NDIS Act Explained: Impairment Notices

With the introduction of new NDIS legislation, we’re bringing you a new series called ‘NDIS Act Explained’, which will deep dive into different areas of the legislative changes. This week, we’re exploring a new term that has been added to the ever-expanding NDIS dictionary. Without further ado, I introduce to you: Impairment notices.

From the 1st January 2025, all new participants will receive an impairment notice when they access the NDIS. Existing participants will receive their impairment notices “over time” (that is the NDIA’s way of saying: all participants will get one, but we are just not committing to any timelines ‘cause we've got a fair bit going on).

Instead of focusing on disability diagnosis, impairment notices focus on the impairment(s) that makes someone eligible for the NDIS. Under this new system, impairments will be classified into 6 different categories:

intellectual 
cognitive 
sensory 
neurological 
physical 
psychosocial.

A participant may be notified that their NDIS-eligible impairments fall under one or more of these categories - for example: a participant may be classified as having an intellectual and physical impairment based on the functional impact of their disability diagnosis. The move to impairment over diagnosis also acknowledges that two people with the same diagnosis might have very different impairments. So ya know, less box-putting and more individualism - at least in theory. The proof will be the pudding.

Where will impairment notices have an impact?

While we have to wait another couple of months to meet these infamous impairment notices, we already know at least one of the places they will have a big impact. Support in a participant’s plan is determined using section 34 of the NDIS Act - also called Reasonable and Necessary. With the recent legislation changes, section 34 got a facelift with a couple of new inclusions - for the purpose of this article, we will be focusing on:

Section 34(1) aa:

the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see section 24) or the early intervention requirements (see section 25)

We don’t know yet exactly how the term 'arising from' will be defined in this context. But it could mean: the support is required because of the impairment which gives the participant access to the NDIS.

Example: A participant with multiple sclerosis may have an impairment that makes them unable to walk and, therefore, they require a powered wheelchair. If that physical impairment is recognised by NDIA in their impairment notice, the request for a powered wheelchair ticks the first criteria of Reasonable and Necessary. However, if the same participant also had a diagnosis of bipolar disorder, but the NDIA hadn’t recognised a psychosocial impairment, the participant would not be able to access supports relating to the impact of their bipolar disorder.

I’ve chosen an example that is fairly straightforward. But we know people can have co-occurring diagnoses and impairments, and multiple support needs, that are difficult to map.

Late in the law-making process, the government added this note at the bottom of the reasonable and necessary criteria to recognise complexity:

“a participant’s disability support needs arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements may be affected by a variety of factors, including environmental factors or the impact of another impairment in relation to which the participant does not meet either of those requirements”.

This means that the support needs arising from the impairment(s) may be affected by other factors. Including environmental factors or impairments not listed on a participant’s impairment notice. Yep, wouldn’t be NDIS if it was simple.“

While we wait for impairment notices

The sharp reader may have noticed a little practical hiccup in the timelines. We don’t know when existing participants will receive impairment notices, but we know the new legislation and updated Reasonable and Necessary commenced on the 3rd October 2024.

This means that existing participants going through a plan variation or plan reassessment will need to demonstrate the supports they are requesting arise from the impairment(s) which meet access. This may be a little hard to do without one of em’ Impairment notices…

You will be forgiven for thinking this is a tragic game of the chicken vs the egg…. I cannot tell you if the chicken or egg came first, but I can tell you about a nifty little way of getting closer to finding out what disability diagnosis the NDIA granted a person access for. From there, you can maybe guess which impairment(s) would be recognised by the NDIA. All participants (or their representatives) can submit a “Participant information access” request to the NDIA. Here you can access information relating to:

Access Request Form (ARF)
Evidence of Disability (EOD)
Supporting Evidence Form (SEF)
Access Decision
reasons for your Access Decision.

Whilst the above is no formal impairment notice, it could provide information about which disability(ies) a person has been granted access to the Scheme for and what information the Agency has on file. Until impairment notices arrive, this could be the information used by the NDIA to determine which impairment(s) a person has met NDIA access for.

Are impairment notices reviewable?

As we move towards this transition period, people can rest assured impairment notices are reviewable decisions. Which means that participants can seek a variation to add or remove impairments at any time after meeting access. If the NDIA refuses to vary a person’s impairment notice, they can ask for an internal review.

Some things will remain the same

Whilst the introduction of impairment notices and impairment categories are new, we have largely been operating in a similar way for many years. Whilst the NDIA computer system and access requests have been operating with a “Primary and secondary disability”, in practicality, the majority of participants and providers have been focusing on documenting the “functional impact/impairment” of a person’s disability when gathering evidence for support needs.

If you want to learn more about impairment notices, check out our upcoming webinar: Preparing for the Rollout of Impairment Notices.