By Tony Rutherford, Partner and Jackson Dyer, Associate
On 17 June 2020, Stuart Robert, the Minister for the National Disability Insurance Scheme (NDIS), signed the National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020 (New SDA Rules).
The New SDA Rules replace the National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2016 (2016 Rules). Additionally, a separate amending piece of legislation (National Disability Insurance Scheme (Specialist Disability Accommodation Conditions) Amendment Rules 2020) has been brought into effect to amend the National Disability Insurance Scheme (Specialist Disability Accommodation Conditions) Rules 2018 and bring them in line with the New SDA Rules.
The New SDA Rules give effect to a number of changes that have been championed by Specialist Disability Accommodation (SDA) providers and organisations including the SDA Alliance. This includes rearranging the provisions set out under the 2016 Rules and replacing the easy to read format of the 2016 Rules with a more standard legislative framework.
The key substantive changes are discussed below.
1. Cohabitation of Eligible Participants
Under the 2016 Rules, if a person received SDA under their NDIS plan (Eligible Participant) and wanted to share a bedroom with another person, there had to be a second room made available to that person under any SDA agreement. The New SDA Rules have removed this requirement, so that an Eligible Participant can cohabitate with another person, in one bedroom, provided that:
- the Eligible Participant (not the SDA provider) notifies the Chief Executive Officer (CEO) of the National Disability Insurance Agency (NDIA) in writing; and
- the CEO is satisfied that the Eligible Participant’s needs are not adversely impacted by having more than one person residing in the same bedroom.
2. Changes to Enrolment of Dwellings
The New SDA Rules have also changed the process for enrolling a dwelling for the provision of SDA services. These include:
- requiring that, before an SDA provider can receive SDA payments, the SDA property MUST be an enrolled SDA dwelling. Previously, SDA providers could claim SDA payments while their enrolment was under review;
- removing the word “reasonable” from clauses dealing with rental payments made by Eligible Participants in addition to their SDA payments. This change will allow the market to dictate the amount of additional rental contributions to be paid by Eligible Participants. However, when deciding on whether to enrol the dwelling, the CEO will still consider whether the rent contribution is greater than the reasonable rent contributions set out in the SDA Pricing and Payment Framework;
- reducing the requirement for existing and legacy stock to have a majority of bathrooms and bedrooms which meet the design category requirements. Now, only one bedroom and one bathroom is required to meet the design requirements;
- requiring SDA providers to advise the CEO where a proposed SDA property is owned by a separate party, and to identify that separate party for the purposes of approving the enrolment; and
- where an SDA dwelling:
- is deemed legacy stock (being not a new build that is designed to house five or more Eligible Participants); and
- was built between 1 December 2016 and 31 December 2018,
the SDA provider must demonstrate that there was considerable financial cost in constructing the dwelling and that there is a limited availability of alternate SDA in the same area as the dwelling.
3. Conditions of Continued Enrolment
The New SDA Rules also place new conditions on SDA providers to ensure the continued enrolment of the SDA dwelling. Specifically, sections 28 to 30 of the New SDA Rules require the SDA provider to:
- ensure the enrolled SDA dwelling is kept in a good state of repair;
- notify the CEO of any changes to the enrolment of the SDA dwelling within 5 business days of that change occurring. These changes include any alteration to the design category and type, where the building is no longer suitable for SDA or where a vacancy arises in the dwelling; and
- when requested by the CEO, arrange for a third party to certify the information provided in the SDA provider’s enrolment application.
In addition to these changes, the New SDA Rules allow decisions of the CEO to be subject to review (although the review itself is conducted by the CEO).
Finally, if an Eligible Participant no longer resides in a dwelling but has not provided notice of their intention to vacate, an SDA provider can no longer claim SDA Payments from that participant. This is in contrast with other provision in the New SDA Rules which allows SDA providers, where appropriately notified, to continue to draw upon an Eligible Participant’s SDA Payments after they vacate a SDA dwelling, until that vacancy is filled.
The New SDA Rules are designed to provide Eligible Participants with more freedom of choice when it comes to who they will share their home with, and SDA providers with more flexibility in a similar vein. The changes should be considered closely by SDA providers in relation to existing services and in developing and operating newly built properties.
If you have any further queries about these changes, please contact Tony Rutherford on (03) 8565 9609 or at [email protected] or Jackson Dyer on (03) 9605 0933 or at [email protected], or you can speak with the SDA Alliance on 1300 409 932 or at [email protected].
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