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Children and NDIS

Information about children who want to access the national disability insurance scheme.

A person who has parental responsibility for a child may make an application to the National Disability Insurance Scheme (NDIS) on behalf of that child. Depending on the age and capacity of the child, the person must consult with the child. They have a duty to act in the child's best interests. After consultation, NDIS may decide that the child is capable of making their own decisions about their care and supports.

See s. 5(a)—National Disability Insurance Scheme Act 2013 (Cth)(opens in a new window).

Who is a child?

A child is defined under the Act as someone who is under 18 years old.

See s. 9—National Disability Insurance Scheme Act 2013 (Cth)(opens in a new window).

Best interests of the child are paramount

The National Disability Insurance Scheme Act states that if the person with the disability is a child, then the best interests of the child are paramount and anyone who acts on behalf of others must give full consideration to the need to protect the child from harm, promote the child's development and strengthen, preserve and promote positive relationships between the child and the child's parents, family members and other people who are significant in the child's life.

See s. 5(f)—National Disability Insurance Scheme Act 2013 (Cth)(opens in a new window).

Parental responsibility

A person has parental responsibility for a child if they are:

  • the child's parent (and parental responsibility has not ceased because of a Family Law Act 1975 order)
  • subject to a parenting order which states that the child is to live with or spend time with them
  • responsible for the child's long term day-to-day care, welfare and development because of an order, or
  • appointed as a guardian of the child.

See ss. 74, 75—National Disability Insurance Scheme Act 2013 (Cth)(opens in a new window).

Who is the child's representative?

The child's representative makes decisions under the Act on behalf of a child.

Normally a person who has parental responsibility for the child will be the child's representative although in exceptional circumstances NDIS may decide that this is not appropriate. NDIS may make a written decision to appoint another person to act in relation to the child.

The child representative could be a group of people or it could be a government agency such as Services Australia (formerly the Department of Human Services).

A person who is the child's representative has a duty to:

  • find out what the child wishes are, and
  • act in the best interests of the child.

See Parts 3, 5 6—National Disability Insurance Scheme (Children) Rules 2013 (Cth)(opens in a new window).

Child to participate in decision making

The rules recognise that a child's decision making increases as they develop and, where appropriate, NDIS is to consult with the child and with their representative to support the child to make decisions about their own care. The child's views must be taken into consideration.

Child may make their own decisions

NDIS may decide that a child has sufficient maturity to make some or all of their own decisions about plans for their care. If NDIS makes a written decision to this effect then the child will make their own decisions about their plans under the scheme. If this happens the person(s) with parental responsibility will lose this power.

The Rules set out how NDIS must make this decision. NDIS must consult with both the child and the person with parental responsibility and consider:

  • what the child would prefer
  • whether there is anyone who could be able to support the child in making and carrying out decisions
  • the need to preserve existing family relationships, and
  • whether there are any arrangements already in place under state or Commonwealth schemes.

See ss. 74, 74(5)—National Disability Insurance Scheme Act 2013 (Cth)(opens in a new window).

More information

Legislation

National Disability Insurance Scheme Act 2013 (Cth)

  • s. 5(f)—general principles for people acting on behalf of others
  • Part 4—Children
  • s. 74(5)—NDIS may decide that the child is old enough to make their own plans and decisions
  • s. 75—defines parental responsibility
  • s. 76—duty to children

See National Disability Insurance Scheme Act 2013 (Cth)(opens in a new window).

National Disability Insurance Scheme (Children) Rules 2013 (Cth)

  • Part 3—who is a child's representative?
  • Part 4—who has parental responsibility?
  • Part 5—when a child does not need a child's representative
  • Part 6—duties of child's representatives

See National Disability Insurance Scheme (Children) Rules 2013 (Cth)(opens in a new window).

Reference

VLA Fact sheet—Eligibility and application process

Fiona Brice, Professional Support Lawyer for Civil Justice has drafted several fact sheets that summarise the scheme.

To access this fact sheet see 'NDIS resources' in Practice resources—Civil justice resources—National Disability Insurance Scheme.

Updated