Frequently asked questions about legislation

DOCUMENT 8

Frequently asked questions about legislation

On this page:

• New
• General
• Transition, future changes and co-design
• NDIS supports (s10)
• Funding amounts, components, periods (s33)
• Eligibility reassessments (s30)
• Foundational supports
• Access (s21)
• Notice of Impairments (s32BA)
• Support needs assessment (s32L)
• Plan management decisions (s44)
• Right to appeal decisions
• Providers

We regularly update our FAQs to ensure they provide the most accurate and up-to-date information

New

New FAQs

New FAQ’s relating to funding periods are located below in the following sections:

• Providers
• General

General

What will change on 3 October?

For existing participants, key changes include:

The introduction of a definition of NDIS supports. These are:

supports that can be funded by the NDIS and stated by the NDIS rules to be NDIS supports.

A replacement rule enabling participants to request a substitute or replacement support that is not an NDIS support (in individual circumstances).

Plans approved after the law comes into effect will have:

• total funding amounts
• funding component amounts
• funding periods.

This clarifies the amount of funds available in the plan and how long the funds need to last.

The NDIA can consider changing a plan management type in specific circumstances;

For example, where someone needs support to manage and spend their funds within the funding amount.

Other changes will happen when new NDIS Rules are made. This includes:

• the creation of new participant pathways
• the new planning framework
• support needs assessment
• budget model and flexible budgets.

What won’t be changing on October 3?

We want to reassure participants that for most, there won’t be major changes to the way they experience the NDIS right now.

What is not changing is the purpose of the NDIS.

The NDIS will continue to provide participants with disability-related supports.

What is the purpose of the new legislation?

The new legislation aims to:

• Create the scaffolding needed to progress key NDIS Review recommendations in partnership with people with disability and the disability community.
• Clarify the intention of existing legislation

How will the new legislation affect NDIS participants?

Participants may see changes in:

• how their eligibility is assessed
• the supports that can be funded by the NDIS
• how their plans are managed
• how their funding is allocated and needs to be spent
• requirements for information gathering for eligibility reassessment.

What are NDIS Rules?

The NDIS Rules sit under the NDIS Act and provide details about how the NDIS operates.

States and territories are involved in the approval process for NDIS Rules.

Legislative instruments may be made by the Minister for the NDIS after consulting with affected stakeholders.

Many of the changes to the NDIS will be implemented through new NDIS Rules.

The new NDIS Rules will outline how people can access the NDIS, what assessments are needed, and how budgets will work.

Rules will be developed with people with disability, their families and carers and the disability sector.

What is a transitional rule?

A transitional rule is a rule that the Minister for the NDIS can make within the first 12 months of the legislation being passed, ahead of final rules being agreed with states and territories.

When will the changes take effect?

The new NDIS laws come into effect on 3 October 2024.

Some changes will happen as soon as the laws come into effect. These changes are about returning the NDIS to its original intent.

Other changes will happen later, when new NDIS Rules are made. This includes the creation of new participant pathways and the new planning framework — support needs assessment, budget model and flexible budget.

Will there be consultation on these changes?

The changes were subject to consultation and consideration by the disability community, disability representative and carer organisations, the NDIS Independent Advisory Council, states and territories and the Community Affairs Legislation Committee.

There will continue to be opportunities for consultation to shape how these changes are implemented. Those directly impacted by key decisions about the Scheme will continue to play a key role in developing the detail and in implementing the reforms.

What is the new planning framework?

The new planning framework guides how the NDIS will operate. It explains how people can access the NDIS, how their needs are assessed, and how flexible budgets are created.

Because of changes to the legislation, plans will be built differently in future. This means there will be 2 kinds of NDIS plans.

If your plan was developed through the current planning approach, this will be called an old framework plan.

If your plan is developed using the new assessment model, this will be a new framework plan.

English is not my first language. Will there be translated information about the NDIS legislation?

The NDIA is committed to ensuring all communications on legislative changes are accessible to everyone.

Key information will be translated into 17 languages, including Auslan, to reach as many people as possible.

The NDIA is working with the wider community to test and produce materials in a range of accessible formats including:

• Easy Read
• Auslan
• Braille.

Transition, future changes and co-design

What specific steps is the NDIA taking to ensure a smooth transition?

We are fully committed to ensuring we reach every person — including those who may live in more rural and remote areas or have unique accessibility or language needs.

The NDIA has begun an extensive communications campaign designed to ensure our more than 660,000 participants, as well as their supporters, know what they need to about changes to the NDIS Act.

The NDIA will continue to be clear on what is changing and when, so participants and their supporters can be assured that future changes will be supported with transparency and communication.

How will the NDIA work with the disability community to ensure that the needs and concerns of participants are addressed throughout the implementation of these changes?

It is essential people with disability continue to have a voice in how the detailed design is done and how the changes are implemented.

The NDIA has been delivering reform in partnership with people with disability and the disability community over the past 2 years.

This includes key partnerships with the Disability Representative and Carer Organisations and the Independent Advisory Council.

Throughout July and August this year, the Agency’s Co-design Branch delivered 56 activities, including consultation on the legislative changes to come into effect on 3 October 2024.

We have learnt a lot from these activities and continue to improve the way we work together with the disability community.

In June 2024, the NDIA and disability organisations from across Australia shared a commitment to work together on reforms to the Scheme.

Working in partnership with the disability community remains the cornerstone of all future change as we move forward.

Changes will be supported with transparency and communication. FOI 24/25-2384

What if there is a case for a support to get on the list? What do we do?

A NDIS Evidence Advisory Committee (EAC) will be established to provide independent and transparent advice to Government on what works for participants.

The Committee will provide advice on the evidence base for therapeutic supports accessed through the NDIS, improving outcomes and ensuring better value for participants.

This will ensure the supports funded under the Scheme are beneficial, safe, evidence based and cost effective.

The work of the Committee will be an important input into the development of the final NDIS Support Rule which will be developed with the disability community and States and Territories.

What will be co-designed going forward?

New co-design working groups have started meeting and will be steering a range of co-design and engagement activities including future changes to the NDIS as a result of legislative change.

Key measures such as support needs assessments and budget models will be subject to ongoing co-design.

We will keep looking for new ways for people to have a voice and shape the work we do together.

NDIS supports (s10)

What is and is not a NDIS support?

From October 3 2024, the Government has released the lists of what NDIS participants can and cannot spend their funding on.

The lists include items that are NDIS supports and items that are not NDIS supports.

Participants who need specific items for their disability will still be able to access those items through these lists.

These lists are based on existing guidance, so in most cases there is unlikely to be any change to the supports a person is currently using.

There will be a transition period for the first year of the new NDIS supports lists to give participants time to learn and understand.

If you’re unsure, there are a few things you can do:

• read the NDIS Supports list on the Our Guidelines website.
• we’ll also be sending a link to all participants
• speak to your Local Area Coordinator, Early Childhood Partner or Support Coordinator
• if you’re still unsure, call us on 1800 800 110.

How long will I get to change my supports after the legislation change?

From 3 October 2024 you must use your funding to purchase services, items and equipment that can be funded by the NDIS.

We will work with you to help you understand the new rules and access supports that are NDIS supports.

What if I am delivering supports/ accessing supports that are now on the non NDIS support list?

The Government has released definitions of NDIS supports making it clear what NDIS funds can and cannot be used for. These definitions are based on existing guidance.

Lists of specific items that are allowable NDIS supports and those that are not allowed are on the NDIS website.

If a support is included on the list showing what is not an NDIS Support - it is not allowed to be funded from NDIS plans from 3 October 2024.

There is a transitional rule allowing participants to continue to access supports that are not NDIS supports if they were specifically identified as reasonable and necessary before 3 October 2024, for the duration of their existing plan.

This also includes situations where the Administrative Appeals Tribunal has decided that the support should be funded as a reasonable and necessary support.

This rule does not apply to sexual services, alcohol or drugs. These supports are specified in the primary Act as non-NDIS supports.

NDIS participants will continue to receive the disability-related supports they need. However, the NDIS was not designed to pay for the cost of everyday expenses.

Find more information on the supports lists.

How can I provide feedback or raise concerns about the changes to my support?

You can contact your local area coordinator, early childhood partner or support coordinator.

You can also contact us.

It is likely that many participants will accidentally or unknowingly use their funding on something not classified as an NDIS support. What will happen to them, will there be a transition period to help people to adjust to the changes?

We know it will take time for people to learn about and understand the new NDIS support lists and we’ve heard participants’ concerns about what may happen if someone accidentally buys something which is not an NDIS support.

That’s why there will be a transition period for the first year (12 months) to help people to understand the new NDIS Supports lists.

We will work with participants who make mistakes to make sure that they understand the NDIS supports lists.

What if I make a mistake and accidentally purchase a support that’s on the ‘out’ list?

A person who makes a mistake and claims an item which is not an NDIS support will not have a debt raised for first or second mistakes made in claiming where the support is worth less than $1,500.

This means the NDIA must contact participants twice to explain what is and is not an NDIS support before any debt of less than $1,500 is raised against them.

This rule applies to all participants (including participants who self-manage their funding), nominees and child-representative for a 12-month period commencing from 3 October 2024.

For NDIS providers, it applies for 30 days.

This does not apply if a participant purchases illegal items with funding from their plans.

If incorrect claims are repeated or fraudulent, we may take further action.

Firmer actions can include raising a debt or moving the participant onto an Agency-managed plan.

What happens with purchases over $1500?

In the situation where the cost is above $1500 the transitional rule does not apply, and a debt will be raised.

However, it is important to note that any debts related to purchases for $1,500 or more for non-NDIS supports can be written off or waived under the existing provisions of the NDIS Act.

This includes waiver under section 195, which has been updated to allow a debt to be waived in ‘special circumstances’ if the participant unintentionally or unknowingly breaches the Act, regulations, or rules.

It also allows consideration of the participant’s disability as part of a holistic assessment of whether special circumstances exist.

If a debt arises for payments made for non-NDIS supports, it will only be recovered when it is appropriate to do so in line with the Commonwealth policy on debt recovery.

The NDIA will keep using a structured process for debt management, focusing on compliance and audit activities on repeated or intentional non-compliance.

We’ll always consider the individual circumstances, with education and support being the first consideration, particularly during the transition period.

This isn’t about trying to catch people out — we know participants want to do the right thing.

NDIA ‘Safety Net’ for debt

The NDIA has put in place a process that means if the Agency was ever to pursue a debt against a participant (in relation to section 10) — the NDIA CEO would need to sign off this decision first.

This safety net is in place to ensure that raising any debt (in relation to section 10) against a participant would be an absolute last resort and such a decision would never be automated, rather it would not proceed without thoughtful consideration at the most senior level of the Agency.

Purchases or provision of supports prior to 3 October 2024

Please note that the new requirement to spend NDIS amounts only on NDIS supports does not apply to any support with a service or purchase date before 3 October.

If people have made a purchase or booking for an item that is not an NDIS support before this date, they can make a claim for any cancellation fee.

This does not apply if a participant purchases illegal items with funding from their plans.

What if evidence from my treating professional states I need a support on the ‘out’ list?

If you think an item that isn’t a NDIS support is better for you, you can ask to substitute that support.

Only some supports can be replaced.

You can only spend your funding on a substitution if we have agreed in writing that you can buy this support.

There are a few criteria that must be met before we can approve this.

The Rules say which types of supports can be replaced.

The substituted support must also:

• replace one or more supports that are NDIS supports
• be the same price or cheaper than the NDIS support it is replacing, and
• be likely to provide the same or better outcomes than the NDIS supports it is replacing.

You can view the NDIS supports on Our Guidelines website.

What is a replacement support?

In some specific circumstances, we can fund supports that are not NDIS supports.

We call these replacement supports.

When we say replacement support, we mean the service, item or equipment you would like to use instead of the NDIS support or supports in your plan.

Only some supports can be replaced and only if we agree in writing can you buy this support.

A replacement support isn’t an extra support. It replaces an existing NDIS support or supports in your plan.

To find out what can be considered as a replacement support, see What does NDIS fund?

When would a replacement support be requested?

We know that every participant has their own unique needs, and in specific circumstances a participant might need to use their funding for a support that is not a NDIS support.

Participants can ask for a NDIS support to be replaced with certain non-NDIS supports. These are called replacement supports.

This will enable participants to request a replacement of their existing support with a support that is not a NDIS support.

This may occur in circumstances where a standard item might provide better outcomes and cost the same or less than a NDIS Support.

A replacement support may include household items, or very specific items that support a participant’s unique accessibility or communication needs.

Replacement supports must be from this pre-approved replacement supports list.

Applications can be made for the items specified below:

• Standard commercially available household items
• Smart watches
• Tablets
• smart phones
• apps for accessibility/communication purposes

For more information about replacement supports including how to apply for them, see see What does NDIS fund?

What’s the process for a replacement support?

To get a replacement support approved, the Agency needs to be satisfied the replacement support will provide the same or better outcomes and cost the same or less than another NDIS support that is already in the participant’s plan.

Participants must apply for and receive approval of a replacement support before purchasing the support.

It cannot be done after purchasing a non-NDIS support.

Participants can fill out an application for a replacement support on the NDIS website or provide the same information in an email or over the phone.

If your application for a replacement support for an item is not approved, you can’t apply for that same replacement support again for 12 months.

Replacement support example

The NDIS is not designed to fund items such as an iPad or Apple watch.

However, should a participant know that they are able to communicate with their loved ones or a worker by using an iPad — rather than a specialist and more costly piece of equipment — then they can request the Agency to fund this.

The NDIA will then consider this request and may well say ‘Yes, absolutely that makes sense — so we will fund that on this occasion’.

That’s a really clear example of replacing a more expensive item with a better, more cost-effective solution.

This just makes sense.

It’s important to note the list of replacement supports won’t apply for every participant.

The funding of a replacement support will only benefit some participants, who due to their unique circumstances, are clearly able to demonstrate that a specific item or support, will benefit them and provide a better, more cost-effective option.

Is there someone I can ask at the NDIA to check that I am doing the right thing?

You can contact your local area coordinator, early childhood partner or support coordinator to help you understand what supports you can buy.

You can also contact us.

How will the NDIA ensure this process is easy and accessible?

We are committed to ensuring that all communications about the Government changes are accessible to everyone.

That’s why we are working with the sector and our suppliers to test and produce materials in a range of accessible formats, including Easy Read documents, animations/videos and Auslan.

An important part of our website accessibility is that content can be easily accessed, including for those using screen readers.

We are working with the sector to develop and test messaging and agile approaches to producing accessible content.

Key information will be translated into 17 languages, including Auslan, to reach as many people as possible.

Why is the change to Section 10 of the NDIS Act 2013 necessary?

We have heard consistently, particularly from participants self-managing their supports, that it is not clear what they can spend their funding on.

Making it clear what the NDIS does, and does not, fund will help participants make more informed choices about what they can use their funds for.

The proposed amendments to Section 10 of the NDIS Act enable the creation of new rules (Category A) that outline what is and is not an NDIS support.

It’s going to take some time to make a Category A rule. We’ll work closely with the disability community and state and territory governments to understand what should and shouldn’t be included.

In the interim, the Minister may create a transitional NDIS Supports rule. This will be in place as soon as the instrument is created and will have effect until the new Category A NDIS supports rule is agreed.

Is Short Term Accommodation (STA) an NDIS support?

Yes, short term accommodation (STA) is included in the ‘supports that are NDIS supports’ list.

How does STA work?

STA is designed to help informal supports continue their caring role. It is one option that provides participants and their informal supports time apart.

STA allows participants to stay away from their homes and informal supports for a short time. It can be funded for up to 14 days at a time to a maximum of 28 days per calendar year.

STA funding can be used for assistance with self-care or community access and short-term accommodation. It cannot be used to pay for day-to-day living costs such as food and groceries, lifestyle costs or travel.

STA cannot be used to pay for items on the list of non-NDIS supports.

Providers offering STA in a centre or group residence may include meals and activities within the daily rate charged — in line with the NDIS Pricing Arrangements and Price Limits — however these cannot be included if the participant choses to use STA in an individual setting.

We know there are still some questions about what can be claimed under STA, particularly if you want to use a hotel or other accommodation options. A new operational guideline about STA will be available in early 2025 with more information.

We will keep you updated on any changes, and further information will be shared when it is available.

How is STA funded?

STA is funded in a participant’s core budget if it relates to their disability support needs, and where it is reasonable and necessary.

It does not need to be stated in a participant’s plan.

Participants can access STA as part of the ‘assistance with daily life tasks in a group or shared living arrangement’ category on the NDIS supports list.

The NDIS funds standard rates for STA, which are available in the NDIS Pricing Arrangements and Price Limits.

Generally funding for STA is for a group price, unless there is evidence that a participant needs individual support.

STA cannot be used to pay for items on the list of non-NDIS supports.

Does STA cover the cost of transport?

Participants cannot use STA funding to pay for transport to the accommodation funded through STA.

If a participant wants to access STA supports far away from their usual home, the cost of the travel is a day-to-day living cost they are expected to pay for separately. Participants should consider this when choosing an STA option that is right for them. Some participants may have funding for transport to an activity or other support already in their plan. If a participant usually needs transport support because of their disability, their provider may include the cost of transport from the accommodation to activities they provide.

Can STA be used for holidays?

No. STA is not for holidays or tourist travel. It is designed to provide participants and their informal supports time apart.

STA cannot be used to pay for items on the list of non-NDIS supports.

NDIS funding can’t be used to pay for:

• cruises, holiday packages, holiday accommodation and airfares, passports, visas, or travel and vehicle insurance
• accommodation or travel expenses for family members or support workers
• theme parks, music, theatre, cinema, sporting events, and conferences
• day-to-day living costs such as food or meals. In some cases, your provider may include meals as part of your STA in a centre or group setting. The NDIS funds standard rates for STA, so you may need to negotiate these costs with your provider. Once you have used your STA funding, you can’t ask us for more. You can find the rates in the NDIS Pricing Arrangements and Price Limits.

If a participant requires support while on holiday, they can continue to use their usual non-STA supports from their NDIS plan.

Participants should speak with their support coordinator, local area coordinator, early childhood partner or planner if they are going on a holiday and need their NDIS supports delivered in another location.

Is STA available for participants in Supported Independent Living or living alone?

No. This is because if a participant is living alone or in a supported independent living arrangement, they already have time apart from family and informal supports.

What are the impacts on individualised living options (ILO) in relation to rent and rental subsidies?

An ILO arrangement should be delivered in line with the ILO guideline. ILO is a package of supports to help a participant live in their chosen home environment in a way that best suits them. It does not fund the home itself.

An ILO includes an agreed ILO service proposal and is overseen by a provider. An ILO does not include a participant’s rent or mortgage payments, or everyday costs like food, electricity or internet bills.

If participants are living with people who offer them support throughout their day or week, and who have ILO funding in their plan and an ILO arrangement in place, the changes to Section 10 in the Amended NDIS Act (NDIS supports) will not impact payments for these supports. The supports provided must be in line with the participant’s ILO service proposal and the ILO Operational Guidelines and Section 10 requirements for NDIS supports.

The new NDIS transitional rules covering these supports align with existing ILO policy. They aim to ensure participants are not using their NDIS funding to pay for their rental costs and are using their NDIS funding to purchase NDIS supports under an agreed ILO arrangement.

Participants, their families and supporters interested in considering ILO arrangements should contact the NDIS or a local area coordinator for more information.

A new policy on ILO will be developed through co-design and released mid 2025.

Is animal therapy an NDIS support?

Animal-assisted therapy can be an NDIS support - therapeutic support

Animal-assisted therapy is not the same as ‘animal therapy’. Animal-assisted therapists may use an animal to play a role in a goal-directed, structured intervention which will assist the therapist and the participant to engage in therapy.

Animals can be used as therapy tools, just like a board game, Lego, or a swing could also be used as a tool in a therapy session.

For example, a psychologist or counsellor may use an animal in therapy sessions to assist a participant to calm, focus or regulate whilst the counselling/psychology session is undertaken.

An occupational therapist may use an animal in therapy sessions to assist a participant to participate in an activity such as walking, standing, balancing etc. In these interventions, the animal may be used by the therapist to help the client meet specific goals but the therapy is delivered to the participant by the allied health professional, with the animal used to support participation.

Animal therapy is not an NDIS support.

Activities which are provided for people to have a positive experience with an animal such as engaging with puppies or riding a horse might be called ‘animal therapy’ by the provider of the service.

Recreational, sporting or social activities involving animals could also be called animal therapy.

These activities are not animal-assisted therapeutic interventions and are not NDIS Supports, even if the provider of the service is an allied health professional.

What about supports to participate in social and recreational opportunities that include animals?

The NDIA and NDIS acknowledges that NDIS participants may engage in programs that include animals to provide sporting, social and recreational opportunities for people with disabilities, and capacity building support.

This may include for example, participation in horse riding.

If NDIS participants need extra help to participate in horse riding activities because of their disability, the extra help can be funded in their plan.

This extra help could be a support worker or assistive products that help the participant engage in the activity when it is happening.

Participants might also use their therapy supports budget to work with a therapist to build their skills to do the sporting, social or recreational activity more independently in the future.

NDIS participants will still need to pay for the general costs of their sporting, social or recreational activities as these are costs that everyone must pay for these kinds of activities.

For example, everyone who wants an activity delivered to them has to pay for that activity themselves whether or not they have a disability.

This is the same whether the activity includes an animal or not. Participants cannot use their NDIS funding to pay for the costs of other sporting, recreational or social activities like surfing lessons, basketball, art classes or gaming.

The bans on therapy supports like ‘gaming therapy’ or ‘yoga therapy’, does that include social group programs which include these strategies?

Noting also that most therapists utilise some type of games in therapy sessions as standard practice, as part of building various skills.