December 19, 2024 • 9 mins
What's new in the law in 2024? In this mini-series, Natalie chats to specialist lawyers at Legal Aid NSW about key legal changes that community workers should know. This episode features civil lawyer, Kyla, speaking about changes to the NDIS.
Listen to our other episodes in this series:
Download the transcript.
Disclaimer: This podcast episode is general information only and cannot be relied on as legal advice. The information is accurate at the time of posting but may have changed. If you need assistance about a particular situation, contact our team at LawAccess NSW via webchat at www.legalaid.nsw.gov.au or call 1300 888 529.
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Natalie (00:02):
Welcome to our Law for Community Workers series,
wrapping up what's new in thelaw in 2024. My name is Natalie,
and in this episode, I'm talkingto Kyla, a lawyer at Legal Aid
NSW from our NDIS team, aboutsome important changes to the
National Disability InsuranceScheme (NDIS). Before we start,
we would like to acknowledge thetraditional custodians of the
(00:24):
land we are recording on todayand pay our respects to Elders
past and present. Just areminder that this podcast is
general information only andcannot be relied on as legal
advice. The information iscorrect at the time of
publishing, but may change. Ifyou need help about a particular
situation, contact our team atLawAccess NSW via web chat,
(00:47):
through the Legal Aid NSWwebsite, or call 1300 888 529.
Thanks, and let's get started.Hi Kyla, there have been some
substantial changes to the NDISin 2024. Can you tell us a bit
about those changes?
Kyla (01:07):
Thanks, Natalie. The first of the big changes that came
into effect on the 3rd ofOctober relates to access to the
scheme. To be clear, how aperson gets access, whether by
meeting the disability or theearly intervention criteria,
hasn't changed. However, underthe new legislation, the
pathways are going to be moredistinct, and the impairments
(01:29):
for which a person gets accessto the NDIS is going to matter.
So people who newly gain accessto the scheme from January 2025
will receive a notice ofimpairment telling them through
which pathway they've got accessand for what impairments. We
don't know what these noticesare going to look like yet, but
(01:49):
we think that they'll categoriseimpairments as intellectual,
cognitive, neurological,sensory, physical and
psychological. Anyone who's anexisting participant can expect
to receive a notice ofimpairment within the five years
of transition that's providedfor in the new legislation. So
if participants don't agree withtheir notice of impairment, they
(02:12):
can ask for it to be varied, andif they're still unhappy, they
can follow the usual review andappeal process.
So the second big change is inrelation to revocation. There's
always been a power ofrevocation under the scheme, but
new powers are going to enablethe NDIA to ask a participant to
(02:33):
provide information or ask themto undergo an assessment if
they're considering revokingtheir status as a participant.
There are also revocation powersunder a new section. It hasn't
had its rules developed yet, butwe think it will specifically
look at early interventionparticipants and whether their
supports are delivering theanticipated benefits.
Natalie (02:54):
So Kyla, when you say revocation, do you mean people
will have their supports underthe NDIS taken away?
Kyla (03:01):
Yeah, that's right, Natalie. What will happen is
that they will have their statusas a participant revoked, so
they won't have access to theNDIS at all anymore.
Natalie (03:11):
Kyla, can you just also explain what you mean by NDIA?
Kyla (03:15):
So that's the National Disability Insurance Agency, and
they administer the NDIS, orNational Disability Insurance
Scheme.
Natalie (03:23):
Thank you. All right, so we're up to the third change.
Kyla (03:27):
The third big change relates to supports. So under
the new law, for a support to beconsidered reasonable and
necessary, it will have to bespecifically related to a
participant's impairment. Also,there are now lists of what are
and aren't NDIS supports aparticipant support must come
from the list of NDIS supports.These supports more or less
(03:52):
reflect what's already beenhappening in practice.
Natalie (03:55):
Thanks, Kyla, so can you please give us some examples
of what was already happening inpractice?
Kyla (03:59):
So examples are that swimming pools were never paid
for under the NationalDisability Insurance Scheme, and
wheelchairs always were,provided that they were related
to somebody's disability orimpairment. The new law includes
a replacement rule so aparticipant can request the
recognition of a substitutesupport under the replacement
(04:21):
rule on the basis that it doesthe same job and is cheaper than
the one on the list.
The fourth change is newframework plans. Participants
are going to transition from oldframework or current style plans
over the five year transitionperiod. A new framework plan
will be based on a needsassessment, which will establish
(04:43):
a participant's reasonable andnecessary support needs, and
then use a formula to calculatethe person's budget for flexible
supports and for statedsupports. At this time, the
details and the rules about theformula are still yet to be
developed. So we don't reallyknow what that's going to look
like. Yet, a new framework planwill be longer. It'll be up to
(05:06):
five years long, broken downinto 12 month funding periods.
The final change is that thereare now going to be more limits
on management of funding andmore consequences for failure to
properly use and acquit funding.Participants will still be able
to state their goals in relationto fund management, but under
the new law, there are now goingto be extra grounds to refuse
(05:30):
self management and planmanagement requests on the basis
of risk or mismanagement of aplan. While there's always been
an obligation to properly acquitor use funding, there are now
more consequences for not usingfunds in accordance with the
plan.
Natalie (05:47):
Thanks Kyla for explaining the changes. So what
should community workers orsupport workers look out for in
relation to these changes?
Kyla (05:58):
Thanks Natalie, that's a really good question. In terms
of access, if someone receives anotice of impairment that
doesn't list all the impairmentsfor which they require support,
you can support them to getlegal advice about adding in
impairments. In terms ofnotices, the most important
thing in relation to the newchanges is that participants
(06:20):
don't ignore notices or theirtime limits. So you can talk to
clients about the way they'rereceiving correspondence from
the agency and encourage them toreach out for help if they're
having trouble reading orunderstanding their
correspondence. So participantscan expect to receive a notice
that the agency wants them toundergo a needs assessment. They
(06:42):
might receive notice that theagency wants information for the
purposes of preparing a newframework plan. They might also
receive a notice requestinginformation for the purposes of
the agency consideringrevocation.
Participants will have stricttime limits to respond to these
notices if they don't respondwithin the timeframe set out in
(07:03):
the notice, their access to theNDIS may be suspended or
revoked. These decisions can bereviewed or appealed on the
basis that non compliance wasreasonable. However, their plans
will remain suspended or revokeduntil the review or appeal is
determined, which means theywon't be able to fund their
usual supports. It willtherefore be important to action
(07:26):
any notices from the agency,including by asking the agency
for an extension of the timelimit in terms of acquittal of
funds. It's important to notethat failure to use funding in
accordance with a person's plancould lead to a debt being
raised.
There's a transition period forthe new support list, so a debt
won't be raised in the first 12months for accidental mistakes,
(07:47):
unless it is a willful ordeliberate breach of funding.
People can't ask for a review ofa debt that's been raised
against them, but what they cando is ask for a waiver or write
off of the debt, and if that'srefused, the ordinary avenues of
review and appeal can befollowed. So it's really
important to note that under thelegislative changes that came
(08:07):
into effect on the third ofOctober 2024, there aren't
changes generally to reviewrights. So an internal review of
an NDIA decision needs to berequested within three months of
receiving the decision and anappeal of an internal review
decision should be made byapplication to the
Administrative Review Tribunalwithin 28 days of receiving the
(08:30):
internal review decision. LegalAid is available to provide free
independent advice about NDISproblems. Legal Aid branches all
over New South Wales can tellparticipants and prospective
participants about their rightsand what they can get from the
NDIS.
Natalie (08:47):
Thanks Kyla for explaining all that to us today.
I think not ignoring notices andbeing aware of time limits is
such a universal thing lawyerssay in so many different areas
of law, so that's really animportant message for community
workers to be on top of so thankyou very much. Today, I think
you've given everyone a reallygood overview of the changes and
(09:10):
what to look out for.
Kyla (09:11):
Thanks, Natalie.
Natalie (09:14):
That's all for this episode. Thank you again to Kyla
for chatting with us. You cancheck out our other episodes in
this series wrapping what's newin family law and criminal law.
We'll put the links to those andmore in the show notes. Bye for
now.
Welcome to our Law for Community Workers series,
wrapping up what's new in thelaw in 2024. My name is Natalie,
and in this episode, I'm talkingto Kyla, a lawyer at Legal Aid
NSW from our NDIS team, aboutsome important changes to the
National Disability InsuranceScheme (NDIS). Before we start,
we would like to acknowledge thetraditional custodians of the
(00:24):
land we are recording on todayand pay our respects to Elders
past and present. Just areminder that this podcast is
general information only andcannot be relied on as legal
advice. The information iscorrect at the time of
publishing, but may change. Ifyou need help about a particular
situation, contact our team atLawAccess NSW via web chat,
(00:47):
through the Legal Aid NSWwebsite, or call 1300 888 529.
Thanks, and let's get started.Hi Kyla, there have been some
substantial changes to the NDISin 2024. Can you tell us a bit
about those changes?
Kyla (01:07):
Thanks, Natalie. The first of the big changes that came
into effect on the 3rd ofOctober relates to access to the
scheme. To be clear, how aperson gets access, whether by
meeting the disability or theearly intervention criteria,
hasn't changed. However, underthe new legislation, the
pathways are going to be moredistinct, and the impairments
(01:29):
for which a person gets accessto the NDIS is going to matter.
So people who newly gain accessto the scheme from January 2025
will receive a notice ofimpairment telling them through
which pathway they've got accessand for what impairments. We
don't know what these noticesare going to look like yet, but
(01:49):
we think that they'll categoriseimpairments as intellectual,
cognitive, neurological,sensory, physical and
psychological. Anyone who's anexisting participant can expect
to receive a notice ofimpairment within the five years
of transition that's providedfor in the new legislation. So
if participants don't agree withtheir notice of impairment, they
(02:12):
can ask for it to be varied, andif they're still unhappy, they
can follow the usual review andappeal process.
So the second big change is inrelation to revocation. There's
always been a power ofrevocation under the scheme, but
new powers are going to enablethe NDIA to ask a participant to
(02:33):
provide information or ask themto undergo an assessment if
they're considering revokingtheir status as a participant.
There are also revocation powersunder a new section. It hasn't
had its rules developed yet, butwe think it will specifically
look at early interventionparticipants and whether their
supports are delivering theanticipated benefits.
Natalie (02:54):
So Kyla, when you say revocation, do you mean people
will have their supports underthe NDIS taken away?
Kyla (03:01):
Yeah, that's right, Natalie. What will happen is
that they will have their statusas a participant revoked, so
they won't have access to theNDIS at all anymore.
Natalie (03:11):
Kyla, can you just also explain what you mean by NDIA?
Kyla (03:15):
So that's the National Disability Insurance Agency, and
they administer the NDIS, orNational Disability Insurance
Scheme.
Natalie (03:23):
Thank you. All right, so we're up to the third change.
Kyla (03:27):
The third big change relates to supports. So under
the new law, for a support to beconsidered reasonable and
necessary, it will have to bespecifically related to a
participant's impairment. Also,there are now lists of what are
and aren't NDIS supports aparticipant support must come
from the list of NDIS supports.These supports more or less
(03:52):
reflect what's already beenhappening in practice.
Natalie (03:55):
Thanks, Kyla, so can you please give us some examples
of what was already happening inpractice?
Kyla (03:59):
So examples are that swimming pools were never paid
for under the NationalDisability Insurance Scheme, and
wheelchairs always were,provided that they were related
to somebody's disability orimpairment. The new law includes
a replacement rule so aparticipant can request the
recognition of a substitutesupport under the replacement
(04:21):
rule on the basis that it doesthe same job and is cheaper than
the one on the list.
The fourth change is newframework plans. Participants
are going to transition from oldframework or current style plans
over the five year transitionperiod. A new framework plan
will be based on a needsassessment, which will establish
(04:43):
a participant's reasonable andnecessary support needs, and
then use a formula to calculatethe person's budget for flexible
supports and for statedsupports. At this time, the
details and the rules about theformula are still yet to be
developed. So we don't reallyknow what that's going to look
like. Yet, a new framework planwill be longer. It'll be up to
(05:06):
five years long, broken downinto 12 month funding periods.
The final change is that thereare now going to be more limits
on management of funding andmore consequences for failure to
properly use and acquit funding.Participants will still be able
to state their goals in relationto fund management, but under
the new law, there are now goingto be extra grounds to refuse
(05:30):
self management and planmanagement requests on the basis
of risk or mismanagement of aplan. While there's always been
an obligation to properly acquitor use funding, there are now
more consequences for not usingfunds in accordance with the
plan.
Natalie (05:47):
Thanks Kyla for explaining the changes. So what
should community workers orsupport workers look out for in
relation to these changes?
Kyla (05:58):
Thanks Natalie, that's a really good question. In terms
of access, if someone receives anotice of impairment that
doesn't list all the impairmentsfor which they require support,
you can support them to getlegal advice about adding in
impairments. In terms ofnotices, the most important
thing in relation to the newchanges is that participants
(06:20):
don't ignore notices or theirtime limits. So you can talk to
clients about the way they'rereceiving correspondence from
the agency and encourage them toreach out for help if they're
having trouble reading orunderstanding their
correspondence. So participantscan expect to receive a notice
that the agency wants them toundergo a needs assessment. They
(06:42):
might receive notice that theagency wants information for the
purposes of preparing a newframework plan. They might also
receive a notice requestinginformation for the purposes of
the agency consideringrevocation.
Participants will have stricttime limits to respond to these
notices if they don't respondwithin the timeframe set out in
(07:03):
the notice, their access to theNDIS may be suspended or
revoked. These decisions can bereviewed or appealed on the
basis that non compliance wasreasonable. However, their plans
will remain suspended or revokeduntil the review or appeal is
determined, which means theywon't be able to fund their
usual supports. It willtherefore be important to action
(07:26):
any notices from the agency,including by asking the agency
for an extension of the timelimit in terms of acquittal of
funds. It's important to notethat failure to use funding in
accordance with a person's plancould lead to a debt being
raised.
There's a transition period forthe new support list, so a debt
won't be raised in the first 12months for accidental mistakes,
(07:47):
unless it is a willful ordeliberate breach of funding.
People can't ask for a review ofa debt that's been raised
against them, but what they cando is ask for a waiver or write
off of the debt, and if that'srefused, the ordinary avenues of
review and appeal can befollowed. So it's really
important to note that under thelegislative changes that came
(08:07):
into effect on the third ofOctober 2024, there aren't
changes generally to reviewrights. So an internal review of
an NDIA decision needs to berequested within three months of
receiving the decision and anappeal of an internal review
decision should be made byapplication to the
Administrative Review Tribunalwithin 28 days of receiving the
(08:30):
internal review decision. LegalAid is available to provide free
independent advice about NDISproblems. Legal Aid branches all
over New South Wales can tellparticipants and prospective
participants about their rightsand what they can get from the
NDIS.
Natalie (08:47):
Thanks Kyla for explaining all that to us today.
I think not ignoring notices andbeing aware of time limits is
such a universal thing lawyerssay in so many different areas
of law, so that's really animportant message for community
workers to be on top of so thankyou very much. Today, I think
you've given everyone a reallygood overview of the changes and
(09:10):
what to look out for.
Kyla (09:11):
Thanks, Natalie.
Natalie (09:14):
That's all for this episode. Thank you again to Kyla
for chatting with us. You cancheck out our other episodes in
this series wrapping what's newin family law and criminal law.
We'll put the links to those andmore in the show notes. Bye for
now.
Popular Podcasts
Stuff You Should Know
If you've ever wanted to know about champagne, satanism, the Stonewall Uprising, chaos theory, LSD, El Nino, true crime and Rosa Parks, then look no further. Josh and Chuck have you covered.
The Joe Rogan Experience
The official podcast of comedian Joe Rogan.
Dateline NBC
Current and classic episodes, featuring compelling true-crime mysteries, powerful documentaries and in-depth investigations. Special Summer Offer: Exclusively on Apple Podcasts, try our Dateline Premium subscription completely free for one month! With Dateline Premium, you get every episode ad-free plus exclusive bonus content.