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Commonwealth government faces class action over NDIS exclusions
A class action has been launched against the Commonwealth government, after individuals over 65 were excluded from the National Disability Insurance Scheme (NDIS).
Lauren Croft
The latest class action against the Commonwealth, launched by Mitry Lawyers this week, alleges that the NDIS scheme illegally excluded Australians based on their age and denied them support through the program.
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Currently, only people with a disability under 65 years old are eligible to join the NDIS — which the claim alleges is a potential breach of human rights. The case will be led by Bret Walker and Richard Scheelings as counsel and junior counsel, respectively.
“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,” according to the firm.
“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.”
Individuals who suffer from a permanent disability and either acquired the disability at an age of 65 or older or were 65 or older when the NDIS was rolled out in their area could be eligible for the class action.
Mitry Lawyers partner Rick Mitry told Guardian Australia that 70 or 80 people had already expressed interest in the class action.
“These people are really suffering. They cannot understand why over the age of 65, at which age you need it the most, they wipe you out,” he said.
“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 class action alleges that the Commonwealth government “has acted beyond their constitutional power” due to the enactment of the age requirement within the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act).
The government is also accused of discriminating based on state residency, as the scheme was rolled out state by state, with some disabled individuals turning 65 before they could apply to the NDIS. The class action also alleges “negligent misstatement and misleading and deceptive conduct”, as the government failed to inform people with a disability about the NDIS and prevented people over 65 from proceeding with an access request.
