5.5 An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person's functional capacity, including their psychosocial functioning, may improve.
5.6 An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).
5.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.
Paragraphs 5.4 to 5.7 are made for the purposes of paragraph 27(a) of the Act.
When does an impairment result in substantially reduced functional capacity to undertake relevant activities?
5.8 An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:
(a) the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b) the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c) the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.
Paragraph 5.8 is made for the purposes of paragraph 27(b) of the Act.
Part 6 When does a person meet the early intervention requirements?
6.1 A person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is more appropriately funded or provided through another service system (service systems is defined in paragraph 8.4) rather than the NDIS.
6.2 However, a person meets theearlyintervention requirements if:
(a) the person:
(i) has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent (see paragraphs 6.4 to 6.7); or
(ii) has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent (see paragraphs 6.4 to 6.7); or
(iii) is a child who has developmental delay; and
(b) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person’s future needs for supports in relation to disability (see paragraphs 6.8 to 6.11); and
(c) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i) mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or
(ii) preventing the deterioration of such functional capacity; or
(iii) improving such functional capacity; or
(iv) strengthening the sustainability of informal supports available to the person, including through building the capacity of the person’s carer (see paragraphs 6.8 to 6.11).
Paragraph 6.1 summarises subsection 25(3) of the Act. Paragraph 6.2 summarises subsection 25(1) of the Act.
6.3 This Part sets out rules relating to some of the elements in paragraph 6.2 above, however, in order to meet the early intervention requirements, all of the requirements in that paragraph need to be satisfied.
When is an impairment permanent or likely to be permanent for the early intervention requirements?
6.4 An impairment is, or is likely to be, permanent (see paragraphs 6.2(a)(i) and (ii)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
6.5 An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person's functional capacity may improve.
6.6 An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).
6.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.
Paragraphs 6.4 to 6.7 are made for the purposes of paragraph 27(a) of the Act.
Deciding whether provision of early intervention supports is likely to benefit the person
6.8 Where paragraph 6.2(a) applies to a person, the main way in which the CEO can determine whether the provision of early intervention supports is likely to benefit the person in the ways set out in paragraphs 6.2(b) and (c) above is to consider evidence going to those matters, as indicated in paragraph 6.9 below. However, young children who have an impairment resulting in developmental delay (see paragraph 6.10) or resulting from a particular condition (see paragraph 6.11) will not need to provide further evidence of the matters in paragraphs 6.2(b) and (c).
Paragraph 6.8 is made for the purposes of paragraph 27(d) of the Act.
Where evidence is required
6.9 In deciding whether provision of early intervention supports is likely to benefit the person in the ways mentioned in paragraphs 6.2(b) and (c) above, it is expected that the CEO would consider:
(a) the likely trajectory and impact of the person's impairment over time; and
(b) the potential benefits of early intervention on the impact of the impairment on the person's functional capacity and in reducing their future needs for supports; and
(c) evidence from a range of sources, such as information provided by the person with disability or their family members or carers. The CEO may also in some cases seek expert opinion.
Paragraph 6.9 is made for the purposes of paragraph 27(d) of the Act. It does not compel the CEO to take the actions mentioned in that paragraph in any particular instance.
Early intervention in early childhood
6.10 The CEO is taken to be satisfied that provision of early intervention supports for a child under the age of 6 is likely to benefit the child in the ways mentioned in paragraphs 6.2(b) and (c) above if one or more of the child's impairments is a mental or physical impairment which, by itself or in combination with other mental or physical impairments, results in developmental delay.
Note: Developmental delay is defined in section 9 of the Act as a delay in the development of a child under 6 years of age that:
(a) is attributable to a mental or physical impairment or a combination of mental and physical impairments; and
(b) results in substantial reduction in functional capacity in one or more of the following areas of major life activity:
(i) self-care;
(ii) receptive and expressive language;
(iii) cognitive development;
(iv) motor development; and
(c) results in the need for a combination and sequence of special interdisciplinary or generic care, treatment or other services that are of extended duration and are individually planned and coordinated.
6.11 The provision of early intervention supports is likely to benefit a child aged 6 or under in the ways mentioned in paragraphs 6.2(b) and (c) above in the circumstance that one or more of the child's impairments results from a condition which is on a list of conditions published by the CEO for which evidence has established that early intervention supports will have these benefits.
Paragraph 6.10 is made for the purposes of subsection 25(2) of the Act. Paragraph 6.11 is made for the purposes of paragraphs 27(d), (e) and (f) of the Act.
Part 7 Assessing whether a person meets the disability or early intervention requirements
7.1 In deciding whether a prospective participant meets the disability requirements or the early intervention requirements, the CEO may, if the CEO considers it appropriate, conduct an assessment, which is to be done using an assessment tool specified in operational guidelines in accordance with this Part from time to time.
Specification of assessment tools in guidelines
7.2 The CEO may specify, in operational guidelines, assessment tools that may be used for the purposes of deciding whether a person meets the disability requirements or the early intervention requirements.
7.3 A tool specified under paragraph 7.2 may be the same as a tool specified under paragraph 4.4 of the National Disability Insurance Scheme (Supports for Participants) Rules 2013.
7.4 Without limitation, the CEO may specify:
(a) different tools to be used for adults and children; and
(b) tools that are specifically tailored to particular impairments.
7.5 A tool must:
(a) be designed to ensure the fair and transparent assessment of whether a person meets the disability requirements or the early intervention requirements; and
(b) have reference to areas of activity and social and economic participation identified in the World Health Organisation International Classification of Functions, Disability and Health as in force from time to time.
This Part is made for the purposes of subsection 209(2A) of the Act.
Part 8 Other matters
Citation
8.1 This Instrument may be cited as the National Disability Insurance Scheme (Becoming a Participant) Rules 2016.
Interpretation
8.2 This Instrument includes text that summarises provisions of the Act. The boxed notes identify such text, which does not form an operative part of this Instrument.
8.3 Terms and expressions that are used in the Act have the same meaning in this Instrument unless this Instrument displays a contrary intention—see the Acts Interpretation Act 1901 and the Legislation Act 2003, which include definitions and rules of interpretation that apply to all Commonwealth legislation. For convenience, the more important definitions from the Act are identified or reproduced in paragraph 8.4.
8.4 In this Instrument:
2013 NDIS launch area means:
(a) South Australia;
(b) Tasmania;
(c) the areas that comprise the following municipal districts of Victoria as at 1 July 2013:
(i) Colac-Otway Shire;
(ii) City of Greater Geelong;
(iii) Borough of Queenscliffe;
(iv) Surf Coast Shire;
(d) the areas that comprise the following areas of New South Wales constituted under the Local Government Act 1993 (NSW) as at 1 July 2013:
(i) Lake Macquarie City;
(ii) Maitland City;
(iii) Newcastle City.
2014 NDIS launch areameans:
(a) the areas that comprise the following districts of Western Australia declared under section 2.1 of the Local Government Act 1995 (WA) as at 1 July 2014 (those areas, together, are known for the purposes of this Instrument as Perth Hills):
(i) Shire of Kalamunda;
(ii) Shire of Mundaring;
(iii) City of Swan;
(b) the area that comprises the Barkly Region in the Northern Territory as defined under section 9 of the Local Government Act (NT) as at 1 July 2014 (that area is known for the purposes of this Instrument as the Barkly Region);
(c) the Australian Capital Territory.
Note: reference to the Australian Capital Territory in this Instrument does not include the Jervis Bay Territory.
2015 NDIS early transition area means:
(a) the areas that comprise the following areas of New South Wales constituted under the Local Government Act 1993 (NSW) as at 1 July 2015:
(i) City of Blue Mountains;
(ii) City of Hawkesbury;
(iii) City of Lithgow;
(iv) City of Penrith.
Act means the National Disability Insurance Scheme Act 2013.
Agency¾see section 9 of the Act.
CEO¾see section 9 of the Act.
child¾see section 9 of the Act.
Existing WA NDIS Participant means a person who:
(a)is a participant of the WA NDIS Model (whether or not that participant already has a plan prepared in accordance with the Disability Services Commission’s requirements); and
(b)resides, or resided at any time on or after 1 July 2014, in the area of Western Australia that comprises any of the following:
(i)Kimberley-Pilbara service region;
(ii)South Metro service region;
(iii)Augusta-Margaret River, Boyup Brook, Bridgetown-Greenbushes, Busselton, Donnybrook-Balingup, Manjimup, and Nannup districts of the South West service region;
(iv)Central South Metro service region;
(v)Wheatbelt service region; or
(vi)North East Metro service region.
Note: The Disability Services Commission is established under the Disability Services Act 1993 (WA) and in the context of the WA NDIS Model, a ‘participant’ is a participant under that Act.
Instrument (or Rules) means these National Disability Insurance Scheme (Becoming a Participant) Rules 2016.
NDIS means the National Disability Insurance Scheme (see section 9 of the Act).
NDIS areas means the NDIS launch areas, NDIS early transition areas and NDIS areas specified in Schedule A to this Instrument.
NDIS launch area means the 2013 NDIS launch areas, together with the 2014 NDIS launch areas, and the 2015 NDIS launch areas.
NDIS rules means the National Disability Insurance Scheme rules (see section 9 of the Act).
parental responsibility¾see section 9 of the Act.
participant¾see section 9 of the Act.
servicesystems means general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(a) as part of a universal service obligation; or
(b) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
Victorian Government means the State of Victoria.
WA NDIS Model means the disability supports and services model designed to mirror the NDIS, funded or administered by the Department of Communities representing the State of Western Australia.
Schedule A – Additional age and residence requirements
South Australia
For persons who reside in South Australia, additional age and residence requirements apply as set out below. The Districts referred to in column 1 below have the meaning set out in Schedule B.
The effect of this table is that:
•Any person under the age of 15 who resides anywhere in South Australia will meet the additional age and residence requirements from 1 January 2016.
•Any person who will be under the age of 18 on 1 January 2017 and who resides anywhere in South Australia will meet the additional age and residence requirements from 1 July 2016.
•From 1 January 2017, persons who reside in the specified areas will meet both the additional age and residence requirements from the dates set out below.
A person meets the residence requirement if they reside in…
at the following time (the date mentioned in row 1 is the ‘relevant date’ for South Australia)…
The additional age requirements for the person are…
South Australia
on or after 1 January 2016.
the person is under 15 on the date the access request is made.
South Australia
on or after 1 July 2016.
the person is under 18 on 1 January 2017.
Barossa, Light and Lower North; or
Playford, Salisbury and Port Adelaide Enfield (East)
on or after 1 January 2017.
No additional age requirements (the person is under 65 on the day of the access request)
Tea Tree Gully; or
Limestone Coast; or
Murray and Mallee
on or after 1 April 2017.
No additional age requirements (the person is under 65 on the day of the access request)
Fleurieu and Kangaroo Island; or
Southern Adelaide; or
Eyre and Western; or
Far North; or
Yorke and Mid North
on or after 1 July 2017.
No additional age requirements (the person is under 65 on the day of the access request)
Remainder of South Australia
on or after 1 October 2017.
No additional age requirements (the person is under 65 on the day of the access request)
Tasmania
A person meets the additional residence requirements if they reside in Tasmania on or after the commencement of these Rules. The ‘relevant date’ for Tasmania is the day on which these Rules commence.
For persons who reside in Tasmania there are additional age requirements that apply in the periods set out below. There is a single exception in that the additional age requirements do not apply to persons who, on 1 July 2016, reside in Tasmania and are accessing Tasmanian funded Supported Accommodation.
The effect of the below table is that the range of ages at which a person meets the additional age requirements is progressively broadened until there are no additional age requirements in Tasmania by 1 July 2018.
For an access request made on or after (or received earlier but decided on or after):
The additional age requirement is that the person be:
1 February 2016
at least 12, and under 25, on the date the access request is made.
1 July 2016
at least 12, and under 29, on the date the access request is made.
1 January 2017
at least 4, and under 29, on the date the access request is made.
1 July 2017
at least 4, and under 35, on the date the access request is made.
1 January 2018
under 50, on the date the access request is made.
1 July 2018
under 65 on the date the access request is made (no additional age requirements apply).
*No additional age requirement applies in relation to persons who, on 1 July 2016, reside in Tasmania and are accessing Tasmanian funded shared Supported Accommodation.
Queensland
For persons who reside in Queensland additional age and residence requirements apply as set out below. The effect of this table is that persons in Queensland are eligible to become participants depending on where they live and, in some cases, how old they area. Schedule B defines the boundaries of particular districts mentioned in column 1 of the table.
A person meets the residence requirement if they reside in…
at the following time (the day mentioned is the ‘relevant date’ for the area in column 1)…
The additional age requirements for the person are…
Townsville; or
Charters Towers
on or after 16 March 2016
the person is under 18 on 1 April 2016 (this includes children born on or after 1 April 2016).
Palm Island
on or after 16 March 2016
no additional age requirements (the person is under 65 on the day of the access request)
Townsville Region, other than Townsville, Palm Island and Charters Towers
on or after 1 July 2016
no additional age requirements (the person is under 65 on the day of the access request)
Mackay
on or after 1 July 2016
no additional age requirements (the person is under 65 on the day of the access request)