Australia's National Disability Insurance Scheme
(NDIS) is here and moving into a crucial
implementation phase over the next 12 months.
Rosan Santangelo, HBA Legal Partner, reviews some documents from
the NDIS website and examines the legislation with a view to
understanding what these changes will mean for compensation
As anyone who practices in casualty litigation will know, at the
end of a personal injury case the parties fill in a Medicare form,
notify Centrelink of the judgment or settlement and seek the
required clearances. So what I initially wanted to know was does
the NDIS change any of that? The answer is yes, it does. The NDIS
regime also has the potential to influence peoples' decision as
to whether they will commence litigation or not.
What is NDIS?
The overriding principle of the NDIS is to give the individual
choice and control. Participants are able to make choices about
what care and support they wish to receive and to control the
employment and payment of service providers. Funding is provided to
participants in an NDIS approved personal plan and participants
select the services and service providers. The NDIS legislation is
broad in respect of the types of supports and assistance to be
covered. The basic requirement is that the National Disability
Insurance Agency (NDIA) determines that services
are "reasonable and necessary".
The sorts of services covered include those which would be the
subject of an award for damages for care or out of pocket expenses
in a personal injury claim such as:
domestic assistance; and
Will claims costs reduce as individuals are not paying
for care? No
The NDIS does not remove liability for care and supports from
the underlying compensation payer or insurer.
Can the NDIA commence recovery proceedings?
The legislation enables the NDIA to conduct common law actions
in a participant's name and to seek recoveries from insurers,
accident compensation schemes and other compensation payers.
If a participant fails to seek compensation from the scheme
within a certain period, their personal care and support plan can
be suspended and the injured personal will cease to receive NDIS
benefits. In other circumstances, if the participant fails to take
action within a specified period, the NDIA has broad powers to take
over a claim/litigation in the name of the participant.
Are recovery actions limited to NDIS payments?
In NDIA recovery actions a scheme participant's claim will
not be limited to heads of damage that would be covered by the
NDIS. Payments made by the NDIS prior to the award of damages will
be recovered as a lump sum by the NDIA. The balance of the damages
resulting from the litigation will be passed on to the participant
once damages for future care or supports (of a type that would
typically be provided by the NDIS) are accounted for. Those amounts
for 'care' will reduce future NDIS payments on an ongoing
It will be interesting to see if the NDIA will be incentivised
to maximise the care related damages component of litigated claims
and how scheme participants fare in the process, particularly if
they have no say as to how settlements are constructed.
Do insurers need to provide a Notice and Details of
The NDIA can seek recoveries from insurers post settlement or
judgment. There are strict notification requirements for insurers
akin to those currently in place for Medicare and Centrelink. It is
an offence for an insurer to make a payment to an individual prior
to paying the recovery amount to the NDIA. Insurers must:
provide written notice to the NDIA within seven days of
becoming liable for or receiving notice that they may be liable for
support costs relating to a participant; and
not make any compensation payments subsequent to receiving a
recovery notice from the NDIA and while that notice is in
The NDIS is a major project and its infrastructure will, no
doubt, develop over time. Insurers ought to be mindful of:
personal injury liabilities that will arise in the near future
where claimants qualify for benefits under the NDIS; and
reporting and compliance obligations.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel (1959) 101 CLR 298. An unfavourable inference is drawn only if evidence otherwise provides a basis on which that unfavourable inference can be drawn.
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