Over-65s launch class action over NDIS

NDIS class action

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

Written by Brad Lockyer

Brad has deep knowledge of retirement income, including Age Pension and other government entitlements, as well as health, money and lifestyle issues facing older Australians. Keen interests in current affairs, politics, sport and entertainment. Digital media professional with more than 10 years experience in the industry.

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  1. Yes, I’m interested in this class action. I am one of those who was over 65 when the NDIS introduced so was automatically excluded from applying for this assistance. Although I was disabled and needed a lot of help, I was still working part time as I didn’t qualify for the Aged Pension either as my husband was still working and earned slightly over the income limit for me to qualify even though I was already age qualified. I’ve always believed that the way NDIS was set up was very discriminatory against a pretty large number of disabled people who really needed this type of assistance. I had to do without a lot of physical support items that would have enabled me to participate a lot more in the workplace and in society generally. The aids that I did obtain I had to purchase myself without any assistance. I am rather surprised that it has taken this long to get this kind of action under way. One of the big obstacles to older people participating in this kind of action is finding information, as many older people are not really big users of computers and it is assumed that everyone has an advanced level of digital knowledge now. Those of us who find it difficult to navigate the digital world are often treated as useless fossils! I am actually computer literate but find the constant changes and updates to everything a bit confusing and often annoying. Just as I get proficient in using something new, it changes again! I really do hope that this class action is successful. It shouldn’t be necessary in our society to go to these lengths, but sadly, those with any kind of disability seem to be regarded as useless drains on the population with nothing to offer but complaints.

  2. Yes, it is a strange set up I have a friend with a disability. Now he can go and get sex each month at $1200 paid for on NDIS but when we want to go for a beach fishing session we need access to our local beaches, but they have been locked up to 4WD by NPWS and Local council The local council even had the hide to put out mats for people with disabilities, but they stopped short 200 mtrs from the water Two different subjects but both pee me off

  3. I would not be and hoping not to become an NDIS candidate whatever the age limitations but it does anger me that a 21-year-old drunken driver can wrap his car around a tree with four same aged mates inside and all end up with various levels of paraplegia so all would be entitled to the NDIS. If the same drunken driver hits a 70 year-old before hitting the tree, the car driver and passengers would all be entitled to the NDIS but the 70 year old victim disabled by the drunken driver would not be. And that’s justice in the eyes of the government?

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