National Disability Insurance Scheme (Old Framework Plans) Determination 2024

Old framework plan. The determination does not define this term; it is defined in the Act itself. Broadly, an old framework plan is a participant’s plan that was approved under the pre‑2024 legislative framework, before certain amendments to the NDIS Act concerning plan supports and funding flexibility. The determination applies only to those plans, not to plans made under the newer framework.

Funding component amount. This is the dollar amount allocated to a particular group of supports within a plan. Section 33(2A)(c) of the NDIS Act requires that each group of supports have a funding component amount. The determination’s section 6 prescribes how that amount must be calculated. The amount is the sum of the unit‑cost multiplications for each support item in the group, rounded to the nearest cent.

Support item. The determination defines a support item as one specified in a “pricing document”. Pricing documents are three agency publications: Pricing Arrangements and Price Limits, Assistive Technology, Home Modifications and Consumables Code Guide, and Pricing Arrangements for Specialist Disability Accommodation. These documents are not registered as legislative instruments and can be updated by the Agency without notice to participants or providers. This creates a compliance risk: the dollar figures in the method statement depend on documents that may change between plan approvals.

Price‑limited and quotable. A support item is price‑limited if its pricing document says it is subject to price limits. A support item is quotable if its pricing document says a quotation is required, or if it appears in the Specialist Disability Accommodation pricing document. For quotable items, the decision‑maker must use the amount of the approved quote, not the standard price limit. For all other items (not price‑limited and not quotable), the decision‑maker may choose an amount “not exceeding $15,000” that they consider appropriate, taking into account only the reasonable and necessary criteria under section 34(1) of the Act.

Recurring transport supports. These are a special category. They cannot be grouped with non‑transport supports (section 5(4)). Their funding component amount is fixed: $1,784 per year for most participants; $2,676 if the participant works or studies less than 15 hours per week, attends day programs, or needs transport for social/recreational/leisure activities; $3,456 if the participant works or studies at least 15 hours per week. These rates are flat amounts and do not vary by location, distance, or actual transport cost. They are also expressed in 1‑year units, so a plan with a 6‑month funding period would receive half of the annual rate.

Funding period. A funding period is the time window during which a particular group of supports may be used. Section 33(2C) of the Act allows funding periods to be specified for all supports taken as a whole or for each group separately. The determination requires that the first funding period for a group must start on the day the plan comes into effect, unless the plan is being varied. The duration of each funding period is determined by the decision‑maker after considering the matters in section 7(2), including risk of fraud, insolvency, and previous non‑compliance.

The determination directly affects NDIS participants who hold an “old framework plan”. For these participants, the structure of their plan - how supports are grouped, what dollar amount is assigned to each group, and when that funding expires - is now governed by the detailed rules in this instrument. Participants are not the decision‑makers, but they bear the consequences of the decision‑maker’s compliance with the determination. For example, a participant whose supports are categorised into many small groups may face shorter funding periods and more frequent plan reviews, increasing administrative hassle and uncertainty.

The determination also affects NDIA decision‑makers: delegates of the CEO who approve statements of participant supports. They are legally bound to take into account the prescribed matters in sections 5 and 7, and to follow the method statement in section 6 when calculating funding. Failure to do so could expose the decision to internal review or to the Administrative Review Tribunal (ART) on grounds of jurisdictional error. The determination thus constrains the discretion that decision‑makers would otherwise have under the Act, and it imposes a compliance burden in terms of documenting consideration of each matter.

Participants’ nominees and child representatives are indirectly affected. Section 7(2)(d) requires a decision‑maker to consider whether the participant, nominee, or child representative is an “insolvent under administration”. That could disadvantage participants whose nominee has financial difficulties, leading to shorter funding periods or more restrictive plan management.

Service providers are not directly bound by the determination, but they are affected by its funding consequences. The $15,000 cap for non‑price‑limited, non‑quotable supports may limit the availability of innovative or bespoke supports not yet listed in a pricing document. The fixed transport rates may not cover actual costs, especially in rural and remote areas where transport providers may require higher fees. Providers who rely on quoting for quotable items may face delays if the decision‑maker does not approve quotes in a timely way.

Ultimately, the determination affects the efficiency and flexibility of the NDIS for a subset of participants. It introduces additional administrative steps that may increase plan‑processing times and reduce the ability to tailor plans to individual circumstances. The flow‑on effects include potential costs to participants in terms of time spent engaging with the NDIA, and costs to taxpayers if the rigid funding formulas lead to either under‑funding (requiring later supplementary plans) or over‑funding (allocating the standard transport rate to someone who would spend less).

The determination imposes duties on the decision‑maker. Under section 5(1), the decision‑maker must take into account the seven enumerated matters when deciding how to group supports. Those matters include the nature and cost of the supports, provider requirements, early intervention needs, risk to the participant, proposed plan management, and any past non‑compliance with section 46 of the Act. Section 5(3) adds a non‑exhaustive discretion to take into account “any other matter” considered relevant, so the mandatory list is not exclusive. The duty is to have conscious regard to these factors; it is not a duty to reach a particular outcome.

Section 6 provides a method statement that the decision‑maker must follow when calculating the funding component amount for a group of supports other than recurring transport supports. The method statement has four steps: identify support items, determine the number of units reasonable and necessary, multiply by the applicable price (price‑limited, quotable, or capped at $15,000), and sum the totals. This is a mandatory process. For recurring transport supports, section 6(2) prescribes a formula based on fixed annual rates. There is no discretion to depart from the method statement.

Section 7(1) imposes a duty to take into account ten enumerated matters when specifying the start and end dates of funding periods. These matters include risk of fraud or exploitation (s 7(2)(b)), risk of harm (s 7(2)(c)), insolvency (s 7(2)(d)), whether section 46 has been complied with (s 7(2)(j)), and the participant’s expressed preference (s 7(2)(h)). The duty is analogous to the grouping duty: the decision‑maker must consider the list but retains discretion on outcome.

Participants have rights arising indirectly. The participant has a right that their plan be prepared in accordance with the Act and this determination. If the decision‑maker fails to take into account a mandatory matter, or misapplies the method statement, the plan may be reviewable under section 99 of the Act (internal review) or under the ART Act. Section 7(2)(h) explicitly requires the decision‑maker to consider the participant’s preference as to the duration of funding periods - a limited participatory right.

Participants also have the right to request a variation or reassessment, but section 7(2)(i) allows the decision‑maker to consider whether the participant has made such requests “on more than one occasion” without demonstrating a change in circumstances. This can work against the participant if they have been active in seeking reviews.

Recurring transport supports have a structural right: they cannot be grouped with non‑transport supports (section 5(4)). This ensures transport funds are not inadvertently pooled into other categories, but it also prevents the participant from shifting unused transport funds to other supports.

The determination itself does not create any civil penalty provisions or criminal offences. It is a subordinate legislative instrument that prescribes how existing statutory duties are to be performed. Enforcement therefore relies on the broader architecture of the NDIS Act.

If a decision‑maker fails to comply with a mandatory requirement - for example, by ignoring the method statement in section 6 or by not taking into account the matters in section 5(2) - the resulting decision (the statement of participant supports or the plan approval) may be invalid or reviewable. A participant can seek internal review under section 99 of the Act, followed by external review by the ART. The ART can set aside the decision and remit it for reconsideration. In extreme cases, a failure to observe the determination could amount to a failure to exercise a power in accordance with law, giving rise to judicial review under the Administrative Decisions (Judicial Review) Act 1977 or section 39B of the Judiciary Act 1903.

The CEO of the NDIA may also be subject to accountability mechanisms under the Public Governance, Performance and Accountability Act 2013 for system‑wide non‑compliance, though that is indirect.

Participants who suffer financial loss because of an incorrect funding amount could seek a compensation‑like remedy through a plan variation, but the determination does not create a statutory cause of action for damages. The primary enforcement lever is the ability to challenge the plan and have it corrected.

For providers, there is no direct enforcement mechanism under this determination. They are not bound by it. But if a provider submits a quote for a quotable support and the decision‑maker refuses to approve it because of the method statement, the provider may be affected indirectly. The provider’s remedy would be through the participant’s review rights, not through their own.

The determination does not contain any reporting obligations or audit triggers. Compliance is monitored only through individual plan review processes. This is a weak enforcement model: many errors may go unchallenged if participants lack the capacity or resources to pursue review. The $15,000 cap for non‑priced supports, in particular, could be systematically under‑funding certain supports without any obvious remedy.

The determination sits within the NDIS legislative framework. It is made under subsection 33(2E) of the NDIS Act, which came into force with the 2024 amendments that introduced the concept of “old framework plans”. That section provides that the Minister may determine requirements for statements of participant supports for those plans. The determination must be read together with section 33 itself, which sets out the content of a statement of participant supports - particularly subsections (2A) to (2D), which the determination implements.

The determination also interacts with section 34 of the Act, which sets out the reasonable and necessary criteria. Section 6(1) step 3(c) refers explicitly to that section: when setting an amount for a non‑price‑limited, non‑quotable support, the decision‑maker may take into account “only the matters” in section 34(1). This means the decision‑maker cannot consider budget constraints, choice of provider, or other factors - only whether the support is reasonable and necessary. However, the $15,000 cap is an arbitrary ceiling that may override the reasonable and necessary assessment for high‑cost items not covered by price limits.

Section 46 of the Act concerns plan management. Several provisions in this determination refer to whether section 46 has been complied with. In section 5(2)(g) and section 7(2)(a) and (j), the decision‑maker must consider non‑compliance when grouping supports and setting funding periods. This creates a feedback loop: a participant who has not complied with plan management rules (e.g., by not submitting invoices) could face more fragmented funding periods or less flexible groupings. This may incentivise compliance, but it also risks penalising participants who lack administrative capacity.

The determination references the Agency’s pricing documents, which are not themselves legislative instruments. They are administrative guidelines. The determination gives them legal force by requiring decision‑makers to use the amounts and classifications specified in those documents. This is a form of incorporation by reference. Changes to pricing documents automatically flow into the determination without any amendment process. That raises concerns about parliamentary oversight and the stability of the legal framework.

There is also interaction with the NDIS (Supports for Participants) Rules, the NDIS (Plan Management) Rules, and the NDIS (Participant, Nominee and Child Representative) Rules. The determination does not override those rules but adds an additional layer of specificity for old framework plans. Any conflict would need to be resolved by statutory interpretation; the determination is a later‑in‑time specific instrument, so it would likely prevail over earlier‑made rules for old framework plans.

The determination does not interact with Commonwealth anti‑discrimination law, state disability services laws, or the Guardianship and Administration Act of any state. Its scope is confined to the internal mechanics of plan funding under the NDIS.

This is the first version of the determination. It was signed by Minister Bill Shorten on 7 October 2024 and commenced on 9 October 2024, the day after registration. There have been no amendments to date. The instrument is new, and no amending instruments have been registered as of the time of writing.

Given that the determination is tied to the transitional category of “old framework plans”, its lifespan may be limited. As participants are migrated to new‑framework plans, the determination will cease to apply to them individually. The instrument may be repealed or allowed to sunset once the old framework cohort is small enough to administer individually. No sunset date is specified in the instrument itself.

Future amendments could adjust the $15,000 cap, the transport rates, or the list of mandatory considerations. The pricing documents that the determination relies on are amended periodically by the Agency; those amendments will affect the operation of the determination without any formal amendment to the instrument itself. For example, if the Agency removes an item from the pricing documents, it would cease to be a “support item” and would fall into the residual category capped at $15,000.

No litigation has yet arisen from this determination, given its recent commencement. However, several provisions are fertile ground for future challenges.

The $15,000 cap for non‑price‑limited, non‑quotable supports is the most obvious candidate. A participant who requires a bespoke support costing more than $15,000 that is not listed in a pricing document and is not quotable may argue that the cap is ultra vires subsection 33(2E) because it restricts the decision‑maker’s ability to give effect to section 34’s reasonable and necessary criteria. The cap is not mentioned in the parent Act; the Minister’s power to determine “requirements” might not extend to setting an arbitrary dollar limit that overrides the statutory test.

The fixed transport rates may also be challenged. A participant who lives in a remote area with no public transport may find that $1,784 per year covers only a fraction of actual costs. They could argue that the formula conflicts with section 34, which requires that supports be “reasonable and necessary” in the participant’s individual circumstances, and that a rigid rate cannot achieve that for all participants.

The requirement to take into account insolvency of a nominee (section 7(2)(d)) could be challenged as an unreasonable interference with the participant’s choice of nominee. If a participant chooses a family member who happens to be bankrupt, the decision‑maker may use that as a reason to set shorter funding periods, effectively penalising the participant for their nominee’s financial status. That could contravene the Privacy Act 1988 or be considered a breach of natural justice if the participant is not given an opportunity to address the concern.

The reference to non‑compliance with section 46 (plan management) in sections 5 and 7 could lead to disputes about what constitutes non‑compliance. The decision‑maker might treat late invoices as non‑compliance even if the participant has a genuine excuse, and the determination does not require the decision‑maker to determine the reason for the non‑compliance. This may be litigated as a failure to give proper weight to the participant’s circumstances.

No formal challenges have been recorded yet, but legal representatives for participants should be alert to these issues when reviewing plans.

Cap trap for non‑standard supports. Step 3(c) of the method statement allows the decision‑maker to choose an amount “not exceeding $15,000” for any support item that is not price‑limited and not quotable. If a participant needs a unique piece of assistive technology costing $18,000 that is not yet listed in a pricing document, the decision‑maker cannot approve more than $15,000. The only way to obtain the full amount is to have the support item added to the pricing document or made quotable, which may take months. This cap is not in the Act itself and may catch participants unaware.

Transport rates are per annum, not pro‑rated by distance. The fixed rates in section 6(2) are based on 1‑year units. If the funding period is 6 months, the amount is half the annual rate. A participant who works 20 hours a week but only for 6 months of the year will receive $1,728 (half of $3,456), even though their actual transport costs during the working period may be the same as someone who works all year. There is no mechanism for adjusting the rate for seasonal work or temporary study.

Insolvency checks. Section 7(2)(d) requires the decision‑maker to consider whether the participant, their nominee, or a child’s representative is an “insolvent under administration”. This is a bankruptcy‑related reference. If a participant’s nominee is bankrupt, the decision‑maker may set shorter funding periods. This introduces a financial‑status test that may be disproportionate to the risk. The participant might not even know the nominee’s financial status.

Multiple review requests without changed circumstances. Section 7(2)(i) allows the decision‑maker to consider whether the participant has requested plan variations or reassessments on more than one occasion without providing information demonstrating a change in circumstances. This penalises participants who are dissatisfied with their plan but unable to prove a change in circumstances. It may deter legitimate requests for review.

No appeal right for incorrect categorisation. The determination gives the decision‑maker discretion (subject to mandatory considerations) on how to group supports. If the decision‑maker groups mobility aids with personal care, the participant may find it harder to manage budgets. The participant can challenge the plan, but the ART will likely give the decision‑maker significant deference on categorisation decisions, especially where the decision‑maker considered the mandatory list.

Pricing documents can change without notice. The definitions of “price‑limited” and “quotable” refer to documents published “as existing from time to time”. The Agency can modify these documents at any time. A support that was not price‑limited when the plan was approved might become price‑limited mid‑plan, affecting future funding periods. The determination provides no transition mechanism.

Recurring transport supports cannot be grouped with other supports. Section 5(4) is absolute. If a participant needs transport and also needs a mobility aid that costs $200, those cannot be in the same group. The participant must have at least two groups, each with its own funding period. This adds administrative complexity for participants managing their own budgets.

Section 46 non‑compliance as a double factor. Section 5(2)(g) and section 7(2)(j) both refer to non‑compliance with section 46. A participant who fails to provide invoices on time may face both less favourable grouping and shorter funding periods. The determination does not require the decision‑maker to consider whether the non‑compliance was intentional or due to incapacity.

$15,000 cap and the reasonable and necessary test. Step 3(c) says the decision‑maker takes into account “only the matters in relation to which the decision‑maker is required to be satisfied as mentioned in subsection 34(1) of the Act”. That means only the reasonable and necessary criteria can justify the amount, but the cap puts an absolute limit regardless of whether a higher amount would be reasonable and necessary. This is an internal inconsistency: the decision‑maker must find the support reasonable and necessary, but cannot fund it properly if it exceeds $15,000.

First funding period starts on plan effective date. Section 7(3) says the first funding period must start on the day the plan comes into effect, unless it is a variation. That means a participant cannot have a funding period that begins later to align with a specific event (e.g., the start of a school term). This reduces flexibility.

For NDIA decision‑makers. Before approving a statement of participant supports for an old framework plan, the decision‑maker must work through each part of the determination methodically.

For grouping (section 5): Document that you have considered each of the seven matters in subsection (2). Use a checklist or template to show that nature, cost, provider requirements, early intervention needs, risk, proposed plan management, and section 46 compliance were all taken into account. If you decide to group supports together or leave them separate, briefly explain why, referencing the relevant factors. Do not group recurring transport supports with non‑transport supports - that is an absolute prohibition.

For funding component amount (section 6): For each group, identify all support items as they appear in the latest pricing documents. For each support item, determine if it is price‑limited, quotable, or other. For price‑limited items, use the price listed for delivery at the participant’s usual place of residence. For quotable items, ensure you have an approved quote on file; only use the approved amount. For other items, you must choose an amount not exceeding $15,000. Do not exceed that cap even if you believe a higher amount is reasonable and necessary. Only consider the section 34(1) criteria when setting the amount. For recurring transport supports, determine the participant’s work/study hours: less than 15 hours per week plus day programs or social activities etc. qualifies for $2,676; 15 hours or more qualifies for $3,456; otherwise $1,784. Multiply by the number of 1‑year units in the funding period. Round to the nearest cent.

For funding periods (section 7): Document consideration of all ten matters in subsection (2). Pay particular attention to insolvency (check records), risk of fraud or exploitation (discuss with participant’s support coordinator if applicable), any past section 46 non‑compliance, and any repeated variation requests without changed circumstances. Note the participant’s expressed preference. If you decide on a duration that differs from the participant’s preference, explain why based on the other factors. The first funding period must start on the plan effective date (not applicable for variations).

For participants and their representatives. Read the plan carefully to see how supports are grouped and what funding amounts are assigned. If the funding amount for a non‑standard support is $15,000 (i.e., the cap), check whether the support item could be made quotable or included in a pricing document to remove the cap. Request that the decision‑maker provide a written statement showing how they considered the mandatory matters. If the plan uses the fixed transport rate, verify your work/study hours match the category used. If not, request a correction.

Keep records of any plan variation requests. If you have made multiple requests without a change in circumstances, be prepared to explain why each request was justified. Avoid asking for minor variations simply because you prefer a different arrangement - it may be used against you.

If a nominee or child representative is insolvent, consider appointing a different person. The determination does not require that you do so, but it may lead to shorter funding periods.

For legal practitioners advising participants. When reviewing a plan, check that the method statement was correctly applied. Calculate the expected funding amount yourself using the pricing documents. If the decision‑maker used a quote that was not approved, or used the $15,000 cap for a support that is actually price‑limited or quotable, you have grounds for review. Challenge the transport rate if the participant’s work/study hours have been misclassified.

Consider whether the categorisation of supports is perverse - e.g., putting high‑cost, infrequent supports together with low‑cost, frequent supports to delay the funding period. That may be legitimate if the decision‑maker considered the mandatory factors, but it is worth testing.

Monitor changes to the pricing documents. If a support item becomes price‑limited after your plan is approved, the next funding period may shift to the price‑limited amount. Request a plan variation if the change materially reduces funding.