1. Your Rights National Disability Insurance Scheme NDIS
Karin Ness
December 2016
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2. Bundjalung Country; always was, always will be.
Staff and management acknowledge the people of the Bundjalung Nation. We pay respect to their cultures, and acknowledge the strong and continuing connection to their land, sea and waterways.
Bundjalung Country; always was, always will be.
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DISCLAIMER
This presentation is provided for the purpose of general information and education, and is not intended as specific legal advice on any matter. If you have a legal problem you should consult a lawyer.
To the extent permissible by law, the Northern Rivers Community Legal Centre disclaims all liability for any detriment arising from reliance upon this publication.
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National Disability Insurance Scheme Act 2013 – Administrative Law
Consumer Protection – Australian Consumer Law (ACL)
Contract Law
Anti-discrimination Law
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What does the NDIS do……?
The NDIS provides support to people who are under 65
are an Australian resident and
have a disability.
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Disability requirements
The “disability requirement” either likely to be permanent OR
The “early intervention requirement” the condition will get much worse if people do not receive support early on.
A person needs to show that they would likely benefit form early intervention unless they are a child under 6 and one or more of the child's impairments result in developmental delay.
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 and 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:
                     (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.
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7. National Disability Insurance Agency (NDIA - Agency)
The priority of the NDIA is to ensure people with disability continue to get the support they need.
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Reviewable Decisions
Eligibility to participate – The NDIA decides that the applicant
does not meet the access criteria or NDIS participant no longer
meets the access criteria;
Age and residence requirements
Disability or Early Intervention requirements
Red Alert – CEO does not respond to an access request within 21 days - it is an indication that the person has been denied access as a participant.
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Reviewable Decisions
Information gathering - NDIA does NOT approve a request for extra time to provide further information re eligibility status
Red Alert – The access request is Withdrawn -If the NDIA has requested further information and that information has not been provided within 28 days or within the extra time negotiated with the NDIA.
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Reviewable Decisions
When applicant has become an NDIS participant
Decision by NDIA to NOT approve the statement of participants supports
The statement of supports must include a range of information including;
Reasonable and necessary supports
Most of the hearings in the AAT are about whether or not items requested in the statement of supports are ‘reasonable and necessary supports’
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Reviewable Decisions
When applicant has become an NDIS participant –Reasonable and Necessary Supports
How does the NDIA determine ‘reasonable and necessary’ supports;
NDIS Act including the objects and principles underlying ‘reasonable and necessary supports’
NDIS (Supports for Participants) Rules
Operational Guidelines
Case example
AAT said that the applicants equipment (portable suctioning and pulse oximeter) is more appropriately funded by the health system rather than the NDIS.
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Reviewable Decisions
When applicant has become an NDIS participant
Decision by NDIA to NOT review a participants plan
Decision to NOT extend the 6 week grace period when a participant is absent from Australia – the participants plan is suspended when the 6 week grace period ends.
Red Alert – A participant can request a review of a plan at any time – it is an indication that the review of the plan has been denied if the CEO does not respond within 14 days
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Reviewable Decisions
Decisions in relation to Children
Decision by NDIA to determine or NOT determine in writing that a person/s has parental responsibility for a child
Decision by NDIA to NOT determine that a child does not require an allocation of parental responsibility
Decision to determine or NOT determine that a person who has guardianship over a child has parental responsibility.
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Decision making
Right to make decisions about the supports you receive.
Right to be supported when you make those decisions.
Right to choose to have someone or a group of people that you trust (‘nominees’) to access information on your behalf, or to make decisions on your behalf about the support.
Right to request a new nominee if participants are not happy with what the nominee is doing.
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15. There are 2 types of nominees…
1. Correspondence nominee
2. Plan nominee
People who can either enter into correspondence about the NDIS on a participants behalf
People who can make decisions about supports on behalf of a participant.
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Reviewable Decisions
Decisions in relation to Nominees
Decision by NDIA to appoint a plan nominee
Decision by NDIA to appoint a correspondence nominee
Decision to cancel or suspend or not cancel or suspend the appointment of a nominee
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17. Review of Reviewable Decisions
Written notice must be provided that the decision is a reviewable decision
Request for a review can be oral or in writing
If the decision is deemed to be made - if NDIA does not respond within a certain time frame then the decision is reviewed automatically – there is a right to request another review of the outcome of the automatic review.
A person other than the original decision maker must review the decision
Red Alert – A request for a review of the decision does not prevent the NDIA from implementing the decision
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18. Review of Reviewable Decisions
Three month time limit to request review of a decision if a person was provided with a notice that the decision is a reviewable decision
If you are not satisfied with the outcome of the review an appeal may be lodged with the Administrative Appeals Tribunal within 28 days of the decision being made.
Red Alert – A request for a review of the decision does not prevent the NDIA from implementing the decision
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19. Contracts under the NDIS
Contract between the participant and the NDIA – this is the participant plan developed by the participant and includes the support that the NDIA has agreed to provide.
Contract between a participant and a service provider – this is the agreement between a participant and a service provider that relates to the support that participants will receive….relates more to self managed participant plans.
Contracts between the NDIA and service providers – which is the arrangements set up between the NDIA and service providers to enable them to receive funding and to provide participants with support.
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20. Complaints about the NDIA
Complaints about how you are treated by NDIA staff, delays in making decisions or other operational matters that affect you should be directed to the NDIA.
The NDIA have an internal complaints handling process.
Staff should explain and assist you with the process.
If you are unhappy with the outcome you can lodge a complaint with the Commonwealth Ombudsman
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21. Complaints about Service Providers
Service providers must help participants to meet their goals in life.
Service providers must help participants be part of the community.
The Service must be value for money and consistent with good practice.
If participants think a service provider is not doing any of these things, they have a right to…
An advocate, to make a complaint and the right to change service providers.
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22. Complaints about Service Providers
A complaint can be made to the service providers internal complaints process
To the NDIA about registered service providers
Ask for a review of your plan so that a different service provider can be funded to provide supports. (Remember a decision to NOT review your plan is a reviewable decision)
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23. Complaints about Service Providers
If you are managing your own supports
If the internal complaints mechanism has been lodged and the service does not improve seek LEGAL ADVICE as the service may not be fulfilling their obligations under the CONTRACT and/or CONSUMER Protection LAW, Anti- Discrimination Law may apply.
Compliant can also be lodged with the relevant State Ombudsman.
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Taxi Service
Available to all clients of the Centre (including Legal Service and  Tenants Advice and Advocacy Service) and will get people to appointments in Lismore, Tweed or Casino to see a solicitor or to attend a court or a tribunal.
Available to Women's  Domestic Violence Services clients to attend ANY service, including counselling, accommodation service or court.
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