Some key sources of NDIS law

The legal issues explained in this fact sheet are affected by different laws and policies. Some of the most important laws and legal ideas to understand are:

• The National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act) is the main law about the NDIS and how it runs. It includes rules about:
• Who can be an NDIS participant; and
• What supports can be funded in an NDIS plan;
• The National Disability Insurance Act (Supports for Participants) Rules 2013 (Cth) (the Supports Rules) give more detail about what supports participants can get, and what supports can and can’t be funded by the NDIS. The National Disability Insurance Act (Specialist Disability Accommodation) Rules 2020 (Cth) (the SDA Rules) includes rules about how Specialist Disability Accommodation (SDA) funding decisions must be made.
• The Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) is the main law about how the AAT works, what it can do, and the rules it must follow.
• “Operational Guidelines” are made by the NDIA to help its staff know what to do when they have to make decisions.

Decisions made by courts and the AAT in the past can become a kind of law called "precedent." This rule is like an example or guide to follow for future decisions. It is important to mention that past decisions are treated differently, depending on where the decision was made.

• Past decisions made by a court, like the Federal Court of Australia, are binding and have to be followed by the AAT.
• For example, this means that if a court decides how to interpret a part of the NDIS Act, the AAT must use that same interpretation in future cases.
• Past decisions made by the AAT are not binding, but can be persuasive for the AAT. 
• For example, this means that if the AAT has made a decision about how to interpret part of the NDIS Act, the AAT will pay attention to what the past AAT decision said in a later case. However, they might not follow the same decision and decide on its own interpretation. 

‘Reasonable and Necessary’ supports criteria

When someone asks for funding in their NDIS plan for a support, they must show that the support is “reasonable and necessary”. Section 34 of the NDIS Act says that it must meet six criterias to be considered reasonable and necessary.

A support must meet all six criteria to be funded. Otherwise, it cannot be funded by the NDIS (and the AAT cannot decide that it should be funded).

Help to pursue goals

Your NDIS plan has to include a statement about your goals and aspirations.

Every support funded in your NDIS plan has to help you “pursue” those goals and aspirations. If a support will not help to pursue your goals and aspirations, the NDIS cannot fund the support.

For every support you want funding for, you need to show how it will help you pursue your goals and aspirations.

Help to undertake activities for social and economic participation

A support must assist you to do activities that help you participate socially and/or economically (for example, help get employment or build relationships with family and friends).

For every support you want funding for, you need to show how it will help you to:

• undertake an activity or activities; and
• through doing the activity(ies), participate socially and/or economically.

Value for money

A support must be “value for money”. In other words, the benefits of the support need to be worth the amount the NDIS has to pay for it.

For every support you want funding for, you must show it will give enough benefits to justify the cost. This includes comparing the costs and benefits of the support to other supports that would do the same or similar things.

You could show a support you want is value for money by getting evidence that shows:

• if you get funding for the support you want, you will probably need less NDIS funding in the future;
• the support will have very important benefits for you;
• the support will have lots of types of different benefits for you;
• other similar supports are not as good as the support you want; and/or
• any people (including doctors or allied health professionals) recommend the support for you, have considered other options, and think the support you want is the best value option.

“Value for money” is considered often when it comes to funding decisions.

Effective and beneficial

A support must be likely to be “effective and beneficial”.

For every support you want funding for, you must show the support will be good for you, and that it has a good chance of working and making your life better. You could try and show this by:

• doing research about professionals or academics that recommend the support;
• getting reports or evidence from professionals who think the support would be helpful for you;
• getting stories from other people who are similar to you, and who have received good results from using the support.

It can be difficult to meet this requirement if:

• the support might be dangerous to you;
• there is not a lot of evidence to show that the support will work (for example, if it is a new or experimental therapy);
• professionals like allied health workers or doctors would not generally recommend the support.

Reasonable expectations of family and the community

A support must be something that is not ordinarily provided by your family or community. Decisions about this criterion must “[take] account of what it is reasonable to expect families, carers, informal networks and the community to provide”. For example, the NDIS would not normally pay for somebody to have a friendly conversation with you, because that is the type of support a person’s family or friends would be expected to give.

Rule 3.4 of the Supports Rules gives more guidance on this. It says that it might be considered differently for children (who normally get a lot of family support, mostly from their parents) and adults (who might have very different support networks based on their family situation and personal circumstances).

This requirement was put into the NDIS Act to make sure:

1. the NDIS does not have to pay for things that other people or organisations should provide to people with disability; and
2. people with disability aren’t neglected or abandoned by their family and friends so the NDIS will pay them more money.

For every support you want funding for, you need to show it isn’t just replacing help or supports that your family and/or the community should be expected to give you.

You could do this by showing the support you are asking for is not something that family, friends, or the community would normally provide for somebody, or by showing that your family, friends and the community are already providing you with a reasonable amount of this type of support and you still need more help. 

Most appropriate source of funding

A support must be “most appropriately funded or provided through the [NDIS]”, and not more appropriately funded by other systems or programs. In other words, the NDIS won’t pay for something if another kind of program (especially another government program) is the best way to provide the support.

For example, if you need surgery to fix a physical injury or illness, and Medicare can pay for that surgery, you will not usually be able to get funding for the surgery from the NDIS.

Rules 3.5-3.7 and Schedule 1 of the Supports Rules explain in more detail how this might apply to specific types of supports, such as supports that relate to health, education and development, employment, housing, transport and criminal justice.

The law about this requirement is complex, and the AAT has made decisions that interpret it in different ways. One key issue is figuring out what to do when the NDIA thinks a support should be provided by another service, but it isn’t currently being provided by that service. If the NDIA raises this requirement in your case, you might need to get legal advice from one of the organisations listed below at ‘Where can I get advice if I need help understanding my options?’.

Supports Rules

As well as providing some guidance on the six “reasonable and necessary” criteria, the Supports Rules also includes additional requirements you need to meet for the NDIS to fund supports. We talk about two of these below.

Related to disability

The Supports Rules say every support funded in an NDIS plan must be related to the participant’s disability.

For every support you want funding for, you need to explain and show how it relates to your disability.

The law about this requirement is complex. There have been lots of arguments about how to define the “disability” the support needs to relate to. If the NDIA raises this requirement in your case, you might need to get legal advice from one of the organisations listed below at ‘Where can I get advice if I need help understanding my options?’.

Day to day living costs

The Supports Rules say the NDIS cannot fund supports that are “day-to-day living costs”.

This means you cannot ask for funding for things that everybody needs to pay for, including people who don’t have a disability.

But you can ask for funding for living costs that are different because of your disability. For example, the NDIS can pay for specialist disability accommodation (SDA) because, although everybody needs to pay for housing, people who need SDA usually need specific housing that is different (and more expensive) to most homes available on the market.

SDA Rules

The SDA Rules only apply to funding for SDA. They operate in addition to the other rules and funding criteria.

To get funding for any kind of SDA, the SDA Rules say:

• you must have “very high support needs” OR an “extreme functional impairment”; and
• you must meet the “SDA needs criteria”.

If you meet these two criteria, the AAT still needs to decide three things:

• What type of SDA home you should be funded for, including:
• whether you should be funded to live in an apartment, a villa/townhouse, or a house; and
• whether you should be funded to live alone or with a certain number of other people;
• What category of SDA home you should be funded for (which generally relates to what particular features you need to live safely);
• Where you should be funded to live in SDA.

SDA is a very technical type of support, and can require very complicated planning. This fact sheet only considers legal issues that might come up in SDA cases – you should also consider contacting Housing Hub’s NDIS Housing Advice Line on 1300 61 64 63 from 10am to 3pm AEDT Monday to Friday, or send an email to housingoptions@housinghub.org.au.

Extreme functional impairment OR very high support needs

To get funding for any kind of SDA, you will need to show you either have:

• an extreme functional impairment: OR
• very high support needs

Extreme functional impairment

To show you have an “extreme functional impairment”, you need to show:

1. you have an impairment; AND
2. the impairment means you have “extremely reduced functional capacity” for at least ONE OF these three activities:
1. mobility (ie, getting around); OR
2. self-care (ie, taking care of yourself, like with bathing, eating, cleaning, etc); OR
3. self-management (ie, organising and making decisions about your life);

AND

1. you can only do that activity if you have a lot of hours of support from somebody else (even when you have the right assistive technology and equipment, and live in the right kind of house to suit your disability needs).

Very high support needs

To show you have “very high support needs”, you usually need to show you need somebody to help you with your disability needs for most of the day. There is no precise number of support hours that mean you have “very high support needs”. One important thing to consider is if it could be dangerous to you or to other people if you were left on your own.

SDA needs requirement

Before you can get funding for any kind of SDA, you also need to show you meet the “SDA needs requirement”. This means you need to show that receiving SDA funding would be a better solution than giving you funding for other supports.

The SDA needs requirement considers whether funding SDA would:

• help you to better achieve the goals in your NDIS plan; 

AND

• help you to better improve or maintain your functional capacity and/or skills; 

AND

• be better value for money than any alternatives; 

AND 

EITHER

• if you have very high support needs, help you in future to reduce or limit your support needs and manage when you move to different life stages; 

OR

• if you have an extreme functional impairment, give you more stability and continuous supports.

Type, category and location

If you can show that you have very high support needs or an extreme functional impairment, and you meet the SDA needs requirement, you are eligible to get funding for some kind of SDA. There are three factors which determine the kind of SDA you should be funded for.

SDA Building type 

This involves deciding whether you should be funded to live in an apartment, a townhouse/villa, or a house, and whether you should be funded to live on your own or with other people.

If you disagree with the NDIA about the building type you should be funded to live in, the AAT will need to decide what building type is right for you, by considering things like:

• what building type you would prefer;
• whether and how that building type will help you with your disability needs;
• how much it would cost to fund you to live in that building type, with the support hours needed for that building type – and whether that is more or less than how much it would cost for you to live in another SDA building type;
• how living in that building type would affect your relationships with other people and the community, and any support networks you have; and
• whether living in that building type will help to develop your skills.

The AAT will also need to consider whether funding you to live in that building type would meet all of the ‘reasonable and necessary’ supports criteria we have discussed above.

Design category of SDA

This involves deciding what sorts of features the SDA building should have for you. There are four design categories.

1. Improved Livability;
2. Robust;
3. Fully Accessible; and
4. High Physical Support.

The AAT will need to decide which design category is appropriate for you, by considering your disability support needs and other needs.

The AAT will also need to consider whether funding you to live in a certain design category would meet all of the ‘reasonable and necessary’ supports criteria discussed above.

Location of SDA

This involves deciding which area you should be funded to live in. To reflect the different cost of property, some locations will require more SDA funding than others.

If you disagree with the NDIA about the location you should be funded to live in, the AAT will need to decide which location is right for you, by considering factors like:

• where you would prefer to live;
• where you’ve lived in the past;
• how much it would cost to fund you for that location, and whether that location might save money by helping you get other kinds of support or services more easily;
• how living in that location would affect your relationships with other people and the community, and any support networks you have; and
• whether living in that location will help you to participate socially or economically.

The AAT will also need to consider whether funding you to live in that location would meet all of the ‘reasonable and necessary’ supports criteria discussed above.

Following NDIA policies

The NDIA often uses its policies to make decisions. Some of these policies are recorded in the NDIA’s Operational Guidelines. In some cases, the NDIA might say the AAT should follow an Operational Guideline when it makes its decision. 

Australian courts have said:

• policies can be useful when they help organisations like the NDIA and AAT make decisions consistently and fairly.
• however, if a policy contradicts the law, the policy is invalid and should be ignored. This means if an Operational Guideline says something that contradicts the NDIS Act or the Rules, the NDIA and the AAT should ignore it.
• if an Operational Guideline doesn’t contradict the law, the AAT should consider it and try to follow it.

There have been several cases where the AAT has decided an NDIA Operational Guideline should not be followed. 

Considering how a policy can apply to your AAT case can be complex. If you have questions about an Operational Guideline, you might want to get legal advice from one of the organisations listed below at ‘Where can I get advice if I need help understanding my options?’.

Orders to help the NDIA get an expert report

Expert reports can be very important to support your case (see our fact sheet ‘How To: decide what evidence I need for my NDIS AAT appeal’). If you provide an expert report, the NDIA might want to get their own report from the same type of expert. For example, if you provide a report from your occupational therapist (OT), the NDIA might pick their own OT, and ask you to be examined by them so that the OT can also write a report.

Sometimes, people refuse to speak to the NDIA’s experts. There may be particular reasons why they feel uncomfortable seeing certain experts, for example, because of trauma or stress.

The NDIA has sometimes asked the AAT to order the person to meet with their expert. The Full Federal Court has recently confirmed the AAT does not have the power to make somebody do a medical assessment if they don’t want to This means  the AAT cannot force you to see a doctor, allied health professional, or psychologist.

However: if you refuse to speak to the NDIA’s expert, the AAT might put less weight on the report from your expert.

If the NDIA asks you to speak to their expert and you don’t want to, you might need to get legal advice from one of the organisations listed below at ‘Where can I get advice if I need help understanding my options?’.

Where can I get advice if I need help understanding my options?

You may be able to get advice about your options for requesting a review and help with other questions about the NDIS from a legal service. It will depend on the type of problem you have, and where you are located.

If you need help from a lawyer, National Legal Aid has the contact details for your local Legal Aid office.

If you need help from an advocate, the AskIzzy Disability Advocacy Finder is an online tool to help you find to search for advocacy providers using your suburb or postcode.

Who made this factsheet?

Housing Hub and the Justice and Equity Centre (JEC) made this together in October 2023. It was updated by the Housing Hub in 08/10/2023. Since 2021, JEC and Housing Hub have worked together to provide advice and assistance to participants seeking SDA funding. This factsheet is part of a series about challenging NDIS decisions.