Key Points
- The NDIS is facing class action over alleged age discrimination.
- There are already hundreds of people signed up to the action, who say they are being excluded from NDIS.
Peter Freckleton has been disabled since he was six years old, but is currently not eligible for the
He developed infantile paralysis in both legs during the polio pandemic in the 1950s.
When the NDIS rolled out, he was already over 65, and was therefore deemed ineligible to access the scheme.
Now, he is one of the dozens of claimants in a class action, who say they are being discriminated against due to their age.
"They made the restriction not whether you had your disability before the age of 65, but what age you were when you applied," Mr Freckleton said.
"I was really quite stunned to find that they had an age restriction, because I, and other people, we've had (our disability) since we were kids," he said.
"And I thought this is really unjust, and there are a lot of people far worse off when I was, just not getting the help they need when there's a national system already in place and they're banned from it ... I just thought that was totally cruel and unfair, and something should be done about it."
Mr Freckleton said the funding available through the My Aged Care program is not enough to fund care and equipment needed by people with disabilities, such as a particular type of wheelchair, leg braces, or home modifications.
"Disability is not in itself the end of the world, you can have a perfectly good life provided you get some of the assistance you need just to get around and participate in society," he said.
"There are various forms of equipment and so on that you need, but once you have those ... you can carry on living quite well and contributing, but to deprive people of that just randomly because of their birthday is what I call a calendar crime."
The NDIS is facing a class action over alleged age discrimination. Source: AAP / MICK TSIKAS
the exclusion of disabled people 65 years and over from the NDIS has resulted in "hardship and inequality for thousands of individuals" who require disability support but are limited to accessing funds through My Aged Care rather than the NDIS.
The class action would aim to remove the exclusion so all age groups can access the NDIS.
Rick Mitry, principal lawyer at Mitry Lawyers, said he had had over 200 people express interest in joining the class action since it became public over the weekend.
"There are too many people suffering needlessly ... the incapacity these people have is unbearable in my opinion," Mr Mitry told SBS News.
"It doesn't take much to get them out of the situation and back into some sort of normal life ... that's essentially why we're (doing it)."
"I think the only way to bring this to the attention of the government is if these poor people make a claim."
What is the class action claiming?
The case is seeking compensation for those who are missing out on NDIS plans, which Mitry Lawyers say are valued at approximately $111,000 per year on average.
Mitry Lawyers is also considering psychological or health impacts due to not being able to access the NDIS, as well as carers' expenses, travel expenses, medical bills and loss of opportunities.
The case will claim the government has acted beyond their constitutional power due to the enactment of the ‘Age Requirement’ of section 22 of the National Disability Insurance Scheme Act 2013.
The overall aim of the legal proceedings is to remove section 22 from the NDIS Act.
'We're just asking for equal treatment'
Under section 22, a person applying to access the NDIS must be aged under 65 when the request was made in order to be eligible.
Mr Freckleton believes this amounts to both age discrimination and disability discrimination.
He feels legal action is the only way forward.
"We have tried, we have spoken to both major parties and ... they will not budge on it," he said.
"And when governments go astray, the only thing you can do is try and appeal to the courts ... it's not something you do lightly, but it seems to be - in desperation - the only way forward."
"We're not asking for special treatment. We're just asking for equal treatment."
A spokesperson for the Department of Social Services told SBS News the NDIS, which operates in all states and territories, is one part of a broader system of disability support in Australia.
"People over the age of 65 are able to access support through the aged care system," the spokesperson said.
"Those people who are receiving support under the NDIS and turn 65 can choose either to remain in the NDIS or to move to the aged care system."
What is the NDIS and how does it work?
The NDIS is an Australia-wide government initiative designed to help cover costs faced by people with disability.
The NDIS legislation was passed in 2013, and the scheme was rolled out in 2020.
Through the NDIS, eligible people can access funding for "reasonable and necessary" support needs related to their disability.
In order to be eligible, applicants must be aged between seven and 65, hold Australian citizenship, permanent visa or protected special category visa, reside in Australia, and have a "disability caused by a permanent impairment".
After being approved to access the NDIS, individual plans are created based on needs.
