National Disability Insurance Scheme (Management of Funding) Rules 2024

The instrument operates within the framework of the NDIS Act, and several key concepts from that Act are central to its operation. A “participant” is a person who meets the access criteria for the NDIS and has an approved plan. A “plan” includes a statement of participant supports which lists the reasonable and necessary supports funded by the NDIS. “Funding component amounts” and “total funding amount” refer to the budget allocations within a plan. The “CEO” is the Chief Executive Officer of the National Disability Insurance Agency, whose delegates make operational decisions. “Supports” means the goods, services or activities funded under the plan, which could include therapies, personal care, assistive technology, or home modifications. The instrument is triggered when a decision must be made under sections 44 or 74 of the Act about who will manage the funding for supports. Section 44 deals with plan management for participants aged 18 or over. It allows the CEO to decide that a participant may manage funding themselves (self management), that a registered plan management provider may manage the funding, that a plan nominee may manage the funding, or that the CEO will manage the funding (agency management). Section 74 deals with a similar decision for child participants (under 18). The instrument introduces two distinct tests. The “unreasonable risk” test (Part 3) asks whether management of funding by a particular person or entity would present an unreasonable risk to the participant. The “compliance with section 46” test (Part 2) asks whether section 46 of the Act would be unlikely to be complied with if a particular person managed the funding. The two tests are separate but may be considered concurrently. The rules list mandatory matters for both tests, but they are not exhaustive: the CEO can always consider “any other matters that the CEO considers relevant” (sections 5(2)(g), 6(2)(h), 6(3)(e), 6(4)(h), 6(5)(h)). This catch all preserves discretion. The rules also contain negative criteria that the CEO must not consider: the nature of the participant’s impairments, the funding amounts, and the fact that a past plan provided less funding than possible. These prohibitions appear in section 5(3) (for section 46 decisions) and section 6(6) (for unreasonable risk decisions). Importantly, the rules do not define “unreasonable risk” or “unlikely to be complied with” , they only supply the factors for making those assessments. The instrument is best understood as a procedural checklist designed to standardise decision making, reduce unlawful discrimination (by banning consideration of impairment type), and ensure that financial competence and history of compliance are central considerations.

The rules directly affect NDIS participants who are seeking to manage their own funding (self management) or who want a third party to manage it. For participants, the rules mean that a decision to allow self management will turn on a specific set of risk factors: their history of compliance with section 46, their ability to manage finances taking into account available support, whether they have been the subject of exploitation or undue influence, and whether a court has ordered someone else to manage their finances. A participant with a past misuse of funds or a poor record of responding to information requests from the Agency may be deemed an unreasonable risk, even if their impairment is unrelated. Participants cannot be refused self management solely because they have a high funding package or because of the nature of their disability. Registered plan management providers are also significantly affected. Under section 6(3), the CEO must consider whether management by the provider would present an unreasonable risk, focusing on past mitigation of risks, whether the participant is at risk of harm or exploitation, and any matters raised by the provider or participant. Providers with poor compliance histories or associations with fraudulent conduct will face greater scrutiny. The rules do not require the CEO to consider the provider’s financial viability or business practices directly, only risk to the participant. Plan nominees (persons appointed to act on behalf of a participant under section 48 of the Act) are covered by section 6(4), which adds specific factors about the nominee’s own capacity and whether a court has ordered another person to manage the nominee’s finances. This imposes a form of due diligence on the nominee’s fitness before they are allowed to handle plan funds. For child participants, the rules in section 6(5) apply to the person with parental responsibility or another person determined by the CEO. Again, factors include the person’s capacity, past court orders, and risk of harm or exploitation. The child’s impairment cannot be used as a basis to deny the parent the right to manage funding. The NDIA CEO and delegates are the primary addressees of the rules. They must now give reasons that reference the specified factors. This creates a compliance burden on decision makers to document which factors were considered and why prohibited factors were ignored. It also exposes decisions to potential judicial review if the CEO fails to consider a mandatory factor or considers a prohibited one. Indirectly, the rules affect providers who supply supports because the method by which funding is managed (self managed versus plan managed versus agency managed) affects how quickly providers are paid and what compliance obligations they face. The rules do not create any new rights for participants or providers to challenge decisions; those rights exist elsewhere in the Act.

The instrument imposes duties primarily on the CEO. For decisions under sections 44 and 74 of the Act, the CEO must have regard to the listed matters in sections 5 and 6. This is a mandatory duty; failure to consider a relevant listed matter could make a decision legally unreasonable or procedurally flawed. The CEO must also disregard the prohibited matters in sections 5(3) and 6(6). That duty overrides any contrary instruction in other parts of the instrument (see subsections 5(4) and 6(7)). The CEO does not have a duty to give a positive or negative weight to any factor , only to consider them. However, the catch-all “any other matters that the CEO considers relevant” allows the CEO to go beyond the list, which reduces the transparency benefit of the codified factors and may reintroduce considerations that the rules otherwise ban. The instrument confers a qualified right on participants, plan management providers, nominees and child representatives to have “matters raised” by them considered. For example, under section 6(2)(g), the CEO must have regard to any matters raised by the participant that the CEO considers relevant. This is not an unfettered right to be heard , the CEO still decides relevance , but it does create an obligation to at least turn their mind to the participant’s submissions. Similarly, under section 6(3)(d), the CEO must consider matters raised by the plan management provider or the participant. For nominees, section 6(4)(g) covers matters raised by both participant and nominee. For child representatives, section 6(5)(g) covers matters raised by the participant (the child) or the person. This is important because it gives affected persons a statutory footing to proactively provide information about risk mitigation, support networks, and past performance. It does not, however, create a right to a hearing or to legal representation. The instrument also creates a right not to be discriminated against on the basis of impairment type, funding amount, or past under funding. The prohibition in sections 5(3) and 6(6) is absolute: the CEO must not consider those matters, even if they are arguably relevant to risk. For example, a participant with a cognitive impairment cannot have that impairment used as a reason to deny self management; instead, the CEO must consider the participant’s ability to manage finances with available support. Similarly, a large plan budget cannot be used to justify agency management. This right protects participants from stereotypical or financially driven decisions. However, the instrument does not create a private right of action or a statutory tort. Breach of these duties may be remedied through administrative review by the Administrative Appeals Tribunal or judicial review in the Federal Court. The instrument also does not affect the CEO’s power to decide other aspects of plan management, such as the choice between payment methods, plan reviews, or complaint handling. Those are governed by separate provisions of the Act and other rules.

This instrument does not itself create penalties, infringement notices, or criminal offences. It is a procedural rule that governs how the CEO must make decisions. Enforcement of the rule therefore occurs through administrative law mechanisms. If the CEO makes a decision to deny self management or to require agency management that fails to consider a mandatory factor, or that considers a prohibited factor, the affected person may apply to the Administrative Appeals Tribunal for merits review of the decision under the NDIS Act. Alternatively, they may seek judicial review in the Federal Court or the Federal Circuit and Family Court of Australia under the Administrative Decisions (Judicial Review) Act 1977 on grounds such as taking an irrelevant consideration into account, failing to take a relevant consideration into account, or unreasonableness. The instrument does not specify consequences for the CEO’s failure to comply. There is no provision requiring the CEO to re make a decision or to disclose reasons referencing the factors, though general administrative law may imply such obligations. The practical enforcement burden falls on participants and providers to identify procedural errors and challenge them. For participants and providers who misuse funds (i.e., breach section 46 of the Act), the instrument feeds into the risk assessment but does not add new penalties. Existing enforcement powers under the NDIS Act include civil penalties, revocation of provider registration, suspension of plan management, and criminal prosecution for fraud. The instrument simply gives the CEO a structured way to predict future non compliance based on past behaviour. The fact that the CEO must consider a person’s “history of compliance with section 46” (section 5(2)(a)) effectively means that a history of misuse can be used to deny future management rights. This is a form of retrospective enforcement without a new penalty. The instrument also references “fraud or the mismanagement or misapplication of funds” (section 5(2)(c)) and “exploitation or undue influence” (section 5(2)(d)), which may overlap with criminal offences. However, the CEO is not required to prove these to any standard; they are merely factors to consider. This could lead to contested decisions if a person disputes whether such conduct occurred. The instrument does not provide a mechanism for the CEO to verify allegations before considering them. In terms of enforcement against the CEO, there is no penalty for breaching the instrument, only the risk of a decision being set aside. This places a premium on the CEO recording their reasoning to show compliance.

The instrument is made under the National Disability Insurance Scheme Act 2013 and sits within the broader NDIS legislative framework. It must be read alongside the Act’s primary provisions about plan management, particularly sections 44, 46 and 74. Section 46 of the Act requires that funding for supports must be spent only on supports that are included in the plan and that meet the conditions of the plan. This rule provides the substantive standard that the CEO uses when considering whether a person is unlikely to comply. The instrument also interacts with other legislative instruments made under the NDIS Act, such as the National Disability Insurance Scheme (Plan Management) Rules and the National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules. While not cited, those rules may impose additional conditions on how plan management providers operate and how they are registered, which could affect the CEO’s assessment of risk. For instance, if a provider is already subject to sanction under the quality and safeguards framework, that may be a “matter that the CEO considers relevant” under the catch-all. The instrument explicitly references the Bankruptcy Act 1966 in section 5(3)(d), stating that the CEO must not have regard to a bankruptcy from which the person has been discharged. This prevents past financial failure from permanently barring a person from managing funding, but undischarged bankruptcy is not similarly protected and could presumably be considered. The instrument also interfaces with state and territory guardianship laws. Under sections 6(2)(f) and 6(4)(f), the CEO must consider whether a court or tribunal has ordered another person to manage the property or finances of the participant or the plan nominee. This means that if a participant is under a financial management order under state law, the CEO must take that into account when deciding whether self management is an unreasonable risk. The instrument does not, however, require the CEO to follow such an order; it is just a factor. For child participants, the instrument interacts with family law and child protection laws. Section 74 of the Act already provides that if a child requires a person to act, it is usually the person with parental responsibility, unless the CEO determines otherwise. The instrument adds that the CEO must consider the person’s ability to manage finances and any court order concerning that person’s own finances. The instrument does not override privacy laws such as the Privacy Act 1988. The CEO must still collect and use personal information (such as history of compliance, court orders, and financial capacity) in accordance with the NDIA’s privacy obligations. Finally, administrative law is the primary enforcement and review mechanism. The Administrative Appeals Tribunal Act 1975 and the Administrative Decisions (Judicial Review) Act 1977 provide the avenues for challenge. The instrument does not exclude or modify those regimes.

The instrument is an original legislative instrument made on 17 December 2024. As stated in the commencement table, the whole instrument commenced on the day after registration, which was 17 December 2024. The instrument does not amend or repeal any previous legislative instrument; it is a standalone set of rules. There is no amendment history because the instrument has not been amended since its commencement. The note in section 2(1) clarifies that the commencement table relates only to the provisions of the instrument as originally made and will not be amended to deal with any later amendments. This means that unlike some instruments where the commencement table is updated, this instrument’s table is static. Any future amendments would presumably be made by a new amending instrument. Because the instrument is new, it is not yet possible to assess how frequently it will be amended or what policy changes may drive amendments. However, the underlying subject matter , risk assessment in plan management , is sensitive and may evolve as the NDIA gains experience with the codified factors. Potential future amendments could include adding more mandatory factors (e.g., a requirement to consider whether the participant has adequate insurance), removing the catch-all to limit discretion, or adding prohibitions (e.g., banning consideration of criminal history unrelated to fraud). Practitioners should monitor the Federal Register of Legislation for any amending instruments. The instrument is made under the Acts Interpretation Act 1901 and the Legislation Act 2003, which govern its publication and potential disallowance by Parliament. As a legislative instrument, it is subject to parliamentary scrutiny and could be disallowed within 15 sitting days of tabling. No disallowance motion has been recorded to date. The instrument’s explanatory statement (if one exists) would provide further context about why the listed factors were chosen, but the source text does not include it. For the purpose of this deep dive, we note only that the instrument has no amendment history. This is a fact that users should confirm when relying on the instrument.

The instrument is very recent (commenced 17 December 2024), and there is no reported litigation involving its interpretation or application. No cases are cited in the instrument itself. Consequently, there is no judicial guidance on how the listed factors should be weighed, how the catch-all should be applied, or what constitutes an “unreasonable risk” or “unlikely to comply” within the meaning of the rules. This absence of precedent creates uncertainty for both decision makers and affected persons. Potential areas of future litigation include challenges to decisions that rely heavily on the catch-all “any other matters that the CEO considers relevant”. If the CEO uses that provision to reintroduce prohibited considerations (such as the nature of an impairment), the decision could be challenged for taking an irrelevant consideration into account. Another likely ground of challenge is the CEO’s assessment of a person’s “ability or capacity to make decisions or to appropriately manage finances”. The instrument does not define “ability” or “capacity”, and the CEO may be required to use evidence (such as a capacity assessment or a report from a support worker). Disputes about the quality of that evidence may lead to litigation. For plan management providers, a decision that a provider poses an unreasonable risk could affect their business viability. Providers may seek review arguing that the CEO failed to consider past mitigation (section 6(3)(b)) or that the CEO gave undue weight to a past compliance issue that was minor or remedied. The instrument does not set a threshold for what constitutes a “history” of non compliance , one isolated incident could arguably trigger a negative decision. Participants who are denied self management may argue that the CEO did not give sufficient weight to the support or assistance they receive (sections 6(2)(e) and 5(2)(e)). The instrument requires the CEO to take into account “any support or assistance the person is likely to receive”, so a failure to consider a robust support network could be fatal to a decision. Another potential litigation area is the scope of the prohibited matters. For example, could a participant’s impairment be indirectly considered through the assessment of “ability to manage finances”? That could be argued as an indirect breach of the prohibition. Courts may need to draw the line. The prohibition on considering “any total funding amount or funding component amount” may also be tested if the CEO argues that the amount of funding is relevant to the complexity of management rather than risk per se. The instrument appears to bar that reasoning. Finally, because the instrument is made under sections 44 and 74 of the Act, any challenge to the validity of the instrument itself (e.g., on the ground that it impermissibly restricts CEO discretion or is inconsistent with the Act) could be brought in the Federal Court. None of these cases have been reported, but practitioners should watch for decisions from the Administrative Appeals Tribunal and the Federal Court in the coming years.

Several aspects of the instrument may trap unwary participants, providers and even decision makers. The first is the catch-all “any other matters that the CEO considers relevant”. While the instrument lists many mandatory factors, the CEO is not limited to them. This means that even if a participant satisfies all the listed factors positively, the CEO could still find an unreasonable risk based on an unlisted matter. The instrument gives no examples of what such matters could be. This undermines the apparent certainty of the codified list. Participants and providers should therefore proactively provide information that addresses foreseeable unlisted risks, such as complex family dynamics or the participant’s legal status. A second gotcha is that the prohibition on considering the nature of impairments (section 6(6)(a)) does not prevent the CEO from considering the effects of an impairment on financial capacity. The CEO can consider “the participant’s ability or capacity to make decisions or to appropriately manage finances” (section 6(2)(e)). If a cognitive impairment affects decision making, that can be considered. The prohibition only targets the impairment label itself, not its functional consequences. This may create confusion: a participant with an intellectual disability could be told that their impairment was not considered, but the functional impact of that impairment on financial management was considered. That is legally permissible. Third, the instrument does not specify the standard of proof or the burden of proof. In practice, the CEO may treat the listed factors as a checklist and place the onus on the participant or provider to demonstrate that risk is low or mitigated. There is no requirement for the CEO to quantify risk or to compare it to an objective baseline. This gives the CEO wide latitude to find risk based on subjective impressions. Fourth, for section 46 compliance decisions, the CEO must have regard to the person’s history of compliance with requests or requirements under the Act to give information (section 5(2)(b)). This includes refusals, failures, and whether the person had a reasonable excuse. Importantly, the CEO can consider steps taken after the deadline to comply (section 5(2)(b)(ii)). So a person who eventually provided documents late could still be penalised in the risk assessment. Fifth, the instrument applies to decisions about management of funding “to a particular extent”. This means that a person could be allowed to manage part of their funding but not all. The factors must be applied to the specific extent requested. For example, a participant might be considered competent to manage a small budget for low risk supports (e.g., consumables) but not for expensive supports like home modifications. The instrument does not guide how to differentiate. Sixth, the note to section 6 about child representatives states that the CEO can determine a person other than the person with parental responsibility. That determination is discretionary and not constrained by the factors in section 6(5). So the CEO could decide that a grandparent or a state guardian should manage a child’s funding based on a different set of considerations not set out in the instrument. Seventh, the instrument does not address conflicts of interest. For example, a plan management provider that also provides supports to the participant could present a conflict. The listed factors do not explicitly require the CEO to consider conflicts. It could be a “matter the CEO considers relevant” under the catch-all, but it is not mandatory. This is a gap. Finally, the instrument does not provide a transitional period. It applied from 17 December 2024 to all decisions made after that date, including decisions on existing plans that were under review. Participants with existing self management approval may not be affected unless their plan is reviewed, but new applicants face the full checklist. Providers and nominees should review their compliance history and ensure they can respond to potential CEO enquiries.

Compliance with this instrument is not about the affected person following detailed obligations; the compliance burden falls primarily on the CEO to consider the listed factors. However, participants, plan management providers, nominees and child representatives can take proactive steps to improve their prospects of a favourable decision.

For participants who wish to self manage their funding, the key is to demonstrate capacity and low risk. Participants should be prepared to provide evidence of their ability to manage finances, such as bank statements, a budget, or a letter from an accountant or support coordinator. If the participant receives support from a family member or a support worker to help with financial decisions, that support should be documented and explained to the CEO. The participant should also disclose any prior compliance issues with the NDIA (e.g., late invoices, disputed payments) and explain why those issues are resolved or were due to circumstances beyond their control. Participants should not rely on the prohibition on considering impairment type to argue that their impairment is irrelevant to financial capacity; instead, they should address functional capacity head on. If a participant has a history of fraud or mismanagement, they are unlikely to pass the section 46 compliance test unless they can show a reasonable excuse and remedial steps. Participants should also be aware that the CEO may contact them for information under section 5(2)(b). Responding promptly and fully is critical.

For registered plan management providers, the instrument does not impose direct compliance duties, but the CEO will assess whether management by the provider presents an unreasonable risk. Providers should maintain a clean record of compliance with section 46, including proper use of funds and timely reporting. Providers should also document any risk mitigation strategies they have in place for participants, such as safeguards, financial monitoring, or involvement of family members. If a provider has been the subject of exploitation or undue influence claims (even if unproven), they should have evidence that those matters were unfounded or addressed. Providers should be prepared to respond to CEO requests for information about their systems and staff. The catch-all allows the CEO to consider any other matter, so providers should avoid any conduct that could be viewed negatively, such as aggressive marketing to vulnerable participants.

For plan nominees, the instrument adds specific scrutiny on the nominee’s own financial ability and whether a court has ordered someone else to manage the nominee’s finances. A nominee who has had a financial management order made against them will likely face an uphill battle. Nominees should proactively disclose any such orders and explain how they are now capable. They should also provide evidence of support they receive to manage the participant’s funds separately from their own.

For child representatives (usually parents), the factors mirror those for plan nominees. The key is to show ability to manage the child’s funding, avoid any history of exploitation, and demonstrate that informal supports (e.g., other family members, mainstream services) are in place to mitigate risk. Representatives should also be aware that the CEO could decide that someone else should manage the funding if they deem the representative unsuitable, so providing evidence of good financial management of the child’s funds is essential.

For the CEO and NDIA staff, compliance means using the instrument as a checklist in all relevant decisions. Decision makers should record which factors were considered, what evidence was used, and why they were satisfied or not satisfied. They must explicitly note that prohibited matters were not considered. Failure to do so could expose decisions to review. The instrument does not require the CEO to give reasons, but good administrative practice would include a statement of reasons referencing the statutory factors. The catch-all should be used sparingly and with justification to avoid arbitrary outcomes.

Overall, the instrument creates a more structured environment, but compliance is largely about preparation and transparency rather than onerous new obligations.