People with disability over 65 are fighting back

Article published 26 February 2023

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If you’re someone aged 65 and over who has to make do with My Aged Care rather than the National Disability Insurance Scheme (NDIS), keep on reading.

Mitry lawyers are working on a class action lawsuit that should be ready to launch within the next few weeks.

There are two main claims they’re making.

One, that the age limit of 65 for the NDIS is inconsistent with the United Nations Conventions on the Rights of Persons with Disabilities.

The Convention prohibits all forms of discrimination yet to be eligible for the NDIS you must be under 65 when you apply.

If you’re already receiving funds from the NDIS you’ll keep receiving them. But for those first needing assistance after reaching 65 the thought is that you don’t need the NDIS because you have My Aged Care.

However, the average NDIS plan provides $111,000 a year while the most you can receive through My Aged Care’s higher level Home Care Package is $53,268.10 a year.

The NDIS is not means tested whilst Home Care Packages are. This means lots of people receiving Home Care Packages need to pay out of pocket fees in order to receive the equipment and support they need.

The aims and intentions of the two programs are completely different as well.

My Aged Care aims to provide support to people as they age and help them stay in their own homes rather than being forced into residential care before they are ready. On the other hand, the NDIS aims to support people with disability to achieve more independence, improve their quality of life and better access skills and work.

Because of the way the systems are set up, someone with a Home Care Package needing an expensive item like a powered wheelchair would have to wait and save up their funds before being able to afford it.

The second claim is that the staggered rollout of the scheme goes against the Australian Constitution that says the Commonwealth government cannot discriminate based on State of residency.

Because of this gradual rollout of the scheme, some areas were able to access it back in 2013 while the final areas couldn’t access it until 2020.

So for some people who acquired their disability before the age of 65, they still couldn’t get any assistance from the NDIS because by the time it would become available to them they would be over the eligibility age limit.

Using these claims that the both the NDIS eligibility age limit and the state by state rollout were discriminatory, the argument is that people over 65 are unfairly disadvantaged and should be able to access the NDIS. They are also fighting for compensation for the difference in funding received and any health or financial consequences as a result of this.

If you’re interested in the class action suit you can find more information and register your interest on the Mitry website.

For more information please email our media contact at

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