Child Representatives Operational Guideline - Determining whether a child can represent themselves

7. Determining whether a child can represent themselves

Ordinarily, a participant who is a child will have a child representative to perform actions and make decisions on his or her behalf. A child's representative will be the person or persons who have parental responsibility for the child, or another person appointed by the NDIA.

However, the NDIA may decide that a child can represent themselves for the purposes of the NDIS Act if it is satisfied that:

  • the child is capable of making decisions for themselves (section 74(5)(a)); and
  • it is appropriate for the child to do things under the NDIS Act for themselves (section 74(5)(b)).

When deciding whether a child is capable of making decisions for themselves, the NDIA must:

  • consult with the child and the child's representative (rule 5.2(a) of the Children Rules); and
  • have regard to the following:
    1. whether the child:
      • is able to understand the kind of information relevant to decisions that need to be made under the NDIS;
      • is able to use information of that kind when making decisions;
      • is able to understand the consequences of decisions that need to be made under the NDIS; and
      • is able to communicate decisions in some way (rule 5.2(b)(i) of the Children Rules); and
    1. whether there are people in the child's life who can support them to make their own decisions (rule 5.2(b)(ii) of the Children Rules).

When deciding whether it is appropriate for a child to do things under the NDIS Act for themselves, the NDIA must:

  • consult with the child and the child's representative (rule 5.3(a) of the Children Rules); and
  • have regard to the following:
    1. the preferences (if any) of the child;
    2. whether there are other people in the child's life who would be willing and able to assist them in carrying out actions and making decisions under the NDIS;
    3. the need to preserve existing family relationships;
    4. any existing arrangements in place under Commonwealth, State and Territory schemes (rule 5.3(b) of the Children Rules).

Most children will have arrangements in place, either for people to undertake actions on their behalf or to support them to make decisions themselves. The NDIA will be sensitive to the important role these existing support networks play and take them into consideration when determining whether it is appropriate for a child to act on his or her own behalf.

A child's capacity for making decisions, as well as the appropriateness of them acting for themselves will evolve over time. The NDIA will be considerate of the evolving nature of a child's capacity and take this into account when making decisions about whether a child can represent themselves.

The NDIA is also conscious that a child's decision making capacity may vary according to the environment in which the child makes the decisions. The NDIA will, wherever possible, make their assessment of whether a child is capable of making decisions in the environment in which the child feels most comfortable.

A decision by the NDIA to determine that a child cannot represent themselves can be reviewed, and is known as a reviewable decision (section 99(j)).

Therefore, the NDIA must notify a child in writing of the decision not to allow them to represent themselves, including a statement to the effect that the child may request that the NDIA review the decision (section 100(1)).

The NDIA will also attempt to contact the child by telephone to advise them of the decision which has been made.

This page current as of
26 April 2019