A class action has been launched against the federal government on behalf of older Australians with a disability excluded from the National Disability Insurance Scheme (NDIS).
The legality of excluding those aged 65 and over from the scheme will be examined after law firm Mitry Lawyers launched a class action on behalf of older Australians, lead by plaintiff Helen Bonynge.
Rick Mitry, partner at Mitry Lawyers, told The Australian that about 330 over-65s had already signed up to the class action and that a number of private entities were lining up to fund the case.
The case has the potential to be the most expensive on record for the government, sources say, possibly even bigger than the recent settlement of the robodebt case.
“We are getting people from all over Australia,” Mr Mitry said.
“At this stage, it [number of total litigants] could end up being in the thousands the way it’s going.”
Under NDIS qualification rules, you must be younger than 65 on the day the NDIS receives your application. If you are older than that, you cannot get NDIS funding.
For over-65s, it’s expected that the My Aged Care service will make up the funding shortfall. But that system doesn’t go close to providing the same level of care as the NDIS, participants say.
The lawsuit alleges the age limit is inconsistent with United Nations Convention on the Rights of Persons with Disabilities (CRPD) and also that the staggered nature of the NDIS rollout, where some geographical areas qualified for the scheme while others didn’t, breached Australian constitutional rules on state-based discrimination.
Mitry Lawyers is alleging that the average NDIS recipient receives approximately $111,000 annually in care, while My Aged Care disability funding is capped at $56,000 per year.
“The exclusion of disabled people 65 years and over from the NDIS has resulted in hardship and inequality for thousands of individuals who require disability supports but only have limited access to funds through My Aged Care rather than the NDIS,” the law firm says in a statement.
“Specifically, unlike the NDIS, My Aged Care has capped levels of funding, is means tested, requires fees and co-contributions and, most importantly, does not ascertain the care needs of the individual, which should be a fundamental right for all disabled people.
“This class action would be aimed overall at removing the exclusion so that all age groups can access the NDIS.”
Mitry Lawyers is accepting further applicants for the class action and has an expression of interest form on its website.
Are you over 65 and living with a disability? Would you be interested in joining this class action? Let us know in the comments section below.
Also read: NDIS accused of failing older Australians