A class action is being prepared against the federal government over the exclusion of over-65s from the National Disability Insurance Scheme (NDIS).
If successful, the case could mean the government would need to pay hundreds of millions of dollars extra per year for disability support.
The case has been initiated by Sydney law group Mitry Lawyers, which has several class actions in progress, including for National Rugby League players who have suffered long-term impacts of concussion and a case against a mining group proposing a mineral sands operation in Gippsland.
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Outlining the proposal, Mitry Lawyers said excluding people aged 65 and over from the NDIS had resulted in “hardship and inequality” for thousands of individuals who require disability support but have only limited access to funds through My Aged Care.
Unlike the NDIS, My Aged Care caps funding, is means tested, requires fees and co-contributions and does not ascertain individual care needs.
On this last point, Mitry Lawyers said in its proposal that individual assessments should be a “fundamental right for all disabled people”.
Class action 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.
Mitry Lawyers said the class action may also be open to spouses and family members who have taken on the role of carers.
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Partner Rick Mitry told The Guardian the case was only advertised last weekend, but already 70 to 80 people were “keen – or some would say desperate – to join the case”.
“These people are really suffering,” Mr Mitry said. “They cannot understand why over the age of 65, at which age you need it the most, they wipe you out.
“If you have an accident at 64, you’re entitled [to the NDIS], but if the accident happens a few months later, you’re out.”
The NDIS was established in 2013, but federal government amended the Age Discrimination Act to allow the NDIS to exclude people aged over 65. The NDIS Act, Section 22, states that a person meets the age requirements if they are aged under 65 when the access request was made.
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Mr Mitry will be seeking to remove Section 22 from the NDIS Act.
He will also be seeking damages for pecuniary loss of missing out on the NDIS, adverse psychological and/or health effects caused by the stress of missing out, carers’ expenses such as travel and time off work, and loss of opportunity such as employment opportunities.
Last year, Spinal Life Australia launched a campaign called Disability Doesn’t Discriminate to address the issue of funding for people aged over 65 with a disability. The campaign represents 28 partner organisations.
According to the campaign, almost half of the people living with a disability in Australia are aged over 65. It claims a person aged over 65 with a spinal cord injury receives $52,000 a year instead of $165,600 under the NDIS.
For more information on the class action, see here.
Do you pay more for your disability support for your age? Would you consider joining this action? Why not share your opinions in the comments section below?