Posted on 19 Sep 2018
Overcoming common issues with the NDIS
Principal Lawyer
The National Disability Insurance Scheme (NDIS) is an Australian Government program being rolled out across the country aimed to support people with disabilities, as well as their families and carers connect with their community and live an ordinary life.
Almost half a million Australians with permanent and significant disabilities are likely to benefit from the NDIS.
But sadly, the program has caused considerable grief for some disabled Australians. Some have struggled to get access to the scheme, and/or they believe they’ve been wrongly assessed about their entitlements.
In this article we look at some of these common issues, and what your options are if you or someone you love are facing them.
Who will benefit from the NDIS?
The NDIS is currently being rolled out nationally until 2019. It was first created under Commonwealth legislation to give all Australians under the age of 65 who have a permanent and significant disability the support they need to enjoy an ordinary life.
About 460,000 Australians under the age of 65 will receive benefits under the scheme when it’s fully rolled out. It’s aimed to help people who are living with an intellectual, physical, sensory, cognitive and/or psycho-social disability who meet the scheme’s eligibility requirements. It’s also aimed to provide early intervention support to eligible people or children with developmental delay.
The NDIS website has a helpful video with examples of the services and supports available to eligible people under the scheme.
How does the NDIS work?
It’s important to understand how the NDIS process works before you apply:
1) First, the National Disability Insurance Agency (NDIA) makes decisions about who can join the NDIS scheme and what benefits the person will get. Eligibility is based on a person’s age, residency and disability.
2) Next, once a person is accepted into the scheme, the NDIA assesses their situation and works with them to create a personalised plan. The plan details the approved funding and their access to support under the scheme. To be funded by the NDIS, supports must be considered ‘reasonable and necessary’.
What are the common problems with the NDIS?
There are several common issues facing people who are applying for or already participants of the NDIS – and these issues include assessment, access and entitlements.
Knowing if you’re eligible is confusing, complex and restrictive
Unfortunately, every day we hear of people being confused and unsure if they’re eligible for the NDIS or they’ve been given the right plan. A key reason for this are the terms defining who is eligible – to many these terms are vague, complex and restrictive. For example:
- Your disability must be ‘permanent’ – that is, lifelong, and significant. This means it has a substantial impact on your ability to complete everyday activities.
- The term 'disability' is not strictly defined in the NDIS legislation, and different interpretations have led people to challenge NDIA decisions about their eligibility.
- The words ‘reasonable and necessary’ also mean different things to different people, in terms of the services and supports they need to enjoy an ordinary life.
If you think the NDIA has incorrectly determined your eligibility or plan, you’re not alone. There have been several appeals and court cases challenging a person’s NDIS plan.
Past, present or future compensation can affect your NDIS benefits
Compensation is another common issue with the NDIS, and one that some of our existing clients here at Slater and Gordon have experienced.
If you’ve received or are entitled to compensation for an event or injury that led to your disability, your NDIS entitlements may be reduced. For example, you may have received or be entitled to compensation for:
- A work injury
- A motor vehicle injury
- A sporting injury
- An injury arising from medical negligence
- An injury caused by an event like a fall in a public place.
This applies to all compensation you have or may receive, including payment received by lump sum, regular payments or payments made directly to your disability service providers.
So, if you’re making a claim or you’ve received a claim, make sure you know that:
- The NDIA may get you to seek compensation from a third party before you’re entitled to NDIS benefit
- The NDIA may make someone repay benefits provided for past services, if compensation is received to pay for those same services.
- If you’re already an NDIS participant, make sure you tell the NDIA about any compensation you have or may receive in future.
You will find a lot of useful information about compensation and the NDIS on the NDIS website.
Key tips to overcoming issues with the NDIS
If you’re not happy with an NDIA decision, including your plan, ask for an internal review
Be aware that timeframes apply for requesting an internal review. If you’re still not happy with the decision after the internal review, you can appeal to the Administrative Appeals Tribunal (AAT). The NDIA website has all the information including a handy fact sheet.
In the past six months, there have been more and more NDIS cases coming to the AAT. This shows people are taking important action when they’re unhappy with the NDIS plan they’ve been given.
Seeking legal advice can be vital if you plan on appealing the decision
In a perfect world, the AAT process would be simple enough for all people to navigate on their own. Sadly, this is not always the case.
The NDIA has its own lawyers working on its behalf and if you tackle your appeal alone, you’re at a disadvantage.
Having legal representation helps you to navigate the legal process. Your lawyer will know the history of similar cases that have gone ahead of yours and how the AAT dealt with them.
As an NDIS participant you can expect to have an ongoing relationship with the NDIA. Your lawyer can help keep you at arms’ length, so you don't have the burden of dealing directly with the NDIA quite so often.
Having legal support also reduces your stress in what can be a very difficult time for you, your carer or family members.
Know where to go to find the right legal support
If you have a permanent and significant disability and already have a lawyer, you should talk to them about your NDIS benefits and any issues you may be facing.
If you don’t already have a lawyer, a good first step is to approach a disability advocacy service. There are hundreds available across the country. Use this online Service Finder to locate your closest centre.
You may also be eligible for Legal Aid to help you with the appeal process. Check the Legal Aid website for the nearest centre in your State or Territory.
Our team is here to help you
When working with you, our team aims to make the process as stress-free as possible. We realise that if you’ve been advocating for yourself or a loved one for a long time, you are likely to be exhausted by the process and need support. We aim to relieve the pressure by walking you through the process and advocating for your rights.
We’re proud to provide our clients with access to leading, affordable legal services, including our No Win, No Fee* commitment, as well as free access to our Social Work service by referral from a lawyer if needed.
If you have questions, want some more information or would just like to speak to someone, make an enquiry now and our team will be in touch with you as soon as possible. You can make an enquiry online or phone us 1800 555 777.
*NWNF conditions apply.
The contents of this blog post are considered accurate as at the date of publication. However the applicable laws may be subject to change, thereby affecting the accuracy of the article. The information contained in this blog post is of a general nature only and is not specific to anyone’s personal circumstances. Please seek legal advice before acting on any of the information contained in this post.
