Submission to inquiry into National Disability Insurance Scheme costs

Submission to inquiry into National Disability Insurance Scheme costs

Tuesday, 1 August 2017

In our submission to the Productivity Commission’s inquiry into National Disability Insurance Scheme (NDIS) costs, we agree with preliminary findings that not all participants are benefiting from the scheme.

Executive Director Civil Justice Dan Nicholson said: ‘We have long said that people with a disability, their families and carers should not be forced to bear a financial burden because of the way the National Disability Insurance Agency (NDIA) makes funding decisions.

‘Many are not receiving full funding for supports deemed “reasonable and necessary” under the scheme,’ Mr Nicholson said. ‘This is eroding the very reason it was established.’

Our submission focuses on ‘reasonable and necessary’ supports that help a person’s ability to achieve independence and meaningful participation in the community.

It draws from our recent experience in the case of McGarrigle v National Disability Insurance Agency [2017] FCA 308.

‘In that case we argued that legislation governing the NDIS does not allow for supports to be only partially funded,’ Mr Nicholson said.

‘We also argued that because this legislation already has sufficient checks and balances in place, it is not necessary for the NDIA to impose additional tests when it decides to fund supports.’

The NDIA must comply with the National Disability Insurance Scheme Act 2013 in making funding decisions.

Summary of our recommendations

We say in our submission that:

  • there is no need for the NDIA to impose additional tests when it decides to fund supports that are determined to be reasonable and necessary
  • the legislation provides sufficient direction about what is reasonable and necessary
  • any amendments to legislation around the test for ‘reasonable and necessary’ must be clear about how it will be applied, and enable each participant’s individual needs to be considered
  • people with a disability and their families should not be forced to bear the financial burden of costs incurred by engaging with their NDIS plans
  • the NDIA should provide clear guidance on the application of the ‘reasonable and necessary’ supports criteria in cases of psychosocial disability, and reflect the principles of independence and dignity embodied in the Convention on the Rights of Persons with Disabilities and other legislation
  • people with a mental health condition can find it difficult to access the NDIS because it is an ‘opt-in’ scheme. Tailored information and support to better facilitate access should be properly costed out and provided
  • clients with psychosocial disability present with unique experiences and challenges that are distinct from other disability types. Clear guidelines, policies or rules should be developed to provide certainty, and reflect the episodic nature of psychosocial disability
  • where the NDIS cannot fund a health-related support, participants with a mental health condition should be given guidance to help them obtain alternative supports.   

 Liam McGarrigle with his mother, Michelle.
Liam McGarrigle with his mother, Michelle.

About Liam McGarrigle – case example

When we first represented Liam McGarrigle he was twenty-one years old. Liam has autism spectrum disorder and an intellectual disability. He lives with his family in the small town of Moriac, 25 kilometres from Geelong.

He needs to use taxis because he can’t drive, and there is no public transport available. In effect, this meant that his family was being asked to pay $4000 each year for Liam to be able to go to work and to participate in a disability training and social group.

Liam had sought funding only for the transport costs incurred by using his NDIS support plan. He and his family pay for all other transport costs, including the costs of attending medical appointments and going about his daily life.

The NDIA refused to cover the full cost of Liam’s transport costs, however, saying that this was not ‘reasonable and necessary’ under the scheme.     

This argument was overturned by the Federal Court in March 2017. It ruled that laws governing the NDIS do not allow the government to only partially fund supports that are found to be ‘reasonable and necessary.’

The decision means that the NDIA must fully fund ‘reasonable and necessary’ supports like transport to work or service placements set out in a person’s individual support plan.

The Federal Court decision has been appealed by the NDIA and will be heard on 21 August.

Read our submission

Read our Submission to the Productivity Commission on National Disability Insurance Scheme costs (docx, 100.22 KB)

Also read other submissions we have made on access to justice for people with mental illness and disability

How we can help

See Your appeal rights under the National Disability Insurance Scheme.