NDIS access: becoming a participant 

Access to the National Disability Insurance Scheme is a statutory decision, not a status that follows from having a disability. The National Disability Insurance Scheme Act 2013 (Cth) sets criteria the Chief Executive Officer must be satisfied of, and a person becomes a participant only when that satisfaction is reached¹. The prior question in any access problem is which limb is engaged, because the Act requires the disability limb and the early intervention limb to be decided separately and they impose different tests.

The structure of the access decision

Section 21(1) states three requirements. The CEO must be satisfied that the person meets the age requirements (s 22); that, at the time of considering the request, the person meets the residence requirements (s 23); and that, at that same time, the person meets either the disability requirements (s 24) or the early intervention requirements (s 25).

Section 21(2) then imposes a discipline that is easy to miss. For the third requirement the CEO "must separately consider and decide" whether the prospective participant meets the disability requirements and whether they meet the early intervention requirements. A decision that addresses only one limb has not been made according to the section. Section 21(3) also provides for deemed refusal: if the CEO does not act within the applicable period, the CEO is taken to have decided that the person does not meet the access criteria.

Age and residence

The age requirement is a bright line fixed at the date of the request rather than the date of decision: a person meets it "if the person was aged under 65 when the access request in relation to the person was made" (s 22).

The residence requirements have two components (s 23(1)). The person must reside in Australia, and must be an Australian citizen, the holder of a permanent visa, or a special category visa holder who is a protected SCV holder. Whether a person resides in Australia is not left at large. Section 23(2) directs regard to the nature of the accommodation used in Australia, the nature and extent of family relationships, employment, business or financial ties, assets located in Australia, the frequency and duration of travel outside Australia, and any other matter relevant to whether the person intends to remain permanently in Australia.

The disability requirements

Section 24(1) states five cumulative elements. The person must have a disability attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments, or one or more impairments to which a psychosocial disability is attributable. The impairment or impairments must be, or be likely to be, permanent. They must "result in substantially reduced functional capacity in relation to one or more of the following activities", considering each activity as a whole: communication, social interaction, learning, mobility, self-care and self-management. They must affect the person's capacity for social or economic participation. And the person must be likely to require NDIS supports for their lifetime.

Two subsections address the case that most often defeats an unwary answer. Under s 24(2), impairments that vary in intensity may still be permanent, and the lifetime-support element may still be met, despite the variation. Under s 24(3), impairments that are episodic or fluctuating may be taken to be permanent, and the person taken to be likely to require lifetime support, despite that character. An answer that treats fluctuation as inconsistent with permanence has misread the section.

The early intervention requirements

Section 25(1) is a different test with a forward-looking purpose. The person must have one or more identified impairments of the same kinds that are, or are likely to be, permanent, or must be a child who has developmental delay. Beyond that, the CEO must be satisfied that providing early intervention supports is likely to benefit the person by reducing their future needs for supports in relation to disability, and by one of four further results: mitigating or alleviating the impact of the impairment on functional capacity, preventing the deterioration of that capacity, improving it, or strengthening the sustainability of informal supports available to the person, including by building the capacity of a carer.

Note the differences. Early intervention does not require substantially reduced functional capacity, and it accommodates developmental delay in a child; but it asks the CEO to be satisfied about future benefit, which the disability limb does not.

Challenging a refusal

The pathway is sequential and the order matters. A person dissatisfied with an access decision seeks internal review, and it is the reviewer's decision under s 100(6) that carries external rights. Section 103(1) provides that applications may be made to the Administrative Review Tribunal "for review of a decision made by a reviewer under subsection 100(6)". An application made before internal review has produced a decision is directed at the wrong decision.

Applying this in a problem question

1. Identify the date of the access request and test the age requirement against that date, not the date of decision.
2. Work through s 23(1) in two steps — residence in fact, then immigration status — and apply the s 23(2) factors to the first.
3. Take the disability and early intervention limbs separately, as s 21(2) requires, and say something about each.
4. For s 24, take the five elements in order and identify which of the six listed activities is said to be affected.
5. Where the impairment is episodic, fluctuating or variable, apply s 24(2) and (3) expressly rather than treating permanence as defeated.
6. For a challenge, identify whether an internal review decision under s 100(6) yet exists before considering the Tribunal.

Self-check

• Have I tested the age requirement at the date of the request?
• Have I considered both limbs separately, as s 21(2) requires?
• Have I applied s 24(2) and (3) where the impairment fluctuates?
• Have I checked that an internal review decision exists before reaching the Tribunal?