Case Management Guide: Access to the NDIS
| Field | Category | Reference Documents |
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| Title | Access to the NDIS | |
| Purpose | This document is part of a suite of guidance documents for Case Managers to use in formulating their approach to managing individual matters before the Administrative Review Tribunal (ART). This Guide applies nationally to the conduct of all matters within the Administrative Review Branch. |
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| Scope | This Guide outlines the eligibility requirements which all prospective participants seeking access to the Scheme are required to meet. This Guide applies nationally to the conduct of all matters within the Administrative Review Tribunal Case Management Branch. |
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| NDIA policy on this subject | The ART process is often seen as stressful and adversarial by participants and prospective participants of the Scheme. The NDIA will adopt a participant-focused approach to resolving disputes before the ART, and will work directly with participants and prospective participants to provide better and earlier outcomes, where possible. The role of the NDIA is to assist the ART in reaching the correct and preferable decision, including by assisting participants and prospective participants in reaching the best possible resolution by agreement. A person is eligible for access to the Scheme if they meet the criteria in sections 21-25 of the NDIS Act 2013. Within the context of an ART proceeding, the primary issue before the Tribunal will usually be whether the prospective participant meets section 24 and/or section 25: Disability Requirements in section 24 When this is the case, the issues for determination by the ART are whether: - the prospective participant has a disability which is attributable to an impairment; - the impairment is likely to be permanent; |
NDIA Dispute Resolution Policy Appendix B to the Legal Services Directions 2017 Operational Guideline — Applying to the NDIS Sections 21-25 of the National Disability Insurance Scheme Act 2013 Rules 5, 6 and 7 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 Do you meet the disability requirements? Does your impairment substantially reduce your functional capacity? |
Case Management Guide: Access to the NDIS
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|---|---|---|
| - the impairment substantially reduces the prospective participant’s functional capacity; - the impairment affects their ability to work, study or take part in their social life; and - the prospective participant is likely to need NDIS supports for their lifetime. Early Intervention Requirements in section 25 When this is the case, the issues for determination by the ART are whether: - the prospective participant has an impairment which is likely to be permanent; - early intervention supports are likely to benefit the prospective participant and reduce their need for future supports; and - the early intervention needed is an NDIS support |
Does your impairment affect your social, work or study life? Do you need early intervention? |
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| NDIA posture in relation to Section 24 Disability Requirements | Section 24(1)(a) will be met where there is evidence that a prospective participant has a disability, which can be attributed to one or more impairments. A person has a disability if they have a reduction or loss of an ability to perform an activity, or a reduced capacity to carry out daily life activities and tasks. An impairment can be intellectual, cognitive, neurological, sensory, psychological or physical. A diagnosis or condition is not an impairment. It is possible for a person to have an impairment, without necessarily having a disability. Diabetes and epilepsy are common examples. However, these conditions may lead to disabilities due to the secondary consequences. eg a physical impairment from an amputation resulting from diabetes. Note: The role of Case Managers and the ART is to consider whether the evidence confirms an impairment to which a disability can be attributed, even if that impairment is not the claimed diagnosis. |
Section 24 of the National Disability Insurance Scheme Act 2013 Rule 5 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 List A: Conditions that are likely to meet the disability requirements List B: Conditions that are likely to result in a permanent impairment |
Case Management Guide: Access to the NDIS
| Field | Category | Reference Documents |
|---|---|---|
| Section 24(1)(b) will be met where there is evidence that the impairment is, or is likely to be, permanent. When considering the likely permanence of an impairment, it is necessary to assess whether all available and appropriate treatment options have been engaged for the impairments. Permanency could be defined by any of the following scenarios: - An impairment is only likely to be permanent where there are no other known, available and appropriate treatment options likely to remedy the impairment (rule 5.4) - Even if the impact of the impairment may fluctuate or improve over time (rule 5.5). - Some impairments require medical treatment and review before a determination can be made as to whether they are likely to be permanent (rule 5.6). - Degenerative impairments are also likely to be permanent if treatment options are, or are unlikely to, improve the impairment (rule 5.7). A statement that an impairment is likely to be permanent is insufficient to meet the threshold for this criteria. Case Managers should seek specific and detailed evidence concerning the engagement in treatments, the outcomes achieved and any anticipated outcomes from future treatment to assist in determining whether there are available and appropriate treatments that are likely to remedy the impairment. Where necessary, Case Managers should seek technical advice from the Technical Advisory and Practice Improvement Branch (TAPIB). Note: Non-compliance with treatment (such as not taking medication) is fairly common among prospective participants with psychosocial impairment. This alone is generally an insufficient basis upon which to conclude that treatment options are inappropriate or unavailable. |
Case Management Guide: Access to the NDIS
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| Non-compliance can have multiple underlying factors, this may represent a need for clinical interpretation from TAPIB. Non-compliance can be a complex part of many disability presentations and consideration of the treating team’s attempts to explore barriers to engagement with treatment may need to be considered. It is important to distinguish between the permanency of a condition and the permanency of the impairments. Section 24(1)(c) will be met where there is evidence that the permanent impairment/s substantially reduces functional capacity in one or more of the following activities (each comprising a number of tasks): - communicating; - socialising; - learning; - mobility; - self-care; and/or - self-management. A prospective participant’s functional capacity is substantially reduced if they are unable to participate effectively or completely in the activity – with or without assistive technology, equipment (excluding commonly used items such as glasses), home modifications, or the help of another person. Case Managers should closely consider the following: - Is there current functional information available? This could include a functional capacity assessment from the last 12 months. - What does the person need assistance to complete? How often is assistance needed? - Is the length of time it takes a person to complete an activity unreasonable? - Is there a substantial reduction in functional capacity in between episodic impairments? |
Case Management Guide: Access to the NDIS
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|---|---|---|
| - What does a typical day look like, and what can be achieved with additional support? - Is the support imperative, or merely beneficial (for example, house cleaning)? - Is the evidence self-reported, or subject to formal observation and assessment? - An assessment of which impairments meet the Substantially Reduced Functional Capacity (SRFC) threshold is important. Not all impairments may meet SRFC (but often impairments may interact and cumulatively meet the SRFC threshold). A case manager should familiarise themselves with the definition of each domain. It is not uncommon for a person with mobility concerns to describe SRFC in the domain of social interaction, because they are not able to physically attend to social functions. The domain of social interaction speaks to the ability to form and maintain social interactions and not the ability to socialise in the community. In this example, the reduced function in socialising is related to the domain of mobility. Section 24(1)(d) will generally be met, unless there is clear evidence that the prospective participant has full time employment and a broad social network. It is unlikely that a matter before the ART will turn on the questions raised by section 24(1)(d). Section 24(1)(e) – which requires that that the person is likely to require lifelong support – cannot be met unless sections 24(1)(b) and (c) are also met. Section 24(1)(e) also requires consideration as to whether the support needed is an NDIS support. If a permanent impairment is evidenced as per 24 (1) (b), a case manager should consider section 25 requirements. |
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| NDIA posture in relation to Section 25 Early | Section 25(1)(a) will be met where there is evidence that a prospective participant has one or more impairments which are likely to be permanent. | Section 29 of the National Disability Insurance Scheme Act 2013 |
Case Management Guide: Access to the NDIS
| Field | Category | Reference Documents |
|---|---|---|
| Assessment Requirements | An impairment can be intellectual, cognitive, neurological, sensory, or physical. Or a permanent psychosocial disability attributable to a permanent impairment or is a child who has developmental delay When considering the likely permanence of an impairment, it is necessary to assess the availability and suitability of evidence-based treatment options. - An impairment is only likely to be permanent where there are no other known, available and appropriate treatment options likely to remedy the impairment (rule 6.4) - even if the impact of the impairment may fluctuate, or improve over time (rule 6.5). - Further, some impairments require medical treatment and review before a determination can be made as to whether they are likely to be permanent (rule 6.6). - Degenerative impairments are also likely to be permanent if treatment options are, or are unlikely to, improve the impairment (rule 6.7). A statement that an impairment is likely to be permanent is insufficient to meet the threshold for this criteria. Case Managers should seek specific and detailed evidence concerning the engagement in treatments, the outcomes achieved and any anticipated outcomes from future treatment to assist in determining whether there are available and appropriate treatments that are likely to remedy the impairment. Where necessary, Case Managers should seek technical advice from the Technical Advisory and Practice Improvement Branch (TAPIB). Note: Non-compliance with treatment (such as not taking medication) is fairly common among prospective participants with psychosocial impairment. This alone is generally an insufficient basis upon which to conclude that treatment options are inappropriate or unavailable. |
Rule 6 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 List B: Conditions that are likely to result in a permanent impairment |
Case Management Guide: Access to the NDIS
| Field | Category | Reference Documents |
|---|---|---|
| Section 25(1)(b) will be met where there is evidence that the provision of early intervention supports is likely to reduce the need for future supports. Early in the impairment trajectory (Early Intervention does not necessitate being in close proximity to the diagnosis). Evidence supporting a likely reduction in future support needs. In line with literature and clinical consensus supporting the likely benefit of this. Section 25(1)(c) will be met where there is evidence that the provision of early intervention supports will benefit the prospective participant by: - mitigating the impact of their impairment on their functional capacity; or - improve or prevent the deterioration of their functional capacity; or - strengthen the sustainability of informal supports available to the person Section 25(3) will be met where the early intervention support needed is most appropriately funded or provided the NDIS, and not through any other system of service delivery or support 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. |
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| Evidence recommended to inform NDIA position in a matter before the ART | To consider a prospective participant’s eligibility to access the Scheme, the NDIA requires recent evidence from a relevant health care professional which confirms a prospective participant’s disability, its impacts on their functional capacity, previous treatments, and outcomes, as well as future treatment options and expected outcomes. Case Managers are to be aware that while the while they are preferred tools to describe severity, some of the tools are subjective measures and corroboration |
Providing evidence of your disability Types of disability evidence |
Case Management Guide: Access to the NDIS
| Field | Category | Reference Documents |
|---|---|---|
| with objective measurements and/or functional assessment or observations would be preferred to assess SRFC. It is important that the professional giving evidence is the most appropriate person to provide that evidence, and that they have treated the prospective participant for a significant period of time. When considering permanency, a medical specialist may be best placed to comment. When considering functional capacity, an allied health professional may be more appropriate. |
redacted: s47F - Personal privacy |
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| Other considerations | There is not a blanket ‘yes’ or ‘no’ response to the question of whether individuals with chronic health conditions should be permitted access to the Scheme. For disability supports to be consider the evidence needs to support that there is an associated disability attributable to permanent impairments from the chronic health conditions. It is mandatory to seek TAPIB advice, where the condition being considered for access is related to a chronic health condition. |
redacted: s47F - Personal privacyDo you meet the disability requirements? |
| Previous matters that may inform the NDIA position | The availability and suitability of other treatment options is wholly dependent on a prospective participant’s individual circumstances. An impairment is only likely to be permanent where there are no other known, available and appropriate treatment options likely to remedy the impairment (rules 5.4 and 6.4). Relevantly, the Federal Court clarified that a treatment option is: - known, if it can be identified by an Australian medical practitioner as a potential treatment for a particular impairment; and - appropriate, if it has the capacity to remedy the impairment, and it would be suitable for a particular prospective participant; and available, if it is available and accessible to a particular prospective participant (accounting for |
NDIA v Davis [2022] FCA 1002 |
Case Management Guide: Access to the NDIS
| Field | Category | Reference Documents |
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| potential personal, financial and geographical limitations). When considering whether a prospective participant’s functional capacity is substantially reduced, a decision-maker is required to make a ‘functional, practical assessment of what a person can and cannot do’. ‘Undertaking a task… differently to others will not necessarily mean a person cannot participate effectively or completely in an activity’. |
NDIA v Foster [2023] FCAFC 11 |
| Document Control | Responsible Person | Date |
|---|---|---|
| Document author | Continuous Improvement | October 2024 |
| Document approver | Director, Continuous Improvement | 28 October 2024 |