In 2013, the National Disability Insurance Scheme (NDIS) rolled out across Australia, aiming to overhaul disability support and funding for over 400,000 people living with a disability. This article looks at how personal injury compensation may affect NDIS support.

What support is provided by the NDIS

The NDIS provides reasonable and necessary supports to eligible participants that meet criteria including age, citizenship and disability. Supports provided include, but are not limited to; assistance with daily life, transport, home modifications and assistive technology.

NDIS participants and personal injury compensation

You may have received compensation resulting from a personal injury, such as, workers compensation, a motor vehicle accident, injury from medical negligence or a public liability claim.

The amount of compensation you may claim/receive is based on the loss you sustained due to the injury. You may receive compensation for:

• Pain and suffering.

• Economic loss.

• Medical expenses.

• Domestic care and assistance.

The NDIS scheme is not designed to remove rights of people to make claims for compensation after suffering an injury. It is also not designed to replace entitlements under other insurance and/or compensation systems.

For example, if a person suffers an injury from a motor vehicle accident, they will continue to make a claim for benefits and compensation related to that injury and not through the NDIS. There are circumstances where people who have rights and entitlements under the NDIS and a compensation claim.

The NDIS and entitlement to compensation

The NDIS can affect compensation entitlements as follows:

1. A person can be prevented from getting access to the NDIS until they have sought       compensation/benefits elsewhere. 

2.  Compensation can result in a payback of past NDIS benefits

3.  Compensation can result in a future reduction of the NDIS benefits available.

Repayments of past supports provided by the NDIS

If you are a participant of the NDIS, or applying to be a participant, you may be liable to repay the NDIS if you are in receipt of support, as a result of an impairment you receive support for under a NDIS plan.

You need to notify the NDIS and provide information regarding the compensation received. Receiving compensation will not affect your ability to meet access to the NDIS. The relevant compensation to the NDIS includes amounts received for:

• Medical and like expenses.

• Domestic care and      assistance. 

It can be a complex exercise calculating the amount repayable; however, some general principles are:

• Usually, there will be no amount repayable to the NDIA in relation to a WorkCover claim because a claim for compensation under thar schemes does not include compensation for the types of supports which overlap with the supports provided by the NDIS. Generally, medical benefits will have been paid along the way by the Workcover insurer;

• The amount repayable to the NDIS cannot be greater than the net compensation amounts      payable to a person;

• If a person’s compensation is reduced ( because the person contributed to the accident occurring ) the amount repayable to the NDIS is also reduced;

• The NDIS can write to a defendant’s insurer putting them on notice that amounts might need to be repaid from compensation; and

• The NDIS can exercise discretion to reduce or waive its entitlement to repayment from compensation in certain circumstances.

The recoverable amount is a debt due and payable by the participant in accordance with section 9 of the National Disability Insurance Scheme Act 2013 (“NDIS Act”) to the Agency, in accordance with section 108 of the NDIS Act.

If you make false or misleading statements regarding your compensation and you receive supports funded by the NDIS, you may have to pay back the cost of those supports under the National Disability Insurance Scheme Act 2013.

*Disclaimer: This is intended as general information only and not to be construed as legal advice. The above information is subject to changes over time. You should always seek professional advice beforetaking any course of action.*