Federal Register of Legislation - Australian Government

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Rules/Other as made
These rules are about ensuring that people in New South Wales who are currently receiving supports from certain specified Commonwealth or State funded disability services will be supported as participants in the National Disability Insurance Scheme, including people who do not meet the residence requirements as prescribed in paragraphs 23(1)(a) and 23(1)(b) of the Act.
Administered by: Social Services
Registered 13 May 2016
Tabling HistoryDate
Tabled HR30-Aug-2016
Tabled Senate30-Aug-2016

EXPLANATORY STATEMENT

 

Issued by the Authority of the Minister for Social Services

 

National Disability Insurance Scheme Act 2013

 

National Disability Insurance Scheme (Prescribed Programs—New South Wales) Rules 2016

 

Section 209 of the National Disability Insurance Scheme Act 2013 (the Act) provides that the Minister may, by legislative instrument, prescribe matters required or permitted by this Act to be prescribed, or which are necessary or convenient to be prescribed, in order to carry out or give effect to this Act.  

 

The National Disability Insurance Scheme (Prescribed Programs—New South Wales) Rules 2016 (the Prescribed Programs Rules—New South Wales) are made for the purposes of sections 21 and 209 of the Act. The Prescribed Programs Rules—New South Wales are about ensuring that the transition to full roll-out of the National Disability Insurance Scheme (NDIS) in New South Wales does not disadvantage anyone in New South Wales with a disability who, prior to the full roll-out of the NDIS, was receiving disability services under certain Commonwealth or New South Wales programmes but does not meet the residence requirements as prescribed in paragraphs 23(1)(a) and 23(1)(b) of the Act.

           

The Minister, in making the Prescribed Programs Rules—New South Wales, has had regard to financial sustainability of the NDIS as required under subsection 209(3). 

 

The Prescribed Programs Rules—New South Wales include Category B rules for the purposes of section 209 of the Act.  Accordingly the host jurisdiction, New South Wales, has agreed to the making of the Prescribed Programs Rules—New South Wales.   

 

Background

 

In 2011, the Productivity Commission report, Disability Care and Support (Report No. 54), found that current disability support arrangements are inequitable, underfunded, fragmented, and inefficient and give people with a disability little choice’ (Overview, p. 5), and recommended the establishment of a National Disability Insurance Scheme. People who are participants in the scheme will be assisted to develop a personal, goal-based plan about how they will be provided with general supports and reasonable and necessary supports. 

 

The Act was enacted in March 2013 giving effect to the commitment by the Commonwealth, State and Territory Governments to establish such a scheme, and for its progressive implementation from July 2013.  The Act sets out the statutory framework for the scheme, and for the National Disability Insurance Scheme Launch Transition Agency to administer the scheme. 

 

In New South Wales, the scheme launch was initially restricted to particular launch areas, being local government areas of Newcastle City, Lake Macquarie City and Maitland City, and subsequently including City of Blue Mountains, City of Hawkesbury, City of Lithgow and City of Penrith: see the National Disability Insurance Scheme (Becoming a Participant) Rules 2013.

 

The Government of the Commonwealth and the Government of New South Wales have agreed that the NDIS will be implemented throughout the entirety of New South Wales, and that the remaining areas will transition into the NDIS in accordance with the timeframes set out in the Bilateral Agreement between the Commonwealth and New South Wales: Transition to a National Disability Insurance Scheme, Schedule A––Participant Transition Arrangements in New South Wales. These documents are available at www.coag.gov.au.

 

As part of this implementation, certain Commonwealth and New South Wales disability services which are currently being provided in New South Wales will cease to be provided and the funding applicable to those programs transferred to the NDIS. Some persons who are currently receiving supports from such programs may not meet the access criteria set out in the Act because they do not meet the residency requirements and thus may not be eligible to become participants in the NDIS.

 

The Prescribed Programs Rules—New South Wales are about ensuring that the transition to full roll-out of the NDIS in New South Wales does not disadvantage those who, prior to the full roll-out of the NDIS, were receiving disability services under certain Commonwealth or New South Wales programs but do not meet the residence requirements as prescribed in paragraphs 23(1)(a) and 23(1)(b) of the Act.

 

It achieves this goal by prescribing a qualifying time, qualifying period and list of qualifying programs for the purpose of the requirements in subsection 21(2)(b) of the Act. If a person meets these requirements, and meets the requirements in subsections 21(2)(a) and (c) of the Act, then that person meets the access criteria and may become a participant, even though the person does not meet the access criteria for the purposes of section 21(1)(b) of the Act.

 

Commencement

 

The Prescribed Programs Rules—New South Wales commence on the day after this instrument is registered.

 

Consultation

 

The Prescribed Programs Rules—New South Wales were developed in close consultation with the Government of New South Wales.

 

The Prescribed Programs Rules—New South Wales are a legislative instrument for the purposes of the Legislation Act 2003.

 

Explanation of provisions

 

The Prescribed Programs Rules—New South Wales have four Parts:

 

·         Part 1 explains what the Prescribed Programs Rules—New South Wales are about.

·         Part 2 provides an outline of the Prescribed Programs Rules—New South Wales. 

·         Part 3 prescribe a qualifying time, qualifying period and list of qualifying programs for the purposes of section 21(2)(b) of the Act.

·         Part 4 deals with other matters, including interpretation of the Prescribed Programs Rules—New South Wales.

 

Part 1 – What these Rules are about

 

Paragraphs 1.1 to 1.6 are explanatory and contextual. The prescribed programs arrangements are based on an agreement that has been reached between the Government of the Commonwealth and the Government of New South Wales (the Bilateral Agreement between the Commonwealth and New South Wales: Transition to a National Disability Insurance Scheme, especially Schedule D––Continuity of Support Arrangements in New South Wales), and is intended to give effect to that agreement. These documents are available at www.coag.gov.au.

 

Paragraph 1.7 refers to relevant objects and principles, drawn from sections 3 and 4 of the Act.

 

Part 2 – Outline of these Rules

 

Paragraphs 2.1 to 2.4 are explanatory and contextual only.  They provide some information about how a person becomes a participant, and the requirements that must be met (access criteria) under section 21(1) the Act.

 

Paragraphs 2.5 to 2.6 summarise subsection 21(2) of the Act, noting that there is an alternative method by which a person may meet the access criteria and become a participant if the CEO is not satisfied that a person meets the requirements set out in subsection 21(1) of the Act. The Act enables rules to be made for the purposes of subsection 21(2) of the Act to prescribe requirements which the CEO must be satisfied are met before a person meets the access criteria under subsection 21(2) of the Act.

               

Paragraph 2.7 states the principal operative effect of the Prescribed Programs Rules—New South Wales, namely, to prescribe requirements for the purposes of subsection 21(2) of the Act. These requirements are set out in Part 3.

 

Paragraph 2.8 outlines the purpose of Part 4 of the Prescribed Programs Rules—New South Wales.

 

Part 3 – When does a person meet the access criteria?

 

Paragraphs 3.1 to 3.4 are made for the purposes of paragraph 21(2)(b) of the Act. 

 

Paragraph 3.1 provides that a person meets the access criteria if the five requirements listed in that paragraph are satisfied.

 

The requirements in paragraphs (a) and (e) of paragraph 3.1 summarise paragraphs 21(2)(a) and (c) of the Act respectively.

 

The requirements in paragraphs (b), (c) and (d) of paragraph 3.1 are made for the purposes of paragraphs 21(2)(b)(i), (ii) and (iii) of the Act respectively.

 

The requirement in paragraph 3.1(a) is that at the time of considering the request, the person satisfies the requirements in relation to residence prescribed as mentioned in subsection 23(3). Paragraph 3.2 notes that these requirements have been prescribed by the National Disability Insurance Scheme (Becoming a Participant) Rules 2013

 

Paragraph 3.2 prescribes a qualifying time for the purposes of paragraph 21(2)(b)(i) of the Act, namely, the day immediately before the date on which a region in which the person lives transitions into the NDIS under the National Disability Insurance Scheme (Becoming a Participant) Rules 2016

 

Paragraph 21(2)(b)(i) of the Act also states that a person meets the access criteria if, provided the other requirements in subsection 21(2) are met, the person ‘was receiving supports at the time of considering the request’. It should be noted that the prescription of the qualifying time by paragraph 3.2 is not intended to displace this requirement. That is, if a person meets the requirements of subsection 21(2)(a), (b)(ii), (b)(iii) and (c) of the Act, and was receiving supports at the time of considering the request, the person meets the access criteria under subsection 21(2) of the Act.

 

Paragraph 3.3 prescribes a qualifying period for the purposes of paragraph 21(2)(b)(ii) of the Act, namely, a period between the date these rules come into force and the date the person makes an access request.

 

Paragraph 3.4 prescribes a list of qualifying programs which provide supports for people with disability for the purposes of paragraph 21(2)(b)(iii) of the Act, to the extent of the operation of the programs in relation to people under 65 years of age. These programs reflect relevant service types in the Disability Services National Minimum Dataset.

 

Part 4 – Other matters

 

Paragraph 4.1 specifies the citation for the Prescribed Programs Rules—New South Wales.

 

Paragraphs 4.2 to 4.4 give guidance on interpretation and definitions for certain terms used in the Prescribed Programs Rules—New South Wales.