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NDIS Class Action

What is the NDIS Class Action about?

Mitry Lawyers is launching class action proceedings against the Commonwealth Government on behalf of individuals who are 65 years and over and who have a disability, due to their exclusion from the National Disability Insurance Scheme (NDIS). The Lead Plaintiff is Helen Bonynge.

What is the issue?

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 supports but only have limited access to funds through My Aged Care rather than the NDIS. Specifically, unlike the NDIS, My Aged Care has capped levels of funding, is means tested, requires fees and co-contributions, and most importantly does not ascertain the care needs of the individual, which should be a fundamental right for all disabled people.


This class action would be aimed overall at removing the exclusion so that all age groups can access the NDIS.

Who is affected?

Participants need to be suffering a permanent disability and either:

  • acquired the disability at an age of 65 years old or over; or

  • acquired a disability at any age but the individual was 65 years old or older when the NDIS was rolled-out in their area.


This class action may also be open to spouses and family members who have had the burden of taking on the role of carers for people with disabilities.

What is our claim?​

Our primary claim is that the Commonwealth 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 (Cth) (NDIS Act).

There are several constitutional law grounds which we are pursuing. In summary, these are:

  • Under the External Affairs Power (section 51(xxix) of the Constitution) the Commonwealth government has a duty to enact legislation that is consistent with a treaty. In our case, the NDIS Act is inconsistent with the Convention on the Rights of Persons with Disabilities (Disability Convention) due to that Convention’s prohibition on all forms of discrimination compared with the NDIS, which only supports people under 65.

  • Under section 117 of the Constitution, the Commonwealth government cannot discriminate based on State-residency. Here, due to the staggered State-by-State rollout across the country, this is precisely what the Commonwealth government did.

  • Under section 99 of the Constitution, the government cannot legislate preferences from one State to another State


A secondary claim is for negligent misstatement and misleading and deceptive conduct, due to the government’s failure to inform people with a disability about the NDIS and preventing people over 65 from proceeding with an access request.


What compensation will be claimed?​

In terms of damages, there are several heads of damages we are considering.

These include:

  • Pecuniary loss of missing out on the NDIS as the average annual NDIS plan is $111,000 per year (approximately) as opposed to the Aged Care Scheme which is capped at $56,000 (approximately) and is means tested.

  • Adverse psychological and/or health effects caused by stress due to not being able to access to the NDIS.

  • Carers expenses, such as time off work, travel expenses and medical bills for spouses who need to care for their partners due to a lack of NDIS support.

  • Loss of opportunity such as employment opportunities.

Further background to the claim​

The NDIS Act was passed by the Commonwealth parliament on March 2013, in turn establishing the National Disability Insurance Agency (NDIA). The aim of the NDIA is to provide participants who are granted access with a range of individualized disability supports.


To gain access to the NDIS a person must meet several criteria, including the ‘age requirement’ specified in section 22 of the NDIS Act:


NDIS Act - Section 22 - Age requirements:

                    (1)  A person meets the age requirements if:

                    (a)  the person was aged under 65 when the access request in relation to the person was made;


The overall aim of these proceedings is to remove section 22 from the NDIS Act so that all age groups can access the NDIS.


For those who have gained access to the NDIS, supports are based on what is deemed reasonable and necessary. This is specifically:

(a) to pursue their goals and maximise their independence; and

(b) to live independently and to be included in the community as fully participating citizens; and

(c) to develop and support the capacity of people with disability to undertake activities that enable them to participate in the mainstream community and in employment.”


We feel these rights should be for everyone - not just those under 65.

Will this class action be funded?​

Mitry Lawyers is in discussions with a litigation funder and will proceed on this basis.

How can I find out more or register my interest?​

Due to the large number of potential class members, we expect a large volume of queries.


Should you have any queries about this class action, please contact Rick Mitry, partner ( or call (02) 9222 2833 for a confidential discussion.


To register your interest, please fill in this expression of interest form (please click the link), or otherwise complete and submit the form below.




















Documents available for download


Expression of Interest Form

Documents will to continue to be uploaded here as they become available.




Rick Mitry | Partner | or +61 2 9222 2833

Richard Mitry | Partner | or on +61 2 9222 2833

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