Provider Tips

NDIS access denied: even without the reforms, things are getting tougher for NDIS applicants

David Kinnane · 5 June 2025 · Leave a Comment

The big picture:

A recent Administrative Review Tribunal (Tribunal) decision in Sydney suggests that it’s getting harder for applicants to meet the disability access criteria to become an NDIS participant.

Context:

To get access to the NDIS, applicants must meet a number of disability-related tests under section 24 of the NDIS Act. Among other things, they must prove:

they have a disability attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments, or one or more impairments to which a psychosocial disability is attributable;
the impairment(s)are likely to be permanent; and
the impairment(s) result in substantially reduced functional capacity to undertake one or more of the following activities: (i) communication; (ii) social interaction (iii) learning; (iv) mobility; (v) self-care; (vi) self-management (the “six activity areas”).

Case in Point:

In a decision published on 26 May 2025, the Tribunal took a close look at the meaning of “substantially reduced functional capacity” in each of the six activity areas.
There was no doubt that the applicant lived (and lives) with a permanent disability arising from impairments that reduce her capacity to perform life activities.
But the Tribunal decided the applicant’s impairments did not result in substantially reduced functional capacity in any of the six activity areas. This means the applicant did not qualify for access.

Zoom in:

The Tribunal’s decision was striking for a number of reasons. The Tribunal decided that:

Rule 5.8 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2013* deems some applicants to have met the “substantially reduced functional capacity” test – but it is not exhaustive. If the applicant isn’t deemed to satisfy the test by Rule 5.8, the Tribunal must make the decision based on statutory interpretation;
NDIS disability access requirements should be interpreted and applied in conformity with the World Health Organisation (WHO) International Classification of Functioning, Disability, and Health (the ICF);
the WHO Disability Assessment Schedule (WHODAS 2.0), a standardised method for measuring health and disability under the ICF, is a helpful analytical framework to give meaning of “substantially reduced function”;
“substantially” means more than “moderate”, and interpreted this to mean more than 50% reduced functional capacity to perform the activity;
“reduced” should be understood as being one or more of four ways specified as difficulty factors under the WHODAS 2.0, namely (i) increased effort; (ii) discomfort or pain; (iii) slowness; and (iv) changes in the way a person does the activity; and
an assessment of reduced capacity in one of the six activity areas:
- should ignore environmental factors that affect performance (rather the capacity), e.g. a lack of local transport options or other services;
- should not be measured against an earlier stage of life or someone who has prowess at the activity; but
- should be measured relative to a person who does not have the applicant’s impairments according to an objective standard of a level of basic function “consistent with day-to-day subsistence”.

Friction Points:

Perhaps most controversially, the Tribunal held that as a matter of statutory interpretation, domestic tasks such as laundry, domestic cleaning, gardening and maintenance, do not fall within any of the six activity areas. This is a marked departure from several previous Tribunal decisions, in which the decision-maker has concluded that such tasks fall within mobility, self-care and/or self-management activities. (The Tribunal decided that tasks within the self-management activity area are limited to cognitive tasks associated with personal organisation, planning, decision-making, self-care, problem solving and financial management.)

On the facts:

The Tribunal decided the applicant’s reduced functional capacity for communication, social interaction, learning, mobility, self-care, and self-management were not substantially reduced. As such, the applicant did not get access to the NDIS.

Yes, but:

Arguably, parts of the Tribunal’s statutory interpretation in this case do not sit easily with parts of the Federal Court’s 2023 decision in Foster. As noted, the Tribunal’s comments on domestic tasks are inconsistent with several previous Tribunal and AAT decisions. For applicants and the NDIA, it would be helpful if this decision were appealed, so that the Federal Court could clarify the law. (A Federal Court decision would bind the Tribunal.)

Reforms add to barriers:

This decision is based on the law as it stood before the reforms of October 2024. Since then, applicants also need to show they are likely to require NDIS Supports (as defined in section 10 of the NDIS Act, and transitional rules) under the scheme for the person’s lifetime.

Read the decision:

Burrows and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 607

Note:

* Rule 5.8 says: An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities – communication, social interaction, learning, mobility, self-care, self-management…- if its result is that:

(a) the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or

(b) the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or

(c) the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.

(Emphasis added.)

For the purposes of this Rule, the Tribunal held that adaptive techniques to record and remember information (e.g. notes and diaries) do not amount to “assistive technology” or “equipment” because “these are memory aides that might be used by anyone who does not have [an impairment].”

Every allied health care provider should have a well-designed incident management system

David Kinnane · 29 May 2025 · Leave a Comment

The big picture:

Registered NDIS providers are required by law to have detailed incident management systems. But all allied health providers – including unregistered NDIS providers – should have one.

Why:

A well-designed incident management system:

improves safety;
improves care processes and service quality;
changes the way clients, carers, families, management and workers think about risk;
raises awareness of good practice; and
helps providers identify, report, manage and learn from incidents.

Why else?

The NDIS Quality and Safeguards Commission says that:

it is good practice for unregistered-providers to have an incident management system; and
having incident management policies and procedures is a feature of quality practices providing support for children in the NDIS.

What to watch:

Future NDIS reforms may soon require unregistered allied health providers to implement incident management systems. It’s a good idea to prepare.

Best practices:

Incidents should be managed through a system that:

is transparent, open and fair to everyone;
promotes accountability;
is co-designed with clients, families and workers;
encourages timely action;
forms a key part of a wider risk-management system that promotes safety; and
helps key personnel and workers share lessons and learn from incidents.

Key phases:

Identification
Immediate action to reduce risk and harm
Notification and reporting
Initial assessment and prioritisation
Analysis, investigation and classification
Action, including implementation of recommendations and plan
Feedback to people affected
System-wide learning and sharing

Go deeper:

Incident management guide | Australian Commission on Safety and Quality in Health Care

Practical Tool:

If you’re not sure where to start – or want to improve your system – check out our updated Incident Management and Reportable Incidents System Policy and Procedures Template.

INcident management and reportable incidents system policy and procedures template

Small allied health NDIS providers: should we all be registered?

David Kinnane · 3 April 2025 · Leave a Comment

It depends on what you mean by “registration”.

The debate:

Large disability providers continue to lobby for universal mandatory provider registration, arguing it will enhance participant safety and the quality of supports, create an even playing field, and increase regulator oversight of the 90%+ of providers who are currently unregistered.

Leading disability advocates and some smaller providers argue universal provider registration would be a huge mistake because it would reduce participant choice and control, drive out small providers (reducing access), decrease competition for large providers, reduce incentives for innovation, and do nothing of itself to increase service quality or participant safety.

So who’s right when it comes to small allied health NDIS providers? And is there a middle path?

Context:

Under current rules, registration isn’t required for most of the work allied health providers perform to support self-managed and plan-managed NDIS participants (who make up over 90% of all participants). Among other things, unregistered allied health providers can’t support NDIA-managed participants or use regulated restrictive practices.

Why not register?

Getting and staying registered is too expensive and time-consuming for many small allied health providers – especially for providers who also work with other clients outside the disability sector (e.g. in health or education).

Many NDIS registration obligations duplicate existing professional and health regulations, requiring registered allied health providers to develop systems to comply with two sets of overlapping rules.

Unregistered ≠ unregulated:

Most evidence-based allied health professionals in Australia are regulated either by AHPRA, or by self-regulatory bodies and state statutory codes of conduct that impose similar requirements, including rules about professional ethics, standards of practice, scope of practice, mandatory declarations, complaints, certification, continuous professional development, and professional indemnity insurance. All providers – including unregistered providers – must abide by the NDIS Code of Conduct.

Deemed registration proposal:

In August 2024, the government released the advice of the NDIS Provider and Worker Registration Taskforce. The task force acknowledged the arguments of disability advocates and proposed that, to avoid duplicate accreditation and registration requirements:

AHPRA-registered allied health professionals have their existing registration recognised for NDIS registration purposes; and
consideration be given to the appropriateness of extending this recognition to allied health professionals who are self-regulated by rules that mirror AHPRA’s requirements (e.g. speech pathologists).

Avoiding false binaries:

Everyone wants participants to be safe and to receive high quality supports. But, as recent history makes clear, NDIS registration does not guarantee safety or quality.

Regardless of registration status, providers can – and should – look for practical ways to work with participants to improve the quality and safety of their services, including with robust worker screening processes and complaints and incidents management systems.

Bottom line:

Mandatory registration of allied health providers under existing rules would be likely to reduce participant choice and control because it would drive many small allied health providers out of the sector.
Recognising allied health providers’ existing health registrations/self-regulations as NDIS registration appears to be a sensible, risk-weighted approach. But we don’t yet know whether the government – now, or after the election – agrees or will agree with the task force’s recommendations.
Whatever happens, allied health NDIS providers must, in partnership with the NDIS participants they serve, continue to:
- assert their value in increasing participant choice and control; and
- work to improve the quality and safety of their supports.

Get ready:

NDIS Incident Management and Reportable Incidents System Policy and Procedures

NDIS Complaints Management and Resolution System Policy Document and Complaint and Feedback Form

Go deeper:

NDIS participants want safety and quality…but they also want choice. Article by Dr George Taleporos in The Australian (paywalled). 27 March 2025.

NDIS Provider and Worker Registration Taskforce Advice

Allied Health NDIS Providers: Keep your eye on the ball in 2025!

Election-mode engaged: allied health NDIS providers must keep an eye on federal health, education and disability policy priorities to support people with disability – and to anticipate service-delivery changes

Allied health NDIS providers must face facts, and make painful – but necessary – changes to survive

Allied health NDIS providers must face facts, and make painful – but necessary – changes to survive

David Kinnane · 18 March 2025 · Leave a Comment

Drova has released its NDIS Provider Outlook report for 2025. The report looks at the sector as a whole. But it contains several sobering facts and helpful ideas for allied health NDIS providers looking to clarify their strategic priorities:

By the numbers:

More than half of providers operated at a loss in 2023-24.
Cash reserves are down 17%, and asset sales are up.
More than 80% of provider revenue is consumed by staffing costs.
More than 75% of providers think system navigation is taking time away from service provision.
80% of staff report reform-fatigue.
More than 20% of providers are considering amalgamating with another provider or exiting the sector altogether.

Cynical times:

The Government continues to lean heavily into the “dodgy providers” narrative to justify reforms.
Economic sustainability of the scheme dominates media coverage, rather than participant choice and control, and quality of life.
Some providers and participants question the government’s sincerity on reform consultations and the co-design of services.
Governments haven’t agreed on the funding for Foundational Supports but the NDIA (with the benefit of new laws) continues to revoke and deny access to the scheme to people with disability and delay.

Tough times:

Key challenges for providers:

Ongoing financial viability.
Maintaining service quality for participants.
Regulatory and compliance uncertainties and burdens.
Recruiting, retaining, training, and managing staff.
Market consolidation (increased competition from larger providers and difficulties scaling profitably with limited resources to build systems).
Increased digital transition and cybersecurity risks.

Strategic priorities:

Rebuild financial sustainability: Conduct service profitability audits. Reduce waste. Diversify revenue streams. Focus on cash flows.
Improve participant safety and outcomes with better services: Better frameworks to track functional outcomes. Better participant feedback systems.
Improve staff engagement and retention: Better leadership. Reducing busywork/workloads. Better training. Better supervision and mentorship. Clearer career pathways. Safer workplaces.
Improve operational efficiencies and effectiveness: Better dashboards. Focused offerings (phasing out of unprofitable services). Streamlined workflows. Fewer non-staff overheads. Better financial, operations and compliance systems. More automation. More AI and other digital tools for planning, and reporting.
Strengthen compliance and governance: Better training. Standardised incident and complaints reporting. Systems to make your compliance a competitive advantage. More automation.
Scale “the right way”: Efficiency before size. Don’t add complexity without careful financial and risk modelling. Partnerships and collaborations are lower risk ways to expand compared to mergers.
Learn from the best: Map your business against high performing providers. More collaboration across provider types. Participate in industry groups for stronger advocacy, e.g. around funding reforms.

Bottom line:

As allied health NDIS providers, we help people with disabilities live better lives. But to support people well, we need to survive the reforms financially and build sustainable, well-managed, innovative and reputable businesses that attract talented people to work (and stay) with us and deliver high quality and safe services to clients (including participants). The Drova report includes many good ideas and suggestions to think through all this complexity, and is well worth a read.

Drova. (2025) NDIS Provider Outlook Report 2025

(Any errors of interpretation are, as always, my own.)

When it comes to revoking participants’ NDIS access, the NDIA is not getting everything its own way

David Kinnane · 6 February 2025 · Leave a Comment

The big picture:

In the wake of 2024 reforms, thousands of now-former NDIS participants have lost access to the Scheme. Anecdotally, the NDIA’s revocation decisions continue apace in early 2025. But the NDIA has not gone unchallenged.

Why it matters:

With so many people affected, it’s easy to get lost in abstractions quoted in government press releases, like “aggregate savings”. Too easily, we forget that each decision by the NDIA to revoke an individual’s access affects a real person with disability and/or medical conditions – and also has knock-on effects for mainstream and other systems and services (and thus taxpayers).

Zoom in:

If the NDIA decides to revoke an individual’s access to the Scheme, the individual loses all NDIS Act benefits entirely. This is serious, and the individual has legal rights of review. They can seek an internal (NDIA) review of the decision, and they can seek a review by the Administrative Review Tribunal (ART) under section 103 of the NDIS Act. Not everyone is in a financial or health position to take on the NDIA. But some do, including some participants with the help of community legal services, like the Villamanta Disability Rights Legal Service.

Case in point:

In Stephan-Miller and NDIA [2025] ARTA 43, General Member Bubutievski granted a conditional stay on the NDIA’s decision to revoke a participant’s access, stating:

“The NDIS Act is beneficial legislation which is intended to confer a benefit on the [participant] if she is qualified to receive such a benefit. Removal of such benefits in their entirety is a matter to be approached with good procedure and solid evidence. The manner in which the [NDIA] has approached revocation in this case is troubling. The impact of the loss of services on a vulnerable person with a disability or medical conditions is serious and has a much greater impact on their health and quality of life than the continued provision of those services on an interim basis to a single individual would have on the [NDIA].” (Our emphasis.)

Context:

In this case, the applicant has been a participant in the scheme since 2019 and has a number of disabilities, medical conditions and functional impairments. General Member Bubutievski found that the participant was “at risk from the sudden and complete cessation of supports”, and granted a six-month stay on the NDIA’s decision to revoke access pending an independent functional assessment and resolution of the review. In the meantime, this order allows the applicant to continue to be a participant and to expend plan funds in accordance with the NDIS Act.

What we’re watching:

Although the participant succeeded in obtaining a conditional stay on the NDIA’s decision about her access, there’s no guarantee she will succeed with her main application. The NDIA contended that the applicant was not qualified to be a participant but, as General Member Bubutievski observed, “that is far from clear”, and “the matter does have a prospect of success”. If the applicant does win, her access to the Scheme will be restored.

Stephan-Miller and National Disability Insurance Agency (Practice and procedure) [2025] ARTA 43 (14 January 2025)