A person meets disability requirements

The section below goes through each criterion for NDIS eligibility. We discuss what this means, some stumbling blocks people with ME/CFS might face and strategies for addressing them.

These advises have been putting together through various resources, however, it should in no way be considered as legal advice.

Age Requirements
All NDIS participants must be 65 or younger at the time of entering the Scheme.

Stumbling Block

Naturally, this may prove a stumbling block for people with ME/CFS who are over 65.

Strategies

Unfortunately, there are not many ways that you can get around this requirement. If you are over 65, you might want to consider what Aged Care services can support you.

However, once you are on NDIS you have the choice of whether to stay on it or transfer to the Aged Care sector when you turn 65. So if you are approaching 65 and want to be on the NDIS, it is advisable to apply as soon as possible.

Residence Requirements
To receive the NDIS you need to reside in Australia. This does not mean you have to be an Australian citizen – you can be a permanent resident or Protected Special Category Visa holder.

You also have to live in an area where the NDIS has rolled out. The Scheme won’t be full rollout across all of Australia until 2019. You can find out when the NDIS will be in your area.

Stumbling Block

If you do not live in an NDIS area, you unfortunately won’t be able to become a participant yet.

Strategies

Short of moving to an NDIS area, there are not many strategies that you can use to get around this requirement. Remember, full roll out will occur by the end of 2019. In the meantime, you might want to check when your local area will become part of NDIS. It is worth getting your application ready early so that you are prepared when the time comes.

Disability Requirements
The following are the disability requirements for entering into the scheme. A person meets the disability requirements if:

1. the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to one or more impairments attributable to a psychiatric condition

Impairment

This basically just means that you need at least one intellectual, cognitive, neurological, sensory, physical or psychiatric condition. ME/CFS is, of course, a physical condition and impairment.

You will need a doctor or a specialist to confirm your diagnosis in your application form.

If you have more than one disability, it is worth mentioning them all.

Stumbling Block

If you have a diagnosis, this criterion is unlikely to prove a stumbling block, as they are unlikely to disagree outright with your doctor. However, we all know that ME/CFS is a hard condition to diagnosis. If your doctor has some doubts about your diagnosis and these come across then it could harm your application.

Strategies

Ask your doctor to use as certain and confident language as possible in your application. Your doctor might also want to say why they have come to that diagnosis and how the ruled out other conditions.

2. the impairment or impairments are, or are likely to be, permanent

Permanent

NDIS plans are designed for people with life long disabilities. For people whose disabilities are not permanent, there are other disability support programs funded by the NDIS, but are grant based and do not have individualized funding.

Stumbling Block

This criterion represents a huge stumbling block for people with ME/CFS. As we know, the condition is permanent for a lot of people, but not everyone. It is harder to definitively prove that this condition will be permanent in contrast to other conditions.

Strategies

It is sufficient for the doctor to say that the condition is “likely” to be permanent. This gives the doctors some breathing room from saying with absolute certainty it will definitely be a permanent condition, something that doctors might not feel comfortable doing.

It will be beneficial if your doctor can go into some detail about why they believe the condition is likely to be permanent. They might want to mention how long you have had the condition thus far or symptoms that suggest it will be permanent. If you have to appeal, you might want to include some academic journals that about the recovery rate (included below).

The fact that there may one day (hopefully one day soon) be a treatment for ME/CFS should not impact your current case the condition is permanent. The legislation states, “an impairment is, or is likely to be, permanent only if there are no known, available and appropriate evidence based treatments that would be likely to remedy.”

You might want to ask you doctor to submit a letter with your application form, attesting to the permanency of you condition.

Past applicants have found it helpful to get their doctors to use the language of the legislation. Specifically, “likely to be permanent” and that you have “tried all evidence based treatments.”

It is also a good idea to get the doctor to list all the treatments you have tried and note that they were unsuccessful.

Try not to become too disheartened by this section. We are all hoping for better treatment and one day a cure for ME/CFS. In the meantime though, or in case that does not happen, you deserve every support available.

3. the impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities:

  • Reduced Functional Capacity

This criterion basically says that the impairment has to result in your reduced ability to communicate, interact with other people, learn, be mobile, care for yourself or manage your own affairs.

To meet the criteria that met this criterion you need:

  1. Not be able to do this activity
  2. Require somebody else to assist you to do this activity
  3. Require the assistance of technology to do this activity.
  • Communication – the NDIS Access form defines this as “being understood in spoken, written or sign language, understanding others and express needs and wants by gesture, speech or context appropriate for age.
  • Social interaction – the NDIS Access form defines this as “making and keeping friends, interacting with the community (or playing with other children), coping with feelings and emotions”
  • Learning – the NDIS Access form defines this as “understanding and remembering information, learning new things, practicing and using new skills”.
  • Mobility – the NDIS Access form defines this as “moving around the home (crawling/walking), getting in or out of bed or a chair, leaving the home and moving about in the community”. Assistance required does not include commonly used items such as glasses, walking sticks, non-slip bath mats, bathroom grab rails and hand rails installed at stairs.
  • Self-care – the NDIS Access form defines this as “showering/ bathing, dressing, eating toileting, caring for own health (not applicable for children under two years of age)”. Assistance required does not include commonly used items such as non-slip bath mats, bathroom grab rails and hand rails installed at stairs.
  • Self-management – the NDIS Access form defines this as “doing daily jobs, making decisions and handling problems and money (not applicable for children under 8 years of age)”.

The ones most likely to relate to ME/CFS are mobility (particularly for people who are wheelchair bound), self-care and self-management.

Stumbling Block

The threshold for “substantially reduced functional capacity” is quite high. This could make it difficult for people with mild or moderate ME/CFS to prove they met this criterion. It becomes a legal gray area for people who might have to choose between self-care and the ability to work (even part-time). This does not mean that people in these circumstances should not apply, but you will need to ensure your application is strong.

Strategies

ME/CFS is a fluctuating illness. In order to demonstrate that your functionality is substantially reduced it is important that you convey to your doctor how you feel on your worst days. Ask your doctor to reflect this in your application.

It may help to include a letter from an occupational therapist to support your case that your functionality has been significantly reduced. Or ask your doctor to undertake a functional capacity assessment and include the results.

4. the impairment or impairments affect the person’s capacity for social or economic participation

Social and Economic Participation

This means that as a result of your disability, you have a decreased ability to participate in society (such as social or community activates) or work.

Stumbling Block

This criterion should not be very hard for people with ME/CFS to meet, as most people with the condition demonstrate some degree of reduced social or economic participation.

Strategies

Again, it is important that you ask your doctor to convey how you feel on a bad day. This reduces your chances of stumbling over this criterion.

5. the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime

Support for Lifetime

This means that you will be under the NDIS for your entire life. It differs from the permanency criteria in that whilst your disability might be permanent, you may not need support from the Scheme for your entire life.

Stumbling Block

According to a lawyer we spoke to, this criterion is often misinterpreted by staff at NDIA to the detriment of people with fluctuating conditions like ME/CFS. NDIS has two parts. The first is individualised funding packages to help people with disabilities. To access these you need to fill you this application and met the criteria we have discussed. The second is a community inclusion program called Information, Linkages and Capacity Building (ILC). ILC programs and services are for all people with disabilities. You do not need to met access criteria or register as an NDIS participant to access these services. The ILC is a very small component on NDIS, but it is still in theory able to be accessed by any person with a disability.

The NDIA has in the past interrupted this criterion to mean that a person needs to be accessing individualised funding for their entire life. However, this contradicts their own guidelines which state that the person can use either individualised funding or general supports provided through the ILCs.

Strategies

There are no questions in the application form relating directly to this criterion. As such, you should only need to make your case on this point if you are rejected and are appealing on the basis of this criterion.

If this is the case, you can specifically say that even if you do not require individualized funding in the future, you will always require the support of the ILC program.

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