This information is about the changes to the NDIS Act that were made in August 2024.
The government has provided lots of information about these changes – but it is very hard to understand.
Inclusion Australia has written some information to explain the main changes in plain language. We have concentrated on the changes that people have been worried about.
This does not mean Inclusion Australia agrees with all the changes. It means we think it is important for everyone to understand the changes.
Inclusion Australia is working very hard to make sure that the new rules will work for people with an intellectual disability – including people with very high support needs.
We will keep making easier to understand information about the NDIS changes. Please let us know what things you would like us to explain. You can email us at [email protected].
This information will be updated as more changes take place and information is available.
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Understanding the changes to the NDIS Legislation
What is the new law about the NDIS?
Why are people upset about the changes?
- The NDIS must give more information to participants
- The rules on how funding is calculated
- The rules on how funding can be spent
What is the Substitution Rule?
- Can the NDIS raise a debt on me?
- Am I going to be institutionalised now?
- If my funding runs out, I will not have money for supports
What is the new law about the NDIS?
On 22 August 2024, the Australian Government made changes to the law that controls how the NDIS works. The changes are called the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024. We call this the Act for short.
Why did the law change?
The main reason the law changed was because of the recommendations made by the NDIS Review.
However, the government decided to make other changes to the law as well. They said these changes were to make the NDIS work better.
Why are people upset about the changes?
People are upset about the changes because they are scared about what might happen next. Some things will definitely change, but not everything that people say will happen is true.
What will stay the same?
The rules about who can access the NDIS stay the same.
People still have choice and control about their providers.
What will be different?
1. The NDIS must give more information to participants
One of the things that will be different is the NDIS has to give you more information. The NDIS will need to tell each participant:
- Exactly what impairments and supports the NDIS has accepted are reasonable and necessary for that person
- If they have been accepted into the NDIS because they meet the disability rules, or because they meet the early intervention rules.
2. The rules on how funding is calculated
The NDIS Review said that people should have more flexibility in their plans. It said that:
- The amount of money in a plan should be ‘reasonable and necessary’ for each participant
- People should be able to choose how much to spend on their different supports – as long as they did not spend more than the total amount of money in the plan (plan budget).
The NDIS Review said that the amount of money in a person’s plan should be based on an individual ‘needs assessment’.
The government has promised that the new ‘needs assessments’ will be codesigned with people with disability. This will take quite a bit of time.
In the meantime, the NDIS will calculate the amount of money in a plan based on the reasonable and necessary criteria in section 34.
3. The rules on how funding can be spent
The government asked the lawyers who are experts in the Constitution to write down the new rules to make flexible budgets.
The Constitution is the main rulebook that tells everyone in Australia how our country should work. It says how governments need to work together.
The expert lawyers said that the Constitution does not allow the government to give money to people to spend flexibly unless there are clear rules to say what the money can and can’t be used for.
The expert lawyers said that while the main rules are being codesigned, there had to be a list of:
- What NDIS supports are (we will call this the ‘Yes List’)
- What NDIS support are not (we will call this the ‘No List’)
The government says that these rules are not different than what the old law said. It says that the new lists just make the rules clearer.
Lots of people with disability are worried about the new lists. They think the new rules will make it harder for participants to have choice and control over the supports they can buy with their funding.
The government says that people will still have more flexibility on how they spend the money in their NDIS plans than they do now.
They say this is similar to how self-management already works.
[If you self-manage, you can choose how to spend your funding according to Page 17 of the Guide to self-management.]
It is important to remember these lists have been made quickly so that the NDIS has rules to follow straight away. They are ‘transition rules’.
The main rules will replace the transition rules once they have been agreed to by the federal and state and territory governments.
The main rules need to be carefully codesigned with people with disability over many months.
Inclusion Australia is working very hard to make sure that the new rules will work for people with an intellectual disability – including people with very high support needs.
What is the Substitution Rule?
The government also made a Substitution Rule.
This is very important and very complicated.
The substitution rule will allow for a participant to ask for some of the support that is on the ‘No List’ to be made a ‘Yes List’ support just for them.
The participant will have to say why this support will be better for them.
Inclusion Australia worked hard to make sure the new rules have flexibility for participants who have unique disability support needs.
We are still working to make sure the process to apply for a substitution is easy for people with high support needs.
What happens now?
Some of the changes will happen from Thursday 3 October 2024.
These include the new ‘Yes List’ and ‘No List’.
Most of the other changes cannot happen until the main rules have been codesigned with people with disability and the organisations that represent them (like Inclusion Australia).
This will take many months.
What about the scary rumours?
1. Can the NDIS raise a debt on me?
People are worried that the NDIS will ‘raise a debt’ against them. This means that the NDIS might make them pay back money that has been spent on supports.
There are a few things to understand about the rules around debts:
- Firstly, it is important to know that the NDIS can make people pay back money under the old rules.
- The NDIA can make people pay back money that has been spent on things that are not related to a person’s disability.
- The new rules allow more situations for a debt to be cancelled. These now include where the wrong thing has happened as a result of the abuse, exploitation or coercion of a participant.
The NDIS will be focused on supporting people to understand the changes and there will be new rules which means some debts wont be raised while people are getting used to the lists.
The new laws include the development of a ‘Claims and Payments Framework’. Inclusion Australia will work hard to make sure this works for people with an intellectual disability – including people with very high support needs.
2. Am I going to be institutionalised now?
The NDIS Review made a recommendation that: ‘In general, reasonable and necessary funding should be based on an average shared support ratio of 1:3….’
The NDIS Review said there were plenty of people who would still need supports that were not shared.
The government has not responded to this recommendation yet.
The changes to the laws do not mention this recommendation.
There are still many, many discussions to be had in the disability community before rules about shared supports change.
3. If my funding runs out, I will not have money for supports
Some of the changes to the NDIS Act and a new rule are to make sure that participants do not spend the money in their plans too fast.
The NDIS says it will give more help to people to make sure their funding lasts for the whole plan.
The NDIS will now have the power to change the way a plan is managed if a participant keeps running out of money. This means more of their plan might be agency-managed instead of self-managed or plan-managed.
Some people are worried this means that they will not get enough supports in their plan to start with.
Inclusion Australia will be watching very closely to make sure the NDIS supports people properly.