Recent changes to the NDIS Act: what is the ‘Participant Service Guarantee’?

Written by:
Angela Cox

Angela Cox

Principal Lawyer

In this article:

Introduction

On 30 March 2022, the Australian Parliament passed the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021 (Bill) to amend the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act). The Bill received Royal Assent on 1 April 2022. 

The legislative reforms effected by the Bill were recommended by the Tune Review of the NDIS Act in 2019. Broadly, the reforms are intended to improve the experience of people with disability and their families utilising the NDIS.

As the name of the Bill suggests, the key feature of the reforms is the introduction of the new Participant Service Guarantee (the PSG).

That said, it is not quite ‘new’ as the National Disability Insurance Agency (NDIA) committed to implementing the PSG as a matter of operational policy from 1 June 2020, recognising the delays to the legislative process caused by the pandemic.

But what the recently made amendments to the NDIS Act, and the soon-to-be-made new  NDIS PSG Rules,will do is to enshrine (finally!) the PSG into law, effective from 8 April 2022.

This article explains what the PSG is. My next article explores whether the ‘G’ in PSG really does provide a ‘guarantee’ of timely service by the NDIA to NDIS participants and their families.

Participant Service Guarantee

In a nutshell, the PSG sets clear timeframes for key NDIS processes, so as to give participants and theirfamilies greater certainty. Under the PSG, the NDIA must:

Access

  • Decide a person’s application to access the NDIS within 21 days or any shorter period stipulated in the new NDIS Rules  

Important note: if the NDIA does not make a decision within the required timeframe, then this is taken to be a decision to refuse access, which you can appeal.

  • Give you 90 days – an increase from the previous 28 days – to provide information to the NDIA, if it asks you to do so, to support an access request.

Planning

  • Start the process of preparing a person’s plan within 21 days of the NDIA accepting their access request, and them becoming a NDIS ‘participant’;
  • For participants aged under 7 years, approve their first plan within 90 days of acceptance of their access request;
  • For participants aged 7 years or more, approve their first plan within 56 days of acceptance of their access request;
  • State a scheduled plan ‘reassessment’ (formerly called ‘review’), 56 days before the due date specified in the plan;
  • If a participant requests a non-scheduled (e.g. a ‘change of circumstance’) plan ‘reassessment’, decide whether to vary the plan or, or carry out a plan reassessment or not, within 21 days;
  • If a participant requests a variation to their plan, make a decision to vary the plan or not within 21 days;
  • If the NDIA agrees to vary the plan, make any agreed small or minor variations to the plan within 28 days or bigger or more complex changes to the plan within 50 days
  • Complete an agreed non-scheduled plan ‘reassessment’, within 42 days;
  • Offer to hold a plan implementation meeting with a participant as soon as reasonably practicable after their plan comes into effect, and if they accept the offer, hold the meeting within 28 days.

Review of NDIA decisions

  • Provide the participant with reasons for any reviewable decision, such as an access or plan decision; 

Important note: this amendment to section 100(6), NDIS Act puts the onus on the NDIA to provide reasons for access and plan decisions, saving participants and their families from having to request them if they do not understand the decision.

  • Complete an internal review of a decision within 90 days

Important note: If a participant is not satisfied with the internal review decision and wishes to apply to the Administrative Appeals Tribunal (AAT) for external review, then they must lodge their application with the AAT within 28 days of the internal review decision: section 29(2), AAT Act 1975 (Cth).

Complaints against the NDIA 

  • Resolve any complaint you make against the NDIA within 21 days

Nominees

  • Cancel a nominee appointment within 14 days of the participant’s request;

Conclusion

The recent passage of the PSG Bill by the Australian Parliament is a positive development in improving the NDIA’s timeliness with NDIS processes, and overall continuing with the process of NDIS reform begun by the Tune Review in 2019.

Please read my next article for a closer look at whether we can expect the ‘G’ in PSG to actually ‘guarantee’ more timely service by to participants and their families in their NDIS dealings.

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DISCLAIMER: The information provided in this article is general only. While it may provide guidance on a issue or matter that you may have, it should not be relied on as legal advice. We recommend that you obtain legal advice specific to your issue or matter.

© A. Cox 2021 All rights reserved. This article is copyright. Apart from any fair dealing for the purpose of private study, research or as permitted under the Copyright Act 1968 (Cth), no part of this article may be reproduced or copied in any form or by any means without prior permission from the author.