(a) the person was aged under 65 when the access request in relation to the person was made; and

(b) (b) if the National Disability Insurance Scheme rules for the purposes of this paragraph prescribe that on a prescribed date or a date in a prescribed period the person must be a prescribed age - the person is that age on that date.

(2) Without limiting paragraph (1)(b), National Disability Insurance Scheme rules made for the purposes of that paragraph:

(a) may prescribe that a person must be a prescribed age on a prescribed date or a date in a prescribed period only if the person resides in a prescribed area of Australia; and

(b) may prescribe different ages and different dates in relation to different areas of Australia.

1. In relation to this section the Explanatory Memorandum[13] provided that:

Clause 22 sets out the age requirements a person must satisfy in order to become a participant in the NDIS launch. The first age requirement is that a person is under the age of 65 on the date the access request is made (subclause 22(1)). This applies in the context of the NDIS launch across all jurisdictions.

This requirement implements part of recommendation 3.6 of the Productivity Commission report and reflects that the NDIS is one part of a broader system of support in Australia with people over the age of 65 able to access the aged care system. Those people who are receiving support under the NDIS and turn 65 can choose either to remain in the NDIS or to move to the aged care system.

Furthermore, the Commonwealth has agreed with some host jurisdictions that the NDIS will be initially implemented in that launch site in relation to certain age cohorts only. Accordingly, subclauses 22(1) and 22(2) allow the NDIS rules to prescribe additional age requirements, including that a person must be a specified age on a particular date in a particular prescribed area of Australia.

1. This section was amended as follows by the National Disability Insurance Scheme Legislation Amendment Act 2013 No. 44, 2013 but without significant amendment to effect.

(b) the person satisfies any other requirements in relation to age that are prescribed by the National Disability Insurance Scheme rules.

1. Part 3 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2013 as in force on 1 July 2013 addressed the issue of when a person meets the age requirements pursuant to section 22 of the NDIS Act. It is in the following form:

Part 3 When does a person meet the age requirements?

3.1 Generally, a person meets the age requirements if the person was aged from birth up to 65 when the access request in relation to the person was made.

3.2 However, additional age requirements apply to persons in South Australia and Tasmania as set out below.

3.3 A person who resides in South Australia will meet the age requirements only if:

(a) for an access request made before 1 July 2014 - the person was aged under 6 on 1 July 2013 (this includes children born after 1 July 2013); or

(b) for an access request made between 1 July 2014 and 30 June 2015 (or made before 1 July 2014 and decided by the CEO on or after 1 July 2014) - the person was aged under 14 on 1 July 2014 (this includes children born after 1 July 2014); or

(c) for an access request made on or after 1 July 2015 (or made before 1 July 2015 and decided by the CEO on or after 1 July 2015) - the person is aged under 15 on the date of the access request.

This is made for the purposes of paragraph 22(1)(b) of the Act.

3.4 A person who resides in Tasmania will meet the age requirements only if the person is:

(a) aged at least 15, and under 25, on the date the access request was made; and

This is made for the purposes of paragraph 22(1)(b) of the Act.

1. The National Disability Insurance Scheme (Becoming a Participant) Amendment Rules 2017 amended the 2013 Rules by substituting the following Table in Schedule A of the Rules.

A person meets the residence requirement if they reside in...

at the following time (the date mentioned in row 1 is the 'relevant date' for South Australia)...

The additional age requirements for the person are...

the person is under 15 on the date the access request is made.

Playford, Salisbury and Port Adelaide Enfield (East)

No additional age requirements (the person is under 65 on the day of the access request)

No additional age requirements (the person is under 65 on the day of the access request)

No additional age requirements (the person is under 65 on the day of the access request)

No additional age requirements (the person is under 65 on the day of the access request)

1. There are no other relevant amendments to these Rules and the South Australian Table in Schedule A of the current Access Rules is in the same form as set out above.

1. I can find no evidence in these historical versions of the NDIS Act or Access Rules which support a finding that Parliament ever intended the age requirement in section 22 of the Act to be flexibly applied, except insofar as to include younger persons in relevant 'launch' areas.

1. I have considered the Bilateral Agreement between the Commonwealth of Australia and the State of South Australia on the National Disability Insurance Scheme, 2018 and Commitment renewal dated 10 September 2023 and can find no provisions which might affect application of section 22 of the NDIS Act.

1. I acknowledge Mr McKay's contention that the data received from the NDIA under Freedom of Information provisions suggests that initial plans were made for persons over 68 years of age, but I do not consider the evidence provided confirms with certainty when the access requests for those persons were first made.

1. I note the statistical information provided by the NDIA as at 31 December 2018[14] indicates that at that date there were 29 active participants in South Australia who were over the age of 65 (with or without a plan). The next table indicates that there were 17 active participants in South Australia over the age of 65 with an approved plan. This suggests some 8 persons still awaiting plan development. This says nothing about the access request date for those participants.

1. The decision before me is the decision made on 21 November 2024 to reject an access request made on 17 May 2024.

1. The legislation requires a prospective participant be under the age of 65 at the date an access request is made.[15] Ms Buchanan was 70 years of age at the date of her access request. This is a matter of fact that is not contested by the applicant.

1. It makes no difference that Ms Buchanan made an earlier request (in 2017) when she was under the relevant age. That request was closed and the applicant has conceded at hearing it was not their intention to attempt to re-open that application.

1. As Ms Buchanan cannot meet the age requirements, her request to join the Scheme as a participant simply cannot succeed. The Tribunal is bound to make its decisions according to law on the basis of the evidence before it. On the basis of the evidence before the Tribunal the decision must be that Ms Buchanan does not and cannot meet the access requirements under section 21 of the NDIS Act. Her application for review of the reviewable decision is untenable and has no prospect of success.

1. As I have reached this conclusion I must grant the respondent's request for dismissal of the application for review pursuant to section 101(1)(b) of the ART Act.

[1] Item 1, section 99 of the National Disability Insurance Scheme Act 2013

[11] Barthel and Australian National University (Compensation) [2019] AATA 548, [36]

[12] T1G, T1I, T1L and T1M of the T-documents

[13] National Disability Insurance Bill - Explanatory Memorandum