This guide is the first in a set of guidelines developed to help Family and Community Services (FACS) and non-government organisation (NGO) staff across Early Intervention, Child Protection and Out of Home Care (OOHC) navigate the National Disability Insurance Scheme (NDIS). These guidelines are dynamic and will be regularly updated to reflect a changing NDIS model and procedures as the Scheme is implemented.

This guide provides a general overview of the NDIS.

Important information for OOHC casework staff in this guide includes who will represent a child or young person when the Minister holds Parental Responsibility and when Parental Responsibility is shared.

The NDIS is an Australia-wide scheme, supporting people with permanent and significant disability. The NDIS is replacing the current NSW disability support system.

The NDIS funds long-term high-quality care and support for people with significant disability, better links the community and people with disability, provides information to people, helps break down stereotypes, and ensures quality assurance and best practice among service providers.

The NDIS gives people with disability choice and control over the supports they receive. It helps people with disability to live life their way, achieve their goals and participate in the community.

The NDIA is the Commonwealth agency that has been set up to manage and deliver the NDIS. The NDIA is overseen by the Council of Australian Governments Disability Reform Council. More information can be found at: NDIS website

The NDIS takes a flexible, whole-of-life approach to working with participants, their families and carers, to develop individualised plans. Participants are people with disability who have successfully transitioned to the NDIS and have been accepted for an NDIS plan. The NDIS provides participants with more choice and control over how, when and where their supports are provided and actively involves them in the planning and decision making around their disability support.

It also provides certainty that they will receive the support they need over their lifetime. The NDIS works to connect participants with community and mainstream supports and funds the additional reasonable and necessary supports to help participants pursue their goals and aspirations, and participate in daily life.

The NDIS Act1 assumes that children and young people under the age of 18 are generally unable to make decisions for themselves and will be represented by the person(s) or agency who holds Parental Responsibility. This person is referred to as the ‘child’s representative(s)’ and will be responsible for making decisions in accordance with the child’s best interests.

Children and young people in Supported OOHC, Child Protection or Early Intervention will be represented by the person(s) with Parental Responsibility. Children and young people under a Guardianship order (under the Children and Young Person’s (Care and Protection) Act 1998) will be represented by their Guardian.

For a child or young person in statutory OOHC, the Children’s Court may allocate Parental Responsibility to one or more persons, including the Minister for Family and Community Services (the Minister).

For children and young people under Parental Responsibility of the Minister, FACS casework staff will be the child’s representative when case management responsibility is held by FACS. Where case management has been transferred to an NGO, NGO casework staff will be the child’s representative.

There are two scenarios where casework staff may not be the child or young person’s representative. Firstly, where a child or young person wishes to represent themselves, and the NDIA is satisfied that it is appropriate for the child or young person, that they are capable of making decisions for themselves, and that they are able to understand the consequences. The second scenario, which is only available in exceptional circumstances, is where the Minister has agreed in writing that the NDIA can appoint another person to be the child’s representative and that person has been appointed.

Consistent with the general principles of the NDIS, each child or young person should be supported to participate in planning discussions and build capacity to make their own decisions. For children or young people in statutory OOHC, it will be the role of casework staff to ensure the child or young person actively participates in discussions and decisions relating to their disability support, according to their capacity.

1 National Disability Insurance Scheme Act 2013 (Cth), s 5 and Part 4.

Where the Minister and another person(s) share Parental Responsibility, the child’s representative will be determined by examining how aspects of Parental Responsibility have been allocated. This will involve looking at which specific aspects of Parental Responsibility the Minister and the other person(s) are responsible for and which aspect(s) has most relevance to the child or young person’s NDIS Plan.

If the aspects of Parental Responsibility are of equal relevance to the NDIS plan then the Minister and the other person(s) will be the child’s representative jointly.  If the aspects of Parental Responsibility are not of equal relevance to the NDIS Plan, whoever holds the most relevant aspects of Parental Responsibility will be the child’s representative.

Where Parental Responsibility is shared between the Minister and another party, OOHC casework staff should actively participate in the NDIS planning process and plan reviews to inform and understand the support that the NDIS funds the child or young person, regardless of whether they are the child’s representative or not.

Where aspects of Parental Responsibility are allocated jointly between the Minister and another person(s), and they disagree about NDIS supports and services, attempts should be made to resolve the disagreement by collaboration and negotiation, ensuring the best outcome for the child is at the centre of decision-making.

If that fails, seek assistance from a person who is trained in mediation and who is independent to both parties to help resolve the dispute or, as a last resort, where agreement cannot be reached after negotiation, the matter may be brought before the Children’s Court.

Nominees will be appointed where requested by the participant or where necessary. If a guardianship arrangement is in place (under the Office of the Public Guardian) the guardian will be appointed as the nominee. Nominees will have a duty to ascertain the wishes of the participant and make decisions that maximise the personal and social wellbeing of the participant.

There are two types of nominees: correspondence and plan nominees. Nominees are only applicable to participants over 18 years and may be useful to consider if a young person leaving care is likely to need assistance in making decisions about their disability support but where a Guardianship Order is not required.

For more detailed information, refer to What are nominees and guardians under the NDIS?

The NDIS’ mandate is to provide reasonable and necessary disability supports. The level and type of supports that will be funded through the NDIS will depend on the individual needs of each child or young person and the NDIA’s assessment of reasonable and necessary support. FACS continues to be responsible for funding day-to-day care for children and young people in statutory OOHC, including making its services accessible and appropriate for families with disability.

The NDIA may consider the following supports as ‘reasonable and necessary’ supports for young people in care:

  • supports for children, families and carers, required as a direct result of a child or young person’s disability. This includes supports that enable families and carers to sustainably maintain their caring role, such as community participation, therapeutic and behavioural supports, additional respite, aids and equipment, and supports to help build capacity to navigate mainstream services
  • supports required due to the impact of a child or young person’s impairment on functional capacity where they are in OOHC and have support needs that are above those of children of similar ages. The diversity of OOHC arrangements is recognised and the level of reasonable and necessary supports will reflect the circumstances of the individual child or young person and/or
  • any other reasonable and necessary supports identified.

The Early Childhood Early Intervention (ECEI) Approach is how the NDIS is delivering early childhood intervention for children aged 0-6 years. The NDIA recognises that timely access to best-practice early childhood intervention is vital for children with developmental delay or disability to ensure that they achieve the best possible outcomes throughout their life. Providing quality intervention early in a child’s life can also reduce the need for longer term intervention.

In NSW the ECEI Approach will be implemented fully from July 2018 when the NSW transition to the NDIS is complete. In the interim, the NDIA has worked collaboratively with the NSW Government and Early Childhood Intervention Australia NSW/ACT to determine a transitional approach. This transitional approach connects the existing NSW ECEI arrangements with the NDIS by using some existing early childhood providers as Transition Providers to deliver the ECEI until June 2018. These Transition Providers will continue to deliver early childhood intervention and referral and information support to families. They will also assist children and families to access the most appropriate support arrangements for their needs, as guided by the NDIA ECEI approach.

Further information about the NDIA’s ECEI approach can be found at Early Childhood Early Intervention, and a list of NSW ECEI Transition Providers is at ECEI Providers in NSW Local Government areas.

If you have a question about the NDIS and Early Intervention, Child Protection and OOHC email safehomeforlifereform@facs.nsw.gov.au

If you encounter a situation with the NDIS that differs from these guidelines and needs clarification, speak to your manager to determine whether the matter needs to be raised with the NDIA locally or go through the FACS NDIS issues escalation pathway for resolution.