Disability services outside the NDIS 

Not every Commonwealth-funded disability support is an NDIS support, and the supports that fall outside have their own statute. The Disability Services and Inclusion Act 2023 (Cth) is an Act "relating to supports and services for people with disability", and its objects include providing funding "outside of the National Disability Insurance Scheme" to persons who provide supports and services for people with disability, their families and carers¹. That phrase is the boundary, and identifying which side of it a service sits on is the prior question, because the two regimes regulate by entirely different means.

Regulation through funding, not registration

The NDIS regulates providers by registering them and imposing conditions of registration, policed by a dedicated Commissioner. This Act does neither. It works through the Commonwealth's spending: the Minister may make, vary or administer an arrangement for payments, or a grant of financial assistance, in relation to activities for the benefit of people with disability, and must not do so for a person who is not an eligible person for that arrangement or grant. The recipient must then comply with the statutory funding conditions in the Act and any other terms in the funding agreement.

The consequence is that the obligations attach to the receipt of money rather than to the status of being a provider. A person who provides identical services without Commonwealth funding under this Act is outside the regime altogether, which is a different result from the NDIS registration model.

Regulated activity is made by instrument, not by the Act

A good deal turns on whether an activity is a regulated activity, and the Act does not say which activities are. Section 11 provides in full that "the Secretary may, by legislative instrument, determine that a specified kind of eligible activity is a regulated activity".

That single sentence carries a lot of weight. Whether the heavier obligations apply is decided by a determination that can be made, varied or repealed without amending the Act. A student answering on this Act cannot answer from the Act alone: the current determination has to be identified and cited, and its date checked.

The four statutory funding conditions

Section 15 sets out the conditions applying to a person to whom money may be payable under an arrangement made under s 13, or who receives a grant of financial assistance under s 13.

The first condition is compliance with the code of conduct (s 15(2)). The code itself is made by rules under s 20, and those rules may provide for circumstances in which a person breaches the code because of an act or omission by a member of their key personnel — so the funded person's compliance is not confined to their own conduct.

The second condition applies only where the arrangement or grant relates to an eligible activity that is a regulated activity (s 15(3)). In that case the person must hold a certificate of compliance for the regulated activity, or be covered by a determination in force under s 9(2) where the day specified has not yet occurred. This is the condition that depends on the Secretary's s 11 determination.

The third condition is a complaints management and resolution system (s 15(4)). The Act specifies its character rather than leaving it wholly to the rules: it must be appropriate for the size of the person and the kinds of activities funded; it must acknowledge the role of advocates, including independent advocates, and other representatives of people with disability; it must provide for cooperation with, and facilitate arrangements for, those advocates to support people affected by the complaints process who wish to be independently supported; and it must comply with any requirements prescribed by the rules. The express recognition of independent advocacy is a feature of this Act worth noticing.

The fourth condition is an incident management system (s 15(5)).

Compliance standards and the alternative route

The standards themselves are delegated. Section 23(1) provides that the rules may make provision for standards for persons undertaking regulated activities, and s 23(3) states that rules so made and in force "are the compliance standards". The rules may set different standards for different kinds of persons or regulated activities (s 23(2)).

Section 24 allows the rules to provide instead for alternative compliance requirements, and certificates of compliance may be granted either by an accredited certification body for meeting the compliance standards, or by the Secretary for meeting alternative compliance requirements. A funded person may therefore satisfy the second condition by more than one route, and identifying which route was taken matters when the question is whether the condition was met.

Applying this in a problem question

1. Ask first whether the support is funded under the NDIS or outside it; the Act only reaches the latter.
2. Identify the funding instrument — an arrangement or a grant under s 13 — and confirm the recipient is an eligible person.
3. Ask whether the activity is a regulated activity, and answer it from the Secretary's determination under s 11, citing that instrument rather than the Act.
4. Work through the four conditions in s 15 in order, and note that only the second depends on regulated-activity status.
5. For a code of conduct breach, consider whether the rules attribute an act or omission of key personnel to the funded person.
6. For a compliance question, identify whether compliance was by certificate against the compliance standards or against alternative compliance requirements.

Self-check

• Have I confirmed the support is funded outside the NDIS before applying this Act?
• Have I cited the Secretary's determination rather than the Act on regulated-activity status?
• Have I noticed that only the second funding condition turns on that status?
• Have I framed the consequence as breach of a funding condition rather than of a registration condition?