Your rights under the NDIS

The roll-out of the National Disability Insurance Scheme (NDIS) across Australia has started, and is expected to be finished in 2019. The NDIS will provide advice, information and, for some people, funding for care, equipment and other supports.

It is important that you are aware of your rights and remain appropriately informed as the nation transitions to this new system.

Eligibility for the NDIS

To access funding from the NDIS, you must be:

  1. Under 65 and living in one of the areas where the NDIS has been launched. Visit the NDIS website for more information about when the NDIS will be coming to your area.
  2. An Australian citizen, permanent visa holder or a protected special category visa holder.
  3. Meet the ‘disability requirements’. This means you have an impairment or condition that is likely to be permanent and substantially reduces your ability to participate effectively in activities, or perform tasks or actions.
  4. You may also be eligible if you meet the ‘early intervention’ requirements, which means that you have an impairment or condition that is likely to be permanent and there is evidence that getting supports now will assist you by minimising or improving your impairment and reducing the assistance you may require in the future.

This is only a brief summary of the eligibility requirements. Please contact the NDIS if you think you may be eligible or need further information.

Compensation and the NDIS

While recovering compensation via your legal rights does not affect your eligibility for the NDIS, it may impact what you actually receive from the scheme. In particular, if you receive compensation for the types of care and support that the NDIS otherwise provides, the level of funding you receive from the scheme in the future will likely be reduced. This applies regardless of whether the compensation is paid as a lump sum or under a statutory scheme.

It is important to note that the NDIS is seen as the insurer of ‘last resort’ and you may still be obliged to pursue compensation from alternative sources. Further, if you give up a right to compensation, the NDIS still has a right to apply the same reduction.

At this time, it is difficult to provide detailed advice about the extent of any potential reduction in funding. However, the NDIS will assess a yearly reduction in their funding package based on the amount of compensation you receive, taking into account other repayments (for example, Centrelink and/or Medicare) and life expectancy. Any reduction in funding will only occur if you actually receive compensation.

You may also have to repay the NDIS for past supports after you receive compensation.

Some forms of compensation, such as payments for total and permanent disability under an insurance policy, are not taken into account by the NDIS.

Should I apply for NDIS support?

Yes. If you think you may be eligible for funding from the NDIS, you should apply. You are entitled to do so regardless of whether your claim is being investigated, is in formal litigation or has already settled.

If you apply for funding from the NDIS, you are obliged to notify them of the fact that you are pursuing compensation but this will not affect your eligibility.

You also need to inform your lawyer that you have applied for NDIS support.

More information

For more information, please visit the NDIS website.

You can contact the NDIS via:

  • Phone: 1800 800 110
  • Mail: National Disability Insurance Agency, GPO Box 700, Canberra ACT 2601
  • Online: NDIS

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Tom Ballantyne

Maurice Blackburn Melbourne
Tom Ballantyne is a Principal Lawyer and the head of Maurice Blackburn’s medical negligence department in Victoria. He is a Law Institute of Victoria Personal Injury Accredited Specialist, is listed in the prestigious Doyles guide, and is the Australian Lawyers Alliance Victorian President. Tom sees ...

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