Personal injury claims and the NDIA

women in wheelchair

By: Shane Don

Who is the NDIA?

The National Disability Insurance Agency (NDIA) is a Commonwealth statutory agency that administers the National Disability Insurance Scheme (NDIS) to Australians with permanent disability.

Am I eligible for NDIS support?

In order to become a participant of the NDIS, you must:

  1. Be under 65 when you make the request for access; and
  2. Reside in Australia and be an Australian citizen, permanent resident or holder of a special visa category; and
  3. Establish that you have either a ‘permanent disability requirement’ or an ‘early intervention requirement’.

Disability requirements include a disability attributable to one or more of an intellectual, cognitive, neurological, sensory, physical or psychiatric condition.

In order to be granted access to the provision of early intervention, the NDIA must be satisfied that it will likely reduce your future needs for supports and that the early intervention will mitigate, alleviate or prevent the deterioration of your functional capacity.

Should I apply for NDIS support if I am already receiving funding from another statutory scheme?

The objective of the NDIS has been to address the imbalance between those with compensable and non-compensable disabilities. It was designed to complement and not replace existing statutory schemes, by facilitating a nationally consistent approach to the funding of reasonable and necessary supports.

It is important to note that most statutory schemes fund on a ‘as needs’ basis. This means that you will only receive funding if it is requested and approved. Further, the legislated funding intent of Victorian statutory schemes do not consider an individual’s goals or aspirations. The NDIS, in contrast, allows participants to choose which supports and services require ongoing funding, from an individually allocated budget based on their goals and social participant objectives.

Accordingly, if you find that you are not receiving adequate or appropriate funding from your existing statutory scheme for your medical and like expenses, it is worth considering access to the NDIS.

When applying for access to the NDIS, you must inform the NDIA of any current compensation claim on foot.

Do I have to pay the NDIA back if my compensation claim settles?

Pursuant to sections 106 or 107 of the National Disability Insurance Scheme Act 2013 (Cth), the NDIA can recover the sum of past NDIS amounts from your common law damages that includes past medical and like expenses or past domestic care and assistance. Prior to settlement, the NDIA will invariably issue a ‘Preliminary Notice’ to the potential compensation payer or insurer to put them on notice of their potential liability.

This situation arises in circumstances where your common law claim finalises and you have been in receipt of NDIS supports for your personal injury related impairment/s. The NDIA calculates the recoverable amount from the date of access to the NDIS to the day before the settlement/judgement.

In Victoria, common law damages that include components for past medical and like expenses or past domestic care and assistance will only be in public liability or medical negligence matters.

Can I continue to receive NDIS support after my compensation claim settles?

Yes. However, if you receive ongoing supports from the NDIA subsequent to receiving compensation, a ‘Compensation Reduction Amount’ (CRA) may be applied to your future plans.

How can we help?

It is important that you understand how the NDIA can interact with your personal injury claim. Having firsthand experience working with the NDIA and being specialists in personal injury law, we will ensure that you are properly advised of your entitlements. Please contact us on 1800 853 085.

Shane Don Laywers