Legislative instruments now in force confirm percentage reductions, exclusions, plan subclasses and a specific safeguard for some participants requiring continuous 24-hour care:
- National Disability Insurance Scheme (Support) Determination 2026; and
- National Disability Insurance Scheme (High Support Needs Participants) Determination 2026
Two new Ministerial determinations commencing on 1 October 2026 introduce substantial changes to the way funding is calculated for certain supports under the National Disability Insurance Scheme.
The National Disability Insurance Scheme (Support) Determination 2026, made under section 34A of the NDIS Act, provides that funding component amounts are reduced by:
- 50 per cent for assistance with social, economic and community participation supports; and
- 10 per cent for improved daily living skills supports.
The Determination applies to old framework plans that come into effect on or after 1 October 2026, including where the plan reassessment resulting in the plan began before that date.
Belinda Kochanowska, Principal Lawyer of specialist NDIS and disability rights firm Intrepidus Law, said the registered instruments now provide the detail necessary to understand how the statutory funding mechanism will operate.
“The significance of these determinations is not simply the percentage reductions themselves. It is the complex detail in the determination for both targeting and excluding particular groups of supports and creating subclasses of plans and classes of participants which are treated differently by the determination, which will create further complexity in an already complex scheme.”
Important exclusions from the reductions
The Support Determination does not apply the percentage reduction uniformly to every support falling within the two affected groups.
Within social, economic and community participation, the Determination excludes specified:
- supports in employment;
- high-intensity supports; and
- intensive and complex behaviour supports.
Within improved daily living skills, excluded subgroups include:
- disability-related health supports;
- customised and wearable technology; and
- hearing services.
The instrument contains detailed schedules identifying the individual support items within those excluded subgroups.
Belinda Kochanowska’s comment:
“The exclusions are important. NDIS participants, families and support providers should not assume that every support sitting within a headline funding category is subject to the percentage reduction.”
“The actual effect on a participant will depend on the composition of their funding, the particular supports allocated in preparing the current, past and future plans, and the information recorded by the Agency.”
Four subclasses determine how excluded supports are treated
The Determination creates four separate subclasses of participant plans — Subclasses A, B, C and D — for the purposes of dealing with excluded subgroups of supports.
The subclass into which a plan falls depends on matters including:
- whether the plan was made afresh or renewed;
- whether the source plan came into effect before or after 1 October 2026;
- whether the relevant funding was participant-managed or nominee-managed during 2026; and
- what the Agency’s records show about payments made and amounts allocated to the excluded subgroup.
Subclass A applies to certain plans made otherwise than by renewal that come into effect on or after 1 October 2026 where the Agency’s records show an amount was allocated for supports in the excluded subgroup. Subclass B applies to certain renewed plans coming into effect on or after 1 February 2027 where the source plan itself came into effect on or after 1 October 2026.
Subclasses C and D deal with certain renewed plans where the source plan came into effect before 1 October 2026, and distinguish between plans according to how relevant funding was managed during 2026 and what the Agency’s records show about payments and allocations.
Belinda Kochanowska’s comment:
“The creation of four subclasses demonstrates just how complex the operation of the Determination will be in practice.”
“A participant’s outcome may turn not only on what supports they need, but on when their plan or source plan commenced, how their funding was managed, whether particular supports were paid for during 2026, and what information is held in the Agency’s records.”
“That level of complexity creates an obvious need for participants to understand precisely how the Agency has classified their plan and how it has identified funding attributable to an excluded subgroup.”
The Determination provides that the amount attributable to an excluded subgroup may be identified from the plan itself where separately specified, or otherwise from the Agency’s records.
Special pathway for some participants requiring 24-hour support
A separate instrument, the National Disability Insurance Scheme (High Support Needs Participants) Determination 2026, establishes a class of participants who may access the plan-variation mechanism in section 47B of the Act.
Broadly, the instrument covers participants where Agency 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 those participants, the Determination requires the CEO to vary the plan where the application of the section 34A funding determination would otherwise leave insufficient funding to maintain continuous 24-hour disability support.
Belinda Kochanowska’s comment:
“The high-support-needs mechanism is an important safeguard, but it is tightly defined.”
“Eligibility depends significantly on what the Agency’s records show about the way the participant’s existing supports were funded, including continuous 24-hour care and the specified funding threshold.”
“That makes the accuracy of Agency records potentially very significant for participants seeking to rely on this pathway.”
Complex variation formula raises transparency and error concerns
The amount of any variation for a high support needs participant is calculated using a detailed eight-step methodology tied to the reduction in funded hours, relevant NDIS pricing amounts, the participant’s daytime supports and applicable support ratios.
The method requires the Agency to identify historical funded hours, determine the post-reduction gap, identify a main support item and applicable pricing amount, determine a main support ratio and then calculate a daily variation amount.
Belinda Kochanowska’s comment:
“The methodology for calculating variations for high support needs participants is highly technical. It requires a series of calculations based on Agency records, funded hours, pricing amounts and support ratios.”
“There is a serious question about how participants, families and carers are expected to understand how these calculations have been performed and whether the resulting variation is correct.”
“It is also unclear from the Determination whether these calculations will be undertaken by individual decision-makers, through automated decision-making systems, or through some combination of the two.”
“If automated decision-making is to be used, participants should be told that clearly and should be able to understand the data, assumptions and calculations that produced the outcome.”
“The more complex and data-dependent the decision-making process becomes, the greater the potential for errors — whether those errors arise from human decision-making, incorrect Agency records, or the way an automated process applies the methodology.”
“That is particularly concerning where an error could directly affect the funding available to a participant who requires continuous 24-hour disability support.”
“Participants should not be placed in the position of having to reverse-engineer a complex funding calculation in order to understand why their supports have changed.”
“There will need to be transparency about how the methodology is implemented in practice, what quality-assurance processes are used, and how participants can identify and challenge errors in the calculation.”
Review rights remain a critical issue
Participants affected by the new arrangements will need to distinguish between the operation of the Ministerial funding determination itself and the individual administrative decisions made under the Act in applying that determination.
Belinda Kochanowska’s comment:
“Review rights are likely to be one of the most important legal issues arising from these changes.”
“Participants will need clear advice about what has actually happened to their plan, whether they fall within an excluded subgroup or particular subclass, whether the high-support-needs provisions apply, and which resulting decisions are capable of review.”
A significant change to NDIS funding architecture
The determinations mark an important development in the legal architecture of the NDIS because they permit specified funding categories to be subject to percentage reductions at the legislative-instrument level.
For social, economic and community participation funding, that percentage is 50 per cent.
Belinda Kochanowska’s comment:
“For many participants, social and community participation supports are closely connected with independence, relationships, access to the community and ordinary participation in Australian life.”
“The practical consequences of these instruments will therefore need to be assessed participant by participant. The serious concern is the consequences will be dire for our most vulnerable citizens who have 50% cuts to funding and no appeal rights available to them.”
“From a legal perspective, the key questions will be how the reductions are calculated, which supports are excluded, which subclass a participant’s plan falls within, whether the participant qualifies under the high-support-needs provisions, what the Agency’s records show, and what review rights arise from the individual decisions made in implementing the Determination.”
Intrepidus Law will continue to examine the implementation of the determinations as new plans are made and the first review and variation decisions begin to emerge.
ENDS
Media contact
Belinda Kochanowska
Principal Lawyer
Intrepidus Law
About Belinda Kochanowska
Belinda Kochanowska is an award-winning Human Rights Lawyer who is an expert in NDIS law and disability law. Belinda is the Principal and Founder of Intrepidus Law, an NDIS and disability rights law firm. Her work includes NDIS review and appeal proceedings before the Administrative Review Tribunal and Federal Court, with a particular focus on administrative law, statutory interpretation, participant review rights and disability human rights.
Belinda’s expertise has been recognised at the highest levels, including her invitation to provide evidence at the Senate Hearing Committee inquiry on key NDIS legislation amendments in 2024 and providing evidence to the Joint Committee of Public Accounts and Audit on the administration of the NDIS and associated scheme integrity measures in May 2026.
Belinda was awarded the prestigious 2025 Queensland Law Society Solicitor of the Year Award (Small Firm) and is a finalist for the illustrious 2025 Australian Human Rights Commission Award (Law Award).
