NDIS Tribunal clarifies funding responsibilities for families
Navigating NDIS and Justice: Key Decision Clarifies Funding for People Under Forensic Orders
A recent ruling by the Administrative Review Tribunal (ART) offers crucial guidance on how the National Disability Insurance Scheme (NDIS) interacts with the justice system. This decision is particularly important for NDIS participants who are subject to forensic orders but are living in the community, not in a traditional custodial setting.
The case sheds light on a long-standing challenge: distinguishing between supports funded by the NDIS for disability-related needs and those that fall under the responsibility of the justice system for supervision or monitoring.
Understanding the Tribunal’s Decision
The case, known as QBMW and National Disability Insurance Agency (NDIS) [2026] ARTA 1467, involved the Tribunal considering the NDIS Supports Rules. These rules list specific items the NDIS cannot fund, including “justice”-related supports.
Specifically, Item 21 of these rules excludes funding for “the day-to-day care and support needs of a person in custody” and “supervision and monitoring to prevent or observe offending behaviour or to monitor adherence to justice system-imposed conditions.”
Who Was Involved?
The case focused on an NDIS participant who had a disability and was subject to forensic orders. This means they had legal restrictions on their liberty due to past involvement with the justice system, often related to mental health or cognitive disability.
Despite these restrictions, the participant was living outside a Forensic Disability Service (FDS) on long-term approved leave. An FDS is a secure facility for people with disabilities who are under forensic orders. The participant required intensive disability supports, including two support workers present at all times.
The “In Custody” Question
The first major question for the Tribunal was whether the participant was considered “in custody.” If they were, many of their requested NDIS supports could not be funded under the rules.
The Tribunal determined that even with significant supervision requirements and forensic orders, the participant was not “in custody” because they were living outside a declared facility like a prison, authorised mental health facility, or youth detention centre. This clarification is vital, as it means being under forensic orders does not automatically prevent NDIS funding if a person is living in the community.
Supervision and Disability Support
With the “in custody” question settled, the Tribunal then addressed whether the supports were for monitoring and supervision to meet justice system conditions. The National Disability Insurance Agency (NDIA), which manages the NDIS, had argued that some supports were primarily for this purpose.
The Tribunal acknowledged that support workers might, in practice, carry out some supervision or monitoring. However, it clarified that the presence of these functions does not automatically remove a support from NDIS scope. Instead, the focus remains on the primary purpose of the support: Is it required because of the person’s disability?
Crucially, the Tribunal stated that the mere existence of a justice system condition requiring support for some or all of the time does not disqualify that support from NDIS funding, as long as the assistance is needed due to the participant’s disability.
Shared Responsibility, Not Either/Or
A key outcome of this decision is the rejection of the idea that responsibility for a person’s supports must belong entirely to either the NDIS or the justice system. The Tribunal recognised that the participant’s complex situation involved both systems.
On one hand, the participant had substantial disability-related needs requiring intensive support. On the other, they faced strict restrictions due to public safety concerns, such as needing an authorised escort to leave their home and living in accommodation secured to custodial standards.
The Tribunal noted that the NDIA itself had previously recognised this situation as a shared responsibility, writing to the Queensland Government in 2024 to suggest joint funding arrangements for the participant.
Ultimately, the Tribunal concluded that the existing cost-sharing arrangement between the NDIS and the state forensic system was appropriate. While some disability supports were rightly funded by the NDIS, not all requested supports were found to be most appropriately funded solely by the scheme.
Key Takeaways for Participants and Providers
This decision provides valuable clarification for anyone navigating the intersection of disability, mental health, and the criminal justice system:
- “Not in Custody” Clarified: Being subject to a forensic order does not automatically mean a person is “in custody” for NDIS funding exclusions, especially if they reside in the community.
- Purpose Matters: If a support is needed because of a person’s disability, it can still be NDIS-funded, even if support workers incidentally provide some supervision or monitoring related to justice conditions. The key is the underlying disability need.
- Shared Responsibility is Possible: Where both disability needs and public safety concerns are present, funding responsibility can and should be shared between the NDIS and state justice systems. Neither system is expected to bear the entire cost if both have a role.
Looking Ahead
For NDIS participants looking to transition from forensic or custodial settings into the community, this decision reinforces that funding should be based on the purpose of their support needs, rather than solely on their legal status. It’s a practical reminder that the line between disability support and justice system responsibility is often blurry, and collaborative funding arrangements may provide the best outcomes for individuals with complex needs.
Participants, families, and providers should ensure that any support requests clearly articulate how the support addresses the participant’s disability-related needs, even when justice system conditions are also present. Open communication and collaboration with relevant state and federal agencies will be crucial in securing comprehensive support.
