Disability Services Regulations 2004 (Western Australia)

These Regulations operationalise and fill out parts of the Western Australian Disability Services Act 1993. They do three main kinds of work: procedural prescription for the Act’s governance, specification of standards and publication/consultation requirements for public authorities, and a detailed regulatory regime for the State trial of an NDIS‑style model (definitions, participant entry criteria, supports and the accounting for compensation). The Regulations also exclude certain NDIS services from the Act’s complaints definitions.

Mechanically, the Regulations:

Prescribe procedures for Board and Council nominations (reg 3; reg 4 and reg 4A prescribes Disability Service Standards for s 12 of the Act) and public consultation mechanisms the Council and public authorities must use (regs 5 and 10).
Specify the standards a disability access and inclusion plan (DAIP) must meet (Schedule 2) and the desired outcomes a DAIP must pursue (Schedule 3), and require particular publication formats and notice requirements for DAIPs (reg 9; reg 8).
Limit the application of Part 5 of the Act to the public authorities listed in Schedule 1 (reg 6; Schedule 1).
Establish and define the trial areas and time periods for the State trial of a disability services model (reg 11; reg 12) and authorise disclosure necessary for the Agency’s functions (reg 13).
Set detailed entry and ongoing residence rules for trial participants (regs 15-18), including date‑based residency triggers, a “dominant purpose” test for recent movers (reg 16(2)(b)), and a 12‑month continuity rule when a participant leaves a trial area (reg 18(2)).
Give the Commission the statutory criteria it must apply when deciding whether someone meets disability and early‑intervention requirements (regs 19-22), and allows the Commission to use assessment tools specified in operational policy (reg 23).

CrestWestern Australia

Disability Services Act 1993

Disability Services Regulations 2004

Western Australia

Disability Services Regulations 2004

Contents

Part 1 — General

Citation 1
Commencement 1
Nominations for Board membership (s. 7) 1

4A. Disability Service Standards (s. 12) 1

Nominations for Council membership (s. 22) 2
Procedure for public consultation by Council (s. 23) 2
Public authorities to which Part 5 does not apply (s. 27) 2
Standards for disability access and inclusion plans (s. 28) 2
Information in reports about disability access and inclusion plans (s. 29) 3
Publication of disability access and inclusion plans (s. 29A) 3
Procedure for public consultation by authorities (s. 28) 4

Part 2 — Trial of disability services model

Division 1 — General

Terms used 5
Trial areas and periods (s. 26G) 6
Disclosure of information (s. 52) 7

Division 2 — Becoming a participant

Subdivision 1 — General

References in regulation headings to comparable Commonwealth rules 7

Subdivision 2 — Residence requirements

Qualifying residence requirement to be met (additional residence requirement NDIS rule 4.1(c)) 8
Qualifying residence requirement (additional residence requirement NDIS rules 4.6 ‑ 4.8) 8
Ongoing residence requirement to be met (additional residence requirement NDIS rule 4.1(c)) 12
Ongoing residence requirement (additional residence requirement NDIS rules 4.9 ‑ 4.11) 12

Subdivision 3 — Disability requirements

Disability requirement — permanent impairment (NDIS rules 5.4 ‑ 5.7) 12
Disability requirement — substantially reduced functional capacity (NDIS rule 5.8) 13

Subdivision 4 — Early intervention requirements

Early intervention requirement — permanent impairment (NDIS rules 6.4 ‑ 6.7) 14
Early intervention requirement — supports to benefit person (NDIS rules 6.9 and 6.10) 15

Subdivision 5 — Assessment tools

Assessment tools may be used (NDIS rule 7.1) 16

Division 3 — Supports for participants

Subdivision 1 — General

References in regulation headings to comparable Commonwealth rules 16

Subdivision 2 — Assessing proposed supports

Value for money (NDIS rule 3.1) 17
Effective and beneficial and current good practice (NDIS rules 3.2 and 3.3) 18
Reasonable family, carer and other support (NDIS rule 3.4) 18

Subdivision 3 — Criteria for supports

General criteria for supports (NDIS rules 5.1 ‑ 5.3) 20

Division 4 — Supports for participants — accounting for compensation

Subdivision 1 — General

Terms used 21
References in regulation headings to comparable Commonwealth rules 22

Subdivision 2 — Compensation

Application of Division (NDIS rules 3.1 and 3.2) 22
Periodic payments (NDIS rule 3.3) 24

Subdivision 3 — Compensation, or foregone compensation, to be taken into account

Funding to be reduced by compensation reduction amount (NDIS rules 3.5 and 3.6) 24
Reduction may be amortised (NDIS rule 3.7) 25
Commission may advise person as to likely compensation reduction amount (NDIS rule 3.8) 25
Special circumstances (NDIS rule 3.10) 25

Subdivision 4 — Compensation reduction amount

Compensation reduction amount — support component objectively identified (NDIS rules 3.11 and 3.12) 26
Compensation reduction amount — other circumstances (NDIS rules 3.13 ‑ 3.16) 27
Compensation reduction amount — participant in a Commonwealth, State or Territory statutory insurance scheme (NDIS rules 3.17 and 3.18) 29
Compensation reduction amount — agreement to give up compensation (NDIS rules 3.19 ‑ 3.21) 29

Part 3 — Complaints

40A. Services excluded from definitions of disability service and resident service (s. 30) 31

Schedule 1 — Public authorities to which Part 5 applies

Schedule 2 — Standards for disability access and inclusion plans

Schedule 3 — Desired outcomes of disability access and inclusion plans

Notes

Compilation table 36

Defined terms

Disability Services Act 1993

Disability Services Regulations 2004

Part 1 — General

[Heading inserted: Gazette 30 Jun 2014 p. 2394.]

1. Citation

These are the Disability Services Regulations 2004.

2. Commencement

These regulations come into operation on the day on which the Disability Services Amendment Act 2004 comes into operation.

3. Nominations for Board membership (s. 7)

For the purposes of section 7(2a) of the Act, the Minister is to seek nominations for membership of the Board by notice published at least 3 weeks before nominations close in a newspaper circulating throughout the State.

4A. Disability Service Standards (s. 12)

The following Disability Service Standards, endorsed and published by the Commission in 2014 are prescribed for the purposes of section 12(1)(i) of the Act —

(a) Rights;

(b) Participation and Inclusion;

(d) Feedback and Complaints;

(e) Service Access;

(f) Service Management.

[Regulation 4A inserted: Gazette 30 Jun 2014 p. 2394.]

4. Nominations for Council membership (s. 22)

For the purposes of section 22(3) of the Act, the Minister is to seek nominations for membership of the Council by notice published at least 3 weeks before nominations close in a newspaper circulating throughout the State.

5. Procedure for public consultation by Council (s. 23)

(1) For the purposes of section 23(1a) of the Act, the Council is to undertake consultation by calling for submissions on issues of concern to people with disability either specifically or generally —

(a) by notice in a newspaper circulating throughout the State; or

(b) on any website maintained by or on behalf of the Council.

(2) Nothing in subregulation (1) prevents the Council from also undertaking any other consultation.

[Regulation 5 amended: Gazette 11 Jun 2013 p. 2162 and 2164.]

6. Public authorities to which Part 5 does not apply (s. 27)

Part 5 of the Act does not apply to any public authority except to a public authority specified in Schedule 1.

7. Standards for disability access and inclusion plans (s. 28)

For the purposes of section 28(5) of the Act, the standards that a disability access and inclusion plan must meet are those specified in Schedule 2.

8. Information in reports about disability access and inclusion plans (s. 29)

For the purposes of section 29(4) of the Act, a report about a disability access and inclusion plan must include information relating to —

(a) progress made by the relevant public authority and any agents and contractors of the relevant public authority in achieving the desired outcomes specified in Schedule 3; and

(b) the strategies implemented by the relevant public authority to inform its agents and contractors of its disability access and inclusion plan.

9. Publication of disability access and inclusion plans (s. 29A)

For the purposes of section 29A, a public authority must publish its disability access and inclusion plan in a document that is made available —

(a) on request, at the offices of the authority —

(i) in an electronic format; and

(ii) in hard copy format in both standard and large print; and

(iii) in an audio format on cassette or compact disc;

and

(b) on request, by email; and

and notice of which is given in a newspaper circulating throughout the State or, in the case of a local government, the district of that local government under the Local Government Act 1995.

10. Procedure for public consultation by authorities (s. 28)

(1) For the purposes of section 28(10) of the Act, a public authority is to undertake consultation in relation to its disability access and inclusion plan by calling for submissions either generally or specifically —

(a) by notice in a newspaper circulating throughout the State or, in the case of a local government, the district of that local government under the Local Government Act 1995; and

(b) on any website maintained by or on behalf of the public authority.

(2) Nothing in subregulation (1) prevents a public authority from also undertaking any other consultation.

[Regulation 10 amended: Gazette 11 Jun 2013 p. 2162-3.]

Part 2 — Trial of disability services model

[Heading inserted: Gazette 30 Jun 2014 p. 2395.]

Division 1 — General

[Heading inserted: Gazette 30 Jun 2014 p. 2395.]

11. Terms used

In this Part —

2017 expansion area means the area constituted as at 1 January 2017 by the local government districts of Bayswater, Bassendean, Chittering, Toodyay, York and Northam;

child means a person who has not reached 18 years of age;

Cockburn‑Kwinana area means the area constituted as at 1 July 2014 by the local government districts of Cockburn and Kwinana;

Kimberley‑Pilbara area means the area constituted as at 1 July 2017 by the local government districts of Ashburton, Broome, Derby‑West Kimberley, East Pilbara, Halls Creek, Karratha, Port Hedland and Wyndam‑East Kimberley;

Lower South West area means the area constituted as at 1 July 2014 by the local government districts of Augusta‑Margaret River, Boyup Brook, Bridgetown‑Greenbushes, Busselton, Donnybrook‑Balingup, Manjimup and Nannup;

Mandurah‑Rockingham area means the area constituted as at 1 July 2017 by the local government districts of Mandurah and Rockingham;

NDIS Act has the meaning given in section 26E of the Act;

participant has the meaning given in section 26E of the Act;

Perth Hills area means the area constituted as at 1 July 2017 by the local government districts of Kalamunda, Mundaring and Swan;

plan, in relation to a participant, has the meaning given in section 26I(1) of the Act;

Ranges area means the area constituted as at 1 October 2016 by the local government districts of Armadale, Murray and Serpentine‑Jarrahdale;

support has the meaning given in section 26I(1) of the Act;

trial has the meaning given in section 26E of the Act.

[Regulation 11 inserted: Gazette 30 Jun 2014 p. 2395; amended: Gazette 14 Jun 2016 p. 1821; 30 Dec 2016 p. 5970; 16 Jun 2017 p. 2931; 30 Jun 2017 p. 3560.]

12. Trial areas and periods (s. 26G)

(1) For the purposes of section 26G(1) of the Act, the Lower South West area, the Cockburn‑Kwinana area, the Ranges area, the 2017 expansion area, the Kimberley‑Pilbara area, the Mandurah‑Rockingham area and the Perth Hills area are prescribed.

(2) For the purposes of section 26G(3) of the Act, the trial period for the Lower South West area begins on 1 July 2014 and ends on 30 June 2018.

(3) For the purposes of section 26G(3) of the Act, the trial period for the Cockburn‑Kwinana area begins on 1 July 2015 and ends on 30 June 2018.

(4) For the purposes of section 26G(3) of the Act, the trial period for the Ranges area begins on 1 October 2016 and ends on 30 June 2018.

(5) For the purposes of section 26G(3) of the Act, the trial period for the 2017 expansion area begins on 1 January 2017 and ends on 30 June 2018.

(6) For the purposes of section 26G(3) of the Act, the trial period for the Kimberley‑Pilbara area, the Mandurah‑Rockingham area and the Perth Hills area begins on 1 July 2017 and ends on 30 June 2018.

[Regulation 12 inserted: Gazette 30 Jun 2014 p. 2396; amended: Gazette 14 Jun 2016 p. 1821; 30 Dec 2016 p. 5971; 16 Jun 2017 p. 2932; 30 Jun 2017 p. 3560.]

13. Disclosure of information (s. 52)

The disclosure of information to a person for the purpose of the performance of a function of the Agency as defined in the NDIS Act section 9 is prescribed for the purposes of section 52(1)(e) of the Act.

[Regulation 13 inserted: Gazette 30 Jun 2014 p. 2396.]

Division 2 — Becoming a participant

[Heading inserted: Gazette 30 Jun 2014 p. 2396.]

Subdivision 1 — General

[Heading inserted: Gazette 30 Jun 2014 p. 2396.]

14. References in regulation headings to comparable Commonwealth rules

Without limiting the Interpretation Act 1984 section 32(2), a reference to “NDIS rule” followed by a rule designation in the heading to a regulation in this Division is a reference to the rule of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Commonwealth) with which the regulation in this Division is comparable.

[Regulation 14 inserted: Gazette 30 Jun 2014 p. 2396; amended: Gazette 14 Jun 2016 p. 1821.]

Subdivision 2 — Residence requirements

[Heading inserted: Gazette 30 Jun 2014 p. 2397.]

15. Qualifying residence requirement to be met (additional residence requirement NDIS rule 4.1(c))

For the purposes of section 26H(1)(d) of the Act, a person must meet the qualifying residence requirement set out in regulation 16.

[Regulation 15 inserted: Gazette 30 Jun 2014 p. 2397; amended: Gazette 14 Jun 2016 p. 1823.]

16. Qualifying residence requirement (additional residence requirement NDIS rules 4.6 ‑ 4.8)

(1) A person meets the qualifying residence requirement if —

(a) on 1 July 2014 the person resides in the Lower South West area; or

(b) on 1 July 2015 the person resides in the Cockburn‑Kwinana area; or

(d) on 1 January 2017 the person resides in the 2017 expansion area; or

(e) on 1 July 2017 the person resides in the Kimberley‑Pilbara area, the Mandurah‑Rockingham area or the Perth Hills area.

(2) A person also meets the qualifying residence requirement if —

(a) at least one of the following applies —

(i) the person starts to reside in the Lower South West area at any time after 1 July 2014;

(ii) the person starts to reside in the Cockburn‑Kwinana area at any time after 1 July 2015;

(iii) the person starts to reside in the Ranges area at any time after 1 October 2016;

(iv) the person starts to reside in the 2017 expansion area at any time after 1 January 2017;

(v) the person starts to reside in the Kimberley‑Pilbara area, the Mandurah‑Rockingham area or the Perth Hills area at any time after 1 July 2017;

and

(b) the person starts to reside in that area for the dominant purpose of accessing supports not provided under the Act (for example, education, employment, health care or family support); and

(c) exceptional circumstances apply — for example, the person would suffer significant financial or personal hardship, which could reasonably be expected to significantly undermine the person’s wellbeing or social or economic participation, by reason of not being a participant.

(3) A child also meets the qualifying residence requirement if —

(a) the child is born after 1 July 2014, and at least one of the child’s birth parents who cares for that child resides in the Lower South West area on the day the child is born; or

(b) the child is born after 1 July 2015, and at least one of the child’s birth parents who cares for that child resides in the Cockburn‑Kwinana area on the day the child is born; or

(ba) the child is born after 1 October 2016, and at least one of the child’s birth parents who cares for that child resides in the Ranges area on the day the child is born; or

(bb) the child is born after 1 January 2017, and at least one of the child’s birth parents who cares for that child resides in the 2017 expansion area on the day the child is born; or

(bc) the child is born after 1 July 2017, and at least one of the child’s birth parents who cares for that child resides in the Kimberley‑Pilbara area, the Mandurah‑Rockingham area or the Perth Hills area on the day the child is born; or

(c) at a time after 1 July 2014, the child comes to be in the care of a person who has ongoing parental responsibility for that child and who has resided in the Lower South West area since 1 July 2014, and this will be the child’s place of residence; or

(d) at a time after 1 July 2015, the child comes to be in the care of a person who has ongoing parental responsibility for that child and who has resided in the Cockburn‑Kwinana area since 1 July 2015, and this will be the child’s place of residence; or

(da) at a time after 1 October 2016, the child comes to be in the care of a person who has ongoing parental responsibility for that child and who has resided in the Ranges area since 1 October 2016, and this will be the child’s place of residence; or

(db) at a time after 1 January 2017, the child comes to be in the care of a person who has ongoing parental responsibility for that child and who has resided in the 2017 expansion area since 1 January 2017, and this will be the child’s place of residence; or

(dc) at a time after 1 July 2017, the child comes to be in the care of a person who has ongoing parental responsibility for that child and who has resided in the Kimberley‑Pilbara area, the Mandurah‑Rockingham area or the Perth Hills area since 1 July 2017, and this will be the child’s place of residence; or

(e) in the case of a child whose parents are separated and who spends time with each parent —

(i) at least one of the child’s parents meets the qualifying residence requirement in subregulation (1); or

(ii) the following apply —

(I) at least one of the child’s parents started to reside in the Lower South West area after 1 July 2014, or in the Cockburn‑Kwinana area after 1 July 2015, or in the Ranges area after 1 October 2016, or in the 2017 expansion area after 1 January 2017, or in the Kimberley‑Pilbara area, the Mandurah‑Rockingham area or the Perth Hills area after 1 July 2017, for the dominant purpose of the child accessing supports that are not provided under the Act (for example, education, employment, health care or family support);

(II) exceptional circumstances apply — for example, the child would suffer significant personal hardship (including because of financial hardship to the parent), which could reasonably be expected to significantly undermine their wellbeing or social or economic participation, by reason of not being a participant.

[Regulation 16 inserted: Gazette 30 Jun 2014 p. 2397-9; amended: Gazette 14 Jun 2016 p. 1821‑2 and 1823; 30 Dec 2016 p. 5971‑2; 16 Jun 2017 p. 2932‑3; 30 Jun 2017 p. 3560.]

17. Ongoing residence requirement to be met (additional residence requirement NDIS rule 4.1(c))

The Commission must ensure that a person does not continue to participate in a trial unless the person satisfies the ongoing residence requirement set out in regulation 18.

[Regulation 17 inserted: Gazette 30 Jun 2014 p. 2400; amended: Gazette 14 Jun 2016 p. 1823.]

18. Ongoing residence requirement (additional residence requirement NDIS rules 4.9 ‑ 4.11)

(1) A person meets the ongoing residence requirement at a particular time if, at that time, the person resides in an area mentioned in regulation 12(1) (a trial area).

(2) If a person who is a participant stops residing in a trial area, the person continues to satisfy the ongoing residence requirement for a period of 12 months.

(3) In the case of a child whose parents are separated and who spends time with each parent, the child meets the ongoing residence requirement —

(a) at a particular time if, at that time, at least one of the child’s parents resides in a trial area; and

(b) for a period of 12 months if the child is a participant and both the child’s parents stop residing in a trial area.

[Regulation 18 inserted: Gazette 30 Jun 2014 p. 2400; amended: Gazette 14 Jun 2016 p. 1823.]

Subdivision 3 — Disability requirements

[Heading inserted: Gazette 30 Jun 2014 p. 2400.]

19. Disability requirement — permanent impairment (NDIS rules 5.4 ‑ 5.7)

(1) For the purposes of section 26H(1)(c)(i) of the Act, the Commission must apply the criteria set out in this regulation in deciding whether a person meets the disability requirement in the NDIS Act section 24(1)(b).

(2) An impairment is, or is likely to be, permanent only if there are no known, available and appropriate evidence‑based clinical, medical or other treatments that would be likely to remedy the impairment.

(3) An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person’s functional capacity, including their psychosocial functioning, may improve.

(4) An impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).

(5) If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve it.

[Regulation 19 inserted: Gazette 30 Jun 2014 p. 2400-1; amended: Gazette 14 Jun 2016 p. 1822.]

20. Disability requirement — substantially reduced functional capacity (NDIS rule 5.8)

(2) An impairment results in substantially reduced functional capacity to undertake an activity if its result is that —

(a) the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or

(b) the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or

(c) the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.

[Regulation 20 inserted: Gazette 30 Jun 2014 p. 2401-2; amended: Gazette 14 Jun 2016 p. 1822.]

Subdivision 4 — Early intervention requirements

[Heading inserted: Gazette 30 Jun 2014 p. 2402.]

21. Early intervention requirement — permanent impairment (NDIS rules 6.4 ‑ 6.7)

(1) For the purposes of section 26H(1)(c)(ii) of the Act, the Commission must apply the criteria set out in this regulation in deciding whether a person meets the early intervention requirements in the NDIS Act section 25(1)(a)(i) and (ii).

(5) If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve it.

[Regulation 21 inserted: Gazette 30 Jun 2014 p. 2402-3; amended: Gazette 14 Jun 2016 p. 1823.]

22. Early intervention requirement — supports to benefit person (NDIS rules 6.9 and 6.10)

(2) In deciding whether provision of early intervention supports is likely to benefit the person the Commission may consider —

(a) the likely trajectory and impact of the person’s impairment over time; and

(b) the potential benefits of early intervention on the impact of the impairment on the person’s functional capacity and in reducing their future needs for supports; and

(c) evidence from a range of sources, such as expert opinion and information provided by the person with disability or their family members or carers.

(3) The Commission is taken to be satisfied that provision of early intervention supports for a child under the age of 6 is likely to benefit the child if one or more of the child’s impairments is a mental or physical impairment which, by itself or in combination with other mental or physical impairments, results in developmental delay.

(4) In subregulation (3) —

developmental delay has the meaning given in the NDIS Act section 9.

[Regulation 22 inserted: Gazette 30 Jun 2014 p. 2403-4; amended: Gazette 14 Jun 2016 p. 1823.]

Subdivision 5 — Assessment tools

[Heading inserted: Gazette 30 Jun 2014 p. 2404.]

23. Assessment tools may be used (NDIS rule 7.1)

(1) In this regulation —

operational policy means a policy made under section 12(1)(b) of the Act as published by the Commission and amended from time to time.

(2) In deciding whether a prospective participant meets the disability requirements or the early intervention requirements, the Commission may, if the Commission considers it appropriate, conduct an assessment using an assessment tool specified in an operational policy.

[Regulation 23 inserted: Gazette 30 Jun 2014 p. 2404.]

Division 3 — Supports for participants

[Heading inserted: Gazette 30 Jun 2014 p. 2404.]

Subdivision 1 — General

[Heading inserted: Gazette 30 Jun 2014 p. 2404.]

24. References in regulation headings to comparable Commonwealth rules

Without limiting the Interpretation Act 1984 section 32(2), a reference to “NDIS rule” followed by a rule designation in the heading to a regulation in this Division is a reference to the rule of the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Commonwealth) with which the regulation in this Division is comparable.

[Regulation 24 inserted: Gazette 30 Jun 2014 p. 2404.]

Subdivision 2 — Assessing proposed supports

[Heading inserted: Gazette 30 Jun 2014 p. 2405.]

25. Value for money (NDIS rule 3.1)

In deciding whether a support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support, the Commission must consider the following matters —

(a) whether there are comparable supports which would achieve the same outcome at a substantially lower cost;

(b) whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long‑term benefit to, the participant;

(c) whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long‑term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);

(d) for supports that involve the provision of equipment or modifications —

(i) the comparative cost of purchasing or leasing the equipment or modifications; and

(ii) whether there are any expected changes in technology or the participant’s circumstances in the short‑term that would make it inappropriate to fund the equipment or modifications;

(e) whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides;

(f) whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports (for example, some home modifications may reduce a participant’s need for home care).

[Regulation 25 inserted: Gazette 30 Jun 2014 p. 2405-6.]

26. Effective and beneficial and current good practice (NDIS rules 3.2 and 3.3)

(1) In deciding whether a support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the Commission must consider the available evidence of the effectiveness of the support for others in like circumstances, for example —

(a) published and peer‑reviewed literature and any consensus of expert opinion; or

(b) the experience of the participant or their carers; or

(2) In deciding whether a support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the Commission must take into account and, if necessary seek, expert opinion.

[Regulation 26 inserted: Gazette 30 Jun 2014 p. 2406.]

27. Reasonable family, carer and other support (NDIS rule 3.4)

In deciding whether funding or provision of a support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide, the Commission must consider the following matters —

(a) for a participant who is a child —

(i) that it is normal for parents to provide substantial care and support for children; and

(ii) whether, because of the child’s disability, the child’s care needs are substantially greater than those of other children of a similar age; and

(iii) the extent of any risks to the wellbeing of the participant’s family members or carers; and

(iv) whether the funding or provision of the support for a family would improve the child’s capacity or future capacity, or would reduce any risk to the child’s wellbeing;

(b) for other participants —

(i) the extent of any risks to the wellbeing of the participant arising from the participant’s reliance on the support of family members, carers, informal networks and the community; and

(ii) the suitability of family members, carers, informal networks and the community to provide the supports that the participant requires, including such factors as —

(I) the age and capacity of the participant’s family members and carers, including the extent to which family and community supports are available to sustain them in their caring role; and

(II) the intensity and type of support that is required and whether it is age and gender appropriate for a particular family member or carer to be providing that support; and

(III) the extent of any risks to the long‑term wellbeing of any of the family members or carers (for example, a child should not be expected to provide care for their parents, siblings or other relatives or be required to limit their educational opportunities);

and

(iii) the extent to which informal supports contribute to or reduce a participant’s level of independence and other outcomes;

(c) for all participants — the desirability of supporting and developing the potential contributions of informal supports and networks within their communities.

[Regulation 27 inserted: Gazette 30 Jun 2014 p. 2406-8.]

Subdivision 3 — Criteria for supports

[Heading inserted: Gazette 30 Jun 2014 p. 2408.]

28. General criteria for supports (NDIS rules 5.1 ‑ 5.3)

(1) A support will not be provided or funded under the Act if —

(a) it is likely to cause harm to the participant or pose a risk to others; or

(b) it is not related to the participant’s disability; or

(d) it relates to day‑to‑day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs; or

(e) the provision of the support would be contrary to a law of the Commonwealth or of this State; or

(f) the support consists of income replacement.

(2) The day‑to‑day living costs mentioned in subregulation (1)(d) do not include the following —

(a) additional living costs that are incurred by a participant solely and directly as a result of their disability support needs;

(b) costs that are ancillary to another support that is funded or provided under the participant’s plan, and which the participant would not otherwise incur.

[Regulation 28 inserted: Gazette 30 Jun 2014 p. 2408-9.]

Division 4 — Supports for participants — accounting for compensation

[Heading inserted: Gazette 30 Jun 2014 p. 2409.]

Subdivision 1 — General

[Heading inserted: Gazette 30 Jun 2014 p. 2409.]

29. Terms used

In this Division —

Commission component, of an amount of compensation under a judgment or settlement, means the component that relates to the provision of supports of a kind that may be funded or provided by the Commission under the Act after the date of the judgment or settlement, and may include a component that consists of periodic payments;

compensation reduction amount means an amount worked out under Subdivision 4;

trial actuary means the person appointed by the Commission to be the actuary for a trial under section 26G(1) of the Act.

[Regulation 29 inserted: Gazette 30 Jun 2014 p. 2409-10.]

30. References in regulation headings to comparable Commonwealth rules

Without limiting the Interpretation Act 1984 section 32(2), a reference to “NDIS rule” followed by a rule designation in the heading to a regulation in this Division is a reference to the rule of the National Disability Insurance Scheme (Supports for Participants — Accounting for Compensation) Rules 2013 (Commonwealth) with which the regulation in this Division is comparable.

[Regulation 30 inserted: Gazette 30 Jun 2014 p. 2410.]

Subdivision 2 — Compensation

[Heading inserted: Gazette 30 Jun 2014 p. 2410.]

31. Application of Division (NDIS rules 3.1 and 3.2)

(1) This Division applies in relation to a person who is a participant, or who later becomes a participant, if the person’s disability was caused to any extent by a personal injury, and one of the following cases applies —

(a) the person received compensation under a judgment or settlement in respect of the injury in which —

(i) it is possible to identify the Commission component of the amount of compensation; and

(ii) the component is either fixed by a non‑consent judgment or is objectively identifiable (for example, commutation of benefits under a statutory scheme);

(b) the person received compensation under a judgment or settlement in respect of the injury that —

(i) does not satisfy paragraph (a); and

(ii) fixes an amount of compensation in respect of the injury;

(c) the person is receiving compensation under a scheme of insurance or compensation under a Commonwealth, State or Territory law, including a payment under a contract entered into under such a scheme;

(d) the person —

(i) entered into an agreement to give up a right to compensation in respect of the injury; and

(ii) because of that agreement, there are amounts that the person did not receive by way of a compensation payment (even if the person received other amounts by way of compensation payment in respect of the injury); and

(iii) the Commission is not satisfied that it was reasonable, in the circumstances, for the person to have entered into the agreement.

(2) For the purposes of subregulation (1)(d)(iii), in considering whether the person’s entry into the agreement was reasonable, the Commission must have regard to the following matters —

(a) the disability of the participant or prospective participant, including whether the disability affected his or her ability to reasonably assess the terms of the agreement;

(b) the circumstances which gave rise to the entitlement or possible entitlement to compensation;

(d) the impact (including any financial impact) on the participant or prospective participant and his or her family that would have occurred if the claim for compensation had been pursued or continued;

(e) any other matter the Commission considers relevant, having regard to the principles and objects set out in Schedules 1 and 2 of the Act.

[Regulation 31 inserted: Gazette 30 Jun 2014 p. 2410-12.]

32. Periodic payments (NDIS rule 3.3)

For the purposes of this Division, if the Commission component of compensation under a judgment or settlement includes an element that consists of periodic payments, the amount attributable to that element is taken to be —

(a) if the amount is specified in a judgment — that amount; or

(b) if the amount is not specified in a judgment, but the Commission is satisfied that a specified amount was paid by the defendant to ensure the provision of the periodic payments — that amount; or

(c) otherwise — the value of the periodic payments as assessed in accordance with accepted actuarial standards, in consultation with the trial actuary.

[Regulation 32 inserted: Gazette 30 Jun 2014 p. 2412-13.]

Subdivision 3 — Compensation, or foregone compensation, to be taken into account

[Heading inserted: Gazette 30 Jun 2014 p. 2413.]

33. Funding to be reduced by compensation reduction amount (NDIS rules 3.5 and 3.6)

(1) In considering whether or not to approve a plan for a participant, the Commission must take account of any compensation mentioned in regulation 31(1) by reducing the funding for reasonable and necessary supports that would otherwise be approved by the appropriate compensation reduction amount.

(2) To avoid doubt, a compensation reduction amount may arise in relation to each amount of compensation fixed or foregone in respect of injury, including amounts to which different paragraphs of regulation 31(1) apply — in this case, more than one compensation reduction amount may apply for the purposes of subregulation (1).

[Regulation 33 inserted: Gazette 30 Jun 2014 p. 2413.]

34. Reduction may be amortised (NDIS rule 3.7)

The reduction in respect of —

(a) an amount of compensation under a judgment, settlement or agreement mentioned in regulation 31(1)(a), (b) or (d); or

(b) a lump sum received as compensation under a scheme mentioned in regulation 31(1)(c),

may be amortised over a period no longer than the remainder of the participant’s expected lifetime in accordance with accepted actuarial standards, in consultation with the trial actuary.

[Regulation 34 inserted: Gazette 30 Jun 2014 p. 2413-14.]

35. Commission may advise person as to likely compensation reduction amount (NDIS rule 3.8)

If requested to do so by a person who has suffered an injury and is considering a settlement or other agreement that might result in the application of this Part, the Commission may advise the person in relation to the likely compensation reduction amount, or elements of the likely compensation reduction amount, that would apply in relation to the settlement or agreement.

[Regulation 35 inserted: Gazette 30 Jun 2014 p. 2414.]

36. Special circumstances (NDIS rule 3.10)

For the purposes of regulation 33(1), the Commission may ignore the whole or part of a compensation reduction amount that would otherwise arise under this Division if the Commission thinks it appropriate to do so in the special circumstances of the case (which may include financial hardship suffered by the participant).

[Regulation 36 inserted: Gazette 30 Jun 2014 p. 2414.]

Subdivision 4 — Compensation reduction amount

[Heading inserted: Gazette 30 Jun 2014 p. 2415.]

37. Compensation reduction amount — support component objectively identified (NDIS rules 3.11 and 3.12)

(1) In the case of a judgment or settlement mentioned in regulation 31(1)(a), the Commission must identify the compensation reduction amount as follows —

(a) identify the Commission component of the amount of compensation;

(b) subtract an amount that the Commission considers equivalent to the total of the amounts that were paid by the participant for supports of that kind after the date of the judgment or settlement and before becoming a participant;

(c) subtract the amount of any reduction in funding under regulation 33(1) that occurred in relation to a previous plan of the participant.

(2) If, by subtracting a particular amount under subregulation (1), the compensation reduction amount would be reduced to nil or less than nil, the Commission must subtract only so much of the amount that would reduce the compensation reduction amount to nil.

[Regulation 37 inserted: Gazette 30 Jun 2014 p. 2415.]

38. Compensation reduction amount — other circumstances (NDIS rules 3.13 ‑ 3.16)

(1) In the case of a judgment or settlement mentioned in regulation 31(1)(b), the Commission must identify the compensation reduction amount as follows —

(a) calculate the amount of compensation fixed under the judgment or settlement;

(b) subtract the sum of the amounts (if any) payable in respect of the amount of compensation under the following —

(i) the Health and Other Services (Compensation) Act 1995 (Commonwealth);

(ii) the Health and Other Services (Compensation) Care Charges Act 1995 (Commonwealth);

(iii) Part 3.14 of the Social Security Act 1991 (Commonwealth);

(iv) a law of the Commonwealth, a State or a Territory, prescribed by the National Disability Insurance Scheme rules as defined in the NDIS Act section 9;

(i) that arises from a Commonwealth, State or Territory statutory scheme of entitlements (for example, the Social Security Act 1991) (Commonwealth); and

(ii) that is in respect of the injury;

(d) if no preclusion period has arisen for the purposes of paragraph (c) and the Commission is satisfied that —

(i) the participant claimed damages in relation to lost earnings or lost capacity to earn; and

(ii) the amount of compensation fixed under the judgment or settlement included an amount in respect of those damages,

subtract 50% of the amount of compensation;

(e) if the amount after applying paragraphs (a) to (d) is greater than the value of the reasonable and necessary supports that the Commission considers would have been provided to the participant and funded under the Act over the participant’s expected lifetime, had the participant been a participant from the time of the compensable event — replace the amount by that value;

(f) subtract an amount that the Commission considers equivalent to the total of the amounts that were paid by the participant for supports, being supports of a kind funded under the Act, after the compensable event and before becoming a participant;

(g) subtract the amount of any reduction in funding under regulation 33(1) that occurred in relation to a previous plan of the participant.

(2) For the purposes of subregulation (1)(e), the calculation must be in accordance with any applicable actuarial model published by the Commission and in effect at the time the calculation is undertaken.

(3) If a compensation reduction amount has also been identified in respect of the injury under regulation 37(1), subregulation (1) is to be applied with the following modifications —

(a) reduce from the amount to be subtracted under subregulation (1)(f) any amount subtracted in respect of the injury under regulation 37(1)(b);

(b) reduce from the amount to be subtracted under subregulation (1)(g) any amount subtracted in respect of the injury under subregulation (1)(c).

(4) If, by subtracting a particular amount under subregulation (1), the compensation reduction amount would be reduced to nil or less than nil, the Commission must subtract only so much of the amount that would reduce the compensation reduction amount to nil.

[Regulation 38 inserted: Gazette 30 Jun 2014 p. 2415-18.]

39. Compensation reduction amount — participant in a Commonwealth, State or Territory statutory insurance scheme (NDIS rules 3.17 and 3.18)

(1) In the case of compensation mentioned in regulation 31(1)(c), the Commission must identify the compensation reduction amount by identifying the total value of the care and support expected to be provided to the participant under the scheme until the participant’s plan is required to be reviewed in accordance with applicable operational policies.

(2) For the purposes of subregulation (1), the identification must be —

(a) in accordance with any applicable actuarial model published by the Commission and in effect at the time the calculation is undertaken; and

(b) done in consultation with the person or entity that administers the scheme.

[Regulation 39 inserted: Gazette 30 Jun 2014 p. 2418.]

40. Compensation reduction amount — agreement to give up compensation (NDIS rules 3.19 ‑ 3.21)

(1) In the case of an agreement mentioned in regulation 31(1)(d), the Commission must identify the compensation reduction amount as follows —

(a) assess the likely amount of the Commission component of compensation that the participant would have received under a judgment (other than a consent judgment) had the participant made a claim for compensation in respect of the personal injury;

(b) subtract the amount of any reduction in funding under regulation 33(1) that occurred in relation to a previous plan of the participant;

(c) subtract an amount that the Commission considers equivalent to the total of the amounts that were paid by the participant for supports, being supports of a kind funded under the Act, after incurring the injury and before becoming a participant.

(2) If a compensation reduction amount has also been identified in respect of the injury under regulation 37(1) or 38(1), subregulation (1) is to be applied with the following modifications —

(a) between the steps in subregulation (1)(a) and (b), subtract the compensation reduction amounts identified under regulation 37(1) or 38(1);

(b) reduce from the amount to be subtracted under subregulation (1)(b) any amount subtracted in respect of the injury under regulation 37(1)(c) or 38(1)(g);

(c) reduce from the amount to be subtracted under subregulation (1)(c) any amount subtracted in respect of the injury under regulation 37(1)(b) or 38(1)(f).

(3) If, by subtracting a particular amount under subregulation (1), the compensation reduction amount would be reduced to nil or less than nil, the Commission must subtract only so much of the amount that would reduce the compensation reduction amount to nil.

[Regulation 40 inserted: Gazette 30 Jun 2014 p. 2419-20.]

Part 3 — Complaints

[Heading inserted: Gazette 17 Jul 2015 p. 2915.]

40A. Services excluded from definitions of disability service and resident service (s. 30)

The following services are excluded from the definitions of disability service and resident service in section 30 of the Act —

(a) a service provided under the National Disability Insurance Scheme by an NDIS provider (as those terms are defined in the National Disability Insurance Scheme Act 2013 (Commonwealth) section 9);

(b) a service provided by a person or entity who falls within paragraph (b) of the definition of NDIS provider in the National Disability Insurance Scheme Act 2013 (Commonwealth) section 9, to a person receiving continuity of support under the programs mentioned in the National Disability Insurance Scheme (NDIS Provider Definition) Rule 2018 (Commonwealth) section 5.

[Regulation 40A inserted: SL 2021/165 r. 4.]

[41. Deleted: SL 2021/165 r. 5.]

Schedule 1 — Public authorities to which Part 5 applies

[r. 6]

[Heading inserted: Gazette 11 Jun 2013 p. 2163.]

A department established under the Public Sector Management Act 1994 section 35.
An entity specified in the Public Sector Management Act 1994 Schedule 2 column 2.
A local government.
A regional local government, but only when performing a public service that is not the responsibility of a particular participating local government.

4A. A health service provider established by order under the Health Services Act 2016 section 32(1).

Curtin University of Technology established under the Curtin University of Technology Act 1966.
Edith Cowan University established under the Edith Cowan University Act 1984.
Electricity Generation and Retail Corporation established by the Electricity Corporations Act 2005.
Electricity Networks Corporation established by the Electricity Corporations Act 2005.

[9. Deleted]

Forest Products Commission established by the Forest Products Act 2000.

[11. Deleted]

Heritage Council of Western Australia established under the Heritage of Western Australia Act 1990.
Keystart established under the Keystart Act 2024 section 6(1).

[14. Deleted]

Legal Aid Commission of Western Australia established under the Legal Aid Commission Act 1976.
Murdoch University established under the Murdoch University Act 1973.
Parliamentary Commissioner for Administrative Investigations appointed under the Parliamentary Commissioner Act 1971.

[18. Deleted]

Regional Power Corporation established by the Electricity Corporations Act 2005.

[20-21. Deleted]

The University of Western Australia established under the University of Western Australia Act 1911.
Western Australian Health Promotion Foundation mentioned in the Western Australian Health Promotion Foundation Act 2016 section 5.
Western Australian Mint preserved and continued by the Gold Corporation Act 1987.
Water Corporation established by the Water Corporation Act 1995.

[Schedule 1 inserted: Gazette 11 Jun 2013 p. 2163‑4; amended: Gazette 27 Dec 2013 p. 6472; 24 Jun 2016 p. 2311; 26 Aug 2016 p. 3653; SL 2025/114 r. 4; SL 2025/189 r. 4.]

Schedule 2 — Standards for disability access and inclusion plans

[r. 7]

A disability access and inclusion plan must provide a means of ensuring that people with disability have the same opportunities as other people to access the services of, and any events organised by, the relevant public authority.
A disability access and inclusion plan must provide a means of ensuring that people with disability have the same opportunities as other people to access the buildings and other facilities of the relevant public authority.
A disability access and inclusion plan must provide a means of ensuring that people with disability receive information from the relevant public authority in a format that will enable them to access the information as readily as other people are able to access it.
A disability access and inclusion plan must provide a means of ensuring that people with disability receive the same level and quality of service from the staff of the relevant public authority as other people receive from that authority.
A disability access and inclusion plan must provide a means of ensuring that people with disability have the same opportunities as other people to make complaints to the relevant public authority.
A disability access and inclusion plan must provide a means of ensuring that people with disability have the same opportunities as other people to participate in any public consultation by the relevant public authority.
A disability access and inclusion plan must provide a means of reducing barriers to people with disability obtaining and maintaining employment.

[Schedule 2 amended: Gazette 11 Jun 2013 p. 2164-5; 11 Jun 2013 p. 2164.]

Schedule 3 — Desired outcomes of disability access and inclusion plans

[r. 8]

People with disability have the same opportunities as other people to access the services of, and any events organised by, a public authority.
People with disability have the same opportunities as other people to access the buildings and other facilities of a public authority.
People with disability receive information from a public authority in a format that will enable them to access the information as readily as other people are able to access it.
People with disability receive the same level and quality of service from the staff of a public authority as other people receive from the staff of that public authority.
People with disability have the same opportunities as other people to make complaints to a public authority.
People with disability have the same opportunities as other people to participate in any public consultation by a public authority.
People with disability have the same opportunities as other people to obtain and maintain employment with a public authority.

[Schedule 3 amended: Gazette 11 Jun 2013 p. 2164‑5.]

[Schedule 4 deleted: SL 2021/165 r. 6.]

dline

Notes

This is a compilation of the Disability Services Regulations 2004 and includes amendments made by other written laws. For provisions that have come into operation, and for information about any reprints, see the compilation table.

Compilation table

Citation	Published	Commencement
Disability Services Regulations 2004	14 Dec 2004 p. 6002-6	15 Dec 2004 (see r. 2 and Gazette 14 Dec 2004 p. 5999)
Electricity Corporations (Consequential Amendments) Regulations 2006 r. 70	31 Mar 2006 p. 1299‑357	1 Apr 2006 (see r. 2)
Disability Services Amendment Regulations 2013	11 Jun 2013 p. 2161-5	r. 1 and 2: 11 Jun 2013 (see r. 2(a)); Regulations other than r. 1, 2 and 7‑9: 12 Jun 2013 (see r. 2(c) and Gazette 11 Jun 2013 p. 2161); r. 7‑9: 11 Jun 2014 (see r. 2(b))
*Reprint 1: The Disability Services Regulations 2004* as at 2 Aug 2013** (includes amendments listed above except those in the Disability Services Amendment Regulations 2013 r. 7-9)
Electricity Corporations (Consequential Amendments) Regulations 2013 r. 4	27 Dec 2013 p. 6469-79	r. 4(1) and (2): 1 Jan 2014 (see r. 2(c) and Gazette 27 Dec 2013 p. 6465); r. 4(3): 11 Jun 2014 (see r. 2(b) and Gazette 11 Jun 2013 p. 2161‑5)
Disability Services Amendment Regulations 2014	30 Jun 2014 p. 2391-420	1 Jul 2014 (see r. 2)
Disability Services Amendment Regulations 2015	17 Jul 2015 p. 2915‑32	r. 1 and 2: 17 Jul 2015 (see r. 2(a)); Regulations other than r. 1 and 2: 18 Jul 2015 (see r. 2(b))
Disability Services Amendment Regulations (No. 2) 2016	14 Jun 2016 p. 1820‑3	r. 1 and 2: 14 Jun 2016 (see r. 2(a)); Regulations other than r. 1 and 2: 15 Jun 2016 (see r. 2(b))
Disability Services Amendment Regulations (No. 3) 2016	24 Jun 2016 p. 2311	r. 1 and 2: 24 Jun 2016 (see r. 2(a)); Regulations other than r. 1 and 2: 1 Jul 2016 (see r. 2(b) and Gazette 24 Jun 2016 p. 2291)
Disability Services Amendment Regulations 2016	26 Aug 2016 p. 3653	r. 1 and 2: 26 Aug 2016 (see r. 2(a)); Regulations other than r. 1 and 2: 1 Sep 2016 (see r. 2(b) and Gazette 26 Jul 2016 p. 3145)
Disability Services Amendment Regulations (No. 4) 2016	30 Dec 2016 p. 5970‑2	r. 1 and 2: 30 Dec 2016 (see r. 2(a)); Regulations other than r. 1 and 2: 1 Jan 2017 (see r. 2(b))
*Reprint 2: The Disability Services Regulations 2004* as at 10 Feb 2017** (includes amendments listed above)
Disability Services Amendment Regulations 2017	16 Jun 2017 p. 2931‑3	r. 1 and 2: 16 Jun 2017 (see r. 2(a)); Regulations other than r. 1 and 2: 1 Jul 2017 (see r. 2(b))
Disability Services Amendment Regulations (No. 2) 2017	30 Jun 2017 p. 3559‑60	r. 1 and 2: 30 Jun 2017 (see r. 2(a)); Regulations other than r. 1 and 2: 1 Jul 2017 (see r. 2(b))
Disability Services Amendment Regulations 2021	SL 2021/165 24 Sep 2021	r. 1 and 2: 24 Sep 2021 (see r. 2(a)); Regulations other than r. 1, 2, 5 and 6: 25 Sep 2021 (see r. 2(c)); r. 5 and 6: 1 Oct 2021 (see r. 2(b))
Disability Services Amendment Regulations 2025	SL 2025/114 25 Jun 2025	r. 1 and 2: 25 Jun 2025 (see r. 2(a)); Regulations other than r. 1 and 2: 1 Jul 2025 (see r. 2(b))
Disability Services Amendment Regulations (No. 2) 2025	SL 2025/189 12 Nov 2025	r. 1 and 2: 12 Nov 2025 (see r. 2(a)); Regulations other than r. 1 and 2: 13 Nov 2025 (see r. 2(b))

Defined terms

[This is a list of terms defined and the provisions where they are defined. The list is not part of the law.]

Defined term Provision(s)

2017 expansion area 11

child 11

Cockburn‑Kwinana area 11

Commission component 29

compensation reduction amount 29

developmental delay 22(4)

Kimberley‑Pilbara area 11

Lower South West area 11

Mandurah‑Rockingham area 11

NDIS Act 11

operational policy 23(1)

participant 11

Perth Hills area 11

plan 11

Ranges area 11

support 11

trial 11

trial actuary 29

trial area 18(1)

This work is licensed under a Creative Commons Attribution 4.0 International Licence (CC BY 4.0). To view relevant information and for a link to a copy of the licence, visit www.legislation.wa.gov.au.

By Authority: GEOFF O. LAWN, Government Printer

Western Australia

Disability Services Act 1993

Disability Services Regulations 2004

Western Australia

Disability Services Regulations 2004

Contents

Part 1 — General

Citation 1
Commencement 1
Nominations for Board membership (s. 7) 1

4A. Disability Service Standards (s. 12) 1

Nominations for Council membership (s. 22) 2
Procedure for public consultation by Council (s. 23) 2
Public authorities to which Part 5 does not apply (s. 27) 2
Standards for disability access and inclusion plans (s. 28) 2
Information in reports about disability access and inclusion plans (s. 29) 3
Publication of disability access and inclusion plans (s. 29A) 3
Procedure for public consultation by authorities (s. 28) 4

Part 2 — Trial of disability services model

Division 1 — General

Terms used 5
Trial areas and periods (s. 26G) 6
Disclosure of information (s. 52) 7

Division 2 — Becoming a participant

Subdivision 1 — General

References in regulation headings to comparable Commonwealth rules 7

Subdivision 2 — Residence requirements

Qualifying residence requirement to be met (additional residence requirement NDIS rule 4.1(c)) 8
Qualifying residence requirement (additional residence requirement NDIS rules 4.6 ‑ 4.8) 8
Ongoing residence requirement to be met (additional residence requirement NDIS rule 4.1(c)) 12
Ongoing residence requirement (additional residence requirement NDIS rules 4.9 ‑ 4.11) 12

Subdivision 3 — Disability requirements

Disability requirement — permanent impairment (NDIS rules 5.4 ‑ 5.7) 12
Disability requirement — substantially reduced functional capacity (NDIS rule 5.8) 13

The Regulations organise several recurring legal and administrative concepts that operationally determine who can participate in the trial, what supports are fundable, how compensation interacts with planning, and which public authorities are subject to access and inclusion obligations.

Key definitional and structural concepts:

Trial and trial area: The Regulations define named geographic trial areas and trial periods (reg 11; reg 12). “Trial” and related terms are linked to the NDIS Act by cross‑reference (reg 11).
Participant and plan: The Regulations adopt the Act’s definitions of participant and plan and then prescribe the practical eligibility and ongoing conditions for participation in the State trial (regs 11, 15-18).
Disability and early intervention criteria: The Regulations prescribe the Commission’s assessment criteria for permanency of impairment (regs 19 and 21), substantially reduced functional capacity (reg 20), and likely benefit of early intervention (reg 22). These are expressed as tests the Commission “must apply”.
Assessment tools and operational policy: The Commission is authorised to use assessment tools specified in an operational policy when deciding eligibility (reg 23). “Operational policy” is defined in reg 23(1) as a policy made under the Act s 12(1)(b) and published by the Commission.
Value for money and current good practice: Decision‑making about supports is governed by explicit considerations: comparable lower‑cost options, long‑term benefit, reductions to other future costs, equipment procurement choices, local market comparability (reg 25), and evidence of effectiveness including peer‑reviewed literature and expert opinion (reg 26).
Role of informal supports: The Commission must consider what is reasonable to expect from families, carers and informal networks and the risks to carers’ wellbeing (reg 27). For children, normal parental care is recognised but the Commission must assess whether the child’s needs exceed that norm.
Non‑fundable supports: The Regulations provide a negative list , supports that will not be funded include those likely to cause harm, unrelated to disability, duplicative, ordinary day‑to‑day living costs not attributable to disability, contrary to law, or income replacement (reg 28). The Regulations also carve out exceptions where additional living costs directly attributable to disability are fundable (reg 28(2)).
Compensation accounting: The Regulations construct a multi‑step approach to reduce Commission funding where compensation covers supports the Commission would otherwise fund. They define “Commission component”, require identification and subtraction steps (regs 31, 37-40), permit amortisation over expected lifetime subject to actuarial standards (reg 34), and permit the Commission to ignore reductions in special circumstances (reg 36).
Publication, consultation and access standards: Schedules 2 and 3 set out the DAIP standards and outcomes public authorities must follow; regulation 9 prescribes accessible formats (electronic, hard copy standard and large print, audio on cassette or CD), availability by email and website, and required notice in newspapers.

These concepts are implemented through detailed procedural prescriptions, significant delegation to administrative instruments (operational policies and actuarial models), and a combination of mandatory “must” criteria with expressly permitted Commission discretion (for example, reg 36). The Regulations therefore create an administrative rule‑set within which the Commission exercises judgement, informed by published Commission materials and external actuarial input.

The Regulations affect distinct groups and institutions in different ways: prospective and current participants in the State trial, the Commission and its Agency, public authorities (and their agents and contractors) required to prepare and publish DAIPs, the Board and Council involved in the Act’s governance, and those who receive compensation for personal injury.

Prospective and current trial participants:

Individuals whose disability is linked to a personal injury and who reside in the prescribed trial areas are directly affected by the eligibility rules (regs 15-18, 19-22). Residence tests are date‑specific and depend on whether the person was residing in a trial area on particular commencement dates or moved there for the “dominant purpose” of accessing non‑Act supports (reg 16(1)-(2)). Children are treated specially (reg 16(3)-(e) and reg 18(3)).
Participants whose injury also produced a compensation payment are affected by the compensation accounting regime: the Commission must reduce funding by the “compensation reduction amount” in many cases, and it will need evidence of the composition of any settlement or judgment (regs 29-40).

Public authorities and their staff:

Only public authorities listed in Schedule 1 are subject to Part 5 obligations (reg 6 and Schedule 1). Schedule 1 names departments, specific statutory corporations, universities, local governments, health service providers established under Health Services Act 2016 s 32(1) and other named bodies. If an authority is in Schedule 1 it must produce a DAIP meeting the standards in Schedule 2 and report on desired outcomes in Schedule 3 (reg 7; regs 8-10).
Public authorities must publish DAIPs in accessible formats and give newspaper notice of availability (reg 9), and they must undertake public consultation in the ways specified (reg 10).

The Commission and Agency:

The Commission is given numerous mandatory duties: to apply specified criteria for permanent impairment, substantially reduced functional capacity and early intervention (regs 19-22); to ensure ongoing residence requirements are met for continued participation (reg 17); to take account of compensation when approving plans (reg 33); to identify compensation reduction amounts using actuarial standards and Commission models (regs 32, 34, 37-40); and to consult trial actuary where required (regs 29, 32, 34, 38(2)).
The Agency (as defined in the NDIS Act s 9) is listed for disclosure purposes under reg 13; the Commission may disclose information to a person for performance of the Agency’s functions (reg 13).

Service providers and NDIS providers:

The Regulations exclude services provided under the Commonwealth NDIS Act or by certain NDIS providers from definitions of “disability service” and “resident service” for complaints purposes (reg 40A). This alters which grievance mechanisms under the State Act apply to services delivered under the Commonwealth scheme.

Persons receiving compensation or parties negotiating settlements:

Where judgement, settlement, statutory scheme payment or agreement to forgo compensation exists, the Commission’s funding decisions are affected. The Regulations require the Commission to engage actuarial standards, consult scheme administrators, and possibly amortise reductions (regs 31-40). The Commission may advise persons considering settlements about likely reduction amounts (reg 35).

Board and Council membership candidates and the public:

The Minister must seek nominations for Board and Council membership by newspaper notice at least three weeks before nominations close (regs 3 and 4). The Council must consult by public submission calls via newspaper or website (reg 5). These requirements affect how the statutory governance bodies attract representation.

In practical terms, the Regulations impose procedural and evidentiary burdens on participants (proof of residence, medical evidence, compensation documentation), on public authorities (DAIP production, accessible publication and consultation), and on the Commission (application of actuarial models, consultation with scheme administrators, use of operational policy). The regulatory regime thereby channels resource and administrative effort to meet those processes.

The Regulations articulate duties for the Commission, public authorities, the Minister, the Council and participants, and set out rights (or directed access) for people with disability and participants in the trial. The duties often take the form of mandatory criteria, publication or consultation obligations, and evidentiary rules.

Duties of the Minister and the Council:

The Minister must seek nominations for membership of the Board and Council by publishing notice in a newspaper circulating throughout the State at least three weeks before nominations close (regs 3 and 4). This is a procedural duty on the Minister for appointments (s 7 and s 22 of the Act are the cross‑referenced Act provisions).
The Council must undertake consultation by calling for submissions either by notice in a State newspaper or on any website maintained by or on behalf of the Council; it may also undertake other consultation (reg 5).

Duties of public authorities (DAIPs):

Public authorities listed in Schedule 1 are the only ones to which Part 5 applies (reg 6). Those public authorities must prepare DAIPs that meet the standards in Schedule 2 (reg 7).
A report about a DAIP must include progress made in achieving the desired outcomes in Schedule 3 and strategies used to inform agents and contractors of the DAIP (reg 8).
Public authorities must publish DAIPs in accessible formats (electronic; hard copy standard and large print; audio cassette or compact disc), make them available on request by email and publish them on any website maintained by the authority, and give notice of availability in a State newspaper (reg 9).
Public authorities must undertake public consultation for their DAIP via newspaper notice (or local district newspaper for local governments) and website publication (reg 10). The Regulations note these obligations do not prevent other consultation methods (regs 5 and 10(2)).

Duties of the Commission in the trial:

The Commission must ensure participants meet ongoing residence requirements (reg 17) and must apply the specific criteria in regulations 19 to 22 when deciding disability and early intervention eligibility (regs 19-22). The language is mandatory: the Commission “must apply” the criteria.
The Commission may use assessment tools specified in an operational policy to decide eligibility (reg 23). Operational policy is defined by reference to the Act s 12(1)(b) and must be published by the Commission (reg 23(1)).
When assessing supports the Commission must consider value for money criteria (reg 25), evidence of effectiveness and good practice (reg 26), and the reasonable scope of family and informal supports (reg 27). These are express considerations rather than discretionary examples.
For compensation, the Commission must reduce plan funding by any applicable compensation reduction amount (reg 33(1)), and apply the identification and subtraction rules set out in regs 37-40 depending on the compensation source. The Commission must apply actuarial standards and consult the trial actuary where required (regs 32, 34, 38(2), 39(2)).
The Commission is empowered to advise persons considering a settlement about the likely compensation reduction amount (reg 35) and to ignore reductions wholly or partly in special circumstances such as financial hardship (reg 36).

Rights and entitlements of people with disability and participants:

People with disability are guaranteed a right to access services, buildings and information on the same basis as others through the DAIP standards and desired outcomes (Schedule 2 and Schedule 3). These Schedules specify the outcomes and standards public authorities must pursue.
Participants in a trial have a right to have their plans assessed and funded subject to the Regulations’ criteria; however, that right is qualified by the Commission’s duty to consider compensation and value for money (regs 25, 33).
Persons negotiating compensation can request the Commission’s advice about likely funding offsets before finalising settlements (reg 35).

Discretion and procedural constraints:

The Commission’s duties are frequently bounded by prescribed methods: identification of compensation reduction amounts requires subtractive steps and references to actuarial models and previously published Commission models (regs 37-39, 38(2)). Where discretion exists, it is usually expressed as an explicit power to act in special circumstances (reg 36) or as a power to use operational policy and actuarial consultation (regs 23, 32, 38(2), 39(2)).

Notably, the Regulations themselves do not set out specific penalty provisions. The enforcement apparatus and any offences or penalties are matters of the Act proper; the Regulations primarily create administrative duties, evidentiary standards and publication obligations to be implemented by the Commission and named public authorities.

The Regulations largely govern administrative obligations and do not themselves create detailed offence or penalty schedules. The text provided does not introduce new criminal offences or specify monetary penalties within the Regulations. Enforcement therefore is primarily administrative and executed through the Commission’s decision‑making powers and statutory duties under the Act.

Administrative enforcement mechanisms and points of compliance:

Commission decision‑making: Many regulatory obligations are framed as mandatory duties the Commission must perform, for example the requirement to apply the eligibility criteria (regs 19-22) and the requirement to reduce funding by a compensation reduction amount when applicable (reg 33). The primary enforcement mechanism is the Commission’s exercise of statutory discretion and adherence to procedural rules when making decisions about participant eligibility and plan approval.
Publication and consultation obligations on public authorities are enforceable in the sense that public authorities are required to meet the standards and publication formats in Schedule 2 and reg 9; failure would be a breach of the statutory obligations in Part 5 of the Act as applied by reg 6. The Regulations set the content and format expectations but do not themselves prescribe a monetary penalty in this text.
Compensation accounting: The Regulations require the Commission to identify, calculate and apply compensation reduction amounts using actuarial standards and published Commission models (regs 32, 34, 38(2), 39). Enforcement is effected through the Commission’s funding decisions and accounting processes; the Commission must consult specified actuarial expertise (trial actuary) when amortising reductions (regs 29, 34).
Discretion and remedies: The Commission has explicit discretion to ignore all or part of a compensation reduction amount in special circumstances (reg 36). The availability of this discretion creates an administrative pathway for relief in particular factual scenarios such as financial hardship.

What the Regulations do not do, and the enforcement gap this creates:

No penalties are specified in the Regulations text provided. Any sanction for non‑compliance (for example, failure by a public authority to publish a DAIP in the prescribed formats or failure by the Commission to apply actuarial standards) would depend on the Act’s provisions and the Act’s enforcement, not on the Regulations themselves. The Regulations should therefore be read together with the Act to determine the full enforcement framework.
The Regulations do not set out complaint handling penalties or enforcement procedures for non‑compliant providers beyond excluding certain NDIS services from the Act’s definitions in relation to complaints (reg 40A). That exclusion modifies the scope of the Act’s complaints regime rather than imposing new sanctions.

Procedural safeguards embedded in the Regulations:

Many decision steps require published models or consultation with the trial actuary (regs 32, 34, 38(2), 39(2)). These procedural requirements create audit paths and administrative standards that an interested party could rely upon when reviewing the Commission’s decisions.
The Commission’s discretion to advise persons considering settlements about likely compensation reduction amounts (reg 35) effectively inserts an opportunity to seek administrative guidance before settlements are finalised, reducing the risk of unexpected funding offsets later.

In short, the Regulations impose duties and procedural requirements that are enforced through administrative decision‑making rather than by punitive regulatory sanctions specified in the Regulations themselves. To understand criminal or pecuniary penalties and formal enforcement measures one must consult the Act; the Regulations provide the operational rules the Commission and public authorities must follow when performing their statutory functions.

The Regulations are heavily cross‑referential, both to the parent State Act (Disability Services Act 1993) and to Commonwealth legislation and rules. They operate as implementation instruments that rely on, adapt to or exclude parallel Commonwealth regimes.

Links to the Disability Services Act 1993:

The Regulations explicitly implement and clarify specific Act provisions: nominations for Board and Council (Act ss 7 and 22 are referenced in regs 3 and 4), prescribed Disability Service Standards under s 12 are set out in reg 4A, and Part 5’s scope is limited by reg 6 (which dictates which public authorities Part 5 applies to). The Regulations therefore do not stand alone; they flow directly from statutory delegations in the Act.

Interaction with Commonwealth NDIS law and rules:

The Regulations reference the National Disability Insurance Scheme (NDIS) framework in multiple places. Regulation 11 defines “NDIS Act” and “participant” by reference to s 26E of the Act. Regulations 14 and 24 state that references to “NDIS rule” in headings are to be read as references to comparable Commonwealth NDIS rules (the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 and the National Disability Insurance Scheme (Supports for Participants) Rules 2013 respectively). This establishes the Commonwealth scheme as the comparative template the State uses for its trial regime.
Regulation 40A expressly excludes services provided under the Commonwealth NDIS Act from the State Act’s definitions of “disability service” and “resident service” for complaints purposes. This creates a carve‑out: services provided under the Commonwealth NDIS Act (and those listed in the NDIS Provider Definition Rule 2018 s 5 for continuity of support) are outside the scope of State complaints definitions.

Interaction with Commonwealth compensation and social security law:

The compensation accounting rules require the Commission to subtract amounts payable under certain Commonwealth Acts and prescribed laws when calculating the compensation reduction amount (reg 38(1)(b)(i)-(iv) lists the Health and Other Services (Compensation) Act 1995, its Care Charges Act 1995, Part 3.14 of the Social Security Act 1991 and other laws prescribed by the NDIS rules). Thus, the Regulations treat Commonwealth entitlements as offsetting factors in State plan funding decisions.
The calculation of a reduction may consider “preclusion” periods arising under Commonwealth, State or Territory statutory schemes (reg 38(1)(c)). The Commission must, in the case of statutory insurance schemes, consult with the scheme administrator when identifying the total value of care and support expected under that scheme (reg 39(2)(b)) and use actuarial models published by the Commission (reg 39(2)(a)). The Regulations therefore require inter‑agency consultation and actuarial alignment across jurisdictions.

Use of other State legislation:

Publication and consultation requirements reference State instruments such as the Local Government Act 1995: newspaper notice requirements for local governments are to be given in the district of that local government under the Local Government Act 1995 (reg 9 and reg 10(1)(a)). Schedule 1 lists entities created under multiple State Acts (eg, Curtin University of Technology Act 1966, Health Services Act 2016, Gold Corporation Act 1987, Water Corporation Act 1995, etc.), thereby tying the Regulations’ Part 5 application to other statutory entities.

Reliance on administrative instruments:

Multiple rules require adherence to operational policies and actuarial models published by the Commission: operational policy is an instrument made under the Act s 12(1)(b) and is invoked in reg 23; applicable actuarial models published by the Commission are invoked in reg 38(2), and reg 34 requires amortisation in accordance with accepted actuarial standards in consultation with the trial actuary. These references embed administrative instruments within the legal effect of the Regulations and create dependencies: the Commission’s operational policies and actuarial models materially shape how the Regulations apply in practice.

Interpretation Act cross‑references:

The Regulations use the Interpretation Act 1984 s 32(2) to treat references to Commonwealth NDIS rules in headings as references to the comparable Commonwealth rules (regs 14, 24 and 30). This is an interpretive technique to align State regulation with Commonwealth rule numbering and content without wholesale incorporation.

Net effect:

The Regulations harmonise State trial arrangements with the Commonwealth NDIS framework while preserving State administrative control over participant eligibility, commissioning decisions and compensation accounting. They require the Commission to coordinate with Commonwealth and other scheme administrators for accurate offsets, and they explicitly exclude some Commonwealth NDIS services from the State complaints definitions. Practitioners must therefore read the Regulations together with the Act and the referenced Commonwealth instruments and scheme legislation to fully understand rights, offsets and the applicable complaint mechanisms.

The Regulations have been amended repeatedly since their initial promulgation; the compilation table in the Regulations gives a chronology of amending instruments and commencement dates. The Amendment history matters because several key operational features were added or updated after 2004.

Chronology and key amendments:

Original instrument: Disability Services Regulations 2004, published 14 Dec 2004, commenced 15 Dec 2004 (compilation table).
2006, 2013 and 2014 amendments: There are consequential amendments linked to Electricity Corporations and later substantive amendments in 2013 and 2014. Notably, a substantial set of amendments were inserted by the Disability Services Amendment Regulations 2014, Gazette 30 Jun 2014 (regulations inserted including Part 2 structure and trial provisions). The 2014 amendments inserted Division 1 of Part 2 and many regulations concerning the trial of the disability services model (see heading inserted: Gazette 30 Jun 2014 p. 2395).
2015 and 2016 amendments: Multiple amending regulations occurred in 2015 and 2016 (Disability Services Amendment Regulations 2015; No. 2 and No. 3 in 2016), adjusting trial area definitions, dates and other procedural matters (compilation table entries for 2015 and 2016; reg 11 amended 2016 and 2017).
Late 2016 and 2017: Amendments in late 2016 and mid‑2017 updated trial areas (eg, 2017 expansion area) and trial periods (reg 12 amended and multiple commencement dates throughout 2016-2017). These changes are reflected in reg 11’s multiple amendments and reg 12 amendments specifying start and end dates for trial areas.
2015 Part 3 addition: Part 3 (Complaints) heading inserted 17 Jul 2015 p. 2915, and subsequent adjustments occurred.
2021 and 2025 amendments: The Regulations were amended in 2021 and again in 2025. Specifically, SL 2021/165 (Disability Services Amendment Regulations 2021) introduced reg 40A which excludes NDIS services from the definitions of disability service and resident service for complaints purposes (reg 40A inserted SL 2021/165 r. 4). Schedule 1 was later amended by instruments in 2025 (SL 2025/114 and SL 2025/189) to add, remove or update listed public authorities (compilation table entries and Schedule 1 amendment notes). For example, Schedule 1 now includes “Keystart established under the Keystart Act 2024 section 6(1)” (Schedule 1 entry 13) reflecting a later statutory development.
Deletions and replacements: The compilation table records deletions of certain schedules or items over time, for example Schedule 4 deleted SL 2021/165 r. 6, and several Schedule 1 items are shown as deleted or replaced (Schedule 1 annotations).

Operational consequences of amendments:

Trial geography and dates: The amendments changed the trial’s geographic scope and timing, creating specific entry dates for residence qualifications (reg 16 lists particular dates tied to specific areas). Practitioners must check the date of the amendment relevant to a given client’s circumstances to determine whether residence on a particular date suffices.
Standards and publications: The 2014 insertion of Disability Service Standards in reg 4A formalised the Commission’s 2014 endorsed standards (rights, participation and inclusion, individual outcomes, feedback and complaints, service access, service management), and the 2013 and later amendments adjusted DAIP reporting and consultation obligations (regs 7-10).
Complaints carve‑outs: The 2021 addition (reg 40A) changed the interaction between State complaints mechanisms and Commonwealth NDIS services , an important jurisdictional amendment.

Practical note for professionals:

The compilation table in the Regulations and the margin notes showing insertion and amendment dates are essential to determine which version of a rule applied at a particular point in time, especially for residency and trial period questions. The Regulations’ amendments demonstrate active alignment with Commonwealth NDIS developments and State administrative needs. For any individual question about entitlement or obligations, practitioners should check the version of the regulations in force at the relevant date.

The Regulations as provided do not contain or cite any judicial decisions or litigation. There are no cases named in the Regulations text or Schedules. The compilation table and notes record legislative amendment activity; they do not record litigation.

What the Regulations disclose about litigation risk and review:

Administrative decisions by the Commission (eligibility determinations, compensation reduction calculations, DAIP compliance) may be subject to judicial review or merits review under State administrative law, but the Regulations themselves do not set out the routes for review or report any decided cases. Any legal challenges arising from the application of these Regulations would commonly involve allegations that the Commission failed to apply the mandatory criteria, misapplied actuarial models, failed to follow procedural requirements (eg, consultation or publication), or misused its discretion under reg 36. Those are potential causes of action, but the Regulations do not themselves record any litigation.
The Regulations create multiple decision points involving significant administrative discretion and technical expertise (eg, actuarial modelling in regs 32, 34, 38 and 39, use of operational policy in reg 23). In other regulatory contexts, those sorts of decision steps are frequent targets for judicial review when applicants allege jurisdictional error, lack of evidence, or failure to follow required procedures. The Regulations, however, lack any express privative clause or non‑review provision; absent the Act text, one cannot determine whether special review limitations exist under the parent statute. The Regulations themselves are silent on review pathways.

For practitioners:

Because the Regulations rely on actuarial models, operational policy and cross‑jurisdictional consultation, challenges to Commission decisions may involve technical and evidentiary arguments. Parties seeking review will likely need access to the Commission’s operational policies, actuarial models, and any actuarial advice from the trial actuary to test the correctness of the Commission’s calculations and methodology.
The absence of reported cases in the Regulations means that precedential guidance specific to how these Regulations have been judicially interpreted is not available from this source. Lawyers and advocates should treat the Regulations as setting the legal framework and expect that substantive legal developments will be recorded in decisions under the Act rather than in the Regulations themselves.

The Regulations contain several technical traps and practical pitfalls that can affect eligibility, plan funding and compliance for public authorities and participants. These “gotchas” arise from date‑specific tests, evidentiary steps tied to settlements, dependence on administrative instruments, and narrowly prescriptive publication formats.

Residence and timing traps:

Date‑locked qualifying residence tests: Regulation 16 ties qualifying residence to specific dates for each trial area (for example, residing in the Lower South West area on 1 July 2014, Cockburn‑Kwinana on 1 July 2015, Ranges on 1 October 2016, etc.). If a person moved into the area shortly after the listed date they will only meet the requirement if they also satisfy the “dominant purpose” test and exceptional circumstances (reg 16(2)). Practitioners must check the precise date for each trial area; a one‑day difference may change eligibility.
Dominant purpose test for movers: To qualify after the listed date, a mover must have started to reside in the area “for the dominant purpose of accessing supports not provided under the Act” (eg, education, employment, health care or family support) (reg 16(2)(b)). This is a high‑threshold factual assessment; documentary evidence of the mover’s purpose is likely necessary, and failure to substantiate the dominant purpose may result in ineligibility.
Children’s eligibility links to parental residence: For children, eligibility may derive from a parent’s residence on the day of birth, or from a carer who has resided in the area since the relevant commencement date (reg 16(3) and (c)-(dc)). For children of separated parents, eligibility can be satisfied by one parent meeting the qualifying residence requirement or by satisfying the dominant purpose plus exceptional circumstances test (reg 16(3)(e)). Practitioners must gather precise family residence histories and birth dates to establish entitlement.

Compensation accounting complexity:

Multiple compensation paths: The treatment differs depending on whether the compensation is a judgment/settlement with an objectively identifiable Commission component (reg 31(1)(a)), a judgment/settlement that fixes an amount (reg 31(1)(b)), compensation under a statutory scheme (reg 31(1)(c)), or an agreement to give up compensation (reg 31(1)(d)). Each path invokes different subtraction steps (regs 37-40). Mistaking the category can produce incorrect reductions.
Requirement to subtract statutory entitlements and preclusion values: Regulation 38(1)(b) requires subtracting sums payable under specific Commonwealth Acts and laws prescribed by NDIS rules. Also, a “preclusion” period under a statutory scheme may affect the subtraction (reg 38(1)(c)). A practitioner must identify all overlapping Commonwealth entitlements and preclusion impacts and may need to consult scheme administrators (reg 39(2)(b)).
Amortisation and actuarial models: Amortisation of reductions over expected lifetime requires “accepted actuarial standards” and consultation with the trial actuary (reg 34). Regulation 38(2) mandates use of any applicable actuarial model published by the Commission. If the Commission’s model changes over time, calculations and outcomes can differ materially.
Potential for double counting and offsets: Regulations 37(1) and 38(3) contain provisions to avoid double counting when multiple compensation reduction amounts apply for the same injury, requiring reductions of amounts subtracted in other steps. Practical calculation errors here can overstate offsets.

Dependence on Commission materials and discretion:

Reliance on operational policy and published models: The Commission may use assessment tools specified in operational policy (reg 23), and compensation calculations are tied to actuarial models the Commission publishes (reg 38(2), 39(2)(a)). These materials are administrative instruments of the Commission; their content and publication timing materially affect outcomes. Parties should obtain those published instruments when advising clients.
Broad but conditional discretion: The Commission’s power to ignore all or part of a compensation reduction in “special circumstances” (reg 36) is discretionary and fact‑sensitive. However, there is no exhaustive list of special circumstances; instead the regulation gives financial hardship as an example. Parties should prepare thorough evidence to persuade the Commission to exercise discretion.

Publication and format quirks:

Prescriptive publication formats: Regulation 9 requires DAIPs to be available on request in electronic format, hard copy standard and large print, and audio format “on cassette or compact disc.” The inclusion of cassette is anachronistic; nevertheless, a public authority that simply offers web publication and email without ensuring the specified hard copy and audio formats may not be strictly complying with reg 9. Practitioners advising public authorities should ensure accessible alternatives meet the precise regulatory text or the Act’s interpretation of “available”.
Newspaper notice requirement: Both DAIP publication and Board/Council nomination notices require publication in a newspaper circulating throughout the State or, for local governments, in the district under the Local Government Act 1995 (regs 3, 4, 9, 10). Failure to use the stated notice route may undermine the adequacy of consultation.

Scope exclusion surprises:

Exclusion of Commonwealth NDIS services from complaints definitions (reg 40A) removes certain service providers from the State Act’s complaints framework. Complainants and providers must not assume that State complaints machinery applies to services under the NDIS; instead, Commonwealth processes will primarily govern.

Interpretive pitfalls:

Headings referencing Commonwealth NDIS rules are not full incorporations but comparators (regs 14, 24 and 30), relying on the Interpretation Act 1984 s 32(2). Users must be cautious: a heading referring to an “NDIS rule” is a guide to comparability, and the precise State regulatory text governs. In other words, do not assume automatic adoption of Commonwealth rule content where the Regulation’s text differs.

Overall, these gotchas mean that both advocates and public authorities must pay careful attention to dates, documentary proof (residence, compensation composition), the Commission’s operational policies and actuarial models, and formal publication/consultation steps prescribed by the Regulations.

For practitioners advising public authorities, participants, claimants, or the Commission, compliance requires line‑by‑line attention to the Regulations’ procedural, evidentiary and publication prescriptions. The following practical checklist maps specific actions to the relevant regulatory provisions.

For prospective participants and their advisers:

Verify residence on the governing date: Check whether the person (or at least one parent for children) was residing in the relevant trial area on the date specified in reg 16(1) for that area (eg, 1 July 2014 for Lower South West). If the prospective participant moved in after that date, assemble evidence establishing that the move was for the dominant purpose of accessing supports not provided under the Act (reg 16(2)(b)) and any exceptional circumstances (reg 16(2)(c)).
Gather medical and clinical evidence for disability tests: For permanency, ensure evidence addresses the tests in regs 19 and 21: demonstrate that no known, available and appropriate evidence‑based clinical, medical or other treatments would be likely to remedy the impairment (reg 19(2) and reg 21(2)). If the impairment is degenerative, document why treatment would be unlikely to improve it (reg 19(5)).
Demonstrate substantially reduced functional capacity where necessary: For functional capacity assessments under reg 20, collect documentation showing reliance on assistive technology, need for assistance from others, or inability to perform tasks even with assistance (reg 20(2)(a)-(c)).
For early intervention claims: frame evidence around likely trajectory, potential benefits of early intervention, and range of evidence sources, including expert opinion and information from carers or family (reg 22(2)).
Prepare compensation documentation: If there is a judgment, settlement, statutory scheme payment or agreement to give up compensation, collect the judgment or settlement papers, details of any identified Commission component, any amounts paid for support after the judgment and before becoming a participant, and information about amounts payable under Commonwealth schemes listed in reg 38(1)(b). Share these with the Commission when applying for a plan (regs 31, 37-40).
Seek Commission advice where appropriate: Use reg 35 to request the Commission’s advice about likely compensation reduction amounts before entering settlements or agreements. This can reduce later funding surprises.

For public authorities required to prepare DAIPs:

Meet the Schedule 2 standards: Draft DAIPs that provide means to achieve the standards in Schedule 2 (access to services, buildings, information, staff service standards, complaints access, public consultation and employment opportunities).
Report to Schedule 3 outcomes: Ensure DAIP reporting includes progress on the desired outcomes in Schedule 3 and the strategies used to inform agents and contractors (reg 8).
Publish in the prescribed formats and give notice: Make DAIPs available on request in electronic and hard copy (standard and large print) and audio formats (cassette or CD), provide by email on request, publish on the authority’s website and give notice in a State newspaper or district newspaper for local governments (reg 9). Keep records to show compliance with these publication steps.
Follow consultation procedures: Run public consultation campaigns in accordance with reg 10(1)(a)-(b), using newspaper notice (or district notice) and website publication; document submissions and responses (reg 10(2) permits additional consultation methods).
Train staff and contractors: Implement strategies to inform agents and contractors about DAIPs as required by reg 8(b), and maintain evidence of dissemination and training.

For the Commission and Agency administrators:

Publish operational policies and actuarial models: Ensure operational policies that specify assessment tools (reg 23(1)) and actuarial models referenced in reg 38(2) and reg 39(2)(a) are publicly available and current. Use the trial actuary in actuarial consultations as required (reg 29, reg 34).
Apply the prescribed criteria and document decisions: When assessing eligibility, apply the mandatory tests in regs 19-22 and record the factual and expert evidence relied upon. When assessing supports, apply regs 25-28 and document the value for money assessment, evidence of good practice and consideration of family and informal supports (regs 25-27).
Calculate compensation reduction amounts methodically: For each compensation type, follow the step‑by‑step calculations in regs 37-40, consult actuarial models where required (reg 38(2)), and avoid double counting by following the cross‑referencing provisions in reg 38(3) and reg 40(2). Use amortisation rules in reg 34 where applicable.
Maintain clear communications channels: Use reg 35 to advise claimants pre‑settlement when requested. Explain how actuarial models and amortisation will operate in practice.
Exercise discretion prudently: If considering ignoring a compensation reduction amount under reg 36, document the special circumstances, the decision rationale and any evidence of financial hardship or other qualifying circumstances.

For persons negotiating compensation:

Engage the Commission early: Where a potential settlement or agreement might trigger a compensation reduction, request the Commission’s advice under reg 35 before finalising the agreement.
Document intended use of settlement funds: Keep records of amounts paid for supports after a judgment or settlement and before plan commencement; these are creditable under regs 37(1)(b), 38(1)(f) and 40(1)(c).
Consider timing and amortisation: Be aware that the Commission may amortise reductions over the participant’s expected remaining lifetime following accepted actuarial standards in consultation with the trial actuary (reg 34). Settlement structuring (eg, lump lump sum vs periodic payments) will affect the calculation (reg 32).

For complaint navigators and advocates:

Confirm whether State complaints rules apply: If the service is provided under the Commonwealth NDIS Act or by certain NDIS providers, reg 40A excludes those services from the State Act’s definitions of “disability service” and “resident service” for complaints. Direct complainants to the Commonwealth complaint mechanisms for NDIS services.
Retain documentary proof of notices and consultation: When challenging a public authority’s compliance with DAIP obligations, collect the authority’s newspaper notices, website evidence, accessible format copies and records of consultation (regs 5, 9, 10).

Record‑keeping and evidence:

Across all actors, maintain contemporaneous records supporting residence, evidence of impairment, expert opinions, settlement/judgment documents, amounts paid for supports, DAIP publication formats and consultation steps, and Commission operational policies and actuarial models relied upon. Those records are central to administrative review or judicial scrutiny.

Summary of immediate action points:

Check exact dates and geographic definitions in reg 11 and reg 12 for residence qualification.
Obtain and preserve settlement/judgment documentation and details of statutory entitlements for compensation calculations.
Obtain current Commission operational policies and actuarial models referenced by the Regulations.
For public authorities, ensure DAIPs meet Schedule 2 and Schedule 3, are published in the required formats and that notice and consultation requirements are documented.

Following these concrete steps aligns practice with the Regulations’ mandatory criteria and reduces the practical risk of adverse administrative outcomes.

Deep Dive

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