Child Representatives Operational Guideline - Determining whether a person other than a person with parental responsibility should be a child's representative

6. Determining whether a person other than a person with parental responsibility should be a child's representative

The person or persons who have parental responsibility for a child will usually be the child's representative under the NDIS.

However, in exceptional circumstances it may be appropriate for the NDIA to decide that a person who does not have parental responsibility for a child should be a child's representative.

Where the NDIA is satisfied that it is not appropriate for the person or persons who have parental responsibility be the child's representative, the NDIA can appoint another person in writing (section 74(1)(b)).

In deciding whether to determine that a person who does not have parental responsibility for a child should be the child's representative, the NDIA must have regard to:

  • the preferences (if any) of the child (rule 3.5(a) of the Children Rules);
  • the desirability of preserving family relationships and informal support networks of the child (rule 3.5(b) of the Children Rules);
  • who is best placed to carry out the duties to children (rule 3.5(c) of the Children Rules);
  • for a particular person that the CEO is considering appointing:
    1. any existing arrangements that are in place between that person and the child (rule 3.5(d)(i) of the Children Rules); and
    2. whether that person has responsibility for day-to-day parenting decisions (rule 3.5(d)(ii) of the Children Rules); and
    3. whether that person can act in conjunction with other representatives and supporters of the child in the best interests of the child (rule 3.5(d)(iii) of the Children Rules); and
    4. where the CEO has asked the person to answer any questions or provide any information in relation to the possible appointment of that person as a child's representative (including requesting the person to consent to the release of information concerning their criminal history or suitability to work with children):
      • any answers or information that have been provided by the person; and
      • any refusal by the person to provide answers or information (rule 3.5(d)(iv) of the Children Rules); and
    1. any relevant conviction for an offence under Commonwealth, State or Territory law (rule 3.5(d)(iv) of the Children Rules); and
    2. any relevant information relating to the suitability of the person to work with children (rule 3.5(d)(v) of the Children Rules).

Note, where the child's guardian is a State or Territory Minister, or the head of a Department of State, that person must agree in writing to the NDIA deciding that another person with parental responsibility is to be the child's representative (section 75(3A)).

A decision by the NDIA in relation to whether a person who does not have parental responsibility for a child should be the child's representative can be reviewed, and is known as a reviewable decision (section 99(i)).

Therefore, the NDIA must notify each person directly affected by the decision to allow, or refuse to allow a person who does not have parental responsibility for a child to be the child's representative in writing, including a statement to the effect that the person may request that the NDIA review the decision (section 100(1)).

The NDIA will also to attempt to contact all people directly affected by the decision by telephone to advise them of the decision which has been made.

6.1 Revoking a determination

The NDIA may revoke a determination that a person other than a person with parental responsibility for a child is to be the child's representative where:

  • the person makes a written request to the NDIA asking that the determination be revoked (section 77(1)(a)); or
  • the NDIA is satisfied that it is no longer appropriate for the determination to remain in effect (section 77(1)(b)).

The NDIA will make decisions in relation to whether it is appropriate for a person who does not have parental responsibility to continue to be a child's representative on a case by case basis. For example, it will not be appropriate for a person to continue to be a child's representative where the NDIA has reliable information that the person has caused, or is likely to cause, physical, mental or financial harm to the child.

This page current as of
26 April 2019