Last updated 25 February 2020
Once a person becomes a participant in the National Disability Insurance Scheme (NDIS), the person will be invited to meet with an National Disability Insurance Agency (NDIA) planner or local area coordinator for their first planning meeting. The planner or local area coordinator has a conversation with the participant about their living arrangements, activities and needs, and prepares a plan, which may be approved at the time of the planning meeting or, subsequently, by an authorised representative of the NDIA.
Each plan includes a statement of supports, normally in the form of a Table setting out each support that the NDIA has agreed to fund.
In order to approve funding for a support for a person with disability, the NDIA must be satisfied that the support is ‘reasonable and necessary’.
It is important for any newly accepted participant in the NDIS to prepare for their first planning meeting by considering the supports they want the NDIA to fund, and how they may satisfy the NDIA that the supports meet the ‘reasonable and necessary’ criteria. More information to help people prepare for their first planning meeting is available on the NDIS website.
Must supports relate to the impairment on which access to the NDIS was granted?
Once a person is a participant in the NDIS, it does not matter on what basis they gained access.
This means that if a person meets the access criteria in relation to one impairment, the supports they receive need not be limited to addressing the participant’s needs in relation to that one impairment. All impairments should be considered for the purposes of planning, and the supports that will be funded should be determined by assessment against the s 34 (National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act)) criteria and the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (Supports for Participants Rules). It is a separate decision-making process. See Mulligan v National Disability Insurance Agency  FCA 544 (3 June 2015), in which the Federal Court noted, at [151-152], that the threshold issue of access is distinct from the subsequent issue of funding of supports.
This fact is important for anyone who has been granted access to the NDIS and is preparing for their first planning meeting, as it is not uncommon for planners to look solely at a person’s ‘primary’ disability (on which they relied to gain access) when discussing the supports the person may be funded to receive. A failure by the NDIA to consider and include supports for secondary impairments may be grounds for requesting an internal review of the decision to approve a participant’s statement of supports (see How to Appeal a National Disability Insurance Agency Decision below).
What is reasonable and necessary?
The ‘reasonable and necessary’ criteria are listed in s 34 of the NDIS Act. To be reasonable and necessary, a support must:
- assist the person to pursue their goals, objectives and aspirations (s 34(1)(a))
- assist the person to undertake activities that facilitate the person’s social and economic participation (s 34(1)(b))
- represent value for money (s 34(1)(c))
- be, or likely to be, effective and beneficial for the participant, having regard to current good practice (s 34(1)(d))
- take into account what is reasonable to expect families, carers, informal networks and the community to provide (s 34(1)(e))
- be most appropriately funded through the NDIS, and not through another service system (such as the health system) (s 34(1)(f)).
A support will only be funded through the NDIS if the NDIA is satisfied that all the reasonable and necessary criteria are met.
The Supports for Participants Rules detail what the NDIA must consider when assessing whether a support meets the reasonable and necessary criteria and set out additional ‘general criteria for supports’ in rr 5.1–5.3 (Supports for Participants Rules), which exclude certain kinds of supports from being funded through the NDIS.
Most commonly, people have trouble satisfying the NDIA that their requested support represents value for money, that it is beyond what is reasonable to expect of their family/carers/ and/or community to provide, that the support is related to their disability, and/or that the support is most appropriately funded by the NDIA.
In all cases, the Supports for Participants Rules provide helpful guidance as to what evidence will likely be required to satisfy the NDIA that their requested support does in fact meet the legislative criteria.
What is value for money?
A support will represent value for money if, among other things, there are no comparable supports that would achieve the same outcome at a substantially lower cost (r 3.1 Supports for Participants Rules).
See Mazy and National Disability Insurance Agency  AATA 3099 (9 August 2018) in which the tribunal determined that nursing assistance for the administration of insulin to a participant with diabetes did represent value for money in circumstances where the participant was not able to self-administer insulin or use an insulin pump. The tribunal noted that ‘… it should not fall to the participant to fully explore alternative supports which may be less expensive … If the Agency claims that there are alternative supports which are preferable to those sought by the Applicant, it is incumbent on the Agency to assist the Tribunal by providing evidence to support its argument …’ .
See also PPFQ and National Disability Insurance Agency  AATA 1092 (31 May 2019) in which the tribunal accepted evidence to approve funding for more expensive, but equally more beneficial hearing aids for the participant, rather than the lesser expensive standard issue hearing aids the NDIA suggested were sufficient.
What is reasonable to expect of families, carers and other supports?
Families with people with a disability do a lot to support their loved ones. But what is reasonable and what is beyond reasonable? Rule 3.4 of the Supports for Participants Rules provides what factors the NDIA must consider in answering this question, including whether a child’s needs are substantially greater because of the child’s disability, the extent of any risks to the wellbeing of the participant arising from their reliance on their family/carers/others (informal supports), and the intensity and type of support required and whether it is age and gender appropriate for the family member or carer to be providing that support.
While the NDIA expects families to provide support to their loved ones with a disability, it is clear there are limits. See JQJT and National Disability Insurance Agency  AATA 478 (6 July 2016) in which the tribunal determined that while parents are expected to meet a child’s transport needs, it was not reasonable to expect parents of a child with complex and high-level needs to drive their child to and from their weekend community access support, because ‘… without the inclusion of transport in his plan, transporting JQJT to community access support increases the burden on them, reduces the benefit of respite during those hours, and poses a risk to their wellbeing …’ .
See also PNFK and National Disability Insurance Agency  AATA 692 (28 March 2018) in which the tribunal considered the need for respite support for parents with a high-needs child, work commitments and other children. The tribunal noted it was up to families to provide basic care for children but determined in accordance with r 7.11 of the Supports for Participants Rules that it was ‘… necessary to provide further hours of respite care for PNFK to enable the family, and especially the other three children to have time with their parents … This added respite care will assist the parents to continue to care for PNFK in her own home …’ .
What supports are attributable to participant’s disability support needs?
Generally, day-to-day living costs will not be funded through the NDIS, unless the day-to-day living costs are incurred as a direct result of a participant’s disability needs (e.g. an i-pad may be required as a communication aid) and/or the costs are ancillary to another support that is funded through a participant’s NDIS plan (e.g. additional insurance premiums that are payable for a modified vehicle) (r 5.2 Supports for Participants Rules).
Just because many people may own certain equipment or undertake certain activities does not mean the associated costs are day-to-day living costs. Such costs are discretionary for people who do not have a disability, but it may be established, with reference to relevant evidence, that these costs are necessary for a person with a disability.
See Milburn and National Disability Insurance Agency  AATA 4928 (20 December 2018) in which the tribunal approved funding for a gym membership and personal trainer fees for a participant with arthritis and fibromyalgia, and McKenzie and National Disability Insurance Agency  AATA 3275 (5 September 2019) in which the tribunal approved funding for ducted air-conditioning for a participant with multiple sclerosis living in Central Queensland.
Schedule 1 of the Supports for Participants Rules sets out the considerations the NDIA must make in determining whether a support is most appropriately funded by the NDIA and not by another service system. The schedule considers the intersection of responsibility for funding in the areas of health (rr 7.4–7.7), early childhood development (rr 7.8–7.10), child protection and family support (rr 7.11–7.12), education (rr 7.13–7.16), employment (rr 7.17–7.18), housing and infrastructure (rr 7.19–7.20), transport (rr 7.21–7.22) and justice (rr 7.23–7.25).
The intersection of funding responsibility between the NDIS and other service systems can cause problems for many participants who fall, or are at risk of falling, through a gap between two or more service systems. Guidance as to which service system may be responsible for funding a particular support can be found within the Council of Australian Governments principles guide, and subsequent communiques and factsheets published by the COAG Disability Reform Council (see the disability-related health supports factsheet).
In Burchell and National Disability Insurance Agency  AATA 1256 (4 June 2019), the intersection between the health system and the NDIS was considered. This was a critical decision in which the tribunal analysed the wording of s 34(1)(f), which requires the NDIA to be satisfied that a support is most appropriately funded through the NDIS and not more appropriately funded or provided through other systems of service delivery or support services offered by a person, agency or body.
It was determined that if a support is not made available by another service system, it cannot be more appropriately funded by that service system. The tribunal concluded that as the health system did not offer (or make available) thickened fluids to Mr Burchell, which he required as a result of an impairment associated with his cerebral palsy, the thickened fluids could not be said to be more appropriately funded by the health system.
See also the case of LNMT and National Disability Insurance Agency  AATA 431 (6 March 2018), which considered the intersection of funding responsibility between the child protection service system and the NDIS.