Overview of the National Disability Insurance Scheme

The stated objective of the NDIS is to “provide all Australians who acquire a permanent disability before the age of 65 which substantially impacts how they manage everyday activities, with the reasonable and necessary supports they need to live an ordinary life”. This aim is reflected in the Scheme’s legislation, the National Disability Insurance Scheme Act 2013 (Cth) (‘the Act’). The Scheme is administered by the National Disability Insurance Agency (‘the Agency’)

Eligibility

The eligibility requirements of the Scheme are detailed at Part 1 of the Act, and include: –

a. Age requirements

i. Applicant must be under sixty-five (65) years of age when the application is made.

b.  Residence requirements;

i. The Applicant must be an Australian citizen, or hold a Permanent Visa or Protected Special Category Visa.

c. Disability requirements; and

i. The Applicant may meet this requirement if they have an impairment or condition that is likely to be permanent, and the impairment substantially reduces their functional capacity to undertake one or more activities such as communication, social interaction, learning, or self-care. Additionally, the Applicant’s impairment must also affect the person’s capacity for social or economic participation, and the Applicant is likely to require support under the Scheme for their lifetime.

d. Early intervention requirements.

i. It is determined that the Applicant that early intervention supports are likely to benefit the Applicant reducing future needs, amongst other things.

Application Process

Broadly, an application to become a participant in the Scheme progresses as follows: –

  1. Application, either by way of a verbal application or through the completion of an Access Request Form;
  2. Supporting evidence is obtained or provided;
  3. Acceptance to Scheme, in the event that eligibility requirements are met;
  4. Planning meeting; and
  5. NDIS Plan finalised.

The Scheme Service Charter prescribes guaranteed timeframes for the completion of the above steps.

NDIS and Compensation Payments

The Scheme is designed to complement, rather than substitute, existing compensation arrangements for personal injury. Accordingly, the Scheme will not duplicate funding for supports already provided for in a compensation payment.

Pursuant to ss 106 – 107 of the Act and the complimentary Compensation Rules, in the event that an individual is accepted as a participant in the Scheme prior to judgment or settlement, and the Agency makes payments for the provision of supports prior to judgment or settlement, the Agency may recover some or all of those payments, provided the judgment or settlement fixes an amount of compensation to be a component for supports of a kind funded or provided under the Scheme. Only those payments made in respect of the compensable impairment or disability would be refundable in such a scenario; impairments referrable to a non-compensable impairment would not be subject to recovery.

As is likely evident, any potential refund owing to the Scheme is dependent on the sum of payments made by the Scheme as at the date of judgment or settlement, and is therefore not capable of being predicted until close to the date of judgment or settlement.

Statutory refunds, such as those potentially owed in relation to benefits received as a participant in the Scheme, are considered a first charge on damages. This means that the Insurer or compensation payer will deduct any refunds owing to statutory bodies from the total settlement or judgment sum.

Being a recipient of compensation does not preclude a participant from ongoing access to Scheme funded supports. Instead, following the receipt of compensation, the funding in the participants plan may be adjusted in accordance with a Compensation Reduction Amount (CRA). There are a number of factors that are considered when calculating a CRA, including the nature of the compensation.

Should you have any queries in relation to the interaction between the NDIS and your current or potential personal injuries matter, please do not hesitate to contact our office.

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