1. What is the purpose of this operational guideline?
This Operational Guideline provides an overview of the National Disability Insurance Scheme (NDIS), including the legal and policy framework it operates within and the variety of different ways it provides support and assistance to people with disability.
In addition, this Operational Guideline outlines the objects and general principles of the National Disability Insurance Scheme Act 2013 and provides a summary of the information which is available in the remainder of the NDIS' Operational Guidelines.
2. What is the relevant legislation?
- National Disability Insurance Scheme Act 2013 (External website) (NDIS Act); and
- National Disability Insurance Scheme Rules (External website).
3. NDIS Operational Guidelines
3.1 What are the NDIS operational guidelines?
The Operational Guidelines assist the National Disability Insurance Agency (NDIA) to make decisions under the National Disability Insurance Scheme (NDIS) legislative framework.
All decisions made by the NDIA are made under the NDIS Act.
The Operational Guidelines provide detail and guidance to decision makers on how to apply the law in the context of the NDIS, and helps the NDIA to interpret its functions and powers when making decisions or recommendations affecting members of the public.
The Operational Guidelines also help people understand how the NDIA applies relevant laws in the daily operations of the NDIS.
3.2 What do the NDIS operational guidelines cover?
The Operational Guidelines are divided into ten parts, by subject area:
|Operational Guideline||What does it cover?|
|Access to the NDIS||How a person can become, and may stop being, a participant in the NDIS.|
|Planning||The process for developing a participant's plan and how the NDIA makes decisions on what reasonable and necessary supports are included in a participant's plan.|
|Including Specific Types of Supports in Plans||Additional guidance which relates to including specific support types in participant plans.|
|Specialist Disability Accommodation (SDA)||Additional guidance in relation to the preparation and review of a participant’s plan when SDA is under consideration.|
|Child Representatives||How the NDIS determines who will be responsible for making decisions on behalf of a child who is an NDIS participant.|
|Nominees||When and how the NDIA may appoint and remove nominees for participants who are adults.|
|Registered Providers||Registration and revocation processes for registered providers of supports.|
|Compensation||How a participant's receipt of, or entitlement to, compensation affects the supports in their plan.|
|Information Handling||How the NDIA handles protected and personal information.|
|Review of Decisions||The processes by which a person directly affected by a decision of the NDIA can request that the decision be reviewed.|
4. About the NDIS
4.1 What is the NDIS?
The NDIS is a new way of providing individualised support for people with disability, their families and carers. The NDIS will provide all Australians with a permanent and significant disability, aged under 65, with the reasonable and necessary supports they need to live an ordinary life.
Eligible people, known as participants, are given a plan of supports which is developed and tailored to their individual needs. A plan could include informal supports that a person receives through family, friends, mainstream or other community services. If required, the NDIS will also fund reasonable and necessary supports that help participants achieve their goals.
Not all people with disability will become NDIS participants. Only those who meet the access criteria will become a participant and receive an individualised plan. However, the NDIS can provide people with disability, their families and carers support through information, linkages and capacity building by connecting people to the mainstream community.
4.2 Background to the NDIS
The idea of a National Disability Insurance Scheme was first raised at the Australia 2020 Summit in 2008. The following year, the Australian Government announced that the Productivity Commission would hold a public inquiry into a long term disability care and support scheme. The Commission handed down its report in 2011 which found that the disability system was underfunded, unfair, fragmented and inefficient and gave people with disability, their families and carers little choice and no certainty of access to appropriate supports (see Productivity Commission Report (External website)).
Following the Commission's report, the Commonwealth and all state and territory governments agreed to the introduction of the NDIS, signifying the most important social reform in Australia since the introduction of Medicare in the 1970s. In 2012, the first four trial (or launch) sites were announced and in March 2013, the NDIS Act was passed.
On 1 July 2013, the NDIS trial began in the Hunter region in New South Wales, the Barwon region of Victoria and in the states of South Australia and Tasmania. Another three trials began on 1 July 2014, this time in the Australian Capital Territory, the Barkly region of the Northern Territory and the Perth Hills region of Western Australia.
The trials transformed the lives of over 25,000 Australians by assisting participants to live more independently and providing them with the supports and equipment they need. These successes saw an early transition to full Scheme in the Nepean Blue Mountains area of New South Wales on 1 July 2015, as well as an early transition in Northern Queensland which commenced on 1 January 2016.
Over the next three years, the NDIS is being rolled out progressively across Australia (see also NDIS full scheme progressive rollout).
The transition from a trial to full Scheme is guided by agreements made between the Commonwealth and state and territory governments. These agreements state the timeframes by which the regions and age groups across Australia will transition to the NDIS. By July 2019, the Scheme will cover approximately 460,000 participants nation-wide.
The National Disability Strategy 2010-2020 (External website), which was formally endorsed by the Council of Australian Governments on 13 February 2011, provides a ten-year national policy framework for improving life for Australians with disability, their families and carers.
Importantly, action taken under the National Disability Strategy to improve the accessibility of mainstream services for people with disability will complement specialist disability services and programmes currently provided by Commonwealth, state and territory governments, including those provided through the NDIS.
4.3 What are the NDIS insurance principles?
The NDIS is a social insurance scheme, not a welfare system. The NDIS is based on the following four insurance principles:
- the total annual funding base required by the NDIS is determined by an actuarial estimate of the reasonable and necessary support needs of the target population. The NDIS continually compares these estimates of utilisation and costs with actual experience and outcomes;
- the NDIS takes a lifetime approach (i.e. seeks to minimise support costs over a participant's lifetime) by investing in people early to build their capacity to help them pursue their goals and aspirations resulting in greater outcomes later in life;
- the NDIS will invest in research and encourage innovation; and
- the NDIS has the ability to act at the systemic level, as well as fund individual support needs. This is especially important for people with disability who are not participants (see also information, linkages and capacity building).
4.4 The National Disability Insurance Scheme Act 2013 (NDIS Act)
The NDIS Act establishes the NDIA, which has responsibility for delivering the NDIS.
The functions and powers of the NDIA are prescribed by the NDIS Act. In addition, the NDIS Act, in conjunction with other laws, gives effect to Australia's obligations under the United Nations Convention on the Rights of Persons with Disabilities.
A simplified outline (External website) of the NDIS Act is available (section 8).
The NDIS Act also defines keywords (External website) used throughout the legislative framework and the Operational Guidelines (section 9).
4.4.1 Objects of the NDIS Act
The main objective of the NDIS is to provide all Australians who acquire a permanent disability before the age of 65 which substantially impacts how they manage everyday activities with the reasonable and necessary supports they need to live an ordinary life.
The NDIS Act details the objects, or goals, that the NDIA is striving towards which are to:
- in conjunction with other laws, give effect to Australia's obligations under the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ( ATS 12) (section 3(1)(a));
- provide for the NDIS in Australia (section 3(1)(b));
- support the independence and social and economic participation of people with disability (section 3(1)(c));
- provide reasonable and necessary supports, including early intervention supports, for participants in the NDIS (section 3(1)(d));
- enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports (section 3(1)(e));
- facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability (section 3(1)(f));
- promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community (section 3(1)(g));
- raise community awareness of the issues that affect the social and economic participation of people with disability, and facilitate greater community inclusion of people with disability (section 3(1)(h)); and
- in conjunction with other laws, give effect to certain obligations that Australia has as a party to:
- the International Covenant on Civil and Political Rights done at New York on 16 December 1966 ( ATS 23) (section 3(1)(i)(i));
- the International Covenant on Economic, Social and Cultural Rights done at New York on 16 December 1966 ( ATS 5) (section 3(1)(i)(ii));
- the Convention on the Rights of the Child done at New York on 20 November 1989 ( ATS 4) (section 3(1)(i)(iii));
- the Convention on the Elimination of All Forms of Discrimination Against Women done at New York on 18 December 1979 ( ATS 9) (section 3(1)(i)(iv)); and
- the International Convention on the Elimination of All Forms of Racial Discrimination done at New York on 21 December 1965 ( ATS 40) (section 3(1)(i)(v)).
4.4.2 General principles which guide actions under the NDIS Act
In addition to the objects of the NDIS Act, there are also general principles which are to guide the actions of the NDIA when performing its functions:
- people with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development (section 4(1));
- people with disability should be supported to participate in and contribute to social and economic life to the extent of their ability (section 4(2));
- people with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime (section 4(3));
- people with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports (section 4(4));
- people with disability should be supported to receive reasonable and necessary supports, including early intervention supports (section 4(5));
- people with disability have the same right as other members of Australian society to respect for their worth and dignity and to live free from abuse, neglect and exploitation (section 4(6));
- people with disability have the same right as other members of Australian society to pursue any grievance (section 4(7));
- people with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives, to the full extent of their capacity (section 4(8));
- people with disability should be supported in all their dealings and communications with the NDIA so that their capacity to exercise choice and control is maximised in a way that is appropriate to their circumstances and cultural needs (section 4(9));
- people with disability should have their privacy and dignity respected (section 4(10));
- reasonable and necessary supports for people with disability should:
- support people with disability to pursue their goals and maximise their independence (section 4(11)(a));
- support people with disability to live independently and to be included in the community as fully participating citizens (section 4(11)(b)); and
- develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment (section 4(11)(c));
- the role of families, carers and other significant persons in the lives of people with disability is to be acknowledged and respected (section 4(12));
- the role of advocacy in representing the interests of people with disability is to be acknowledged and respected, recognising that advocacy supports people with disability by:
- promoting their independence and social and economic participation (section 4(13) (a));
- promoting choice and control in the pursuit of their goals and the planning and delivery of their supports (section 4(13)(b)); and
- maximising independent lifestyles of people with disability and their full inclusion in the community (section 4(13)(c));
- people with disability should be supported to receive supports outside the NDIS, and be assisted to coordinate these supports with the supports provided under the NDIS (section 4(14));
- Innovation, quality, continuous improvement, contemporary best practice and effectiveness in the provision of supports to people with disability are to be promoted (section 4(15));
- positive personal and social development of people with disability, including children and young people, is to be promoted (section 4(16)); and
- it is the intention of the Parliament that the Ministerial Council, the Minister, the Board, the CEO and any other person or body is to perform functions and exercise powers under this Act in accordance with these principles, having regard to:
- the progressive implementation of the NDIS (section 4(17)(a)); and
- the need to ensure the financial sustainability of the NDIS (section (4)(17)(b)).
See also principles relating to plans.
4.4.3 General principles which guide the actions of people who act on behalf of people with disability
There are also principles which apply where the NDIS Act requires or permits an act or thing to be done by, or in relation to, a person with disability by another person.
In these circumstances, the act or thing is to be done, so far as practicable, in accordance with both the general principles and the following further principles:
- people with disability should be involved in decision making processes that affect them, and where possible make decisions for themselves (section 5(a));
- people with disability should be encouraged to engage in the life of the community (section 5(b));
- the judgements and decisions that people with disability would have made for themselves should be taken into account (section 5(c));
- the cultural and linguistic circumstances, and the gender, of people with disability should be taken into account (section 5(d));
- the supportive relationships, friendships and connections with others of people with disability should be recognised (section 5(e)); and
- if the person with disability is a child, the best interests of the child are paramount, and full consideration should be given to the need to:
- protect the child from harm; and
- promote the child's development; and
- strengthen, preserve and promote positive relationships between the child and the child's parents, family members and other people who are significant in the life of the child (section 5(f)).
4.4.4 Principles relating to the participation of people with disability
Under the NDIS Act:
- people with disability are assumed, so far as is reasonable in the circumstances, to have capacity to determine their own best interests and make decisions that affect their own lives (section 17A(1));
- people with disability will be supported in their dealings and communications with the Agency so that their capacity to exercise choice and control is maximised (section 17A(2)); (see also communicating with people with disability)
- the NDIS is to:
- respect the interests of people with disability in exercising choice and control about matters that affect them; and
- enable people with disability to make decisions that will affect their lives, to the extent of their capacity; and
- support people with disability to participate in, and contribute to, social and economic life, to the extent of their ability (section 17A(3)).
4.4.5 National Disability Insurance Scheme Rules
The NDIS rules are legislative instruments (i.e. law) made under the NDIS Act. They set out further laws on matters of detail in relation to the operation of the NDIS and must be read in conjunction with the NDIS Act.
The most commonly referred to NDIS rules throughout the Operational Guidelines are:
|NDIS Rules||What do they cover?|
|National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (External website)||These rules assist the NDIA to determine who becomes a participant.|
|National Disability Insurance Scheme (Supports for Participants) Rules 2013 (External website)||The criteria and considerations the NDIS is to use when deciding whether to include supports in a participant's plan.|
|National Disability Insurance Scheme (Plan Management) Rules 2013 (External website)||How to assess whether it would be an unreasonable risk to a participant to self-manage funding in their plan, how NDIS amounts are paid, and how supports can be described in a plan.|
|National Disability Insurance Scheme (Children) Rules 2013 (External website)||These rules assist the NDIA to determine who is the child's representative and outlines the duties which apply to child representatives.|
|National Disability Insurance Scheme (Nominees) Rules 2013 (External website)||When a nominee should be appointed, who should be appointed as a nominee, duties of nominees and suspension and cancellation of nominee appointments.|
|National Disability Insurance Scheme (Registered Providers of Supports) Rules 2013 (External website)||The criteria for approval as a registered provider with the NDIA, requirements for registered providers and circumstances when a provider's registration can be revoked.|
|National Disability Insurance Scheme (Protection and Disclosure of Information) Rules 2013 (External website)||These rules are about safeguarding the privacy of people whose information is held by the NDIA.|
|National Disability Insurance Scheme (Supports for Participants – Accounting for Compensation) Rules 2013 (External website)||How compensation payments for personal injury are taken into account when assessing and determining reasonable and necessary supports in a participant's plan.|
Other NDIS Rules can be accessed at the Federal Register of Legislation (External website).
5. Support and Assistance
The NDIA may provide support and assistance, including financial assistance, to people with disability, including prospective participants and participants, to support them in exercising choice and control in the pursuit of their goals.
5.1 General Supports
A general support refers to a service provided by the NDIA to a person, or in relation to a person, or an activity engaged in relation to a person, that is in the nature of a coordination, strategic or referral service or activity (section 13(2)).
The NDIA can provide general supports to all people with disability, including those who are not participants. General supports are administered by the NDIA through its Information Linkages and Capacity Building program (ILC).
5.1.1 Information, Linkages and Capacity Building (ILC)
ILC, formerly known as ‘Tier 2', will connect people with disability, their families and carers, including people who are not NDIS participants, with disability and mainstream supports in their communities.
ILC will help build a more inclusive society in which the social, economic and educational participation of people with disability is maximised.
ILC is made up of five streams:
|ILC Stream||What does it do?||Example|
|Information, linkages and referrals||Connects people with disability, their families and carers with appropriate disability, community and mainstream supports.||Providing a fact sheet or face to face information on supports available in the community.|
|Capacity building for mainstream services||Ensures people with disability are connected to and can access mainstream supports.||Providing businesses information on how to improve accessibility at their premises.|
|Community awareness||Invests in building long-term community capacity to support people with disability, their families and carers to ultimately reduce the need for formal disability supports.||Basic training to people such as volunteers and business operators to enable them to better relate to, or work with, people with disability.|
|Individual capacity building||Invests in building capacity of individuals to improve outcomes for people with disability, their families and carers.||
Orientation training for people with vision impairment.
|Local area coordination||Helps people to plan and access supports in the community, with an emphasis on connecting people with mainstream supports and services.||Taking a person to their local community bowls club and helping them sign up.|
5.1.2 Local Area Coordination (LACs)
Local Area Coordinators (LACs) are a critical part of the NDIA's presence in the local community. LACs promote community inclusion and provide strong visibility of the local disability support system.
LACs will connect across all five streams of ILC and will not only support NDIS participants, but people with disability generally, as well as families and carers.
LACs will also help to streamline a participant's NDIS experience and assist them to navigate the variety of NDIS supports. To develop and maintain strong connections with communities, the NDIA has partnered with local organisations throughout Australia to assist with the delivery of local area coordination.
5.1.3 Early Childhood Early Intervention Approach (ECEI)
In addition to ILC, the NDIA has developed a single best practice approach to early childhood early intervention (ECEI).
ECEI involves greater mainstream inclusion and building the capacity of children and their families. The NDIA is working with early childhood intervention service providers, known as access partners, to ensure the NDIS supports children as early as possible. A child who needs more intensive early intervention support services may also become a NDIS participant and receive an individualised plan.
5.1.4 Families and Carers
The NDIA recognises and respects the role that families and carers play in the lives of people with disability. The unique understanding carers have of the person they care for is incredibly valuable and cannot be replicated by formal services or paid support workers. The NDIA supports carers by providing them with information on supports available to them, including courses and peer support-groups.
5.2 Funded Supports for participants
The NDIS may also fund supports that are reasonable and necessary for a participant to achieve their goals and aspirations. Funded supports are provided to NDIS participants through an individualised plan.
See also Operational Guideline – Planning.
6. Communicating with people with disability
The contents of any notice, approved form or information given to people with disability under the NDIS Act must be explained to the person to the maximum extent possible. This must be in the language or mode of communication and terms which the person with disability is most likely to understand (section 7(1)).
Wherever reasonably practicable, the explanation will be provided orally as well as be available in writing (section 7(2)).
6.1 Supported decision making
Some people with disability may wish to be supported when they make decisions, including decisions relating to the NDIS. The NDIA will support the person in the decision making process which may involve a range of approaches, including:
- acknowledging and facilitating the role of the person's existing support network already available to reinforce the person's capacity to determine their best interests and make decisions for themselves;
- acknowledging and respecting the role of advocacy in representing the interests of people with disability;
- maintaining a person-centered approach. Supported decision making is decision making by or with the person with disability, not for or on behalf of the person. The NDIA will encourage participants to source their own information around a matter for decision that affects them;
- providing information, such as explaining to a participant the context or consequences of a decision under the NDIS; and
- helping a person to develop the capacity to make independent decisions.
Supported decision making is different to a nominee making a decision for a participant. Supported decision making is where a person makes a decision by themselves with some level of support or assistance from other people. Nominee arrangements involve a nominated person (the nominee) making decisions on behalf of the participant.
Nominees have strict obligations that they must abide by, including supporting the participant to make their own decisions where possible. See Operational Guideline – Nominees for further information on nominees.
6.2 Charter of Service
The Charter of Service outlines the NDIA's service commitments and the standards the public can expect when dealing with the NDIA. It also provides information on how people can provide feedback or raise concerns with the NDIA.
7. Quality and Safeguards
The NDIA is working to ensure that all participants can access high-quality services that will enable them to achieve their goals. As a part of the NDIS, governments have agreed to the development of a national approach to quality and safeguards.
The national framework will maximise the opportunities for people with disability to make decisions about their supports while also enabling them to live free from the risk of abuse, neglect and exploitation. The framework will also promote innovation, continuous improvement and best practice in the provision of supports.
Until the national framework is fully implemented, the NDIS will be delivered using existing state, territory and Commonwealth quality and safeguarding systems.