NDIS Legislative changes for Participants with High Support Needs

New NDIS Funding Determinations:

Reductions- Exclusions- Safeguards

All new changes for Participants with

High Support Needs

Two new legislative instruments commencing on 1 October 2026 will significantly alter how funding is calculated for certain supports under the National Disability Insurance Scheme (NDIS):

• the National Disability Insurance Scheme (Support) Determination 2026 (Support Determination); and

• the National Disability Insurance Scheme (High Support Needs Participants) Determination 2026 (High Support Needs Determination).

Together, the determinations introduce:

• prescribed reductions to specified funding components;

• exclusions for particular groups of supports;

• four subclasses of participant plans;

• a plan-variation mechanism for certain participants requiring continuous 24-hour disability support; and

• a detailed methodology for calculating variations for eligible high-support-needs participants.

The effect of the new NDIS legislative changes / arrangements will vary between participants. Relevant factors will include the composition of the participant’s funding, when their current and previous plans commenced, whether the current plan was made afresh or renewed, how the funding was managed and the information recorded by the National Disability Insurance Agency (NDIA).

Reductions to Specified Funding Components

The Support Determination was made under section 34A of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act).

Subject to prescribed exclusions, the Support Determination reduces funding component amounts by:

1. 50% for assistance with social, economic and community participation supports; and

2. 10% for improved daily living skills supports.

The Support Determination applies to old framework plans that take effect on or after 1 October 2026. This includes plans arising from reassessments that commenced before that date.

The commencement date of the resulting plan will therefore be important. A reassessment that began before 1 October 2026 may still result in a plan to which the reductions apply if the new plan takes effect on or after that date.

Not All Supports Within the Affected Categories Are Reduced

The prescribed reductions do not apply uniformly to every support within the two affected funding groups.

For assistance with social, economic and community participation, the Support Determination excludes specified supports within the following subgroups:

• supports in employment;

• high-intensity supports; and

• intensive and complex behaviour supports.

  
  

For improved daily living skills, excluded subgroups include:

• disability-related health supports;

• customised and wearable technology; and

• hearing services.

  
  

The schedules to the Support Determination identify the individual support items falling within these excluded subgroups.

These exclusions are significant. A support should not be treated as subject to a reduction merely because it appears within an affected headline funding category. The correct treatment will depend on the particular support item, its purpose and whether it falls within one of the prescribed exclusions.

The effect on an individual participant will therefore depend on:

• the composition of their funding;

• the supports allocated under their current and previous plans;

• how those supports have been described and classified;

• whether amounts allocated to excluded supports can be separately identified; and

• the accuracy and completeness of the NDIA’s records.

  
  

Four Plan Subclasses Govern the Treatment of Excluded Supports

For the purpose of determining how excluded support subgroups are treated, the Support Determination creates four subclasses of participant plans:

Subclass A, Subclass B, Subclass C and Subclass D.

The applicable subclass depends on factors including:

• whether the plan was made afresh or renewed;

• whether the source plan commenced before or after 1 October 2026;

• whether the relevant funding was participant-managed or nominee-managed during 2026;

• whether payments were made for supports within an excluded subgroup; and

• what the NDIA’s records show about relevant payments and funding allocations.

A source plan is the earlier plan from which a renewed plan is derived.

Subclass A

Subclass A applies to certain plans made otherwise than by renewal that commence on or after 1 October 2026, where the NDIA’s records show that an amount was allocated for supports within an excluded subgroup.

Subclass B

Subclass B applies to certain renewed plans commencing on or after 1 February 2027 where the source plan commenced on or after 1 October 2026.

Subclasses C and D

Subclasses C and D apply to certain renewed plans where the source plan commenced before 1 October 2026.

The distinction between Subclasses C and D depends on matters including:

• how the relevant funding was managed during 2026;

• whether payments were made for supports within the excluded subgroup; and

• what the NDIA’s records show about payments and allocations.

Where an amount attributable to an excluded subgroup is separately specified in the plan, it may be identified directly from the plan. If the amount is not separately specified, the NDIA may identify it from its own records.

The creation of four subclasses adds considerable complexity. A participant’s funding outcome may depend not only on their current support needs, but also on historical plan dates, funding-management arrangements, payments made during 2026 and the information retained by the NDIA.

Participants should be provided with sufficient information to understand:

• which subclass has been applied;

• why that subclass applies;

• which earlier plan has been treated as the source plan;

• which NDIA records were relied upon;

• which supports were treated as belonging to an excluded subgroup; and

• how the amount attributable to that subgroup was calculated.

  
  

Safeguard for Certain Participants Requiring Continuous 24-Hour Support

The High Support Needs Determination establishes a class of participants who may access the plan-variation mechanism under section 47B of the NDIS Act.

Broadly, the instrument applies where the NDIA’s records show that:

• funding was allocated across specified high-needs support groups for continuous 24-hour care; and

• the relevant funding component amounts total at least $215,030.

For a participant within the defined class, the High Support Needs Determination requires the Chief Executive Officer of the NDIA to vary the participant’s plan where the application of the section 34A funding determination would otherwise leave insufficient funding to maintain continuous 24-hour disability support.

The safeguard is important, but its eligibility requirements are tightly defined. A participant’s need for extensive or complex support will not necessarily be sufficient. Eligibility will depend on whether the statutory criteria are satisfied, including what the NDIA’s records show about the participant’s existing funding and support arrangements.

The accuracy of NDIA records may therefore be critical for participants seeking to rely on this mechanism.

Technical Methodology for High-Support Plan Variations

The amount of a plan variation for an eligible high-support-needs participant is calculated using a detailed eight-step methodology.

The calculation involves matters including:

• historical funded support hours;

• the reduction in funded hours;

• the resulting funding gap;

• the participant’s daytime supports;

• the participant’s main support item;

• applicable NDIS pricing amounts;

• the relevant support ratio; and

• the resulting daily variation amount.

The methodology requires the NDIA to identify the participant’s historical funded hours, determine the gap created by the reduction, identify the relevant main support item and pricing amount, apply the appropriate support ratio and calculate the daily amount by which the plan must be varied.

Participants, families, carers and nominees should receive a clear explanation of how the methodology has been applied. That explanation should identify the source data, pricing amounts, assumptions, support ratios and calculations used to determine the final variation.

The High Support Needs Determination does not, of itself, make clear whether the calculations will be undertaken by individual decision-makers, automated systems or a combination of both. If automated or system-assisted processes are used, participants should be told and should receive a meaningful explanation of how the outcome was produced.

A complex, data-dependent methodology creates several possible sources of error, including:

• inaccurate or incomplete NDIA records;

• incorrect factual assumptions;

• human error;

• the use of an incorrect support item, price or ratio; and

• incorrect application of the methodology by an automated system.

These risks are particularly serious where an error may affect funding for a participant who requires continuous 24-hour disability support. Participants should not be required to reverse-engineer a complex statutory calculation merely to understand why their funding has changed.

Transparent implementation, effective quality-assurance processes and accessible mechanisms for identifying and correcting errors will be essential.

Preparing for a Plan Reassessment

Because plan classification, excluded funding and access to the high-support-needs safeguard may depend on information held by the NDIA, participants should review the accuracy and completeness of their records before a reassessment begins.

A structured review may reduce the risk of decisions being made on incomplete, outdated or incorrectly classified information.

1. Download and Retain Plan Records

Participants should obtain and retain copies of the information available through the NDIS participant portal, including:

• the current plan and relevant previous plans;

• plan approval, reassessment and variation letters;

• funding-category and support-purpose details;

• payment and claims histories;

• service bookings, where applicable;

• plan-management statements; and

• documents identifying separately allocated support amounts.

These records should be compared with the supports that were approved, purchased and delivered. Particular attention should be given to supports that may fall within an excluded subgroup or form part of continuous 24-hour care.

2. Request Relevant Information from the NDIA

A participant or authorised representative may request access to information held by the NDIA through its Participant Information Access process.

The request should be framed as precisely as possible and may seek:

• the current plan and all relevant source plans;

• planning-conversation notes and participant statements;

• reasons for planning and variation decisions;

• support-needs assessments;

• medical and allied-health reports;

• records showing amounts allocated to relevant support groups or subgroups;

• payment records for supports purchased during 2026;

• records of how the relevant funding was managed;

• records concerning continuous 24-hour care;

• rosters of care and supported independent living records;

• records of funded hours and support ratios;

• home-and-living decisions; and

• records concerning the plan’s subclass or amounts attributed to an excluded subgroup.

Where the necessary documents cannot be obtained through Participant Information Access, an application under the Freedom of Information Act 1982 (Cth) may be appropriate.

Relevant documents may include internal classification records, calculation worksheets, system entries, audit trails and documents showing how the NDIA attributed funding to a particular support subgroup.

3. Compare NDIA Records with Independent Evidence

Information received from the NDIA should be compared with records held by the participant, nominee, plan manager and providers.

Relevant evidence may include:

• invoices and receipts;

• plan-manager statements;

• service agreements;

• support-worker timesheets;

• rosters of care;

• provider progress reports;

• therapy and medical reports;

• behaviour support documents;

• assistive-technology records;

• evidence of high-intensity supports;

• schedules of funded support hours; and

• documents recording applicable support ratios.

A written reconciliation table can assist in identifying discrepancies. It may record:

• the relevant NDIA entry;

• the corresponding independent evidence;

• the apparent error or omission;

• the correction requested; and

• the supporting document supplied.

The evidence should establish not only that a support was purchased, but also its nature and purpose and why it falls within a particular excluded subgroup.

4. Request Correction of Inaccurate Information

If an NDIA record is inaccurate, incomplete, out of date, irrelevant or misleading, the participant should make a written correction request.

The request should:

1. identify the participant and their NDIS number;

2. identify the particular record or data field;

3. explain why the information is inaccurate or incomplete;

4. state the information that should be recorded;

5. attach supporting evidence;

6. request written confirmation of the correction;

7. ask that the corrected information be considered during the reassessment; and

8. request that the correction and supporting documents be placed on the participant’s file.

The request may refer to the NDIA’s obligations concerning the correction of personal information under Australian Privacy Principle 13 in the Privacy Act 1988 (Cth).

If the NDIA declines to amend the record, the participant may request that a statement setting out the participant’s position be associated with it. Written reasons for the refusal should also be requested.

Material communications should be made or confirmed in writing. Participants should retain copies of correspondence, attachments, delivery confirmations and acknowledgments of receipt.

5. Submit Evidence Before the Reassessment

Participants should not wait until the reassessment meeting to identify significant errors or provide substantial supporting material.

Before the reassessment, a participant should consider submitting:

• a chronology of relevant plans and variations;

• a reconciliation of NDIA records against independent evidence;

• copies of supporting documents;

• a list of supports said to fall within excluded subgroups;

• details of funding-management arrangements during the relevant period;

• records of relevant payments made during 2026; and

• where continuous care is required, evidence of 24-hour support arrangements, funded hours and support ratios.

Written confirmation should be requested that the documents have been received, uploaded to the correct participant record and made available to the relevant decision-maker.

6. Request an Explanation of the Classification and Calculation

During the reassessment process, the participant or their representative should ask the NDIA to confirm:

• which supports have been treated as subject to a percentage reduction;

• which supports have been treated as belonging to an excluded subgroup;

• the amount attributed to each excluded subgroup;

• which plan subclass applies and why;

• which earlier plan has been treated as the source plan;

• which payment and allocation records were relied upon;

• what funding-management arrangement has been recorded;

• whether the high-support-needs provisions were considered;

• what funded hours, pricing amounts and support ratios were used; and

• whether an automated or system-assisted process was involved.

Any written summary of the reassessment discussion should be reviewed promptly. Inaccuracies should be identified and disputed in writing.

7. Obtain Reasons and Calculations After the Decision

Following the reassessment, the participant should obtain and review:

• the new or varied plan;

• the decision letter;

• the reasons for the decision;

• the plan’s classification;

• the calculation underlying any reduction or variation; and

• the documents and information relied upon by the decision-maker.

Any discrepancy should be raised promptly. It is important to distinguish between:

• a request to correct inaccurate personal information;

• a request for documents or reasons;

• a request to change or vary a plan; and

• an application for review of a reviewable decision.

Correcting an underlying record will not necessarily alter an operative plan decision. Equally, obtaining a review or variation of a plan may not automatically correct inaccurate data held elsewhere in the NDIA’s systems.

Review Rights and Individual NDIA Decisions

Participants affected by the new arrangements will need to distinguish between:

1. the content and legal operation of the Ministerial determinations; and

2. the individual administrative decisions made by the NDIA when applying those determinations.

That distinction may affect whether a decision can be reviewed and the process through which review may be sought.

Potential disputes may concern:

• whether a support falls within an excluded subgroup;

• which subclass applies to the participant’s plan;

• which plan is the relevant source plan;

• the amount attributed to an excluded subgroup;

• whether the participant satisfies the high-support-needs criteria;

• the accuracy of the information relied upon by the NDIA;

• the calculation of a plan variation; and

• whether the resulting decision is reviewable under the NDIS Act or general administrative law principles.

Meaningful review rights depend on participants being able to identify what was decided and why. Participants should receive reasons that disclose the applicable classification, material findings of fact, source data, assumptions and calculations.

A challenge to the legal operation or validity of a legislative instrument is different from a challenge to an individual decision made when applying that instrument. Identifying the true nature of the disputed decision will be an important preliminary issue.

A Significant Change to the NDIS Funding Framework

The determinations represent an important development in the legal architecture of the NDIS. They allow specified funding components to be reduced by prescribed percentages through legislative instruments, subject to detailed exclusions, classifications and transitional arrangements.

The 50% reduction applying to assistance with social, economic and community participation supports is particularly significant. For many participants, these supports are closely connected with independence, relationships, community access and participation in ordinary Australian life.

The effect of the new arrangements will need to be assessed on a participant-by-participant basis. Key questions will include:

• how the reduction was calculated;

• which supports were included or excluded;

• which subclass applies;

• whether the participant qualifies for the high-support-needs safeguard;

• whether the NDIA’s records are complete and accurate;

• how any variation amount was calculated; and

• what review rights arise from the individual decisions made when implementing the determinations.

  
  

Implementation of the New Arrangements

The practical operation of the determinations will become clearer as new and renewed plans take effect and the NDIA begins making classification, funding and variation decisions under the new framework.

Bespoke Legal Group will continue to monitor implementation, including emerging issues concerning:

• plan classifications;

• excluded support subgroups;

• high-support-needs variations;

• calculation methodologies;

• automated or system-assisted decision-making;

• the accuracy of NDIA records; and

• review rights.

If you need to know more about how these changes may affect you, please reach out. Contact our office on 07 56200558 to discuss.

This article provides general information about the legislative framework as at 6 October 2026. It does not address the circumstances of any particular participant or plan. Its content is current at the date of publication. It is not legal advice and is not tailored to meet your individual needs. You should obtain specialist advice based on your specific circumstances before taking any action concerning the matters discussed in this article.