013; and

c)

persons receiving formal out of home care provided by the State of Tasmania

b)

Class 3

As soon as practicable after the participants Persons who are become participants receiving, or on the needs register for, an individual support package or a community access package; and

b)

a)

a)

b)

Circumstances in which the CEO is to commence the facilitation of the preparation of the participants’ plans

The CEO decides (on or after 1 October Persons in receipt of 2013) that the Agency has the capacity to community based mental commence the facilitation of the preparation health services provided of the participants’ plans, in light of the by the State of Tasmania; number of participants in Class 1 whose participants in the plans have been dealt with and the number Commonwealth Personal yet to be dealt with Helpers and Mentors program The CEO decides (on or after 1 January Students with a disability 2014) that the Agency has the capacity to aged at least 15 and commence the facilitation of the preparation under 18; and of the participants’ plans, in light of the persons receiving flexible number of participants in Classes 1 and 2(a) respite assistance whose plans have been dealt with and the number yet to be dealt with

Class 4

a)

b) Class 5

The CEO decides (on or after 1 April 2014) Persons receiving therapy that the Agency has the capacity to funded through commence the facilitation of the preparation Tasmanian specialist of the participants’ plans, in light of the disability services; and number of participants in Classes 1, 2 and persons living in large 3(b) whose plans have been dealt with and residential care facilities the number yet to be dealt with

Persons who are receiving, or on the needs register for, supported accommodation services and who do not live in a large residential care facility

The CEO decides (on or after 1 June 2014) that the Agency has the capacity to commence the facilitation of the preparation of the participants’ plans, in light of the number of participants in Classes 1, 2, 3(b) and 4 whose plans have been dealt with and the number yet to be dealt with [page 303]

2.7 To avoid doubt, a person may be in more than one class. In practice, this means that they will be treated as being in the first of those classes. For example, a participant who is a member of Class 1 and Class 2 will be phased in as a member of Class 1. 2.8 If the CEO is considering making a decision referred to in the third column of the table in paragraph 2.6 after the date mentioned in that column, the CEO must, as early as possible: (a)

seek the views of the Government of Tasmania and of the Commonwealth Department that administers the Act about the proposed decision (including their views about the effect that making the decision would have on arrangements agreed between the Commonwealth and Tasmania for the funding of the NDIS); and

(b) use his or her best endeavours to reach an agreement with those entities about the proposed decision.

Part 3 Other matters Citation

These Rules may be cited as the National Disability Insurance Scheme 3.1 (Facilitating the Preparation of Participants’ Plans — Tasmania) Rules 2013.

Interpretation 3.2 These Rules include text that summarises provisions of the Act. The boxed notes identify such text, which does not form an operative part of these Rules. 3.3 Terms and expressions that are used in the Act have the same meaning in these Rules unless these Rules display a contrary intention — see the Acts Interpretation Act 1901 and the Legislative Instruments Act 2003, which include definitions and rules of interpretation that apply to all Commonwealth legislation. For convenience, the more important definitions from the Act are identified or reproduced in paragraph 3.4. 3.4 In these Rules: Act means the National Disability Insurance Scheme Act 2013. Agency—see section 9 of the Act. CEO—see section 9 of the Act. child—see section 9 of the Act. large residential care facility means a residential care facility that has 20 or more beds. NDIS—see section 9 of the Act. [page 304]

NDIS launch area has the same meaning as in the National Disability Insurance Scheme (Becoming a Participant) Rules 2013. NDIS rules—see section 9 of the Act. participant—see section 9 of the Act.

[page 305]

NATIONAL DISABILITY INSURANCE SCHEME (FACILITATING THE PREPARATION OF PARTICIPANTS’ PLANS — VICTORIA) RULES 2013 National Disability Insurance Scheme Act 2013 (the Act) The Act establishes the National Disability Insurance Scheme (NDIS). People who are participants in the NDIS will be assisted to develop a personal, goal-based plan about how they will be provided with general supports and reasonable and necessary supports. The NDIS will respect the interests of people with disability in exercising choice and control about matters that affect them. National Disability Insurance Scheme (Facilitating the Preparation of Participants’ Plans-Victoria) Rules 2013 These Rules are made for the purposes of sections 32 and 32A (other than subsection 32A(4)) of the Act. These Rules are about the circumstances in which the facilitation of the preparation of participants’ plans will commence in the State of Victoria. These Rules commence on 1 July 2013. The Hon Jenny Macklin MP Minister for Families, Community Services and Indigenous Affairs Minister for Disability Reform 24 June 2013

Contents National Disability Insurance Scheme (Facilitating the Preparation of Participants’ Plans-Victoria) Rules 2013 Part 1 Part 2 Part 3

What these Rules are about Preparation of plans for residents of Victoria Other matters Citation Interpretation

Part 1 What these Rules are about 1.1 Each participant in the NDIS launch will have a plan, prepared by and with the participant and approved by the CEO of the Agency. Among other things, a participant’s plan sets out the supports that will be funded for the participant. [page 306]

1.2 To enable an orderly launch, participants will be phased into the NDIS. There are two steps involved in accessing supports under the NDIS. The first is to become a participant: the prospective participant makes an access request and the CEO decides that they meet the access criteria. The second is for the participant to have a plan approved by the CEO of the Agency. These Rules relate to the second step, and the order in which the CEO will commence the facilitation of the preparation of plans for different classes of participants. 1.3 In Victoria, the NDIS launch will initially be restricted to particular launch areas, being Colac-Otway Shire, the City of Greater Geelong, the Borough of Queenscliffe and Surf Coast Shire: see the National Disability Insurance Scheme (Becoming a Participant) Rules 2013. This is because one of the access criteria for participants or prospective participants in Victoria is that they reside in one of those areas. For participants in these launch areas, the CEO

will commence the facilitation of preparation of plans in an order that depends on the programs under which they are receiving disability services. 1.4 These Rules explain how participants in Victoria will be phased into the NDIS. The Rules set out the process for working out when the CEO must commence facilitating the preparation of the plan of a participant in a launch area in Victoria. The phasing process is based on an agreement that has been reached between the Government of the Commonwealth and the Government of Victoria (the Intergovernmental Agreement for the National Disability Insurance Scheme (NDIS) Launch, Schedule B — Bilateral Agreement for NDIS Launch between the Commonwealth and Victoria) and is intended to give effect to that agreement. 1.5 The Act sets out a number of objects and principles for the NDIS, to which these Rules give effect. In giving effect to the objects, regard is to be had to the progressive implementation of the NDIS and the need to ensure the financial sustainability of the NDIS.

Part 2 Preparation of plans for residents of Victoria 2.1 Once a person becomes a participant, the CEO can commence facilitating the preparation of a plan for the person. The process for commencing the facilitation of the preparation of plans for participants in Victoria is detailed below. 2.2 The table in paragraph 2.6 sets out eight classes of Victorian participants and sets out the circumstances in which the CEO is to commence the facilitation of the preparation of those participants’ plans. The CEO will deal with each class sequentially; facilitation for a class will be commenced once the CEO has decided that the Agency has the capacity to do so, in light of the number of participants in previous classes whose plans have been dealt with, and the number yet to be dealt with. [page 307]

The CEO cannot make a decision to commence facilitating the preparation 2.3 of plans for a class before the date specified in the table for that class. Otherwise, the sequence of classes is not inflexible. The CEO need not be satisfied that all participants in a particular class have had their plans facilitated before moving on to the next class; the Agency might have the capacity to commence the facilitation of plans in Class 2 before having fully completed that task for Class 1. Further, the classes do not close at any point in time. For example, a person in Class 1 who becomes a participant after the Agency has started to facilitate plans for Class 2 participants can still have their plan facilitated while participants in Class 2 are having their plans facilitated. 2.4 If a participant who is a resident of an NDIS launch area in Victoria does not fall within one of the classes in the table, the CEO is to commence facilitating the preparation of the participant’s plan as soon as reasonably practicable having regard to the CEO’s obligations to commence facilitating the preparation of other participants’ plans. Such participants are not part of the phasing sequence set out in the table; their plans will be facilitated as soon as reasonably practicable after they become participants. This ensures equity of access to the NDIS for such participants, who include those who are receiving services from a program that is not described in the table. Paragraph 2.4 summarises the effect of subsection 32(3) of the Act. 2.5 In urgent circumstances, the CEO can commence the facilitation of the preparation of a participant’s plan at a particular time, despite the sequence set out in the table in paragraph 2.6. If the CEO does so, the CEO is able to delay the commencement of the facilitation of other participants’ plans, so far as is reasonably necessary, even if that delay would be contrary to that sequence. Paragraph 2.5 summarises the effect of

subsection 32A(3) of the Act. 2.6 The eight classes of participants, and the circumstances in which the CEO is to commence the facilitation of the preparation of plans for participants in those classes, are as follows: [page 308] Class

Class 1

Class 2

Participants in the class (who must be residents of an NDIS launch area in Victoria) a)

Circumstances in which the CEO is to commence the facilitation of the preparation of the participants’ plans

As soon as practicable after the participants Persons who, as of 15 become participants April 2013, are registered on the Disability Support Register administered by Victoria’s Department of Human Services and who are assessed as requiring individually funded disability support; and

b)

children who, as of 15 April 2013, are assessed as requiring Early Childhood Intervention Services (administered by Victoria)

a)

Participants in the Futures for Young Adults Program (Victoria) who are not undergoing planning for entering or leaving the program; and

b)

persons who receive Individual Support Packages (Victoria); and

c)

children receiving support under the Commonwealth Helping Children with Autism program or the

The CEO decides (on or after 1 August 2013) that the Agency has the capacity to commence the facilitation of the preparation of the participants’ plans, in light of the number of participants in Class 1 whose plans have been dealt with and the number yet to be dealt with

Commonwealth Better Start for Children with Disability initiative Class 3

a)

Persons receiving Respite, Flexible Support Packages, Recreation, Therapy, Independent Living Training, Outreach Support, Behaviour intervention services or Case Management, provided by the State of Victoria, and remaining participants in the Futures for Young Adults Program (Victoria); and

The CEO decides (on or after 1 October 2013) that the Agency has the capacity to commence the facilitation of the preparation of the participants’ plans, in light of the number of participants in Classes 1 and 2(a) and (b) whose plans have been dealt with and the number yet to be dealt with

[page 309]

b)

persons receiving care under the Commonwealth Outside School Hours Care for Teenagers with Disability program; and

c)

persons receiving employment assistance from Commonwealthfunded Australian Disability Enterprises

Class 4

Participants receiving disability related supports under the Home and Community Care Program

The CEO decides (on or after 1 March 2014) that the Agency has the capacity to commence the facilitation of the preparation of the participants’ plans, in light of the number of participants in Classes 1, 2(a) and (b) and 3(a) and (b) whose plans have been dealt with and the number yet to be dealt with

Class 5

Persons receiving supported accommodation services under the Disability Act 2006 (Vic)

The CEO decides (on or after 1 April 2014) that the Agency has the capacity to commence the facilitation of the preparation of the participants’ plans, in light of the

number of participants in Classes 1, 2(a) and (b), 3(a) and (b) and 4 whose plans have been dealt with and the number yet to be dealt with Class 6

a)

b)

Class 7

The CEO decides (on or after 1 May 2014) Psychiatric Rehabilitation that the Agency has the capacity to and Support Services commence the facilitation of the preparation recipients; and of the participants’ plans, in light of the persons receiving number of participants in Classes 1, 2(a) and Commonwealthfunded (b), 3(a) and (b), 4 and 5 whose plans have Personal Helpers and been dealt with and the number yet to be Mentors (PHaMs) services dealt with

Early Childhood Intervention Services (ECIS) recipients

The CEO decides (on or after 1 June 2014) that the Agency has the capacity to commence the facilitation of the preparation of the participants’ plans, in light of the number of participants in Classes 1, 2(a) and (b), 3(a) and (b), 4, 5 and 6(a) whose plans have been dealt with and the number yet to be dealt with [page 310]

Class 8

a) b)

The CEO decides (on or after 1 September Residents of the Colanda 2014) that the Agency has the capacity to residential institution; and commence the facilitation of the preparation persons receiving Work of the participants’ plans, in light of the Based Personal number of participants in Classes 1, 2(a) and Assistance under (b), 3(a) and (b), 4, 5, 6(a) and 7 whose Commonwealth Disability plans have been dealt with and the number Employment Services yet to be dealt with

2.7 To avoid doubt, a person may be in more than one class. In practice, this means that they will be treated as being in the first of those classes. For example, a participant who is a member of Class 1 and Class 2 will be phased in as a member of Class 1. 2.8 There are two exceptions to this rule, as follows: (a)

First, if a participant is in Class 5, they may not be in Class 1, 2, 3 or 4. This means that recipients of supported accommodation services will be treated as being in Class 5 even if they would otherwise be in an earlier class because, for example, they are also receiving other kinds

of services. (b) Second, if a participant is in Class 8(a), they may not be in Class 1, 2, 3, 4, 5, 6 or 7. This means that residents of the Colanda residential institution will be treated as being in Class 8 even if they would otherwise be in an earlier class because, for example, they are also receiving other kinds of services.

Consultation 2.9 If the CEO is considering making a decision referred to in the third column of the table in paragraph 2.6 after the date mentioned in that column, the CEO must, as early as possible: (a)

seek the views of the Government of Victoria and of the Commonwealth Department that administers the Act about the proposed decision (including their views about the effect that making the decision would have on arrangements agreed between the Commonwealth and Victoria for the funding of the NDIS); and

(b) use his or her best endeavours to reach an agreement with those entities about the proposed decision. [page 311]

Part 3 Other matters Citation 3.1 These Rules may be cited as the National Disability Insurance Scheme (Facilitating the Preparation of Participants’ Plans — Victoria) Rules 2013.

Interpretation 3.2 These Rules include text that summarises provisions of the Act. The boxed notes identify such text, which does not form an operative part of these Rules. 3.3 Terms and expressions that are used in the Act have the same meaning in these Rules unless these Rules display a contrary intention — see the Acts

Interpretation Act 1901 and the Legislative Instruments Act 2003, which include definitions and rules of interpretation that apply to all Commonwealth legislation. For convenience, the more important definitions from the Act are identified or reproduced in paragraph 3.4. 3.4 In these Rules: Act means the National Disability Insurance Scheme Act 2013. Agency—see section 9 of the Act. CEO—see section 9 of the Act. child—see section 9 of the Act. NDIS—see section 9 of the Act. NDIS launch area has the same meaning as in the National Disability Insurance Scheme (Becoming a Participant) Rules 2013. NDIS rules—see section 9 of the Act. participant—see section 9 of the Act.

Index References are to paragraphs

A Access request …. 8.1 CEO enquiry powers …. 11.2 deciding which person meets criteria …. 8.4 denial …. 8.6 extension of time frames during launch …. 8.3 further information …. 8.2 legislation …. 8.7 Rules …. 8.8 Administrative Appeals Tribunal …. 12.6–12.9 AAT Review of DisabilityCare Australia Decisions Practice Direction …. 12.12 Adult Planning and Assessment Toolkit …. 9.21 Applications see Access requests

C Ceasing …. 16.1 death and age …. 16.2 legislation …. 16.8 revocation …. 16.3 suspension …. 16.5 effect …. 16.7

launch phase issues …. 16.6 voluntary withdrawal …. 16.4 CEO access requests determining if person meets criteria …. 8.4 request for further information …. 8.2 written notice given to participant …. 8.5 child determinations making …. 14.3 mature minor …. 14.4 compensation claims and recoveries issue of notice …. 7.4 pursuit of …. 7.10 reasonable prospect of success …. 7.5 disclosure of information in certain limited circumstances …. 13.7 disclosure of information in limited circumstances …. 13.7 nominees appointment …. 15.3 cancellation or suspension …. 15.11 issue of notices …. 15.7–15.9 plan nominees …. 15.5 participant support plans appropriately funded or provided …. 9.9–9.18 approval …. 9.4 approval of tools …. 9.21

description …. 9.2 effective and beneficial and good practice …. 9.7 information and reports for preparing and approving …. 9.19 needs assessment …. 9.20 preparation …. 9.3 reasonable and necessary supports …. 9.5 reasonable family, carer and other support …. 9.8 review and changing …. 9.29 value for money …. 9.6 providers applications …. 10.2 revoking of approval …. 10.4 review of decisions external …. 12.6 form of request …. 12.3 implementation or variation …. 12.4 internal …. 12.5 written notification …. 12.2 satisfied person meets access criteria …. 4.10 CEO enquiry powers appointment and general powers …. 11.1 failure to comply …. 11.6 funding for review of decisions …. 11.7 legislation …. 11.8 obtaining information from other persons …. 11.5

obtaining information from participants and prospective participants …. 11.4 relevant to access requests …. 11.2 relevant to participant supports …. 11.3 Rules …. 11.9 Chief Executive Officer see CEO Child Planning and Assessment Toolkit …. 9.21 Children …. 14.1 definitions and guiding principles …. 14.2 duty to …. 14.5 legislation …. 14.7 mature minor …. 14.4 parental responsibility …. 14.3 residential eligibility …. 4.4–4.5 revocation of determinations …. 14.6 Rules …. 14.8 Compensation claims and recoveries …. 7.1 advice in anticipation of settlements …. 7.9 if recovered …. 7.12 issue of notice …. 7.4 legislation …. 7.15 notices to payers and insurers …. 7.14 personal injury …. 7.6 potential for conflicts of interest …. 7.11 pre-existing agreements …. 7.7 pursuit by CEO …. 7.10

reasonable prospects of success …. 7.5 recoverable amount …. 7.13 requirement to seek …. 7.2 Rules …. 7.16 suspension of participant’s plan …. 7.8 taking reasonable action …. 7.3 Conflicts of interest compensation claims and recoveries …. 7.11 Correspondence nominees …. 15.6 Court appeals review of decisions …. 12.8

D Definitions carer …. 5.6 child …. 4.5, 14.2 community care …. 16.2 compensation …. 7.2 developmental delay …. 5.6 holder …. 4.8 nominee …. 15.2 permanent visa …. 4.8 protected information …. 13.2 protected SCV holder …. 4.9 residential care …. 16.2 Disability requirement …. 5.2

E Early intervention criteria to be applied …. 5.7 requirements …. 5.6 Eligibility age …. 3.1 legislation …. 3.2 Rules …. 3.3 alternative way …. 6.1 legislation …. 6.2 Rules …. 6.3 disability or early intervention …. 5.1 disability requirement …. 5.2 early intervention requirements …. 5.6–5.8 legislation …. 5.9 listed conditions …. 5.5 permanent impairment …. 5.3 Rules …. 5.10 substantially reduced functional capacity …. 5.4 residence …. 4.1 children …. 4.4–4.5 continuing …. 4.6 during launch phase …. 4.3 legislation …. 4.10 permanent visa holder …. 4.8

protected special category visa holder …. 4.9 reside in Australia …. 4.2 Rules …. 4.11 Rules age …. 3.3

F Federal Court …. 12.8

L Launch phase …. 2.1 areas …. App A extension of time for access requests …. 8.3 Launch Transition Agency …. 2.2 legislation …. 2.4 residence eligibility …. 4.3, 4.7 Rules …. 2.5 sites …. 2.3 suspension of participant …. 16.6 Listed conditions disability/impairment …. 5.5 early intervention supports …. 5.8

M Mature minor …. 14.4 Ministerial briefings disclosure of information …. 13.10 Missing or deceased persons

disclosure of information …. 13.11 Mistake of fact …. 13.9

N National Disability Insurance Act 2013 access requests …. 8.7 children …. 14.7 compensation claims and recoveries …. 7.15 eligibility age …. 3.2 alternative way …. 6.2 disability or early intervention …. 5.9 launch …. 2.4 nominees …. 15.13 objects and principles …. 1.5 overview …. 1.4 participants’ plans …. 9.31 privacy …. 13.14 providers …. 10.5 review of decisions …. 12.10 National Disability Insurance Agency see Agency National Disability Insurance Scheme see Scheme National Disability Insurance Scheme (Protection and Disclosure of Information) Rules privacy …. 13.15 National Disability Insurance Scheme (Becoming a Participant) Rules 2013

access requests …. 8.8 eligibility age …. 3.3 alternative way …. 6.3 disability or early intervention …. 5.10 National Disability Insurance Scheme (Children) Rules 2013 children …. 14.8 National Disability Insurance Scheme (Facilitating the Preparation of Participants’ Plans — New South Wales) Rules 2013 participants’ plans …. App B National Disability Insurance Scheme (Nominees) Rules 2013 nominees …. 15.14 National Disability Insurance Scheme (Registered Providers of Supports) Rules 2013 supports providers …. 10.6 National Disability Insurance Scheme (Supports for Participants) Rules 2013 participants’ supports …. 9.32 National Disability Insurance Scheme (Supports for Participants — Accounting for Compensation) Rules 2013 compensation claims and recoveries …. 7.16 Needs assessments participants’ plans …. 9.20 Nominees …. 15.1 appointment …. 15.3

cancelling or suspending appointment …. 15.11 correspondence …. 15.6 definition …. 15.2 duties …. 15.4 legislation …. 15.13 liability …. 15.12 notices about capacity …. 15.7 notices about disposal of amounts …. 15.8 notices directed to participants, despite existence …. 15.9 plan …. 15.5 rights …. 15.10 Rules …. 15.14 Notices compensation claims and recoveries issue …. 7.4 to payers and insurers …. 7.14 nominees capacity …. 15.7 directed to participants, despite existence …. 15.9 disposal of amounts …. 15.8 review of decisions …. 12.2

O Offences disclosure of information …. 13.5 nominees not liable …. 15.12

P Parental responsibility …. 14.3 Participants’ plans approving …. 9.4 grace periods …. 9.24 information and reports for preparing and approving …. 9.19 legislation …. 9.31 matters to be included …. 9.1–9.3 needs assessments …. 9.20, 9.21 reviewing and changing …. 9.30 Rules …. App B suspension …. 7.8, 9.25 when in effect …. 9.23 Participants’ supports appropriately funded or provided …. 9.9–9.18 CEO enquiry powers …. 11.3 effective and beneficial and good practice …. 9.7 managing funding …. 9.26–9.28 not funded …. 9.22 payment of amounts …. 9.29 reasonable and necessary …. 9.5 reasonable family, career and other support …. 9.8 Rules …. 9.32 value for money …. 9.6 Permanent impairment …. 5.3

Permanent visa holder …. 4.8 Personal injury compensation claims and recoveries …. 7.6 Plan nominees …. 15.5 Planned review …. 1.7 Pre-existing agreements compensation claims and recoveries …. 7.7 Privacy …. 13.1 agencies responsible for children …. 13.12 disclosure by CEO …. 13.7 enforcement by laws …. 13.8 interaction with other laws …. 13.13 legislation …. 13.14 Ministerial briefing …. 13.10 missing or deceased person …. 13.11 mistake of fact …. 13.9 offences …. 13.5 protected information …. 13.2 protections …. 13.6 recording and disclosure …. 13.3 research, analysis and policy development …. 13.4 Rules …. 13.15 Productivity Commission reference …. 1.2 report …. 1.3

Protected special category visa holder …. 4.9 Providers …. 10.1 applying …. 10.2 legislation …. 10.5 requirements …. 10.3 revocation …. 10.4 Rules …. 10.6

R Reasonable action compensation claims and recoveries …. 7.3 Recording and disclosure of information …. 13.3 Review of decisions …. 12.1 AAT Practice Directions …. 12.12 appeals to court …. 12.8 costs …. 12.9 external mechanism …. 12.6–12.7 form of request …. 12.3 implementation or variation …. 12.4 internal mechanism …. 12.5 legislation …. 12.10 notice must be given …. 12.2 Rules …. 12.11 Revocation of participants’ status …. 16.3

S Scheme …. 1.1

access requests …. 8.1 deciding which person meets criteria …. 8.4 denial …. 8.6 extension of time frames during launch …. 8.3 further information …. 8.2 legislation …. 8.7 Rules …. 8.8 when person becomes a participant …. 8.5 ceasing to participate and revocation …. 16.1 death and age …. 16.2 legislation …. 16.8 revocation …. 16.3 Rules …. 16.9 suspension …. 16.5 suspension — effect …. 16.7 suspension — launch phase issues …. 16.6 voluntary withdrawal …. 16.4 CEO enquiry powers appointment and general powers …. 11.1 failure to comply …. 11.6 funding for review of decisions …. 11.7 legislation …. 11.8 obtaining information from other persons …. 11.5 obtaining information from participants and prospective participants …. 11.4 relevant to access requests …. 11.2

relevant to participant supports …. 11.3 Rules …. 11.9 children …. 14.1 definitions and guiding principles …. 14.2 duty to …. 14.5 legislation …. 14.7 mature minor …. 14.4 parental responsibility …. 14.3 revocation of determinations …. 14.6 Rules …. 14.8 compensation claims and recoveries …. 7.1 advice in anticipation of settlements …. 7.9 if recovered …. 7.12 issue of notice …. 7.4 legislation …. 7.15 notices to payers and insurers …. 7.14 personal injury …. 7.6 potential for conflicts of interest …. 7.11 pre-existing agreements …. 7.7 pursuit by CEO …. 7.10 reasonable prospects of success …. 7.5 recoverable amount …. 7.13 requirement to seek …. 7.2 Rules …. 7.16 suspension of participant’s plan …. 7.8

taking reasonable action …. 7.3 eligibility — age …. 3.1 legislation …. 3.2 Rules …. 3.3 eligibility — alternative way …. 6.1 legislation …. 6.2 Rules …. 6.3 eligibility — disability or early intervention …. 5.1 disability requirement …. 5.2 early intervention requirements …. 5.6–5.8 legislation …. 5.9 listed conditions …. 5.5 permanent impairment …. 5.3 Rules …. 5.10 substantially reduced functional capacity …. 5.4 eligibility — residence …. 4.1 Australian citizen …. 4.7 children …. 4.4–4.5 continuing …. 4.6 during launch phase …. 4.3 legislation …. 4.10 permanent visa holder …. 4.8 protected special category visa holder …. 4.9 reside in Australia …. 4.2 Rules …. 4.11

launch …. 2.1 areas …. App A Launch Transition Agency …. 2.2 legislation …. 2.4 Rules …. 2.5 sites …. 2.3 legislation …. 1.4 objects and principles …. 1.5, 1.8 nominees …. 15.1 appointment …. 15.3 cancelling or suspending appointment …. 15.11 correspondence …. 15.6 definition …. 15.2 duties …. 15.4 legislation …. 15.13 liability …. 15.12 notices about capacity …. 15.7 notices about disposal of amounts …. 15.8 notices directed to participants, despite existence …. 15.9 plan …. 15.5 rights …. 15.10 Rules …. 15.14 participants’ plans approving …. 9.4 grace periods …. 9.24

information and reports for preparing and approving …. 9.19 legislation …. 9.31 matters to be included …. 9.1–9.3 needs assessments …. 9.20, 9.21 reviewing and changing …. 9.30 Rules …. App B suspension …. 9.25 when in effect …. 9.23 participants’ supports appropriately funded or provided …. 9.9–9.18 effective and beneficial and good practice …. 9.7 managing funding …. 9.26–9.28 not funded …. 9.22 payment of amounts …. 9.29 reasonable and necessary …. 9.5 reasonable family, career and other support …. 9.8 Rules …. 9.32 value for money …. 9.6 planned review …. 1.7 privacy …. 13.1 agencies responsible for children …. 13.12 disclosure by CEO …. 13.7 enforcement by laws …. 13.8 interaction with other laws …. 13.13 legislation …. 13.14

Ministerial briefing …. 13.10 missing or deceased person …. 13.11 mistake of fact …. 13.9 offences …. 13.5 protected information …. 13.2 protections …. 13.6 recording and disclosure …. 13.3 research, analysis and policy development …. 13.4 Rules …. 13.15 Productivity Commission reference …. 1.2 report …. 1.3 providers …. 10.1 applying …. 10.2 legislation …. 10.5 requirements …. 10.3 revocation …. 10.4 Rules …. 10.6 provision of assistance by Agency …. 1.6 review of decisions …. 12.1 AAT Practice Directions …. 12.12 appeals to court …. 12.8 costs …. 12.9 external mechanism …. 12.6–12.7 form of request …. 12.3

implementation or variation …. 12.4 internal mechanism …. 12.5 legislation …. 12.10 notice must be given …. 12.2 Rules …. 12.11 Rules …. 1.9 Substantially reduced functional capacity …. 5.4 Suspension …. 16.5 effect …. 16.7 launch phase issues …. 16.6

V Voluntary withdrawal as participant …. 16.4