To be eligible to access the NDIS, a person must:

Alternatively, a person may be eligible if they meet the early intervention requirements as contained in section 25 of the NDIS Act – see Early Intervention Requirements below.

Disability requirements

The disability requirements are set out in section 24 of the NDIS Act, and a person must satisfy each requirement to be eligible under the NDIS. For a person to meet the disability requirements, they must have [s 24]:

From 1 July 2022, section 24(3) of the NDIS Act provides that the episodic or fluctuating nature of an impairment(s) may be taken to be permanent and support may be provided under the NDIS despite the episodic of fluctuating nature of the impairment(s).

The NDIA has developed a streamlined disability assessment process for people with certain conditions (such as autism, cerebral palsy, permanent blindness), or who are already receiving support from certain disability providers in Western Australia. Such applicants may automatically meet the disability requirements without further assessment. See NDIS Guidelines: Do you meet the disability requirements and associated List A, List B, and List C (Western Australian supports) for more information.

Any child aged under seven years who applies for the NDIS will first be assessed as to whether they meet the early intervention requirements - see Early intervention requirements below [see also NDIS Guidelines: Do you need early intervention].

Early intervention requirements

A person who does not meet the above criteria may still be eligible for NDIS assistance if they meet the early intervention requirements.

Section 25(1) of the NDIS Act provides that a person may meet the early intervention requirements if: provides that a person may meet the early intervention requirements if:

If a person meets the above criteria, then assistance may be received from the NDIS as long as the supports are not more appropriately funded by another service [s 25(3)]. From 1 July 2022, section 25(1A) of the NDIS Act provides that the episodic or fluctuating nature of an impairment or impairments may be taken to be permanent, and support may be provided under the NDIS despite the episodic of fluctuating nature of the impairments.

Special provisions also apply to children aged under six years who have developmental delays resulting in substantially reduced functional capacity and who have a need for special care, treatment or services [s 25(1)(a)(iii)]. Such applicants may also be eligible to receive assistance pursuant to the early intervention requirements of the NDIS.

The NDIS is administered by the NDIA. The NDIA determines who is eligible to receive assistance under the scheme and in accordance with the National Disability Insurance Scheme Act 2013 (Cth) ('NDIS Act'), the National Disability Insurance Scheme Rules, and the National Disability Insurance Scheme Guidelines. The NDIS scheme is now fully operational across Australia (as at 1 July 2020).

A person (or someone acting on their behalf) wishing to join the NDIS can complete an Access Request Form and provide it to the NDIA [NDIS Act s 18]. An access request form can be obtained from a Local Area Coordinator or on the NDIS – What is an Access Request Form? website.

As part of the application process, evidence of a person’s identity will be required along with evidence of their disability [see NDIS Act s 19; NDIS Guidelines: Do you meet the disability requirements].

Specific forms may be sent to applicants to assist with gathering this information, and after receiving an Access Request Form the NDIA may request further information in order to process the application. Any requested information must be provided within 90 days [s 26]. The NDIA may also require the applicant to undergo a medical examination or assessment [s 26(1)].

It may be that medical evidence from different treating practitioners is required to show evidence of disability. A person who requires assistance with collating evidence can contact a Local Area Coordinator. These are local agencies and services that the NDIA have partnered with to assist with understanding and accessing the NDIS. For information and contact details of Local Area Coordinators, visit the NDIS website or contact the NDIS on 1800 800 110.

The NDIA has produced a comprehensive guide to assist applicants in gathering evidence to prove their disability available on the NDIS - Providing evidence of your disability webpage.

Once the NDIA has completed the assessment of a person’s Access Request Form and related documents, the person must be notified in writing of the outcome and, if approved, that notice must include the date on which the person has become eligible for the scheme [s 28(2)]. A person who is not eligible to receive assistance under the NDIS may be able to access support elsewhere, and they must be advised of their review rights in relation to their access refusal and, for decisions made on or after 8 April 2022, the reasons for the refusal [s 100(1)].

A formal review can be sought of the access decision [s 99(1)(a)] – see Review of NDIA decisions.

A person who has had an access request denied is not prevented from making a further request at a later time as long as they still meet the general eligibility criteria. However, if the decision to refuse an access request is under internal or external review, a second request cannot be made while the review is ongoing [s 19(2)].

Every person who accesses the NDIS scheme will receive an NDIS Plan [National Disability Insurance Scheme Act 2013 (Cth) ('NDIS Act') s 32]. From 8 April 2022, the NDIA must commence preparing a participant's Plan within 21 days of the person becoming a participant of the NDIS [s 32(1)-(2)]. This Plan identifies the reasonable services that the person requires to support their independence and social and economic participation, as well as their individual funding package [s 33].

The Plan is developed through consultation with the NDIS participant and/or their nominee(s) and should be individualised to their needs and aspirations [s 31]. It must comply with the National Disability Insurance Scheme Rules. Every NDIS Plan will specify a date by which, or circumstances in which, the NDIA will reassess the Plan [s 33(2)(c); s 48].

Every Plan must include the participant’s statement of goals and aspirations [s 33(1)(a)]. The types of supports and services offered must be considered in the context of the participant’s goals [s 33(5)(a)]. Section 31 of the NDIS Act specifically mandates that a participant’s NDIS Plan should clearly reflect the participant's choice and control over the process [s 31].

From 8 April 2022, the NDIA must approve a Plan within the period set in the NDIS Rules and if no Rules are prescribed, as soon as reasonably practicable [s 33(4)].

The NDIA will determine what supports are reasonable and necessary to fund according to criteria contained in section 34 of the NDIS Act. A support must meet all six criteria contained in section 34 for it to be considered reasonable and necessary and to be funded. For further information see What services and supports can be funded by the NDIA?

These supports will be set out in the Plan under separate funded support budgets. The Plan must identify who is responsible for managing the funded supports. The funding for the supports can be managed (wholly or to a specified extent) by [s 42(2)]:

Once the Plan is finalised, service providers can then be chosen to provide the funded services and supports. In most instances once a service provider is chosen, a written Service Agreement should be agreed upon and signed by the participant and the provider.

A participant can request a change of their NDIS Plan at any time [National Disability Insurance Scheme Act 2013 (Cth) (‘NDIS Act’) ss 47A(2) and 48(1)-(2)]. The NDIA will determine whether the request should be considered a:

The NDIA can change a Plan on request of the participant or on their own initiative, in which case the NDIA must inform the participant of their decision to vary or reassess the Plan [ss 47A and 48].

A participant’s change in circumstances may occur, for example, when a participant's care or support needs significantly change, where their living arrangements change, or where they receive compensation that may impact on their funding entitlement.

Where a participant has a change in circumstances, they can complete a Change in Circumstances Form and lodge it with the NDIA. The NDIA has 21 days to make a decision to either vary or reassess the Plan, or refuse to vary or reassess the Plan, or to advise that further time will be required [ss 47A(4) and 48(3)]. The NDIA is not obliged to respond to a request and any inaction will be taken to be a decision not to change the Plan [ss 47A(5) and 48(4)].

A decision to change or refuse to change a Plan is a reviewable decision [s 99]. If a participant is unhappy with the provisions or terms of a new, varied or reassessed Plan, they can also request an internal review of the Plan [s 99]. A person unhappy with the decision made at internal review can seek further review of that decision by application to the Administrative Appeals Tribunal [s 103]. See Review of NDIA decisions.

A participant may provide the NDIA with a changed version of their statement of goals and aspirations at any time. If provided, their Plan is taken to have been varied to include that changed version [s 47].

Variation of Plan

A Plan may be varied to [s 47A]:

The NDIA can make a variation to a Plan different to that requested by the participant [s 47A(9)].

Any variation of a Plan must be prepared with the participant and comply with any conditions in the National Disability Insurance Scheme Rules [s 47A(1)]. A copy of the varied Plan must be provided to the participant within seven days of the variation taking effect [s 47A(11)].

Reassessment of Plan

The NDIA must complete a reassessment of a participant’s Plan and either vary or replace the Plan prior to the reassessment date [s 49]. This process must commence before the period provided in the NDIS Rules (if any).

A plan must also be reassessed in the circumstances (if any) specified in a Plan [s 49A].

The reassessment of a Plan must result in either a variation to the Plan [s 47A] or the preparation of a new Plan with the participant [s 48(7)].

For information on the Plan review process, see the NDIS – Changing Your Plan webpage.

The NDIA determines what services and supports a person will be funded for under their NDIS Plan [National Disability Insurance Scheme Act 2013 (Cth) ('NDIS Act') s 34]. This decision must be consistent with the provisions of the NDIS Act, National Disability Insurance Scheme Rules and National Disability Insurance Scheme Guidelines ('NDIS Guidelines').

The services and supports that the NDIS can fund include those relating to education, employment, social participation, independence, living arrangements, and health and wellbeing [National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)].

For a service or support to be funded, it must be considered to be reasonable and necessary to assist the particular person.

Section 34 of the NDIS Act defines what is meant by a reasonable and necessary support:

Additional guidelines apply to the provision of particular types of supports, such as assistive technology, vehicle modifications, home modifications, and others. For more information see NDIS Guidelines: Including specific types of supports in plans.

In some instances, a participant may not be happy with the supports funded in their Plan or may disagree with a decision as to what is considered a reasonable and necessary support. They are able to seek a review of this decision [s 99], see: Review of NDIA decisions.

In this section, the following definitions apply:

Restrictive practice is ‘any practice or intervention that has the effect of restricting the rights or freedom of movement of a person with disability’ [NDIS Act s 9]. There are five restrictive practices subject to regulation [NDIS (RP) Rules r 6, DI Act s 23B(1)]:

A registered NDIS provider may only use regulated restrictive practices in accord with a participant’s behaviour support plan [NDIS (RP) Rules r 10]. If there is no current behaviour support plan, the provider must take all reasonable steps to facilitate the development of a plan [NDIS (RP) Rules r 11 and 12] and report any unauthorised use of restrictive practices [NDIS Act s 73Z(4)].

The Restrictive Practices Authorisation Scheme in South Australia

From 30 May 2022, the use of restrictive practices on children and adults with disability in South Australia is limited and controlled by the Restrictive Practices Authorisation Scheme (the Scheme). The Scheme operates pursuant to:

The Scheme applies to a person with a disability who is a NDIS participant receiving services or supports from a NDIS service provider [DI Act Part 6A, NDIS (RP) Rules r 9(2)]. It is managed by the Department of Human Services Restrictive Practices Unit.

The Scheme provides that authorisation must be obtained from the Restrictive Practices Unit in order for restrictive practices to be used for a particular participant, except in some emergency situations. It remains a requirement that restrictive practices are only used in accord with the behaviour support plan, if there is one [NDIS Restrictive Practices Rules s10(2)].

A prescribed NDIS provider may only use restrictive practices if there is no other way to minimise the risk of harm, or to prevent further harm, reasonably available in the circumstances [DI Act s 23M(2)]. Risk of harm includes:

A person may use reasonable force in the course of using restrictive practices under the DI Act, however the use of force must be a last resort [DI Act s 23M(4)].

Restrictive practices may be used in relation to a NDIS participant without the consent of the participant, despite the refusal of the participant and even if the participant is a child [DI Act s 23M(5)-(6)]. The Restrictive Practices Guidelines (SA) require that a participant’s informed consent or refusal, and that of their guardians (if any), are to be considered and documented. They are also to be included in applications for authorisation (see Authorisation pursuant to the Scheme below).

Restrictive practices cannot be used, or authorised to be used, on a participant [DI Act s 23M(1)]:

Some restrictive practices are prohibited entirely [DI (RP) Regulations reg 8].

Detention, directing where someone will live or whether someone can leave a premises or part of a premises (even with prior approval), cannot be authorised by the Scheme and remains the jurisdiction of the South Australian Civil and Administrative Tribunal SACAT. However, confinement in an emergency situation for not more than two hours and for the purpose of de-escalation or self-regulation may not constitute detention under the Scheme [DI (RP) Regulations reg 7].

The Scheme does not limit the operation of orders made, or able to be made, pursuant to other legislation, such as the Guardianship and Administration Act 1993 (SA), the Mental Health Act 2009 (SA), the Advance Care Directives Act 2013 (SA) or the Children and Young People (Safety) Act 2017 (SA) [DI Act s 23F(3)].

Authorisation pursuant to the Scheme

Authorisation under the Scheme can be provided by:

Level 1 and level 2 restrictive practices are defined in regulations 4 and 5 of the DI (RP) Regulations.

A Scheme authorisation can only be made on the belief on reasonable grounds that [DI Act s23N and 23O]:

The authorisation must be in writing and set out the kinds of restrictive practices authorised to be used and any conditions or limitations on their use [DI Act ss 23N and 23O]. The authorisation must be lodged with the Commission (NDIS RP Rules rr 9 and 10).

If restrictive practices are used in shared residential settings, the impact on others living at the home must be reduced where possible (for example, by providing keys or access codes to other residents who do not require such restrictive practices [Restrictive Practices Guidelines (SA)].

A prescribed NDIS provider using, or attempting to use, authorised level 1 or level 2 restrictive practices has the authority to follow a participant, and to search a participant’s clothing or possessions for anything that may cause harm to the participant or others or to property (and to retain such items) [DI Act s 23N(5) and 23O(6)].

It is an offence to hinder or obstruct a prescribed NDIS provider in relation to the use of restrictive practices. The maximum penalty is $5,000 [DI Act s 23ZB].

Authorisation of level 1 or level 2 restrictive practices can be revoked by the Senior Authorising Officer [DI Act s 23P].

Review of Scheme decisions

Decisions of Authorised Program Officers and prescribed NDIS providers regarding restrictive practices can be reviewed by the Senior Authorising Officer [DI Act s 23Y].

Decisions of the Senior Authorising Officer can be reviewed by the South Australian Civil and Administrative Tribunal (SACAT) [DI Act s 23Z]. Applications can be made by the participant or the participant’s family members, guardian, nominated advocate or prescribed NDIS provider [DI (RP) Regulations reg 14].

Applications for review must be made within 30 days of the date of the decision.

Restrictive practice reporting

The use of regulated restrictive practices must be reported to the Commission if:

A NDIS provider must report the incident to the Commission within five days [National Disability Insurance Scheme (Incident Management and Reportable Incidents) Rules 2018 r 5].

Registered NDIS providers using regulated restrictive practices must provide a monthly report to the Commission on such use in NDIS funded services [NDIS (RP) Rules r 14]. Providers are required to maintain records to support their reports [NDIS (RP) Rules r 15].

A behaviour support plan identifies:

A plan is developed by a specialist behaviour support practitioner in consultation with the participant, their family, carers and support people [National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth) (the NDIS (RP) Rules) r 20, Restrictive Practices Guidelines (SA)]. A participant, their families and carers are to be informed of the intention to include regulated restrictive practices in the plan.

If a behaviour support plan contains the use of regulated restrictive practices, those practices must [NDIS (RP) Rules r 21(3)]:

Interim behaviour support plans must be developed within one month of the specialist behaviour support provider being engaged and comprehensive plans within six months of engagement [NDIS (RP) Rules s 19]. Reasonable steps must be taken to ensure interim plans are developed within one month of the first use of any regulated restrictive practice and comprehensive plans within six months [NDIS (RP) Rules r 11(2), 12(2) and 13(2)].

Behaviour support plans funded by the NDIS must be lodged with the NDIS Quality and Safeguards Commission as soon as practicable after they are developed, even if authorisation is not required under state or territory legislation [NDIS (RP) Rules r 24]. Comprehensive behaviour support plans must be reviewed if there is a change in circumstances requiring amendment to the plan, or at least every 12 months [NDIS (RP) Rules r 22].

For more information regarding the use of restrictive practices, see Restrictive practices by registered NDIS providers.

Certain decisions by the NDIA are considered reviewable decisions [see National Disability Insurance Scheme Act 2013 (Cth) ('NDIS Act') s 99] and can be reviewed through a specific process. A person can first apply for an internal review of the decision, which is a process undertaken by the NDIA [s 100]. If they are unhappy with the decision made at internal review, they can seek further review by application to the Administrative Appeals Tribunal (AAT) [s 103]. A final avenue of review lies with the Federal Court in specific, limited circumstances.

A person cannot apply to the AAT before first having undergone an internal review [see s 103; FJKH and the National Disability Insurance Agency (2018) AATA 1294].

Examples of the types of decisions that are considered reviewable decisions include (but are not limited to) [s 99]:

Internal review

A reviewable decision made by the NDIA can be challenged by way of an internal review [s 99]. From 8 April 2022, the NDIA must give reasons for reviewable decisions to each person who is directly affected by the decision [s 100(1)].

A request for an internal review must be made within three months of receipt of the decision [s 100(2)].

A request for an internal review can be made either in writing or over the phone by contacting 1800 800 110 [s 100(3)]. An application form is available on the NDIS website, although the NDIA will also accept written applications for review in other forms.

Once an application for internal review is received, an NDIA staff member not involved in the original decision will confirm, vary or revoke the decision [s 100(6)]. For requests for review lodged on or after 8 April 2022, the NDIA must complete an internal review within the period set in the NDIS Rules and if no Rules are prescribed, within 90 days [s 100(6A)].

Review by the AAT

A person unhappy with the outcome of internal review can seek further review by the AAT. An application to the AAT must be lodged within 28 days of receipt of the internal review decision [Administrative Appeals Tribunal Act 1975 (Cth) s 29(2)]. There is no fee for making an application to the AAT, and in some instances legal assistance may be available in South Australia from the Legal Services Commission.

The AAT can affirm, vary or set aside the decision made by the NDIA at internal review.

See the Administrative Appeals Tribunal – National Disability Insurance Scheme Applicants website for more information.

Support may be available for people seeking review of NDIA decisions through the AAT. The NDIS Appeals program provides funding to specific organisations, enabling them to provide advocacy or legal support to an eligible person as they go through the AAT process. The Disability Advocacy Finder website enables a person to search for an NDIS Appeals funded service in their area. Further information on the NDIS Appeals program can be located on the NDIS Appeals - Department of Social Services website.

Federal Court Appeal

An appeal of the decision of the AAT lies with the Federal Court. Such appeals must be made within 28 days of receipt of the decision of the AAT and can only be made on the grounds of a question of law [Administrative Appeals Tribunal Act 1975 (Cth) s 44(2a)].

Legal advice should be sought before commencing any appeal to the Federal Court, as fees may apply and there may be cost risks should the application be unsuccessful.

If a person has received, or will receive, a compensation payout for an accident or injury (such as compensation payable pursuant to a work-related injury, or motor vehicle injury) then their NDIS entitlement may be reduced [see National Disability Insurance Scheme Act 2013 (Cth) Chapter 5]. Under the Act and the National Disability Insurance Scheme (Supports for Participants - Accounting for Compensation) Rules 2013 (Cth), the NDIA may calculate a Compensation Reduction Amount, which is an amount by which the NDIA will reduce a person’s NDIS funding entitlement, in account of the compensation payment.

A person entitled to NDIS who has received or will receive a compensation payout should notify the NDIA as soon as possible.

The overlap between compensation payments and the NDIS can be complex, and specialist advice should be sought.

For more information see the NDIS – Compensation website.

There are different complaints processes that apply depending on whether a person is making a complaint about the NDIA, or a complaint about an NDIS provider or service provider.

Complaints about the NDIA

A person wishing to make a complaint about the NDIA should lodge their complaint either online via the NDIA website or with their local NDIA office.

The NDIA has an online complaint form that can be used to provide feedback and lodge a complaint with the NDIA.

The NDIA Complaints Procedure provides that complaints should be resolved within 21 days of receipt of the complaint, and that an NDIA representative should contact the person who lodged the complaint within two days of acknowledging receipt of the complaint.

If a person is unhappy with the outcome of their complaint, they can request it be reviewed by a supervisor or manager within the NDIA.

A person still dissatisfied with the outcome can make a complaint to the Commonwealth Ombudsman – see the Commonwealth Ombudsman – Making a Complaint website, or if unable to use the online form, by telephoning the Commonwealth Ombudsman on 1300 362 072.

A person who disagrees with a decision of the NDIA may go through the review process, depending on the decision – see Review of NDIA decisions.

Complaints about NDIS service providers

A person wishing to make a complaint about a NDIS service provider can make a complaint to the National Disability Insurance Scheme Quality and Safeguards Commission ('NDIS Commission') [see National Disability Insurance Scheme Act 2013 (Cth) Chapter 6A].

The NDIS Commission was established to improve and monitor the quality and safety of NDIS supports and services.

Any NDIS participant, their family, friends, carers, advocates or other workers can make a complaint to the NDIS Commission about the provision of NDIS funded services or supports. Complaints can be made by contacting the NDIS Commission on 1800 035 544 or by using the NDIS Commission Online Complaint Form.

For more information see the Law Handbook page – Complaints: National Disability Insurance Scheme Quality and Safeguards Commission.

For information about employment clearances see Working with people with disability checks NDIS.

Can a person check whether a disability worker holds an NDIS Worker Clearance?

An NDIS employer or participant who engages or proposes to engage a person to do NDIS work may request information about whether the person has an NDIS worker check clearance [National Disability Insurance Scheme Act 2013 (Cth) s 18ZB].

The NDIS Worker Screening Database will hold a register of workers who have applied for an NDIS Worker Screening Check. Unregistered NDIS providers and self-managed NDIS participants must request access to the NDIS Worker Screening Database if they wish to check whether an NDIS worker has a clearance.

Further information about requesting access to the NDIS Worker Screening Database is available on the NDIS Quality and Safeguards Commission website.