Understanding the NDIS 65 years age cap

Written by:
Angela Cox

Angela Cox

Principal Lawyer

In this article:

What happens if I am in the NDIS and then turn 65 years?

You stay in the NDIS.

That is, if you become a ‘participant’ in the NDIS before your 65th birthday, you can remain a participant and receive ongoing NDIS-funded disability supports over your lifetime.

This is consistent with one of the general principles of the NDIS, as set out in section 4(3) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act), namely that:

People with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime [my emphasis].

But it is important to note that you will cease to a be a participant if, after your turn 65, you first go into an aged care home or start receiving home care under the aged care system, and this care arrangement is to be permanent: s29(1), NDIS Act.

It is also important to remember that, irrespective of age, the National Disability Insurance Agency (Agency) may revoke your status as a participant if, for any reason, you no longer meet the residence, disability or early intervention NDIS eligibility (or ‘access’) criteria for the NDIS: s30(1), NDIS Act. For example, if you permanently move overseas you may no longer meet the Australian residence criteria: section 23(1)(b), NDIS Act. If the Agency revokes your status as a participant on this basis, you will no longer be entitled to receive NDIS-funded disability supports.

The Agency must tell you in writing about any decision it makes to revoke your status as a participant, and the date the decision is to take effect: s30(2), NDIS Act.

Unfortunately, you cannot. 

What happens if I am over 65 years, seriously disabled and want to get into the NDIS?

A person who is aged 65 years or over at the time they apply for ‘access’ to the NDIS will not meet the legislative age requirement: s22(1)(a), NDIS Act. They will not be eligible to become a NDIS participant, nor to receive NDIS-funded disability supports.

This reflects a deliberate policy of all governments to limit access to the NDIS to persons with disability under 65 years. 

However, persons who acquire a significant and permanent disability after they turn 65 years may still access supports in the aged care system.

But isn’t the 65 year age limit discriminatory?

No, not at law.

This is because, at the time of passing the NDIS Act, the Age Discrimination Act 2004 (Cth)

(ADA) was amended to create a special NDIS exemption.

That is, anything done in compliance with the NDIS Act or any regulation, rule or other instrument made under the NDIS Act is excluded from the general prohibition against age discrimination in the ADA: s41(1)(fba) and s41(2C), ADA. 

Note, various other Commonwealth laws – such as taxation, social security, superannuation, insurance and migration laws – are similarly excluded from the ADA. It is not just an ‘NDIS thing’!

In recent times, the 65-year age limit has been publicly criticised. This is because some persons who acquired their disability after they turned 65 years have found they are not adequately supported by the aged care system (because of the funding limitations inherent in that system). They argue that if they were eligible for the NDIS, they would be ‘better off’, as the NDIS would fund all of their ‘reasonable and necessary’ supports. The story of Mr Chris English is a sad example of this.

Conclusion

To be eligible for the NDIS, you must be under 65 years at time that you apply to access the NDIS. But once you are ‘in’ the NDIS as a participant, you remain ‘in’ the NDIS for life. 

The exceptions are if (after you turn 65) you enter an aged care home or start receiving in-home aged care services on a permanent basis, or the Agency revokes your status as a participant because you no longer meet the residence, disability, or early intervention criteria.

If you are over 65 years and apply for access to the NDIS, you will be declined because you will not meet the legal age criteria, irrespective of your disability. The decision does not constitute age discrimination, because of a special legislated NDIS exemption. However, you may be eligible for supports from the aged care system.

References and further reading

Australian Human Rights Commission website, Age Discrimination

Aged Care Act 1997 (Cth)

The Dictionary in Schedule 1 defines the terms ‘residential aged care’ and ‘home care’. Section 29(1) of the NDIS Act uses these terms, with the same meaning.

Bhandari, N. Why did The Productivity Commission recommend the NDIS not cover aged care?, interview with John Walsh, former National Disability Insurance Agency board member and one of the authors of The Productivity Commission Report that recommended the establishment of the NDIS, published on Hireup website on 11 November 2021.

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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.