National Disability Insurance Scheme (NDIS) eligibility rules require a person to be younger than 65 on the day they make their application to the scheme. Only those already on the scheme can keep receiving support after they turn 65.

A class action challenging this has been launched by Mitry Lawyers on behalf of people who are 65 years and over and who have a disability.

It’s claimed the age limit is inconsistent with human rights, and the constitutional provisions of state-based discrimination laws have been breached. 

Lawyers say the NDIS exclusion rules have caused hardship and inequality for thousands of seniors who require disability support but only have limited access to funds through My Aged Care rather than the NDIS.

Unlike the NDIS, My Aged Care has capped levels of funding, is means tested, requires fees and co-contributions, and does not ascertain the care needs of the individual, which the claimants say should be a fundamental right for all disabled people.

This class action aims to remove the exclusion so that all age groups can access the NDIS.

Participants need to be suffering a permanent disability and either:

• Acquired the disability at an age of 65 years old or over; or

• Acquired a disability at any age but the individual was 65 years old or older when the NDIS was rolled-out in their area.

Lawyers advise the class action may also be open to spouses and family members who have had the burden of taking on the role of carer.

The primary claim is that the Commonwealth government has acted beyond its constitutional powers. For example, it’s proposed the NDIS Act is inconsistent with the Convention on the Rights of Persons with Disabilities due to that convention’s prohibition of all forms of discrimination. 

Potential damages include: 

• Monetary loss of missing out on the NDIS. The average annual NDIS plan is $111,000 per year while the Aged Care Scheme is capped at $56,000 and is means tested. 

• Adverse psychological and/or health effects caused by stress due to not being able to access the NDIS. 

• Carers’ expenses, such as time off work, travel expenses and medical bills. 

• Loss of opportunities such as employment. 

When asked about the exclusion of over-65s from the NDIS, a spokeswoman for Disability Minister Bill Shorten told the Australian Financial Review (AFR) “the legislation which was bipartisan, since back in 2013, has been clear on this”.

According to the AFR, proceedings against the government are expected to be launched within three months. If the case is successful, it could become the most expensive class action against the Commonwealth government on record. 

The AFR reports, “Taxpayers could be out of pocket hundreds of millions of dollars if the case is successful, potentially eclipsing the cost of the federal government’s robo-debt settlement. 

“Including over-65s in the scheme would put major pressure on the NDIS’ ‘already-stretched budget’, with official forecasts showing its annual cost poised to more than double to $89.4 billion by 2032.” 

To participate in the class action, you will need to fill in the expression of interest form. 

Related reading: Mitry Lawyers, AFR