Planning

10. Deciding to include supports in a participant's plan

Before including any general support or reasonable and necessary support in a participant's plan, the NDIA must be satisfied that:

When deciding to include supports in a participant's plan, the NDIA will also have regard to:

  • the objects and general principles of the NDIS Act, including the need to ensure the financial sustainability of the NDIS;
  • the specific principles relating to plans;
  • the other considerations which may apply when including proposed supports in a participant's plan; and
  • depending on the type of support being considered, refer to the additional guidance on specific types of supports.

See also approving the statement of participant supports.

10.1 What are the general criteria for supports?

The general criteria for supports provide that a support will not be provided or funded under the NDIS if:

  • the support is likely to cause harm to the participant or pose a risk to others (rule 5.1(a) of the Supports for Participants Rules);
  • the support is not related to the participant's disability, for example it is expected that the NDIA will generally not fund household items that are not related to a participant's functional limitations and would normally be purchased by any person, i.e. general household furniture or appliances (rule 5.1(b) of the Supports for Participants Rules);
  • the support duplicates other supports delivered under alternative funding through the NDIS (rule 5.1(c) of the Supports for Participants Rules); or
  • the support relates to day-to-day living costs, for example rent, groceries or utility fees that are not attributable to a participant's disability support needs (rule 5.1(d) of the Supports for Participants Rules).

Note, day-to-day living costs do not include:

  • additional living costs that are incurred by a participant solely and directly as a result of their disability support needs, for example specialised food that relates specifically to a participant's disability (rule 5.2(a) of the Supports for Participants Rules); or
  • costs that are ancillary to another support that is funded or provided under the participant's plan, and which the participant would not otherwise incur, for example additional utility costs incurred by a participant due to operating an assistive technology device (rule 5.2(b) of the Supports for Participants Rules).

A further example of an additional living cost incurred by a participant solely and directly as a result of their disability could be the cost of transport to and from community access support (see JQJT and NDIA [2016] AATA 478 at [36]).

10.2 Which supports will not be funded or provided under the NDIS?

The following supports will not be provided or funded under the NDIS:

  • a support which, if provided, would be contrary to:
    1. a law of the Commonwealth (rule 5.3(a)(i) of the Becoming a Participant Rules); or
    2. a law of the State or Territory in which the support would be provided (rule 5.3(a)(ii) of the Becoming a Participant Rules); and
  • a support that consists of income replacement (rule 5.3(b) of the Becoming a Participant Rules).

10.3 Will the support assist a participant to pursue their goals, objectives and aspirations?

Before any support is added to a participant's plan the NDIA must be satisfied that the support will assist the participant to pursue the goals, objectives and aspirations included in the participant's statement of goals and aspirations (section 34(1)(a)).

This requirement will be satisfied where the NDIA is able to identify a clear and direct link between the support to be funded, or provided and one or more of the goals outlined in the participant's statement of goals and aspirations.

For example, where the NDIA is considering funding individualised assistance to support a participant to transition to employment, it would be necessary for the participant to have expressed a goal relating to finding, securing or maintaining employment or improving their capacity to find work or employability.

It is important to note that the NDIA does not need to be satisfied that the funding, or provision of a support, will specifically result in the achievement of a participant's goals, objectives and aspirations. Rather, the support simply needs to assist (i.e. aid, support or contribute) the participant to achieve their goals.

10.4 Will the support assist the participant to undertake activities so as to facilitate their social and economic participation?

Before any support is added to a participant's plan the NDIA must also be satisfied that the support will assist the participant to undertake activities so as to facilitate the participant's social and economic participation (section 34(1)(b)).

This requirement is consistent with the objects of the NDIS Act, and the functions of the NDIA that relate to supporting the independence, and social and economic participation of people with disability (sections 3(c) and 118(a)(i)).

Whether or not the funding, or provision of a support itself, will facilitate a participant's social and economic participation is not the test. Rather, the NDIA must be satisfied that the funding, or provision of a support, will assist the participant to undertake activities which will facilitate their social and economic participation.

For example, the funding of a guide dog for a visually impaired participant is likely to assist the participant to undertake activities associated with mobility (i.e. safely leaving the home and travelling to and from the workplace) which would, in turn, facilitate the participant's participation in the workforce.

10.5 Does the support represent value for money?

Before any support is added to a participant's plan the NDIA must also be satisfied that the support represents value for money in that the costs of the support are reasonable as compared to the benefits achieved and the cost of alternative support (section 34(1)(c)).

When deciding whether a support represents value for money, the NDIA must consider the following matters:

  • whether there are comparable supports which would achieve the same outcome at a substantially lower cost (rule 3.1(a) of the Supports for Participants Rules);
  • whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long‑term benefit to, the participant (rule 3.1(b) of the Supports for Participants Rules);
  • whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term. For example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports (rule 3.1(c) of the Supports for Participants Rules);
  • for supports that involve the provision of equipment or modifications:
    1. the comparative cost of purchasing or leasing the equipment or modifications (rule 3.1(d)(i) of the Supports for Participants Rules); and
    2. whether there are any expected changes in technology or the participant's circumstances in the short term that would make it inappropriate to fund the equipment or modifications (rule 3.1(d)(ii) of the Supports for Participants Rules);
  • whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides (rule 3.1(e) of the Supports for Participants Rules); and
  • whether the support will increase the participant's independence and reduce the participant's need for other kinds of supports. For example, some home modifications may reduce a participant's need for home care (rule 3.1(f) of the Supports for Participants Rules).

The NDIA will consider value for money both in the context of the relative expense of different supports available to achieve the same goal, and in the context of whether investments in supports will represent value for money over time.

For example, where an investment in early intervention supports is likely to reduce a participant's overall support needs over time, the NDIA may consider that the support represents value for money as an early investment (even where that value may be realised over the period of several plans).

In applying the value for money criteria in the NDIS Act and Supports for Participants Rules, the NDIA will, to the extent is permissible under the NDIS Act and Rules, consider the cost of any available in-kind supports and the impact on the sustainability of the NDIS if supports which are already available in-kind are instead purchased by paying cash.

The NDIA is considerate of the fact that funding supports that do not represent value for money has the potential to undermine the financial sustainability of the NDIS (section 3(3)(b)).

For example, where assistive technologies and certain types of aids and equipment are being considered, it is expected that the NDIA will generally only fund the minimum necessary or standard level of support required (i.e. a wheelchair with standard specifications and features, as opposed to funding additional items such as bespoke wheels or other luxury finishes).

Home modifications, as a further example, would generally only be considered where the home to be modified is the participant's principal place of residence and the participant intends to remain living at the premises. Other value for money considerations in this instance would relate to the length of a tenancy agreement for participant's who are renting, whether the outcomes expected to be achieved by home modifications could be achieved using less costly alternatives or whether supporting a participant with the cost of relocating to more accessible premises would be a more cost effective solution.

A support will not represent value for money if the NDIA cannot be confident of the associated benefit/s which are likely to be achieved for the participant, especially where a reliable means of measuring any benefits is lacking (see TKCW and NDIA [2014] AATA 501 at [78]).

10.6 Is the support effective and beneficial having regard to current good practice?

Before any support is added to a participant's plan the NDIA must also be satisfied that the support will be, or is likely to be effective and beneficial to the participant having regard to current good practice (section 34(1)(d)).

The NDIS Act does not define ‘effective' or ‘beneficial' but they are ordinary words that should be given their ordinary meaning (i.e. effective meaning having a definite or desired effect; efficient and beneficial meaning advantageous; having benefits; improving the health) (see McCutcheon and NDIA [2015] AATA 624 at [34]).

The term ‘current good practice' means a practice which, even if not widely used, is recognised by sufficient numbers of practitioners as being based on sound evidence (see TKCW and NDIA [2014] AATA 501 at [70]).

When deciding whether a support will be, or is likely to be, effective and beneficial for the participant having regard to current good practice, the NDIA must consider the available evidence of the effectiveness of the support for others in like circumstances.

This evidence may include:

  • published and refereed literature and any consensus of expert opinion (rule 3.2(a) of the Supports for Participants Rules);
  • the lived experience of the participant or their carers (rule 3.2(b) of the Supports for Participants Rules); or
  • anything the NDIA has learnt through delivery of the NDIS (rule 3.2(c) of the Supports for Participants Rules).

In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the NDIA must also take into account, and if necessary seek, expert opinion (rule 3.3 of the Supports for Participants Rules).

The Supports for Participants Rules do not limit the kinds of evidence that may be relevant, and nor do they suggest that more weight should be given to any kind of evidence over another. However, the Rules do indicate that expert opinion may be particularly relevant.

Also, the participant's lived experience (i.e. their first-hand knowledge, experience and understanding of their conditions and various treatments) will inevitably be subjective, however, this does not mean that it is of limited probative value. How much weight ‘lived experience' should be given will depend on all of the available evidence. Where lived experience is consistent with reliable, relevant, independent evidence, it will likely be given a good deal of weight. Where it is at odds with other evidence, it may be given less weight. Where reliable, relevant independent evidence is lacking, evidence of ‘lived experience' may be particularly important (see McCutcheon and NDIA [2015] AATA 624 at [86]).

Whether or not there is unarguable evidence of the benefits of a proposed support is not the test of whether a support is likely to be effective and beneficial having regard to current good practice. Rather, the NDIA will need to be satisfied that there is evidence, even if anecdotal, from a sufficient number of qualified experts of positive outcomes in a sufficient number of people. Emerging signs of positive outcomes in isolation will not be sufficient (see TKCW and NDIA [2014] AATA 501 at [74] and [75]).

A support may be effective and beneficial where the desired effect or benefit achieved is to maintain a participant's level of functioning (as opposed to effecting any long-term change in the disability itself) at a level which enables the person to engage in social and economic activities to the extent they are able to engage (see McCutcheon and NDIA [2015] AATA 624).

Importantly, whilst one of the objects of the NDIS Act is to promote the provision of high quality and innovative supports (section 3(g)), innovation, of itself, does not displace the requirement that a support must be effective and beneficial having regard to current good practice (see TKCW and NDIA [2014] AATA 501 at [71]).

This requirement also reflects the need to have regard to the financial sustainability of the NDIS which is likely to be undermined if funding for supports whose effectiveness and benefits are largely unknown, especially where a reliable means of measuring the benefits of a support in a single case is lacking (see TKCW and NDIA [2014] AATA 501 at [76]) and (section 3(3)(b)).

10.7 Does the funding of the support take into account what is reasonable to expect others to provide?

Before any support is added to a participant's plan the NDIA must also be satisfied that the funding or provision of the support takes into account what is reasonable to expect families, carer's, informal networks or the community to provide (section 34(1)(e)).

For a participant who is a child, the NDIA must consider:

  • that it is normal for parents to provide substantial care and support for children (rule 3.4(a)(i) of the Supports for Participants Rules);
  • whether, because of the child's disability, the child's care needs are substantially greater than those of other children of a similar age (rule 3.4(a)(ii) of the Supports for Participants Rules);

Note, what is reasonable for others to provide in respect of a particular support should be considered in light of the support they have to provide the child generally because of his or her disability (see JQJT and NDIA [2016] AATA 478 at [39]).

  • the extent of any risks to the wellbeing of the participant's family members or carer or carers (rule 3.4(a)(iii) of the Supports for Participants Rules); and
  • whether the funding or provision of the support for a family would improve the child's capacity or future capacity, or would reduce any risk to the child's wellbeing (rule 3.4(a)(iv) of the Supports for Participants Rules).

For a participant who is an adult, the NDIA must consider:

  • the extent of any risks to the wellbeing of the participant arising from the participant's reliance on the support of family members, carers, informal networks and the community (rule 3.4(b)(i) of the Supports for Participants Rules);
  • the suitability of family members, carers, informal networks and the community to provide the supports that the participant requires, including such factors as:
    1. the age and capacity of the participant's family members and carers, including the extent to which family and community supports are available to sustain them in their caring role (rule 3.4(b)(ii)(A) of the Supports for Participants Rules);
    2. the intensity and type of support that is required and whether it is age and gender appropriate for a particular family member or carer to be providing that care (rule 3.4(b)(ii)(B) of Supports for Participants Rules); and
    3. the extent of any risks to the long term wellbeing of any of the family members or carers. For example, a child should not be expected to provide care for their parents, siblings or other relatives or be required to limit their educational opportunities (rule 3.4(b)(ii)(C) of the Supports for Participants Rules); and
  • the extent to which informal supports contribute to or reduce a participant's level of independence and other outcomes (rule 3.4(b)(iii) of the Supports for Participants Rules).

For all participants, the NDIA must also consider:

  • the desirability of supporting and developing the potential contributions of informal networks within their communities (rule 3.4(c) of the Supports for Participants Rules).

The community has general expectations about the supports which could be reasonably provided by family or primary care givers. The NDIS may fund supports that are needed as a direct result of a participant's disability, but is not intended to displace the ordinary role of parents, families and carers.

The ongoing capacity of family and carers is critical to the wellbeing of some participants. The amount and intensity of support required, and other factors such as illness and ageing can place a carer's wellbeing at risk and compromise their capacity to continue in their caring role.

The NDIA understands that sustaining informal support (for example, by providing respite) can be an integral component of meeting a participant's needs and will aim to increase the participation of participant's within the context of their families and existing support networks.

See also sustaining informal supports.

10.8 Is the support most appropriately funded or provided through the NDIS?

Before any support is added to a participant's plan the NDIA must also be satisfied that the support is most appropriately funded or provided through the NDIS, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:

  • as part of a universal service obligation; or
  • in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability (section 34(1)(f)).

Whether or not funding is available through other general systems is not the test of whether a support is most appropriately funded or provided under the NDIS.

For example, the fact that the health system does not fund entirely, or even at all, what is essentially clinical treatment, or some other form of support that is more appropriately funded through the health system, does not make it the responsibility of the NDIS (see Young and NDIA [2014] AATA 401 at [41]).

This principle reflects the statement of the Productivity Commission in its 2011 report which states that:

“it will be important for the NDIS not to respond to problems or shortfalls in mainstream services by providing its own substitute services. To do so would weaken the incentives of government to properly fund mainstream services for people with a disability, shifting the cost to another part of government ... This ‘pass the parcel' approach would undermine the sustainability of the NDIS and the capacity of people with a disability to access mainstream services”.

The considerations that the NDIA must take into account when deciding whether a support is most appropriately funded through the NDIS are outlined in Schedule 1 to the Supports for Participants Rules under the following headings:

The considerations set out under these headings are derived from the Principles to determine the responsibilities of the NDIS and other service systems, agreed to by the Council of Australian Governments.

For the avoidance of doubt, while this information outlines the considerations relevant to whether a support should be considered to be more appropriately provided or funded through another service system, it does not purport to impose any obligations on another service system to fund or provide particular supports.

The information in this section should also be read together with the table located at Appendix 1 which provides further guidance on whether a support is most appropriately funded through the NDIS or by other parties.

In addition, please refer to the section on what assistance is available where a support is not most appropriately funded by NDIS?

10.8.1 Health (excluding mental health)

The NDIS will be responsible for supports related to a person's ongoing functional impairment and that enable the person to undertake activities of daily living, including maintenance supports delivered or supervised by clinically trained or qualified health practitioners where these are directly related to a functional impairment and integrally linked to the care and support a person requires to live in the community and participate in education and employment (rule 7.4 of the Supports for Participants Rules).
The NDIS will not be responsible for:

  • the diagnosis and clinical treatment of health conditions, including ongoing or chronic health conditions (rule 7.5(a) of the Supports for Participants Rules); or
  • other activities that aim to improve the health status of Australians, including general practitioner services, medical specialist services, dental care, nursing, allied health services (including acute and post-acute services), preventive health, care in public and private hospitals and pharmaceuticals or other universal entitlements (rule 7.5(b) of the Supports for Participants Rules); or
  • funding time-limited, goal-oriented services and therapies:
    1. where the predominant purpose is treatment directly related to the person's health status (rule 7.5(c)(i) of the Supports for Participants Rules); or
    2. provided after a recent medical or surgical event, with the aim of improving the person's functional status, including rehabilitation or post-acute care (rule 7.5(c)(ii) of the Supports for Participants Rules); or
  • palliative care (rule 7.5(d) of the Supports for Participants Rules)
  • supports that are more appropriately funded or provided by the health system
  • funding medical or clinical services such as out of pocket expenses, gap payments and private health insurance fees

NDIA plans are developed to cover the full cost of supports (e.g. physiotherapy or OT services to build function) where these are considered Reasonable and Necessary for the participant. As a result, there should not be a “gap” fee required to be paid.

Participants should not make claims under private health insurance policies for ‘Reasonable and Necessary’ supports in their plan that the participant will also claim from the NDIS. Participants may choose to use private health insurance to fund services and treatments that will not be funded under their NDIS plan. In the rare cases where a support being delivered may be claimable under either the participant’s plan or private health insurance, the participant may choose whether to use NDIS funds or make a claim under their private health insurance, but they cannot make a claim under both in respect to the same support.

10.8.2 Mental Health

The responsibility for which respective general system of service delivery is to take responsibility for different aspects of mental health support is subject to agreement between governments

The NDIS will be responsible for supports that are not clinical in nature and that focus on a person's functional ability, including supports that enable a person with a mental illness or psychiatric condition to undertake activities of daily living and participate in the community and social and economic life (rule 7.6 of the Supports for Participants Rules).

NDIA plans are developed and approved to cover the full cost of supports (e.g. psychology services) where these are considered Reasonable and Necessary for the participant. The decision as to what capacity building supports or therapy would be deemed reasonable and necessary takes into account the responsibilities of the health system and services already available to the participant.

Once supports are approved in a plan the participant is able to use those supports as described in the plan. Therapy may be described generally (e.g. “Therapy up to the value of $X’) in a budget so supports can be used flexibly within that budget or may be described specifically (for example, 1 session of psychology / therapy per week).

10.8.3 Early childhood development

The NDIS will be responsible for personalised supports, specific to a child's disability (or developmental delay), which are additional to the needs of children of a similar age and beyond the reasonable adjustment requirements of early childhood development service providers (rule 7.8 of the Supports for Participants Rules).

The NDIS will be responsible for early interventions for children with disability (or developmental delay) which are:

  • specifically targeted at enhancing a child's functioning to undertake activities of daily living, but not supports which are specifically for the purpose of accessing a universal service such as school readiness programs that prepare a child for education (rule 7.9(a) of the Supports for Participants Rules); and
  • likely to reduce the child's future support needs, which would otherwise require support from the NDIS in later years, including through a combination and sequence of supports (rule 7.9(b) of the Supports for Participants Rules).

The NDIS will not be responsible for:

  • meeting the early childhood education and care needs of a child with a developmental delay or disability required by children of a similar age including through inclusion supports that enable children to participate in early childhood education and care settings (rule 7.10(a) of the Supports for Participants Rules); or
  • supports, which are clinical in nature provided in the health system, including acute, ambulatory or continuing care (rule 7.10(b) of the Supports for Participants Rules); or
  • new-born follow-up provided in the health system, including child and maternal health services (rule 7.10(c) of the Supports for Participants Rules).

Please refer to Appendix 1 for further guidance on whether early childhood development supports are appropriately funded through the NDIS or more appropriately funded by other parties.

10.8.4 Child protection and family support

The NDIS will be responsible for:

  • supports for children, families and carers, required as a direct result of a child's disability, that enable families and carers to sustainably maintain their caring role, including community participation, therapeutic and behavioural supports and additional respite and aids and equipment (rule 7.11(a) of the Supports for Participants Rules); and
  • where a child is in out-of-home care—supports specific to the child's disability (or developmental delay), which are additional to the needs of children of similar ages, in similar out-of-home care arrangements. The diversity of out-of-home care arrangements is recognised and the level of reasonable and necessary supports will reflect the circumstances of the individual child (rule 7.11(b) of the Supports for Participants Rules).

The NDIS will not be responsible for:

  • statutory child protection services required by families who have entered, or are at risk of entering, the statutory child protection system (rule 7.12(a) of the Supports for Participants Rules); or
  • general parenting programs, counselling or other supports for families, which are provided to families at risk of child protection intervention and to the broader community, including making them accessible and appropriate for families with disability (rule 7.12(b) of the Supports for Participants Rules); or
  • funding or providing out-of-home care or support to carers of children in out-of-home care where these supports are not additional to the needs of children of similar age in similar out-of-home care arrangements (rule 7.12(c) of the Supports for Participants Rules).

Please refer to Appendix 1 for further guidance on whether child protection and family supports are appropriately funded through the NDIS or more appropriately funded by other parties.

10.8.5 School education

The NDIS will be responsible for supports that a student requires that are associated with the functional impact of the student's disability on their activities of daily living (that is, those not primarily relating to education or training attainment), such as personal care and support, transport to and from school and specialist supports for transition from school education to further education, training or employment that are required because of the student's disability. Any supports funded by the NDIS will recognise the operational requirements and educational objectives of schools (rule 7.13 of the Supports for Participants Rules).

The NDIS will not be responsible for personalising either learning or supports for students that primarily relate to their educational attainment (including teaching, learning assistance and aids, school building modifications and transport between school activities) (rule 7.14 of the Supports for Participants Rules).

Please refer to Appendix 1 for further guidance on whether school education supports are appropriately funded through the NDIS or more appropriately funded by other parties.

10.8.6 Higher education and vocational education and training

Supports for education and training are designed to assist the participant to develop new skills and qualifications and to find and retain employment. The NDIA encourages participants to participate in the Australian labour force to maximum extent they are able to in accordance with their goals, objectives and aspirations.

The NDIS will be responsible for supports that a student requires which are associated with the functional impact of the student's disability on their activities of daily living (that is, those not primarily relating to education or training attainment), such as personal care and support, transport to and from the education or training facility and specialist supports for transition from education or training to employment that are required because of the person's disability (rule 7.15 of the Supports for Participants Rules).

The NDIS will not be responsible for the learning and support needs of students that primarily relate to their education and training attainment (including teaching, learning assistance and aids, building modifications, transport between education or training activities and general education to employment transition supports) (rule 7.16 of the Supports for Participants Rules).

Please refer to Appendix 1 for further guidance on whether higher education and vocational education and training supports are appropriately funded through the NDIS or more appropriately funded by other parties.

10.8.7 Employment

The NDIS will be responsible for:

  • supports related to daily living that a person would require irrespective of whether they are working or looking for work (including personal care and support and transport to and from work) (rule 7.17(a) of the Supports for Participants Rules); and
  • frequent and ongoing supports that assist a person with disability to take part in work where the person has work capacity and is unlikely to be able to find or retain work in the open market, including with the assistance of employment services (rule 7.17(b) of the Supports for Participants Rules); and
  • individualised assistance to support a person with disability to transition into employment, where these support needs are additional to the needs of all Australians and specifically required as a result of a person's functional impairment, for example training on workplace relationships, communication skills, dress, punctuality and attendance, and travelling to and from work (rule 7.17(c) of the Supports for Participants Rules).

The NDIS will not be responsible for:

  • work-specific support related to recruitment processes, work arrangements or the working environment, including workplace modifications, work-specific aids and equipment, transport within work activities and work-specific support required in order to comply with laws dealing with discrimination on the basis of disability (rule 7.18(a) of the Supports for Participants Rules); or
  • the funding or provision of employment services and programs, including both disability-targeted and open employment services, to provide advice and support to:
    1. people with disability to prepare for, find and maintain jobs (rule 7.18(b)(i) of the Supports for Participants Rules) ; or
    2. employers to encourage and assist them to hire and be inclusive of people with disability in the workplace (for example support, training and resources, funding assistance to help employers make reasonable adjustments, and incentives for hiring people with disability, for example wage subsidies) (rule 7.18(b)(ii) of the Supports for Participants Rules).

Please refer to Appendix 1 for further guidance on whether employment supports are appropriately funded through the NDIS or more appropriately funded by other parties.

10.8.8 Housing and community infrastructure

The NDIS will be responsible for:

  • supports to assist a person with disability to live independently in the community, including by building their capacity to maintain a tenancy, and support for appropriate behaviour management (rule 7.19(a) of the Supports for Participants Rules); and
  • home modifications for accessibility for a person in private dwellings (rule 7.19(b) of the Supports for Participants Rules); and
  • home modifications for accessibility for a person in legacy public and community housing dwellings on a case-by-case basis but not to the extent that it would compromise the responsibility of housing authorities to develop, maintain and refurbish stock that meets the needs of people with disability (rule 7.19(c) of the Supports for Participants Rules); and
  • user costs of capital in some situations where a person requires an integrated housing and support model and the cost of the accommodation component exceeds a reasonable contribution from individuals (rule 7.19(d) of the Supports for Participants Rules).

The NDIS will not be responsible for:

  • the provision of accommodation for people in need of housing assistance, including routine tenancy support and ensuring that appropriate and accessible housing is provided for people with disability (rule 7.20(a) of the Supports for Participants Rules); or
  • ensuring that new publicly-funded housing stock, where the site allows, incorporates Liveable Housing Design features (rule 7.20(b) of the Supports for Participants Rules); or
  • homelessness-specific services including homelessness prevention and outreach, or access to temporary or long term housing for participants who are homeless or at risk of homelessness (rule 7.20(c) of the Supports for Participants Rules); or
  • the improvement of community infrastructure, for example accessibility of the built and natural environment, where this is managed through other planning and regulatory systems and through building modifications and reasonable adjustment where required (rule 7.20(d) of the Supports for Participants Rules).

Please refer to Appendix 1 for further guidance on whether housing and community infrastructure supports are appropriately funded through the NDIS or more appropriately funded by other parties.

10.8.9 Transport

The NDIS will be responsible for:

  • supports for a person that enable independent travel, including through personal transport-related aids and equipment, or training to use public transport (rule 7.21(a) of the Supports for Participants Rules); and
  • modifications to a private vehicle (for example not modifications to public transport or taxis) (rule 7.21(b) of the Supports for Participants Rules); and
  • the reasonable and necessary costs of taxis or other private transport options for those not able to travel independently (rule 7.21(c) of the Supports for Participants Rules).

The NDIS will not be responsible for:

  • ensuring that public transport options are accessible to a person with disability, including through the funding of concessions to people with disability to use public transport (rule 7.22(a) of the Supports for Participants Rules); or
  • compliance of transport providers and operators with laws dealing with discrimination on the basis of disability, including the Disability Standards for Accessible Public Transport 2002 (rule 7.22(b) of the Supports for Participants Rules); or
  • transport infrastructure, including road and footpath infrastructure, where this is part of a universal service obligation or reasonable adjustment (including managing disability parking and related initiatives) (rule 7.22(c) of the Supports for Participants Rules).

Please refer to Appendix 1 for further guidance on whether transport supports are appropriately funded through the NDIS or more appropriately funded by other parties.

10.8.10 Justice

For the purposes of this section, a person not in custody means a person who is subject to the justice system (including relevant elements of the civil justice system), but is not in a custodial setting (for example, a person on bail, a person under a community based order that places controls on the person to manage risks to the individual or to the community, a former prisoner on parole, or a person in home detention).

A person in custody means a person in a custodial setting, whether on remand or as a result of a sentence or other court order (including in a youth detention and training facility), or in a secure mental health facility.

Transition supports, for a person in a custodial setting, means supports to facilitate the person's transition from the custodial setting to the community that:

  • are reasonable and necessary; and
  • are required specifically as a result of the person's functional impairment.

The NDIS will be responsible for:

  • in relation to a person in custody - reasonable and necessary supports on the same basis as all other persons (rule 7.24(a) of the Supports for Participants Rules); and
  • in relation to a person in custody:
    1. reasonable and necessary supports other than those mentioned above, to the extent appropriate in the circumstances of the person's custody (rule 7.24(b)(i) of the Supports for Participants Rules); and
    2. transition supports (rule 7.24(b)(ii) of the Supports for Participants Rules).

The NDIS will not be responsible for:

  • the day-to-day care and support needs of a person in custody, including supervision, personal care and general supports (rule 7.25(a) of the Supports for Participants Rules); or
  • ensuring that criminal justice system services are accessible for people with disability including appropriate communication and engagement mechanisms, adjustments to the physical environment, accessible legal assistance services and appropriate fee waivers (rule 7.25(b) of the Supports for Participants Rules); or
  • general programs for the wider population, including programs to prevent offending and minimise risks of offending and re-offending and the diversion of young people and adults from the criminal justice system (rule 7.25(c) of the Supports for Participants Rules); or
  • the management of community corrections, including corrections-related supervision for offenders on community based orders (rule 7.25(d) of the Supports for Participants Rules); or
  • the operation of secure mental health facilities that are primarily clinical in nature (rule 7.25(e) of the Supports for Participants Rules).

Please refer to Appendix 1 for further guidance on whether justice supports are appropriately funded through the NDIS or more appropriately funded by other parties.

10.9 Other considerations applicable to including supports in a participant's plan

When deciding to include proposed supports in a participant's plans the NDIA will also have regard to the following matters:

10.9.1 The principle of “no disadvantage”

Governments have made a commitment through the Intergovernmental Agreement for the NDIS that people receiving supports before becoming participants of the NDIS should:

  • not be disadvantaged by the transition to the NDIS; and
  • be able to achieve at least the same outcomes (i.e. achieve at least the same level of social or economic participation or maintain the ability to undertake the same range of activities) in the NDIS as compared to those expected to be achieved by their previously provided support.

This commitment made by Government is referred to as the principle of ‘no disadvantage'.

The NDIA is not a party to the Intergovernmental Agreement and the principle of no disadvantage is not a specific obligation imposed on the NDIA under the NDIS Act.

Notwithstanding, when performing its functions the NDIA must use its best endeavors to act in accordance with any relevant intergovernmental agreements (section 118(2)(a)).

The principal of no disadvantage does not mean that a participant will always have the same level of funding, types of support or amount of support. For example, participants may have been previously receiving supports which continue to be most appropriately funded or provided by another service system.

Rather, the principal of no disadvantage refers to a participant's overall package of supports under the NDIS rather than a continuing entitlement to every form of support received before the NDIS commenced.

10.9.2 Participants transitioning with existing supports

The NDIA will need to consider the context for participants who have existing supports and how these participants will transition smoothly to any new supports funded by the NDIS.

Understandably, participants who were previously receiving supports under a Commonwealth, state or territory disability program may not wish to vary their existing supports. The NDIA will be considerate of the importance that supports can play in a participant's life and the challenges associated with varying existing support arrangements.

However, any support previously received can only be added to a statement of participant supports under the NDIS where the NDIA is satisfied that each specific criteria for including any general or reasonable and necessary support in a participant's plan is met.

If a participant's existing supports are included in their statement of participant supports, the NDIA will also need to consider whether the support needs of the participant are likely to change and whether a different constitution of supports may be more appropriate under the NDIS over time.

To minimise any disruption to the participant, the NDIA will transition a participant to new supports or to a different composition of supports over the course of several NDIS plans or at other appropriate transition points.

Where the NDIA does not fund a support that a participant previously received, the NDIA will seek to identify appropriate alternative supports or refer the participant to other service delivery systems to ensure the participant is able to achieve the same outcomes as before.

10.9.3 Compensation

A person may be injured in various ways which may result in the person receiving compensation. When a participant receives, or is entitled to receive, compensation which is intended to be used to pay for supports of a kind which the NDIA would ordinarily fund, the compensation is to be taken into account when determining which supports the NDIS will fund.

For further information please refer to the Operational Guideline on Compensation.

10.10 What assistance is available where a support is not most appropriately funded by NDIS?

Where appropriate, the NDIA will refer a participant to a Local Area Coordinator to support the participant in accessing mainstream and community supports.

Mainstream and community supports can be supports available to all members of the community (for example health, education, transport etc.) or services aimed specifically at people with disability, their carers and families (for example MS Society or Riding for the Disabled).

A Local Area Coordinator may be able to provide a range of supports such as:

  • providing local and relevant information to a participant and their support networks regarding mainstream services to facilitate independence, participation and inclusion;
  • support the participant and family's access and inclusion to service settings, and
  • facilitating coordination of specialised supports between the NDIA and other service providers.

A Local Area Coordinator can also work on a broader level with mainstream service systems to enhance access, participation and inclusion of people with disability. For example, by building the inclusion capacity of mainstream service providers in the local region.