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NDIS regulatory changes are coming: allied health providers should stick together to advocate for participant choice and control

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For allied health NDIS providers, significant regulatory changes are coming:

Uncertainty abounds. We don’t know what the new rules will look like. We don’t know how they will apply to allied health providers.  

At the same time, we’re grappling with pricing limits, worker shortages, inflation, and other business risks. It’s no surprise that many of us complain about upcoming regulatory changes in terms of mandatory registration, increased compliance costs, and more red tape. 

The danger of all this negative talk about costs and risks is that it sounds defensive and even self-indulgent. But, when it comes to regulation, allied health providers have an overwhelmingly positive story to tell and an important role to play in advocating against changes that could reduce NDIS participant choice and control in the real world. 

Allied health professionals are already well-regulated. Most allied health providers work hard to deliver evidence-based supports to participants, and to improve their service quality in response to participant feedback. Like participants, we want the NDIS to work. We want the NDIS to deliver for participants.

What do we want?

We want participants to have more choice and control over the supports they purchase and the providers they work with. We want the NDIS to be safer for participants. We want the NDIS to be sustainable. We want the NDIS to be cost-effective for participants and taxpayers. We want to stamp out abuse, fraud and other criminal, unethical and bad behaviours. We want more innovation, competition, and investment to increase productivity, service quality, value for money, and options for participants.

What do we not want?

We don’t want to return to the bad old days of pre-NDIS block funding with no participant choice or control. We don’t want market failure caused by a lack of providers. We don’t want anti-competitive behaviours or markets dominated by a few big providers. We don’t want more thin markets or market failures. We don’t want to drive quality providers out of business with increased compliance costs that are disproportionate to the risks or the size of their activities.  

We’re arguing with each other about the wrong things, based on wrong assumptions

In the wider provider sector, too much time and energy is expended arguing about the pros and cons of registered versus unregistered NDIS providers, and their eligibility to deliver different support types to participants. Generalisations infect the debate on both sides. 

Despite the work of the NDIS Provider and Worker Registration Taskforce to allay concerns, some providers assume that mandatory registration will mean the imposition of expensive quality compliance processes and external audits on all providers. Some assume that participants want to work only with registered providers; or that unregistered providers are unregulated cowboys and girls; or that the services of registered providers are guaranteed to be safer and of higher quality than the services of unregistered providers. All these assumptions are false.

Key points we need to communicate better to participants, the Government, and taxpayers 

  • Allied health providers are a diverse bunch. Some of us are big, multidisciplinary, multisite practices, and some of us are part-time sole traders offering mobile services. Some of us are 100% disability-focused, while others provide services to participants and people without disabilities. Some of us work in clinics, while others work in participants’ homes, in schools, workplaces, and a whole range of community and other settings.  
  • Allied health professionals are already well-regulated. For example:
    • Practising physiotherapists, occupational therapists and psychologists are regulated by the Australian Health Practitioner Regulation Agency (AHPRA) in partnership with each profession’s National Board and are subject to AHPRA standards.
    • Certified practising speech pathologists, dietitians, exercise and sports science practitioners, and audiologists are regulated by their professional peak bodies who, themselves, are members of the National Alliance of Self Regulating Health Practitioners (NASRHP), and therefore subject to NASRHP standards closely modelled on AHPRA standards.
    • All these allied health professionals are subject to standards on scope (areas) of practice, codes of ethics/practice and/or professional conduct, complaints procedures, competency standards, course accreditation, continuing professional development, English language requirements, mandatory declarations, professional indemnity insurance, practitioner certification and recency and resumption of practice requirements. 
  • All allied health providers delivering NDIS-funded services are regulated by the NDIS Quality and Safeguards Commission to some degree:
    • Some allied health providers are registered with the NDIS Quality and Safeguards Commission, including some of the larger providers, and providers who provide behavioural supports and/or use (high risk) restrictive practices. Among other things, registration involves providers implementing quality compliance processes to meet NDIS Practice standards and undertaking regular external audits. (In practice, it is time consuming and expensive for providers to get and maintain registration.)
    • Some allied health providers are not registered with the NDIS Quality and Safeguards Commission, including many sole traders, other small providers, and providers who offer their services to both NDIS participants and other clients, and/or service mixes that include disability specific services and other services. These providers are often referred to as “unregistered providers”. However, they are subject to the NDIS Code of Conduct and can be fined and banned by the regulator. 
  • Many participants prefer to work with (generally smaller) unregistered allied health providers or a mix of providers. For example, Professor Helen Dickinson and her colleagues found that many of their interviewed participants spent funds on allied health services and that, “while many allied health providers and therapists are not NDIS registered, these providers typically hold registration or accreditation with their appropriate professional bodies…[and] that NDIS registration would not provide any additional level of safety or quality”.

Best world outcomes

If things go well, we’ll end up with: 

  • a proportionate and graduated regulatory system that takes into account the diversity of allied health provider businesses and services and their existing regulatory frameworks;
  • clear rules that don’t conflict with or duplicate existing rules;
  • a minimum of red tape so we can focus our limited time and resources on service delivery to participants and improving quality;
  • clear communication of the rules to everyone affected;
  • external monitoring of compliance with rules;
  • enforcement when noncompliance is identified; 
  • proper adjudication of disputes about regulator decisions;
  • sanctions for non-compliance; and
  • continuous evaluation and adjustment of the regulatory system as things change. 

Final thoughts

For many allied health providers, the real debate is not about mandatory registration, but about what ‘registration’ will actually mean under the new rules for different allied health providers. To make decisions about the future of our businesses and disability services, we need to know how much it will cost to comply with new rules, how long it will take to obtain registration (whatever that means for a given provider), and how much time (and how many management and worker resources) will be needed to maintain it. An important open question is whether, under the new system, price limit controls will extend to services purchased by self-managed participants. 

The devil will be found in the details. If the government gets this wrong, we’ll see an exodus of allied health providers from the sector, reducing participant choice and control over who they work with for their supports.  

Allied health providers should engage with participants to ensure this doesn’t happen.

Breaking (potentially good) news update

As so often happens, immediately after publishing this article, the NDIS Provider and Worker Registration Taskforce published its Advice. While this will take some time to read through in detail, a quick read of the registration recommendations looks promising for allied health providers:

  • For AHPRA-registered allied health professionals (such as physiotherapists and occupational therapists), the Taskforce has recommended that the registration by AHPRA be recognised as registration for the purposes of NDIS where this can be achieved. (This recommendation is in relation to registration only and does not apply to worker screening.)
  • For self-regulated allied health professions whose peak bodies are members of NASRHP (such as speech pathologists and dietitians), the Taskforce has recommended “consideration be given to the appropriateness of extending a recognition of those registration schemes to self-regulating allied health professionals, noting that any such assessment would need to consider the requirements of the self-regulated environment and other relevant matters”. Again, this recommendation is in relation to registration only and does not apply to worker screening.

If this advice is accepted, it has the potential to considerably reduce the regulatory burden associated with reporting to two regulators (e.g. the NDIS Commission and AHPRA/peak bodies) and to streamline the process for practitioners. As the Taskforce notes, “it would remove the main barrier to registration which has been raised with the Taskforce by allied health practitioners who are currently not registered NDIS providers”.

But, of course, a lot will depend on specifics, and the Government’s response to the recommendations.

Blood from a stone: What allied health NDIS providers can do to improve their lot

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Allied health providers in the NDIS space are struggling. Some are reducing or ceasing work with NDIS participants; and others are shutting down. Stress across the sector is palpable.

Costs increase, but NDIS price limits remain frozen. Governments tell us to do more with less, but the head of our Productivity Commission appears to think that it will always be difficult to increase our productivity because we are labour intensive, and that we’re a drag on Australia’s overall economic growth. In the press, and on social media, ethical providers continue to be lumped together with providers alleged to have ripped off participants and/or underpaid workers. 

It’s grim. 

I’m a realist. Like Joseph Tussman, I think that everything in life is easier to navigate if you identify how the world really works and then align with those realities. Fair or not, the pricing decision is a reality. Inflation is a reality. Anti-provider sentiment from influential voices in government and the media is a reality. Ongoing uncertainties about NDIS sustainability, regulation, and reforms are realities, and will remain that way for some time yet.   

So what can we do to keep going? 

There is no magic bullet. But, to get some perspective and ideas from outside the industry, I’ve been reading research and white papers. This week, Working Future: The Australian Government’s White Paper on Jobs and Opportunities, caught my eye. 

I learned some useful things:

  • Economy-wide productivity growth is slowing: Since the mid-2000s, productivity growth has slowed in Australia. Australian businesses – especially in the services sector – have been slower to adopt new technologies and processes than businesses overseas. This is a big challenge if we want to maintain wages and living standards. 
  • Our sector is growing: Our sector – the care and support economy – is expected to grow by 22% by 2033. The sector includes the work of child carers, child care centre managers, early childhood educators, education aides, welfare support workers, personal care workers, nursing support, diversional therapists, enrolled and mothercraft nurses, Indigenous health workers, social professionals, registered nurses, nutritional professionals, occupational therapists, physiotherapists, podiatrists, audiologists, speech pathologists, nurse managers, and health and welfare service managers.
  • We employ a lot of people: The healthcare and social assistance economy is the fastest growing part of the labour market. We represent about 10% of Australia’s workforce, and this growth is expected to continue.  
  • Our sector needs to improve its employment practices: Across the care sector, staff turnover is too high, probably due to a range of factors including uneven service quality, pay (including gendered undervaluation of work in female-dominated industries where women make up 76.5% of the workforce), work conditions in some settings, relatively high rates of casual employees (28%), too many workers working multiple jobs, and unclear career progression opportunities. 
  • Our sector needs to improve its training practices: Healthcare and social assistance have the highest prevalence of workplace training in the economy, probably because ongoing training is required as part of occupational accreditation. However, time and financial constraints are barriers to quality training for both providers and workers. Some providers are ambivalent about investing in staff skills and training because of high worker turnover. (This is short-sighted, to say the least.)
  • Our workers have other options: Within the sector, different providers demand similar skills and compete for the same workers. But different sub-sectors (e.g, childcare, health, the NDIS, aged care, veterans’ care) are accessed, funded and regulated differently. If one sub-sector becomes dysfunctional or uneconomic, many of our workers have other options – in and outside the sector. So, too, do many providers.

Clear-eyed choices 

If we accept these realities – and we must – providers have three main options:

  1. Shut down NDIS activities altogether and do something more (economically) productive – whether in the sector or elsewhere. (This would not be a good outcome for NDIS participants, especially in rural and remote areas.) 
  2. Reduce NDIS work and work more with other client groups not subject to price controls to offset the losses made on NDIS-funded work.
  3. Stay focused on NDIS-funded work and become more productive to re-establish margins and stay in business. 

If we choose options 2 or 3, we need to raise our productivity. But, given all the constraints, how?

Ideas

In the White Paper, the Government makes a number of suggestions for employers to ‘reignite’ productivity, including that we:

  • increase our management capabilities (currently relatively limited on average, compared to US firms, for example);
  • adopt “innovative work practices…better models of care and support and best practice processes and techniques”;
  • invest more in people and technology to change our models of care and to increase our clients’ choice and control and access to support, including in regional areas with thin markets (e.g. through telehealth);
  • improve our mixes of staff, qualifications and skills;
  • make more efficient use of existing resources by allowing staff to deliver multidisciplinary care;
  • train workers to use robots, automation tech and/or AI to allow workers to focus on higher value activities (e.g., problem-solving, interpersonal and non-routine tasks), and to access and process information, complete mod-level professional writing tasks, make decisions, and undertake admin tasks more efficiently; and
  • accept that ‘firm exits’ (i.e. businesses shutting down) are something that is necessary and perhaps (from the Government’s perspective) desirable to free up workers and capital to move to more productive businesses. 

Many of these suggestions lack specificity. Almost all require investment and additional risk-taking, which is hard to stomach in the current economic environment.

It’s clear from the White Paper that the Federal Government knows that it’s always been difficult to achieve productivity gains in our sector. If we want to improve provider productivity across the system, we need the Government to step up, too, to revisit policy settings on training, occupational licensing, skilled migration, and ‘knowledge translation’ collaborations between businesses, universities and government institutions. We need regulatory certainty (something sorely lacking at present) and harmonisation across sectors and States to resolve inconsistent rules, reduce red tape and admin busy work, and remove barriers to worker mobility (e.g. by consolidating worker screening regimes). 

The NDIS and the care and support sector as a whole are complex adaptive systems. They are made up of individuals who have freedom to act in ways that are not always totally predictable. The actions of governments, regulators, providers, workers and NDIS participants are interconnected: one group’s actions can change the system for everyone else, potentially in unexpected ways.

Bottom line

Ethical providers need to do something if we want to continue to provide high level care to NDIS participants while investing in our workers and staying in business. 

We need all the good ideas we can get.

Further reading:

Working Future: The Australian Government’s White Paper on Jobs and Opportunities | Treasury.gov.au

How will allied health NDIS providers survive? Some difficult choices ahead

Therapy Support Providers: Frozen pricing limits and shorter notice cancellation rules. What was the NDIA thinking?

How will allied health NDIS providers survive? Some difficult choices ahead

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If you are a private allied health business owner who works with NDIS participants – you should take a look at the Deloitte Access Economics report about NDIS price limits for therapy supports and the Ability Roundtable 2023-24 Annual Price Review Submission about Therapy Supports.  

Both are harrowing reads for occupational therapists, speech pathologists, physiotherapists, social workers, and other allied health businesses. They suggest that most of the bigger, NDIS-registered allied health therapy businesses operate at – or below – break-even point against NDIS price limits. For the 2024-25 financial year, the Ability Roundtable has projected a median loss (net margin) of -14.2% for larger registered providers of therapy supports.  

For registered and unregistered NDIS providers, the real costs of providing therapy supports to participants are often underestimated, including by many allied health business owners. Costs include:

  1. staff base wages and salary oncosts (e.g. annual leave, personal leave, public holiday leave, long service leave, and parental leave, superannuation, workers compensation insurance); 
  2. costs of supervision, training, professional development, and accreditation;
  3. non-billable (but necessary) activity costs, like non-billable client, travel and cancellation time;
  4. service delivery overheads, including occupancy costs (e.g. rent and electricity), motor vehicle fleet costs, specialised equipment, IT costs (e.g. laptops and software), and client consumables;
  5. non-service level staff costs (e.g. team leader and corporate governance costs);
  6. corporate overheads, e.g., IT, finance, human resources and recruitment, insurance, administration, marketing, quality control, and audit and legal expenses; and
  7. NDIS and other compliance costs. 

From Deloitte’s report, it appears that many of the bigger registered allied health businesses have a major structural business problem: high (and rising) fixed costs, a limited capacity to reduce variable costs without affecting service quality or access, a limited ability to increase staff productivity without increased turnover, and of course no room to move on prices. 

The Government’s decision to freeze NDIS therapy prices for another year increases financial pressures on allied health providers. To stay in business, allied health providers must (at least) break even. But we face several difficult choices and tradeoffs as we try to get there:

  1. We can’t lower wages without losing staff to higher paying opportunities, e.g. in the public sector.
  2. We can’t reduce new graduate and early career hiring and support without affecting the future of our professions (onboarding new graduates and building their caseloads requires significant investment and time, which affects average utilisation rates).
  3. We can’t ask frontline staff to see more clients without increasing staff burnout and turnover.
  4. We can’t cut corners on supervision, education and training without reducing the skills of our workforce and the quality of our therapy services.
  5. We can’t recalibrate staffing levels to match fluctuating client demand patterns (e.g. during school holiday periods) without reducing full-time employees and switching to casuals and contractors and reducing continuity of service to some participants.
  6. We can’t reduce investments in corporate governance controls without increasing business and client risks, including to safety.
  7. We can’t narrow our scope of services (e.g., switching to lower-cost supports or private client work outside the NDIS) without reducing NDIS participant access to our services.

For ethical reasons, many of these options and trade-offs are unacceptable for reputable allied health providers.

In the bleak business environment depicted in the Deloitte and the Ability Roundtable reports, it would be logical for:

  1. more registered NDIS allied health providers to deregister, continuing the trend described in the NDIA’s latest Annual Pricing Review;
  2. some allied health providers to downsize and to cut investments to reduce costs; 
  3. some allied health providers to cease working with participants with complex (higher cost) needs and to reduce (higher cost) in-community services to reduce losses; and 
  4. some allied health providers to pivot their businesses to focus on non-NDIS clients to reduce their exposure to NDIS price controls.

Unless allied health NDIS providers find new ways to increase productivity and to re-establish sustainable margins, we may end up with fewer registered allied health providers, fewer larger allied health employers, uneven levels of supervision, training and support for staff across the professions, and fewer options for some NDIS participants to access quality therapy supports. 

NDIS Providers: 5 basic things to know about the NDIS (Getting the NDIS Back on Track No. 1) Bill 2024

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With today’s news, we don’t yet know the final form of the NDIS (Getting the NDIS Back on Track No.1) Bill 2024 or when it will be passed into law.

But, despite the uncertainty and lack of detail on many key points, NDIS providers (including unregistered providers) need to understand some basic concepts to prepare for the big changes ahead:

  • Providers should expect increased regulation, oversight, and enforcement action. The NDIS Quality and Safeguards Commission and the NDIS Commissioner will have expanded powers.
  • NDIS access rules will be clarified so that participants know whether they meet the disability requirements, the early intervention requirements, or both.
  • NDIS pathways will change. The NDIS will work differently for participants accessing early intervention supports compared with participants receiving disability supports for lifelong disabilities. (Future reforms will create a new early intervention pathway.)
  • Significant changes to NDIS supports, assessments, reports, and budgets:
    • “NDIS Supports” will replace “reasonable and necessary supports”, narrowing supports that will be funded by the NDIS.  
    • “Needs-based assessments” will replace diagnoses-based assessments, and produce “needs assessment reports”. 
    • The needs assessment report requirements will be developed in consultation with people with a disability, health and allied health technical professionals and governments. 
    • The “reasonable and necessary budget” will be determined by the needs assessment report and replace line-by-line “reasonable and necessary supports”.  
    • Reasonable and necessary budgets will be composed of “stated supports” (fixed budgets for things like assistive technology and supported independent living), “flexible funding” (e.g. for health or rehabilitations services), or both.
  • Provider boards and senior management must understand their NDIS compliance obligations and work with participants and others to improve their governance and leadership practices to enhance safety, quality, accountability, and responses to risk.

With thanks to the presenters at the Legalwise Seminars’ NDIS Law Intensive on 20 June 2024.

Do I need a diagnosis to get access to the NDIS?

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We get asked this question a lot.

From a legal perspective, the answer is “no”. 

The Federal Court of Australia – most recently in an important case called National Disability Insurance Agency v Davis [2022] FCA 102 (the Davis case) – has been very clear:

  • The NDIS Act does not focus on the name of a person’s disability, nor the diagnosis given to a person. 
  • The NDIS Act is not concerned with what caused a person’s disability. 

Instead, the NDIS Act requires the National Disability Insurance Agency (NDIA) to look at impairments experienced by a person that may require ‘supports’ so that the person can participate in personal and community life. Anyone who meets the access criteria in the NDIS Act can be a participant – regardless of diagnosis, and regardless of whether their disability came about by birth, disease, injury or accident.

So why is everyone so focused on labels and diagnoses? 

An important question. To answer it, we’ll look, first, at early intervention; and then NDIS access, generally.

1. NDIS access for children under 7 years of age

In a previous article, we looked in detail at some practical issues facing families when trying to access early intervention supports funded by the NDIS. As a matter of law, it’s clear that you don’t need a formal diagnosis for your young child to access supports from the NDIS, a fact acknowledged by the NDIA.

However:

  • In clinical practice, we’ve observed that families who can afford to pay for formal assessments confirming certain types of diagnoses seem to have a much easier time accessing support from the NDIS than others. More specifically, the system seems to favour:
    • families who live in big cities with access to health professionals;
    • educated parents/carers who understand ‘the system’, can advocate for a diagnosis when interacting with health professionals;
    • wealthy parents/carers who can afford to pay one or more private medical professionals to write formal reports and/or who have the resources to challenge NDIA decisions (e.g. before the Administrative Appeals Tribunal or Federal Court of Australia); and 
    • people who speak English as their first language. 

This has contributed to what some commentators call a ‘two-tier access system’. It’s fundamentally unfair. The NDIA and the responsible Minister are both aware of the problem and are trying to fix it. But it’s the reality right now. 

Good intentions, weird incentives, and unfair outcomes 

The NDIS guidelines and lists were no doubt intended to save families of children with significant, lifetime disabilities from having to jump through administrative hoops to qualify for clearly-warranted help. But, in practice, the lists have had unintended consequences. Inconsistently with the purpose of the NDIS Act:

  • many families, planners, providers, and stakeholders focus their time, money, and energy on medical assessments and diagnoses instead of on the functional needs and participation of children with developmental delays and disabilities;
  • the system creates a strong incentive for families to seek specific diagnoses of conditions that result in easier or automatic access to the NDIS, even if this involves some ‘diagnosis shopping’; and
  • some children who meet the legal requirements to become NDIS participants miss out on support because of bad advice and mistaken beliefs that they don’t have the ‘right’ diagnosis or label and are therefore ineligible.

Anecdotally, we’ve heard reports of some parents consulting up to five paediatricians to obtain a diagnosis of Level 2 or Level 3 autism for their child. This type of behaviour:

  • is not an option available to most families for financial reasons;
  • is a terrible waste of limited healthcare system resources in a system beset with long waitlists for paediatricians and other health professionals; and 
  • only makes sense in the context of the preferential access to NDIS funding that comes with the diagnosis.

2. NDIS access for children aged 7 years or older, teenagers, young adults, and adults

A. ‘Does my diagnosis qualify for NDIS access?’ is the wrong question

The idea that diagnosis should determine access to the NDIS is misguided. It’s legally incorrect. But it continues to dominate mainstream and social media commentary on the NDIS.

NDIS Guidelines have contributed to the confusion. The NDIA’s list of conditions that it deems likely to meet the disability requirements for access to the NDIS includes moderate, severe and profound intellectual disability, and Level 2 and Level 3 autism. Of course, most people with these conditions and/or the other conditions on the list should be entitled to NDIS support. But it’s understandable that people with other diagnoses and conditions would like to be added to ‘the list’.

Recently, we’ve seen a public debate about whether adults with ADHD should be able to access the NDIS. We’ve also seen well-intentioned disability and other advocates fighting for people with ‘their diagnosis’ to be ‘granted access’ to the NDIS, including advocates for adults with language disorders. Again, this is understandable in the current system – especially given that intellectual disability, autism, ADHD and language disorders are all subtypes of neurodevelopmental disorders (NDDs) that are known to have negative effects on people’s participation and functioning. It seems arbitrary to include some NDDs and not others – particularly in cases where they lead to similar functional impairments. 

The diagnosis debate is understandable, but harmful to the NDIS and people with disabilities. All the ‘noise’ about diagnosis-based access feeds into the unhelpful narrative about NDIS cost ‘blowouts’ and ‘unsustainability’. It obscures the great news about how transformative the NDIS is for many participants. It confuses potential participants, providers and taxpayers about who is entitled to access the NDIS, and why.

To counter some of this noise and confusion, let’s take look at the legal tests for access: 

B. NDIS access basics – the three requirements

To become an NDIS participant as a person aged 7 years or older, you need to meet the “access criteria” set out in the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act).

Section 21 of the NDIS Act sets out the main rules. There are three kinds of requirements for access to the NDIS:

  • Age requirements. You need to be under 65 years of age when you make an access request to become a participant (see section 22); and
  • Residence requirements. You need to:
    • reside in Australia; AND 
    • be an Australian citizen, a holder of a permanent visa, OR a protected special category visa holder (section 23); and 
  • Disability requirements. These are set out in section 24, which is sometimes referred to as the “threshold provision”.

C. Disability requirements: commonly disputed issues

Often, the main issue for potential participants is whether they meet the disability requirements. 

The disability requirements are complicated, cumulative, and include a number of separate requirements that must be met before a person can become an NDIS participant (participant). You can read them in full here.

Common issues in disputes between the NDIA and applicants include whether the person:

  • has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory, or physical impairments;
  • has impairments that are likely to be “permanent”;
  • has impairments that result in “substantially reduced functional capacity” to undertake one or more of the six activities set out in section 24(1)(c) of the Act, namely:
    • communication;
    • social interaction;
    • learning;
    • mobility;
    • self-care; and/or
    • self-management; 
  • has impairments that affect the person’s capacity for social or economic participation; and
  • is likely to require support from the NDIS for the person’s lifetime.

D. What do the Courts say about access to the NDIS? 

In the Davis case, Justice Debra Mortimer considered the disability requirements in detail*. She made several important observations and comments about the disability requirements and NDIS access, generally. These comments are helpful for understanding who should get access to the NDIS, and why. 

Our key takeaways, paraphrased from Davis, are as follows:

  • The NDIS is focused on assisting people with disability to live with dignity, with as much autonomy as possible, and with the ability to enjoy access to community and social engagement commensurate with people who do not live with disabilities. 
  • The NDIS is not means tested. Access doesn’t depend on how much money you or your family have (or don’t have).
  • Not everyone with a disability gets access to the NDIS.
    • The scheme is directed at providing lifelong support to people with enduring needs.
    • Access to the NDIS is reserved for a subcategory of people with disabilities and is determined by the access criteria. 
    • There are many people with disabilities who will not qualify as participants of the NDIS. This was a conscious policy decision, not an accident.
  • The intention of the NDIS is that, once a person meets the access requirements, the person will (generally) remain supported through their lifetime.
  • The link between “disability” and “impairment” is not explained in the NDIS Act. The disability requirements revolve around the severity and permanency of the effects of impairments experienced by a person to justify the funding of “reasonable and necessary supports” (as later assessed under the NDIS Act).
  • The concept of “impairment” enables the assessment of:
    • the severity and permanency of the person’s condition, and
    • the effects of that condition through:
      • evidence of the person; and
      • medical and clinical evidence.
  • The assessment of the severity and permanency of the person’s condition and its effects should focus on the effects of impairments on a person’s functioning. The assessment must be functional, practical and detailed. The assessment must be focused on what a person can and cannot do.
  • In clinical practice and litigation, people sometimes use the terms “impairment”, “disability”, “condition” and “diagnosis” interchangeably. But, for the purposes of the disability requirements, these terms are not synonyms. For example:
    • the focus of the disability requirements is whether a person has one or more impairments, and whether those impairments are permanent (i.e. enduring); and
    • whether a person’s disability is attributable to those impairments.
  • The NDIS Act does not focus on the name of a person’s disability, nor the diagnosis given to a person. Instead, the Act focuses on identifying the impairments experienced by a person that may require supports so that the person can participate in all aspects of personal and community life. 

5.4 An impairment is, or is likely to be, permanent (see paragraph 5.l(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment. 

5.5 An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person’s functional capacity, including their psychosocial functioning, may improve. 

5.6 An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated). 

5.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition. 

  • The term “permanent”, for the purposes of the disability requirements, means the impairment or impairments are “enduring” or of an “enduring nature”. It does not mean “irreversible”. It does not mean “cannot be improved”, e.g. with therapy or medicine. The effects of a permanent impairment may fluctuate. 
  • In other words, the question for the NDIA is whether the impairment(s) experienced by the person has or have an enduring quality so as to require supports funded under the NDIS on an ongoing basis.
  • The rules about whether an impairment results in substantially reduced functional capacity of the person to undertake one or more of the relevant activities (communication, social interaction, learning, mobility, self-care and/or self-management) are set out in Rule 5.8: 

5.8 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.

Bottom line

Not everyone is entitled to access the NDIS. This is a feature of the scheme, not a bug. 

Access rules are essential for the NDIS to work fairly and as intended. But the rules and processes must be transparent, fair, and applied consistently.  

The current system includes incentives that are not aligned with the NDIS Act and its policy objectives, and lead to unfair outcomes. Access to the NDIS should not depend on where you live, your family’s cultural and language background or socioeconomic status, your ability to advocate for your rights, or your capacity to understand the rules and to navigate ‘the system’. 

Similarly, access should not depend on your diagnosis or label. Instead, access should be assessed by reference to whether you have a disability attributable to enduring impairments that substantially reduce your functional capacity, and capacity for social and economic participation. 

Fair access to the NDIS for people with disabilities is far too important an issue for us to get side-tracked on debates about medical diagnoses and labels. As Justice Mortimer noted in Davis, questions about access – and about the operation of the NDIS Act generally – should be approached with a reasonable degree of common sense, given the purpose of the NDIS, and the fact that its operations affect people, families and carers already facing great challenges in their daily lives. 

*Justice Mortimer was also the presiding judge in a very important earlier case called Mulligan v NDIA [2015] FCA 544 (Mulligan). Both Davis and Mulligan were appeals from the Administrative Appeals Tribunal (which hears disputes about NDIS access in the first instance).

Disclaimer: we have done our best to ensure that this article is correct as at the date of publication (30 November 2022). It may not reflect any changes to the NDIS Act, NDIS rules or guidelines after the date of publication. The article is intended to provide general information and is not legal advice. Formal legal or other advice should be sought for particular circumstances or for matters arising from this article.

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