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Remove the NDIS Upper Age Limit (of 65 and above)
- Thu Ha Bui
- 5 days ago
- 6 min read
Author: Thu Ha Bui | Publish date: 22/05/2024
Problem Identification:
In Australia, individuals with disability cannot access the National Disability Insurance Scheme (NDIS) for the first time if they are aged 65 or over.
Under section 22 in Part 1 of the National Disability Insurance Scheme Act 2013 (Cth), only individuals who are under 65 when they make their first access request are eligible to become NDIS participants.
This means that up to 2.3 million older Australians with disability may be left with limited access to disability support services. According to Mitry Lawyers, this is known to create ‘hardship and inequality for thousands of individuals’ who must instead rely on My Aged Care for support, rather than the NDIS.
Context:
Australia employs distinct pathways for disability support, based on an individual's age at the time of application. Individuals who have never accessed the NDIS and are aged 65 or over are directed to access services through My Aged Care. In contrast, NDIS participants can continue receiving support from the NDIS after turning 65; however, they must exit the scheme if they begin receiving assistance from My Aged Care.
The NDIS was designed to help individuals with a disability gain greater independence, improve their quality of life, and participate more fully in the community. The scheme provides tailored funding packages based on each participant’s unique disability-related needs and goals. It is known to cover a wide range of supports and allows for self-managed funding, giving participants greater control over their care.
My Aged Care refers to the Australian Government’s central entry point for older people, including those with disabilities aged 65 and above, to access aged care services. Unlike the NDIS, My Aged Care does not offer self-managed funding and is subject to means testing, funding caps, and service rationing. Further, the Australian Federation of Disability Organisations has highlighted that in My Aged Care, there is no dedicated funding for high-cost assistive technology, such as prosthetics and tailored wheelchairs.
As the CEO of Leading Age Services Australia has highlighted, My Aged Care does not provide the same level of support and funding as the NDIS. As the Aged Care Royal Commission explained, compared to aged care, under the NDIS, ‘more comprehensive supports are available; there is greater access to specialised care, aids, equipment and therapy; and the average amount of available funding is often greater’. The Macular Disease Foundation Australia (MDFA) has highlighted that the aged care system was ‘neither funded nor designed to provide the support required by people with a disability’. MDFA has argued that directing people with a disability aged 65 to receive support from My Aged Care is a ‘flawed’ and ‘poorly considered’ decision.
The CEO of the NSW Physical Disability Council has further emphasised that this creates an arbitrary divide between people with similar levels of need. This divide means that 2 people with similar support needs can receive vastly different levels of support and funding. As such, many have argued that the current system is inequitable.
According to MS Australia, people with a disability who rely on the aged care system are known to face significant financial constraints, as they often need to ‘self-fund the shortfall... or go without’. This is known to often result in a deterioration of individuals’ health and well-being.
Further, MS Australia has stated that this exclusion contradicts Article 19 of the UN Convention on the Rights of Persons with Disabilities, which recognises ‘the right of all people with disability to live independently and be included in the community’.
MS Australia, among many others, have called to remove the upper age limit for NDIS recipients aged 65 and above. They have said this amendment could ensure that people with disabilities aged 65 and above receive equal and inclusive care within a ‘system specifically designed to address the needs of people with disability.’
There is international precedent for removing upper age limits on disability support. In 2020, France lifted its previous application upper age limit of 75 for the Disability Compensation Benefit, ensuring all individuals (of any age) with a disability can seek support.
Solution Identification:
Repeal section 22 in Part 1 of the National Disability Insurance Scheme Act 2013 (Cth) to remove ‘a person meets the age requirements if the person was aged under 65 when the access request in relation to the person was made.’
This could help to ensure that people with a disability aged 65 and above can receive equal access to support, helping to prevent age-based discrimination and promote a more equal and inclusive health system.
Advice:
The Minister for the NDIS should amend section 22 in Part 1 of the National Disability Insurance Scheme Act 2013 (Cth) as specified above at the next opportunity.
Public Support:
Where to go to learn more:
ABC Article ‘Aged care system accused of failing older Australians with disability, as those over 65 years remain locked out of NDIS’ - Australians over 65 who acquire a disability are excluded from the NDIS and must rely on aged care, which advocates say is underfunded and ill-equipped for their needs. Read full article here
Class action initiated by Mitry Lawyers to remove NDIS upper age limit - 'Cruel and unfair': NDIS facing class action over alleged age discrimination. Read the full article here
ABC Article ‘Age discrimination complaints on NDIS age cap taken to the United Nations’ - Peter Freckleton took his fight for age inclusion in the NDIS to the United Nations. Read the full article here
ABC Article ‘NDIS eligibility age limit challenged by Paralympians in campaign for change’ - Former Paralympians Ron Finneran and Chris Sparks are campaigning to scrap the NDIS age limit, arguing it unfairly excludes Australians over 65 from vital disability support. Read the full article here
The NDIS Rules - Provide details on how the NDIS Act 2013 (Cth) operates in practice. Access the NDIS Rules here
National Disability Insurance Scheme Act 2013 (Cth) - Establishes the legal framework for the NDIS, including eligibility, funding, and the roles of participants and providers. Read the full act here
Human Perspective:
Roy had spent his life building—homes, furniture, a future for his family—but when he turned 65, a spinal cord injury from a workplace accident left him partially paralysed. He thought the NDIS would help, only to learn he had aged out of the system. Instead of receiving the physical therapy and assistive technology he needed, Roy was placed in an aged care facility that was unequipped to support his mobility challenges. Stripped of his independence, he spent his days confined to a wheelchair that didn’t fit properly, relying on overburdened staff for basic needs. The once skilled carpenter now felt like a burden, his world shrinking to the walls of a place never meant for him. If the NDIS legislation had been amended to remove the application upper age limit of 65, Roy may have received a customised wheelchair, in-home care, and rehabilitation that would have allowed him to keep living on his terms, instead of feeling forgotten by the system meant to support people like him. To protect the anonymity of those involved, this is a fictionalised account drawn from an amalgamation of real-life stories, experiences, and testimonials gathered during the research process for this brief. Any resemblance to actual individuals is purely coincidental.
Conflict of interest/acknowledgment statement:
N/a
Support
If your organisation would like to add your support to this paper or suggest amendments, please email Info@foreaustralia.com.
Reference list:
AGE. (2020). New French legislation removes age limits on disability benefit. https://www.age-platform.eu/new-french-legislation-removes-age-limits-on-disability-benefit/#
ATSA’s First CEO, Chris Sparks on No First Time Access to NDIS After 65. (n.d.). Blue Badge Insurance Australia. https://www.bluebadgeinsurance.com.au/blog/ndis-after-65/
Australian Bureau of Statistics. (2024). Disability, Ageing and Carers, Australia: Summary of Findings. https://www.abs.gov.au/statistics/health/disability/disability-ageing-and-carers-australia-summary-findings/latest-release
Commonwealth of Australia. (n.d.). Glossary. My Aged Care. https://www.myagedcare.gov.au/glossary
Holden, B., & Greber, J. (2021, October 10). NDIS eligibility age limit challenged by Paralympians in campaign for change. ABC News. https://www.abc.net.au/news/2021-10-11/paralympians-campaign-for-ndis-age-eligibility-change/100497484
Leaving the Scheme. (n.d.). NDIS. https://www.ndis.gov.au/participants/changing-your-plan/leaving-scheme
Macular Disease Foundation Australia. (2017). Submission to the Productivity Commission: National Disability Insurance Scheme (NDIS) Costs Issues Paper. https://www.pc.gov.au/__data/assets/pdf_file/0005/215528/sub0075-ndis-costs.pdf
MS Australia. (n.d.). A Better NDIS For People Living With MS. https://www.msaustralia.org.au/wp-content/uploads/a-better-ndis-for-people-living-with-ms.pdf
National Disability Insurance Agency. (2024). Legislation. NDIS. https://www.ndis.gov.au/about-us/governance/legislation
National Disability Insurance Scheme Act 2013 (Cth). (n.d.). https://www.legislation.gov.au/C2013A00020/latest/text
NDIS Class Action. (n.d.). Mitry Lawyers. https://www.mitry.com.au/ndis
Royal Commission into Aged Care Quality and Safety. (2021). Final Report: Care, Dignity and Respect, Royal. https://www.royalcommission.gov.au/aged-care/final-report?utm
Service Public. (2024). Prestation de compensation du handicap (PCH) [Disability compensation benefit (PCH)]. https://www.service-public.fr/particuliers/vosdroits/F14202
Skatssoon, J. (2021, April 30). NDIS ‘provides benchmark’ for aged care funding. Australian Ageing Agenda. https://www.australianageingagenda.com.au/executive/ndis-provides-benchmark-for-aged-care-funding/
Support for people with disability. (n.d.). My Aged Care. https://www.myagedcare.gov.au/support-people-with-disability
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