NDIS class action offers hope for seniors excluded from disability scheme

Mr Johns was cycling around Lake Burley Griffin, as he had done many times before, when he misjudged the sharp left hand turn on the descent toward the Scrivener Dam bridge.

He crashed his bike and broke his neck. Fit, healthy and a month short of his 67^th birthday, he would never walk again.

There is never a good time to suffer an accident that renders you seriously and permanently disabled.

But for Mr Johns, the timing was particularly cruel.

His age meant he was too old to join the National Disability Insurance Scheme, which is only open to people aged under 65.

Participants who joined the scheme before turning 65 can continue to access it, but people in Mr John's situation are pushed into an aged care system which typically offers less funding and appropriate support.

Had Mr Johns crashed his bike three years earlier and became an NDIS participant, the taxpayer-funded scheme would have most likely paid for his wheelchair, modifications to a home and therapy.

But without that help, Mr Johns was forced to sell his second-floor apartment and move into aged care well before his time.

The retired IT consultant used his own savings to buy an electric and manual wheelchair, and has to fork out $180 per hour for his once-a-week gym class.

"I think it's pretty unfair that they should impose an arbitrary cap on getting benefits - the system should be available to all," he told ACM.

"I find it jarring that I have to pay for everything out of my own pocket.

"But it's not only that, it's the fact that I'm forced out of society [by having to live in aged care at his age]. I don't think I should be, I think I could still play an active part in society - if only I was allowed to."

Disability advocates have been campaigning to end "age discrimination" in the NDIS by removing the age cut-off, which has been part of the scheme's design since its launch in 2013.

The push gained some traction during the federal election, with the Greens and independents, including ACT senator David Pocock, throwing their support behind the campaign.

Now the campaign has taken a different turn.

Mr Johns is among the dozens of seriously disabled Australians who have expressed interest in joining a new class action against the Commonwealth, which would seek to secure compensation for people who have so far been excluded from the NDIS and ultimately scrap the age barrier.

Rick Mitry, whose firm Mitry Lawyers is leading the class action, argues the case could rival the Robodebt class action - which resulted in a $1.8 billion settlement between the Commonwealth and victims of the unlawful debt-raising program.

The compensation claim would be based on a calculation that the average NDIS participant receives $111,000 a year, about $55,000 more than someone with a level-four home care package.

Mr Mitry anticipates thousands of disabled seniors could sign up to join the lawsuit, after more than 200 people contacted him in the first few days after news of the class action broke.

The firm still needs to find a litigation funder to back the case, but has already tapped high-profile barrister Bret Walker to lead the fight.

The case will be fought on constitutional grounds.

Under the section 51, the federal government has a duty to pass legislation which is consistent with treaties. The class action will argue that the NDIS Act 2013, which enshrined the age barrier in law, is in breach of the UN convention which prohibits discrimination on all forms of disability.

It will also be argued that the staggered rollout of the NDIS across the country breached the Commonwealth's constitutional requirement not to discriminate based on state-based residency.

"A lot of comment has been seen online, but it doesn't seem to go anywhere," Mr Mitry told ACM.

"To get the government's attention there is no other way than to start a class action - unless someone else has got better ideas."

The age cut-off had bipartisan support when the NDIS was launched under the Gillard government.

Neither major party has changed their position since, and are unlikely to do so because of the substantial financial burden it would add to a scheme already forecast to cost $34 billion this financial year.

Opposition NDIS spokesman Michael Sukkar said the age cut-off was a "key foundation feature" of the scheme.

"Making such a significant change to the NDIS by raising the cut-off age for people to access the NDIS would be a monumental change to the scheme," he said.

The Greens' disability spokesman Jordon Steele-John said people should be able to access the NDIS regardless of their age, arguing the aged care system was failing senior Australians with a disability.

Senator Steele-John said the issue would be examined in the parliamentary inquiry, which has been launched in the National Disability Insurance Agency's culture and capability.

"We need to amend the legislation so that the age barrier is no longer present," he said.

"We've got a great opportunity, once we've heard the evidence in a consolidate form [during the inquiry] .. to make that recommendation."

ACM contacted NDIS Minister Bill Shorten for comment, but did not receive a response.