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DSC covered a bunch of changes to the NDIS Act late last year. One biggie was the introduction of support lists. The Department of Social Services (DSS) is now reviewing the lists and consultation is open.
First, a quick recap
From the 3rd of October last year, to get NDIS funding, a person must show that the support they need is an ‘NDIS support’ for that person. This rule affects more than just funding decisions. A person can only spend their funds on NDIS supports. Otherwise, a person risks having their preferred management style (e.g. self-managed) changed against their preference, having their funding released in smaller chunks (called funding periods) and non-payment of claims and debts. The lists impact who gets onto the NDIS, too. A person needs to show they need NDIS supports for life to get onto the NDIS through the regular disability pathway.
What’s in the lists
The ‘in list’ describes 36 broad categories (e.g. assistance animals, daily personal activities etc). The ‘out list’ describes 24 categories. It ranges from the very general (e.g. bans on ‘standard household items’ and ‘groceries’), to the specific (e.g. bans on ‘shamanic healing’ and ‘electric bikes’). The out lists don’t yet explicitly ban high priestess healing or hoverboards… watch this space.
The DSS claims these lists deliver clarity and confidence to participants when they are paying for supports and also help providers to explain what can and can’t be purchased.
Are we locked into a rigid list?
It’s looking that way. While the 10 Year Review recommended trust-based approach to oversight of how participants spend their budget, the Government opted for a fairly rigid, fairly detailed list. By fairly rigid, I mean the government also inserted a ‘replacement power’ that allows the NDIA to grant someone permission to spend on approved things from the ‘out list’. This power only applies to a handful of items, has a principle-based criteria, and is not a reviewable decision in the NDIS Act. Despite the lists spanning 33 pages, the NDIA has needed to service a huge Frequently Answered Questions document to clarify what they think each of the 89 subcategories of the out list actually prohibit in practice. Disability peak bodies, including a joint submission by DRO’s in 2024 and others have called for flexibility and principles-based approaches.
However, the Commonwealth seem to want to look past a principles-based vision for the s10 lists. In their Summary Paper to the consultation, the DSS said,
“A principles-based approach would mean there aren’t clear definitions. People would have to make complex decisions. This is not supported by the intention of the NDIS Supports rule or the changes to the NDIS Act. This means the NDIS Supports lists need to stay”.
In a recent information session, the DSS clarified that they will be focusing on getting the lists right through this process, not whether or not the lists should exist. They also indicated that an exposure draft of the lists will be released. So hopefully this is just the first opportunity for the community to give input into what these lists should contain and any unintended consequences that arise.
How has the Tribunal been interpreting the lists?
The Tribunal is a pretty good place to look at some of the issues that can arise with the lists in practice. The best legal eagles at the Tribunal consider a real person’s situation, their needs and apply the lists.
Take this quote from a recent Tribunal decision that considered whether prescription glasses (now on the ‘out list’) can be funded as an example. Here, General Member Toohey said,
“I have particular sympathy for the Applicant […]. These prescription glasses are expensive items, around $600 each, and the evidence supports that several replacements are required each year because XTHS frequently destroys his glasses […]. The only recourse that appears to be available for the Applicant’s family is to seek a change to the rules via their parliamentary representatives”.
Member Toohey also said it’s unclear whether the person could get the prescription glasses approved through a replacement support, given how few supports are eligible for replacement.
Before these lists, the NDIA could fund and allow spending on day-to-day living costs if they were solely and directly related to a person’s disability (a very high bar). Now, without a principles-based safeguard, even where the out-list support is only needed because of the person’s disability needs, it’s too bad, so sad, go see your politician.
What if the states don’t agree on more permanent rules?
Late last year, Bill Shorten MP created these lists as transitional rules. This time round, for more permanent section 10 lists, the NDIS Minister must secure agreement from all of the states and territories in Category A Rules.
If negotiations for foundational supports are anything to go by (with Queensland refusing the Commonwealth's position last week), getting all state and Territory Ministers to sing from the same hymn book could be tricky. If the states can’t agree, the NDIS Minister has the power to push negotiations onto the Prime Minister and all the Premiers to try and reach a solution. Getting this thing right is critical and your story could help shape that.
Have your say
Submissions close on the 27th July 2025.
The DSS said they want to know:
- “How well do you understand the NDIS Support rule?
- What would help make the rule easier to understand?
- How have the lists of NDIS Supports helped you to know what the NDIS can and cannot fund?
- What have you found hard about using or understanding the lists for:
- supports that are NDIS supports
- supports that are not NDIS supports?
- What are some examples of things in the NDIS Supports lists that aren’t clear?
- Are there any areas of the NDIS Supports rule (or lists) you think need to be changed?”
Complete the DSS online survey on the lists here. At the end of the survey, you will have the option to upload a submission. This can be a written document or an audio or video file. You can also email DSS your submission to [email protected]
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