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National Disability Insurance Scheme
(Supports for Participants – Accounting for Compensation) Rules 2013
[F2013L01414]
Portfolio:
Social Services
Authorising
legislation: National Disability Insurance Scheme Act 2013
Last day to
disallow: 4 March 2014 (Senate)
Purpose
2.34 The National Disability Insurance Scheme Act 2013 provides that
the NDIS rules may prescribe the criteria to be applied or the matters to be
taken into account, when deciding whether to provide or fund specific supports
for NDIS participants.
2.35 The National Disability Insurance Scheme (Supports for Participants –
Accounting for Compensation) Rules 2013 sets out how compensation payments for
personal injury suffered by an NDIS participant are to be taken into account in
determining the reasonable and necessary support that will be funded or
provided under the NDIS.
Background
2.36 The committee reported on the instrument in its First and Third
Reports of the 44th Parliament.
Committee view on compatibility
Right to an adequate standard of
living
Suspension of NDIS support
2.37 The committee sought clarification from the Assistant Minister for
Social Services in relation to:
- why it is not appropriate to impose a duty on the CEO under rule
3.10 to take into account financial hardship to ensure that supports are not
reduced or withdrawn if that may lead to a participant falling below the
minimum level of enjoyment of the right to an adequate standard of living; and
- why it is necessary to suspend the provision of supports to a
participant pending the resolution of a dispute over whether it is reasonable
for the participant not to seek compensation under another law or scheme and
how this is compatible with the obligation to ensure the right to an adequate
standard of living.
Assistant Minister's response
Under Rule 3.10 the CEO is provided with the discretion to ignore
the whole or part of a compensation reduction amount if it is appropriate in
the special circumstances of the case. The committee is correct to point out
that this does not impose a duty upon the CEO. A duty is imposed on the CEO
under section 104(3) of the National Disability Insurance Scheme Act (the NDIS
Act). Under this subsection the CEO must, when considering whether a person
should be required to take action to obtain compensation under section 104,
consider the impact (including any financial impact) on the participant or
prospective participant and his or her family that would have occurred if the
claim for compensation had been pursued or continued.
[...]
There was concern at the time of drafting the Bill that,
without suspension provisions in relation to compensation, a participant with a
good claim for compensation would be free to decide not to take action for
compensation, instead relying on the NDIS for all of his or her supports. Given
the importance of establishing a financially sustainable scheme, the drafters
sought to introduce a sanction to ensure that people who could pursue
compensation would pursue compensation.
The only sanctions available in such a case were seen to be
suspension or cancellation of the participant's plan, or revocation of access
to the scheme. Of these, suspension was regarded as the least punitive. Once a
suspension ceases the participant is paid all NDIS amounts that were withheld
during the suspension. Suspension applies only where the compensation scheme is
an administrative scheme run by a Commonwealth, state or territory government.
Applications to these schemes are purely administrative actions requiring the
completion of forms and going through relevant medical examinations. It
requires no personal expenditure and only a minor inconvenience on the part of
the participant.[1]
Committee response
2.38 The committee thanks the Assistant Minister for Social Services
for his response and has concluded its examination of this instrument.
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