Planning

13. Managing the funding for supports under a participant's plan (the plan management decision)

The statement of participant supports must include a statement which specifies how the management of the funding for supports under the plan is to be managed (section 33(2)(d)).

Managing the funding for supports under a participant's plan means:

  • purchasing the supports identified in the plan, including any applicable indirect costs, for example taxes, associated with the supports (section 42(1)(a));
  • receiving and managing any funding provided by the NDIA (section 42(1)(b)); and
  • acquitting any funding provided by the NDIA (section 42(1)(c)).

For each participant, someone (or more than person) will be identified as managing the funding for supports under a participant's plan.

A participant's plan must specify that the funding for supports under the plan be managed wholly, or to a specified extent, by:

Note, unless a participant's plan is managed by the NDIA, there is no restriction on who may provide supports under their plan. Participants are able to exercise choice about the selection of their providers. It is only when funding for a participant's supports is managed by the Agency that the supports must be provided by a registered provider of supports (section 33(6)). See Operational Guideline on Registered Providers.

The decision about how the funding under a participant's plan will be managed is to be made having regard to the general principles that guide actions under the NDIS Act. In particular:

  • 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)); and
  • 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)).

13.1 Participant can make a ‘plan management request'

A participant can make a request (referred to as a plan management request) specifying who the participant wishes to manage the funding for supports under their individualised plan (section 43).

  • To maximise choice and control for participants, the NDIA will adopt an approach that gives emphasis to the participant's plan management request and if there is no request, the participant's wishes.

There are no restrictions on how many plan management requests a participant can make.

In addition, a participant can make a plan management request when their plan is being initially prepared, or during any period of time for which their plan is in effect (see when is a participant's plan is in effect?)

The participant's plan management request may specify that the funding for supports under their plan be wholly, or to the extent specified in the request:

  • personally managed by the participant (known as self-management) (section 43(1)(a);
  • managed by a nominated registered plan management provider (section 43(1)(b)); or
  • managed by a person specified by the NDIA (section 43(1)(c)).

Note, where a participant is a child, the child's representative may make the plan management request on behalf of the child.

In this case, the child's representative can specify that the funding for supports under the child's plan be wholly, or to the extent specified in the request managed by the child's representative, a registered plan management provider, the NDIA or a person specified by the NDIA (section 74(2)).

The NDIA will advise the participant of the considerations and requirements relating to the different plan management options to enable the participant to make an informed decision about the plan management option most likely to suit their individual needs.

A participant who is already receiving existing supports may have an arrangement in place for the management of those supports with a third party who is not a registered plan management provider under the NDIS. In this situation, the NDIA will explain the process by which that third party can make an application to be a registered provider of supports to minimise any potential disruption to the existing arrangement.

13.2 Giving effect to the participant's plan management request

To maximise choice and control for participants, the NDIA will (where possible) give effect to the participant's plan management request.

The NDIA must give effect to a participant's plan management request except where:

13.2.1 Plan nominee already appointed

If a participant has a plan nominee the funding for supports under a participant's plan must be managed in accordance with the terms of the nominee's appointment (section 43(2)(b)).

If the terms of the nominee's appointment provides that funding is to be managed by a registered plan management provider or the NDIA, the NDIA must, so far as is reasonably practicable, have regard to the wishes of the participant when deciding who will manage the funding for supports under the plan (section 43(5)).

13.2.2 Participant or plan nominee insolvent under administration

Section 44 of the NDIS Act provides that a participant (or a plan nominee / child representative) must not manage funding for supports under the plan if they are an insolvent under administration. 

Where a participant or a participant’s plan nominee is insolvent under administration, the funding for supports under a plan must be managed by a registered plan management provider or the NDIA (section 43(3)(b)).

An insolvent under administration includes:

  • an undischarged bankrupt;
  • a person whose property is subject to control due to issuing of a bankruptcy notice or creditor’s petition, but before bankruptcy is declared  (section 50 or Division 2 of Part X of the Bankruptcy Act 1966);
  • a person who has executed a personal insolvency agreement, where terms of the agreement have not been complied with (Part X of the Bankruptcy Act 1966);
  • a person who is a party (as a debtor) to a debt agreement (Part IX of the Bankruptcy Act 1966)

An insolvent under administration is also a person who falls into one of the above categories under corresponding provisions of the law of an external Territory or a foreign country.

A person is usually discharged from bankruptcy after 3 years and 1 day, however this can vary depending on the circumstances of each case (i.e. bankruptcy can be extended or finished early).  If the participant (or plan nominee/child representative) is unsure of when they are due to be discharged, they can contact Australian Financial Security Authority (AFSA) and submit an ‘end of bankruptcy enquiry’. The NDIA may also choose to make its own enquiries for the purposes of determining whether a person is prohibited from self-managing under the NDIS Act.

For NDIS purposes, section 44(1) only prohibits self-management if the participant is currently an insolvent under administration.  If the participant was an insolvent under administration and has since been discharged, the NDIA will need to decide, based on all available information, whether self-management would present an unreasonable risk to the participant. 

A previous history of bankruptcy is one of the considerations that NDIA might have regard to in determining whether self-management would present an unreasonable risk to a participant, however, it need not be determinative in and of itself.

Where a plan nominee is a body corporate, the NDIA must be satisfied that the body corporate is not currently an insolvent company, meaning that it is not under voluntary administration, liquidation or receivership. 

The NDIA must, so far as is reasonably practicable, have regard to the wishes of the participant when deciding whether the funding for supports under the plan will be managed by the NDIA or a registered plan management provider (section 43(5)).

13.2.3 Unreasonable risk to the participant

A participant or a participant's plan nominee must not manage the funding for supports under a plan to the extent that it poses an unreasonable risk to the participant (sections 44(2) and 44(2A)).

Also, a child's representative must not manage the funding for supports under a plan to the extent that it poses an unreasonable risk to the child (section 74(b)).

Where the NDIA decides that there is an unreasonable risk to the participant, the funding for supports under the plan must still be managed in accordance with the participant's plan management request, to the extent that the participant is not prevented from managing it (section 43(3)(a)).

The remainder of the funding for supports under the plan must be managed by the NDIA or a registered plan management provider (section 43(3)(b)).

The NDIA must, so far as is reasonably practicable, have regard to the wishes of the participant when deciding whether the funding for supports under the plan will be managed by the NDIA or a registered plan management provider (section 43(5)).

If the participant is a child, or is represented by a plan nominee, the NDIA is to have regard to the following matters when determining whether there is an unreasonable risk to a participant:

  • the capacity of the child's representative or the plan nominee to manage finances (rule 3.7(a) of the Plan Management Rules);
  • whether the child's representative or the plan nominee has an interest that could lead a reasonable person to consider that NDIS amounts within their control might be spent other than in accordance with the participant's plan (rule 3.7(b) of the Plan Management Rules); and
  • whether, and the extent to which, any risks could be mitigated by any safeguards or strategies the NDIA could put in place through the participant's plan (rule 3.7(c) of the Plan Management Rules).

For other participants, the NDIA is to have regard to the following matters when determining whether there is an unreasonable risk to a participant:

  • whether material harm, including material financial harm, to the participant could result if the participant were to manage the funding for supports to the extent proposed, taking into account the nature of the supports identified in the plan (rule 3.8(a) of the Plan Management Rules);
  • the vulnerability of the participant to:
    1. physical, mental or financial harm (rule 3.8(b)(i) of the Plan Management Rules); or
    2. exploitation (rule 3.8(b)(ii) of the Plan Management Rules); or
    3. undue influence (rule 3.8(b)(iii) of the Plan Management Rules);
  • the ability of the participant to make decisions (rule 3.8(c) of the Plan Management Rules);
  • the capacity of the participant to manage finances (rule 3.8(d) of the Plan Management Rules);
  • whether a court or a tribunal has made an order under Commonwealth, State or Territory law under which the participant's property (including finances) or affairs are to be managed, wholly or partly, by another person (rule 3.8(e) of the Plan Management Rules); and
  • whether, and the extent to which, any risks could be mitigated by:
    1. the participant's informal support network (rule 3.8(f)(i) of the Plan Management Rules); or
    2. any safeguards or strategies the NDIA could put in place through the participant's plan (rule 3.8(b)(ii) of the Plan Management Rules).

The safeguards or strategies referred to above could include, for example:

  • setting a shorter period before the participant's plan is reviewed (rule 3.9(a) of the Plan Management Rules);
  • setting out regular contacts between the Agency and the participant (rule 3.9(b) of the Plan Management Rules); or
  • providing funding for supports (for example, budgeting training) that would assist the participant to manage their own plan (rule 3.9(c) of the Plan Management Rules).

The NDIA will weigh up the balance of the risks and mitigation strategies to determine if, following the application of possible safeguards, an unreasonable risk remains.

The NDIA will also consider the level of risk for each individual support identified in the plan, and only those supports that present an unreasonable risk to the participant should be restricted from self-management. For example, there may be evidence of unreasonable risk to the participant in managing a highly complex home modification, but not in managing the purchase of routine assistive devices.

13.3 How does the NDIA give effect to the participant's plan management request?

If a plan management request is received by the NDIA when a participant's plan is in the process of being initially prepared, the NDIA will decide whether to give effect to the plan management request as part of the overall decision to approve the statement of participant supports.

However, when a plan management request is received by the NDIA in respect of participant's plan that is already in effect, the NDIA will need to review the participant's plan if it decides to give effect to the new plan management request (see Reviewing and changing a participant's plan, and What happens when a participant's plan is reviewed?)

13.4 Where there is no plan management request

Where a participant does not make a plan management request, the statement of participant supports in the plan must provide that the funding for supports is to be managed by:

The NDIA must, so far as is reasonably practicable, have regard to the wishes of the participant when deciding whether the funding for supports under the plan will be managed by the NDIA or a registered plan management provider (section 43(5)).

13.5 Person may request a review of the plan management decision

The NDIA's decision in relation to how the management of the funding under a participant's plan will be managed is a reviewable decision (see participant may request a review of the decision to approve the statement of participant supports) (section 99(d)).