Nominees Operational Guideline - Rights and obligations relating to nominees

7. Rights and obligations relating to nominees

Under the NDIS Act, a nominee has certain rights and obligations, including the right to perform certain actions on behalf of a participant.

7.1 Actions of plan nominee on behalf of participant

As a general rule, a plan nominee may do anything that may be done by a participant under, or for the purposes of, the NDIS Act that relates to:

However, in some circumstances, it may be appropriate to limit the matters that a plan nominee is appointed to deal with (see appointment of a plan nominee may contain limits).

A request that may be made by a participant under the NDIS Act may be made by the participant's plan nominee on behalf of the participant (section 78(2)).

An act which is done by a participant's plan nominee has effect for the purposes of the NDIS Act as if it had been done by the participant personally (section 78(3)).

However, if the NDIA gives a notice to a participant who has a plan nominee, the plan nominee may not do an act that is required by the notice to be done by the participant personally (an example would be a notice to a participant requesting that the participant undergo an assessment or examination) (section 78(4)).

If a participant's plan nominee was appointed on the initiative of the NDIA, the plan nominee may only do an act in relation to the preparation, review or replacement of the participant's plan, or the management of the funding for supports under the participant's plan if the nominee considers that the participant is not capable of doing, or being supported to do, the act themselves (section 78(5)).

7.2 Plan nominee required to give statement regarding disposal of money

The NDIA may give the plan nominee of a participant a notice that requires the plan nominee to give the NDIA a statement about a matter relating to the disposal by the nominee of NDIS funds (defined as ‘NDIS amount' in the Act) paid to the plan nominee on behalf of the participant (section 84(1)).

For example, giving a notice of this kind would be appropriate where the NDIA wishes to conduct an audit of a participant's plan that is being managed by a plan nominee.

A notice of this kind must specify:

  • how the plan nominee is to give the statement to the NDIA (section 84(2)(a) and 84(3)); and
  • the period within which the plan nominee is to give the statement to the NDIA, which must be at least 14 days from the date the notice is given (section 84(2)(b) and 84(4)).

A plan nominee commits an offence of strict liability under the NDIS Act if they refuse or fail to comply with a notice requiring that they provide a statement relating to the disposal of NDIS amounts received on behalf of a participant (section 84(6) and 84(8)).

However, a plan nominee will not commit an offence for failing to comply with a notice of this kind where they have a reasonable excuse. A plan nominee will have a reasonable excuse where complying with the notice might tend to incriminate or expose them to a penalty (sections 84(7) and 84(7A)).

7.3 Actions of correspondence nominee on behalf of participant

correspondence nominee may do any act that may be done by a participant under, or for the purposes of, the NDIS Act except for an act that relates to:

The role of a correspondence nominee is significantly narrower than the role of a plan nominee. A correspondence nominee can, for example, make requests on behalf of a participant (such as requests for information) and receive letters and notices from the NDIA on behalf of the participant.

Without limiting the types of acts that a correspondence nominee can do on behalf of a participant, a request that may be made by a participant under the NDIS Act may be made by the participant's correspondence nominee on behalf of the participant (section 79(2)).

An act which is done by a participant's correspondence nominee has effect for the purposes of the NDIS Act as if it had been done by the participant personally (section 79(3)).

However, if the NDIA gives a notice to a participant who has a correspondence nominee, the correspondence nominee may not do an act that is required by the notice to be done by the participant personally (an example would be a notice to a participant requesting that the participant undergo an assessment or examination) (section 79(4)).

7.4 NDIA obligation to give notices to correspondence nominee

Any notice that the NDIA is authorised, or required under the NDIS Act to give to a participant must be given by the NDIA to the participant's correspondence nominee (section 81(1)).

The notice must, in every respect, be in the same form, and in the same terms, as if it was being given to the participant directly (section 81(2)).

The NDIA may give the notice to the correspondence nominee personally, by post or by any other means approved by the NDIA (section 81 (2)).

If a notice is given to a participant's correspondence nominee, the notice is taken to have been given to the participant on the day the notice was given to the correspondence nominee (section 82(1)(a)).

7.5 Correspondence nominee may satisfy certain requirements on behalf of participant

If a notice includes a requirement that a participant inform the NDIA of a certain matter, give information or produce a document, the requirement may be satisfied by the correspondence nominee on behalf of the participant (section 82(1)(b)).

Any act performed by a correspondence nominee for the purposes of satisfying such a requirement has effect as if it were performed by the participant (section 82(1)(c)).

For the purposes of the NDIS Act, a participant will be taken to have complied with a requirement to inform the NDIA of a matter, or to give information or produce a document within a period, if the correspondence nominee satisfies the requirement on their behalf (section 82 (2)).

However, if a correspondence nominee fails to satisfy such a requirement, the participant is taken, for the purposes of the NDIS Act to have failed to comply (section 82(2)(d) and 82(3)).

7.6 Right of nominee to attend with participant

If the NDIA makes a request that a participant undergo an assessment or examination, the participant's plan nominee or correspondence nominee may accompany the participant while the assessment or examination is being conducted:

  • if the participant wishes (section 85(1)(c)); and
  • to the extent that the person conducting the assessment or examination consents (section 85(1)(d)).

Where a participant's nominee is a body corporate, an officer or employee of the nominee may accompany the participant to the assessment or examination (section 85(2)).

7.7 Nominee's obligation to inform NDIA of matters affecting ability to act as nominee

The NDIA may give a plan nominee or a correspondence nominee a written notice that requires the nominee to inform the NDIA if:

  • an event or change in circumstances happens; or
  • the nominee becomes aware that an event or change of circumstances is likely to happen (section 83(1)(a)); and

The event or change in circumstances is likely to affect:

  • the ability of the nominee to act as the plan nominee or correspondence nominee of the participant;
  • the ability of the NDIA to give notices to the nominee under the NDIS Act; or
  • the ability of the nominee to comply with notices given to the nominee under the NDIS Act (section 83(1)(b)).

A notice of this kind must specify:

  • how the nominee is to inform the NDIA of the event or change in circumstances (section 83(2)(a) and 83(3)); and
  • the period in which the nominee is to inform the NDIA, which must be a period of at least 14 days beginning on the day on which:
    1. the event or change in circumstances happens; or
    2. the nominee becomes aware that the event or change in circumstances is likely to happen (section 83(2)(b)).

The NDIA will ordinarily give a notice of this kind to a nominee upon their initial appointment, and at other relevant times, where necessary, to ensure that the NDIA has sufficient information surrounding the appropriateness of the nominee arrangement.

This page current as of
18 July 2019