Operational Guideline – Planning and Assessment – Supports in the Plan
Legislation
1.Read sections 4, 13, 31, 33, 34 and 118 of the National Disability Insurance Scheme Act 2013 (NDIS Act), the National Disability Insurance Scheme (Supports for Participants) Rules 2013(Supports for Participants Rules) and Part 6 of the National Disability Insurance Scheme (Plan Management) Rules 2013(Plan Management Rules).
Principles
2.Reasonable and necessary supports for people with disability should:
a.Support people with disability to pursue their goals and maximise their independence, and
b.Support people with disability to live independently and to be included in the community as fully participating citizens, and
c.Develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment.
See s.4(11) of the NDIS Act.
3.People with disability should be supported to receive supports outside the National Disability Insurance Scheme (NDIS) and be assisted to coordinate these supports with the supports provided under the NDIS.
See s.4(14) of theNDIS Act.
4.The preparation, review and replacement of a participant’s plan should so far as reasonably practical be individualised; directed by the participant; where relevant consider family, carers and significant others; consider availability of informal support, access to mainstream and community supports; and build individual capacity to increase participation and inclusion in community with the aim of achieving individual aspirations.
5.Plans should maximise choice and independence of the participant and facilitate tailored and flexible responses to individual goals and needs.
See s.31 of the NDIS Act.
6.The statement of participant supportsmust specify the general supports (if any) that will be provided to, or in relation to, the participant and the reasonable and necessary supports (if any) that will be funded through the NDIS. In deciding whether to approve a statement a delegate must:
a.Have regard to the legislation and rules, participant statement, relevant assessments
b.Be satisfied that all clauses of s.34 of the NDIS Act on reasonable and necessary supports are met including that the support is most appropriately funded by the NDIS and offers value for money, and
c.Have regard to the principle that a participant should manage their plan to the extent they wish and the operation and effectiveness of any previous plans of the participant.
See ss.33, 34 and 35 of the NDIS Act.
Support for participants during the planning process
7.To support people with disability to exercise choice and control in the pursuit of their goals, a delegate may provide support and assistance (including financial assistance) during the planning process, including by assisting a participant to clarify their goals, objectives and aspirations.
See s.6 of the NDIS Act.
The statement must include general and reasonable and necessary supports
8.The plan must include a statement of participant supports that specifies the general supports that will be provided to, or in relation to, a participant and the reasonable and necessary supports that will be funded.
See s.33(2) of the NDIS Act.
Before including any support the delegate must apply a test to that support
9.Before specifying any general support, or reasonable and necessary support, in a participant’s plan, a delegate must be satisfied of all of the following in relation to each support:
a.The support will assist the participant to pursue the goals objectives and aspirations included in the participant’s statement of goals and aspirations, and
b.The support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation, and
c.The support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support, and
d.The support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice, and
e.The funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide, and
f.The support is most appropriately funded or provided through the NDIS, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
i.As part of a universal service obligation, or
ii.In accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability, and
g.The support is not a support mentioned in Part 5 of the Supports for Participants Rules as a support that will not be funded or provided by the NDIS.
See s.34 of the NDIS Act and Part 5 of the Supports for Participants Rules.
10.Each of these criteria is considered in further detail below.
Supports that will not be provided or funded under the NDIS
11.Under the Supports for Participants Rules, a support will not be provided or funded under the NDIS ifa delegate is satisfied that:
a.It is likely to cause harm to the participant or pose a risk to others
b.It is not related to the participant’s disability
c.It duplicates other supports delivered under alternative funding through the NDIS, or
d.It relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.
12.Although most day-to-day living costs are not to be funded the Supports for Participants Rules allow some day-to-day living costs to be funded. Day-to-day living costs can be funded only if they relate to reasonable and necessary supports and are:
a.Additional living costs that are incurred by a participant solely and directly as a result of their disability support needs; e.g. specialised food that relates specifically to a person’s disability and that is not available to the general population, or
b.Costs that are ancillary to another support that is funded or provided under the participant’s plan, and which the participant would not otherwise incur – for example, significant additional utility costs due to the cost of operating an NDIS-funded piece of assistive technology.
See s.34(1)(g) of the NDIS Act and rs.5.1 and 5.2 of the Supports for ParticipantsRules.
13.Under the Supports for Participants Rules the following supports will also not be provided or funded under the NDIS:
a.A support, the provision of which would be contrary to:
i.A law of the Commonwealth, or
ii.A law of the state or territory in which the support would be provided, and
b.A support that consists of income replacement.
See r.5.3 of the Supports for Participants Rules.
Supports must assist goals, objectives, aspirations and activities
14.Before a support is added to a plan the delegate must be satisfied that it will:
a.Assist the participant to pursue the goals objectives and aspirations included in the participant’s statement of goals and aspirations, and
b.The support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation.
See ss.34(1)(a) and 34(1)(b) of the NDIS Act.
15.There are no provisions in the NDIS Rules that apply to these two paragraphs of s.34 of the NDIS Act.
See s.4(8) of the NDIS Act.
Value for money
16.Before a support is added to a plan the delegate must be satisfied that it represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support.
See s.34(1)(c) of the NDIS Act.
17.In deciding whether the support represents value for money, the Supports for Participants Rules require delegates to consider each of the following:
a.Whether there are comparable supports which would achieve the same outcome at a substantially lower cost, and
b.Whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long term benefit to, the participant, and
c.Whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports), and
d.For supports that involve the provision of equipment or modifications:
i.The comparative cost of purchasing or leasing the equipment or modifications, and
ii.Whether there are any expected changes in technology or the participant’s circumstances in the short term that would make it inappropriate to fund the equipment or modifications, and
e.Whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides, and
f.Whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports (for example, some home modifications may reduce a participant’s need for home care).
See r.3.1 of the Supports for Participants Rules.
18.In TKCW and National Disability Insurance Agency [2014] AATA 501 (TKCW), the Administrative Appeals Tribunal (AAT) applied the value for money requirement noting that funding a support whose effectiveness and benefits are largely unknown could undermine the financial sustainability of the NDIS, especially where a reliable means of measuring any benefits of the support is lacking. In deciding not to fund a therapy known as The Listening Program (TLP) for a child with Autism Spectrum Disorder, the AAT considered that TLP did not represent value for money because they could not be confident of the benefits likely to be achieved.
SeeTKCW and National Disability Insurance Agency [2014] AATA 501.
Effective and beneficial for the participant
19.Before a support is added to a plan the delegate must be satisfied that the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice.
See s.34(1)(d) of theNDIS Act.
20.In deciding whether the support will be, or is likely to be, effective and beneficial for a participant the delegate is to consider the available evidence of the effectiveness of the support for other people in like circumstances. That evidence may include:
a.Published and refereed literature and any consensus of expert opinion
b.The lived experience of the participant or their carers, or
c.Anything the NDIA has learnt through delivery of the NDIS.
21.The Supports for Participant Rules also require the delegate to take into account, and if necessary seek, expert opinion.
See rs.3.2 and 3.3 of the Supports for Participants Rules.
22.In TKCW the AAT considered the meaning of "current good practice" in s.34(l)(d) of the NDIS Actand considered that it means a practice which, even if not widely used, is recognised by sufficient numbers of practitioners as being based on sound evidence.In weighing up the evidence about whether TLP was likely to be effective and beneficial, the AAT noted that:
“One of the objects of the NDIS Act is "to promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community": s.3(g). There may be some tension between this object and s.34(1)(d) which requires that the CEO of the NDIA (and so the Tribunal), be satisfied that a support "will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice" but, whatever innovative supports s 3(g) has in mind, they must be "of high quality". The most that we can say at this early point in the life of the NDIS is that we are bound to be satisfied of all of the criteria in s 34(1), and innovation, of itself, cannot displace those criteria.”
See TKCW and National Disability Insurance Agency [2014] AATA 501.
Reasonable family, carer and other support
23.Before a support is added to a plan the delegate must be satisfied that the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide.
See s.34(1)(e) of the NDIS Act.
24.In deciding whether funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide, the delegate is to consider the following matters:
a.For a participant who is a child:
i.That it is normal for parents to provide substantial care and support for children
ii.Whether, because of the child’s disability, the child’s care needs are substantially greater than those of other children of a similar age
iii.The extent of any risks to the wellbeing of the participant’s family members or carer or carers, and
iv.Whether the funding or provision of the support for a family would improve the child’s capacity or future capacity, or would reduce any risk to the child’s wellbeing.
b.For other participants:
i.The extent of any risks to the wellbeing of the participant arising from the participant’s reliance on the support of family members, carers, informal networks and the community
ii.The suitability of family members, carers, informal networks and the community to provide the supports that the participant requires, including such factors as:
- The age and capacity of the participant’s family members and carers, including the extent to which family and community supports are available to sustain them in their caring role
- The intensity and type of support that is required and whether it is age and gender appropriate for a particular family member or carer to be providing that care, and
- The extent of any risks to the long term wellbeing of any of the family members or carers (for example, a child should not be expected to provide care for their parents, siblings or other relatives or be required to limit their educational opportunities).
iii.The extent to which informal supports contribute to or reduce a participant’s level of independence and other outcomes, and
c.For all participants—the desirability of supporting and developing the potential contributions of informal supports and networks within their communities.
See r.3.4 of the Supports for Participants Rules
25.In TKCW the AAT considered whether the NDIS should fund the provision of childcare for the participant’s brother while the participant was at therapy sessions with a parent. In finding the NDIS should not fund this care, the AAT stated:
“One of the principles in s 4 of the NDIS Act is that the role of families, carers and other significant persons in the lives of persons with disability is to be acknowledged and respected. Section 34(1)(e) also recognises that it may be reasonable to expect families, carers, informal networks and the community to provide support.
In our view this is not a support that should be funded through the NDIS. The need for childcare for TKCW's brother is being met at present by the helper provided by Disability South Australia. We understand that this arrangement may not continue indefinitely but there is nothing to suggest that it will not continue at least for the life of TKCW's present plan. It is hard to see why it should be considered a reasonable and necessary support at this time and we are not satisfied that it is.
We accept that using some of the hours allocated to household help, and organising the helper's hours around TKCW's therapist appointments, is not entirely convenient for TKCW's mother. However, the hours are relatively few, and we think it is reasonable for the family to make what is a relatively minor adjustment. As such, funding this support through the NDIS would not meet s 34(1)(e) of the NDIS Act.”
See TKCW and National Disability Insurance Agency [2014] AATA 501.
The support is most appropriately provided or funded through the NDIS
26.Before a support is added to a plan the delegate must be satisfied that the support is most appropriately funded or provided through the NDIS, and is not more appropriately funded or provided through other 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.
See s.34(1)(f) of the NDIS Act.
27.In deciding whether the support is most appropriately provided or funded through the NDIS the delegate must consider each of the matters set out in Schedule 1 of the Supports for Participants Rules. The matters to have regard to are set out under the following headings in Schedule 1 of the Supports for Participants Rules:
i.Health (excluding mental health)
ii.Mental health
iii.Early childhood development
iv.Child protection and family support
v.School education
vi.Higher education and vocational education and training
vii.Employment
viii.Housing and community infrastructure
ix.Transport, and
x.Justice.
See rs.3.5 and 3.6 of the Supports for Participants Rules.
28.In Young and National Disability Insurance Agency [2014] AATA 401 the AAT considered whether a portable oxygen concentrator and insulin pump were most appropriately funded by the NDIS or the health system. The AAT held that:
a.the different method of delivering oxygen and insulin did not change the fact that their essential character was clinical treatment, and
b.the applicant (Mr Young) was able to undertake activities of daily living and participate in the community although he experienced embarrassment and inconvenience.
29.Regarding the test of whether a support is most appropriately funded or provided through the NDIS, the AAT stated:
“Whether or not funding is available through other general systems is not the test of whether it is most appropriately funded or provided through the NDIS. The fact that the health system does not fund entirely, or even at all, what is essentially clinical treatment, or some other form of support that is more appropriately funded through the health system, does not make it the responsibility of the NDIS.
30.The fact that insulin needs and the oxygen supplies were funded or subsidised under the health system and that insulin pumps were fundable under private health insurance were held to support the conclusion that the supports are the responsibility of, and more appropriately funded through, the health system.