Early intervention over 7 years of age -what is this “Cat Flap”?

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Many people know that it is easier to access supports through the NDIS when the applicant is under 7 years of age. This is because the ‘early childhood -early intervention’ lens is applied. The early intervention lens means that if a child shows signs of developmental delay then supports can be funded on the basis that they will reduce the need for more complex supports later on.

The early intervention approach is especially helpful for young children who may have been exposed to trauma, or where a precise diagnosis of their impairment may be difficult, or time consuming, to get. It makes good sense to start supporting them sooner rather than later.

But very few people know that the early intervention logic that is automatically applied to children under 7 can actually be applied to any applicant -in fact there are people in every age group from 7 to 65 who have accessed the NDIS via early intervention criteria! We like to call this means of accessing the NDIS the “cat flap”.

We have included the relevant sections of the NDIS Act and Operational Guidelines on this page, but you can see them collated into a PDF by clicking this link.

If you are considering applying for the NDIS under the early intervention criteria we strongly suggest you look at the wording of both the Act and the Guidelines – this helps to frame the language used when providing supporting evidence.

We also strongly suggest you get in touch with a disability support & advocacy organisation to talk over the situation -they are likely to give you the best advice about evidence that is directly relevant to the person with whom you are working.

Here are two examples that help illustrate how a person might access the NDIS when their initial application has been rejected.

Some Cat Flap Examples:

Example 1: A 7 year old boy with a genetic condition that affects the way he processes language to do with affect and emotions had his first application to the NDIS rejected. The grounds for rejection were that his impairment didn’t substantially reduce his functional capacity compared to other children of the same age.

So the situation here was that the NDIS accepted that the boy has a lifetime condition, but didn’t accept that his impairment was serious enough to warrant access to the scheme.

With the help of a speech therapist, the boy’s parents made the following case:

The condition is lifelong (being a genetic condition);
The condition causes an impaired capacity to communicate and to interact socially;
Although the boy’s capacity isn’t far behind his peers at age 7, he will need to communicate in more complex and demanding ways as he gets older;
Supports must be put in place now, otherwise he will suffer a significant loss of functional capacity to communicate and interact socially when he is older

The re-application was successful -the boy was given a plan with a six-month review to check whether the supports were working, and whether the boy should be given permanent access to the NDIS. The boy was admitted to the NDIS after the review, which means he now has ongoing supports.

Example 2: An 11 year old boy with level 1 autism spectrum disorder (ASD) had his first application rejected because his supporting evidence did not show a significant loss of functional capacity compared to his peers. This young person was getting fairly good grades at school, but had difficulty taking care of himself, and also difficulty in forming relationships, which led him to become socially isolated.

With the help of a treating psychologist and an occupational therapist, the family made the following case for early intervention:

The young person has a diagnosis of Autism level 1 -requires support
He has a good capacity to learn and to perform academic tasks with direction
His capacity to undertake self-care without direction was not substantially less than other 11 year olds, but due to his ASD there was very little chance that it could improve without putting supports in place
His capacity to communicate and interact socially was not substantially less than other 11 year olds, but due to his ASD there was very little chance that his capacity in these areas would develop to match the complex interactions required as he gets older. Supports must be put in place now to help him function in these areas

The young person’s re-application to access the NDIS was granted, with a 6 month review to confirm his eligibility. At this review stage the family were able to show that the supports would help him maintain his function, and he transitioned to become a full NDIS participant.

An Important note: the early intervention criteria can potentially apply to a person with a psychosocial disability who has intermittent symptoms. However, in the case of people with psychosocial disability, there can be an expectation that some parts of the mental health system -not the NDIS- are responsible for early intervention treatments.

It is a very good idea to get in touch with a disability support & advocacy organisation with expertise in psychosocial disability to seek advice about how best to present a case to the NDIS.

Excerpts from the NDIS Act and Operational Guidelines Regarding Early Intervention

NATIONAL DISABILITY INSURANCE SCHEME ACT 2013 – SECT 25

Early intervention requirements

(1) A person meets the early intervention requirements if:

(a) the person:

(i) has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or

(ii) has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent; or

(iii) is a child who has developmental delay; and

(b) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person’s future needs for supports in relation to disability; and

(c) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:

(i) mitigating or alleviating the impact of the person’s impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or

(ii) preventing the deterioration of such functional capacity; or

(iii) improving such functional capacity; or

(iv) strengthening the sustainability of informal supports available to the person, including through building the capacity of the person’s carer.

Note: In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.

(2) The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person’s impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.

(3) Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:

(a) as part of a universal service obligation; or

(b) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.

NATIONAL DISABILITY INSURANCE SCHEME ACT 2013 – SECT 27

National Disability Insurance Scheme rules relating to disability requirements and early intervention requirements

The National Disability Insurance Scheme rules may prescribe circumstances in which, or criteria to be applied in assessing whether:

(a) one or more impairments are, or are likely to be, permanent for the purposes of paragraph 24(1)(b) or subparagraph 25(a)(i) or (ii); or

(b) one or more impairments result in substantially reduced functional capacity of a person to undertake, or psychosocial functioning of a person in undertaking, one or more activities for the purposes of paragraph 24(1)(c); or

(c) one or more impairments affect a person’s capacity for social and economic participation for the purposes of paragraph 24(1)(d); or

(d) the provision of early intervention supports is likely to benefit a person by reducing the person’s future needs for supports in relation to disability for the purposes of paragraph 25(1)(b); or

(e) the provision of early intervention supports is likely to benefit a person by mitigating, alleviating or preventing the deterioration of the person’s functional capacity to undertake one or more of the activities for the purposes of subparagraph 25(1)(c)(i) or (ii), or improving such functional capacity for the purposes of subparagraph 25(1)(c)(iii); or

(f) the provision of early intervention supports is likely to benefit a person by strengthening the sustainability of the informal supports available to the person, including through building the capacity of the person’s carer for the purposes of subparagraph 25(1)(c)(iv).

The following excerpt is from the NDIS Operational Guidelines:

9. Early intervention requirements

Early intervention support is available to both children and adults who meet the early intervention requirements. The intention of early intervention is to alleviate the impact of a person’s impairment upon their functional capacity by providing support at the earliest possible stage. Early intervention support is also intended to benefit a person by reducing their future needs for supports.

A prospective participant will meet the early intervention requirements if they meet each of the following requirements:

the person:

i. has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent (section 25(1)(a)(i)); or

ii. has one or more identified impairments that are attributable to a psychiatric condition that are, or are likely to be, permanent (section 25(1)(a)(ii)); or

iii. is a child who has developmental delay (section 25(1)(a)(iii)); and

the NDIA is satisfied that provision of early intervention supports is likely to benefit the person by reducing their future needs for disability related supports (section 25(1)(b)); and
the NDIA is satisfied that provision of early intervention supports is likely to benefit the person by:

i. mitigating or alleviating the impact of the person’s impairment upon their functional capacity to undertake communication, social interaction, learning, mobility, self-care or self-management (section 25(1)(c)(i)); or

ii. preventing the deterioration of such functional capacity (section 25(1)(c)(ii)); or

iii. improving such functional capacity (section 25(1)(c)(iii); or

iv. strengthening the sustainability of informal supports available to the person, including through building the capacity of the person’s carer (section 25(1)(c)(iv)); and

the NDIA is satisfied early intervention support for the person is most appropriately funded or provided through the NDIS (section 25(3)).

Note, in certain circumstances, a person with a degenerative condition could meet the early intervention requirements and become a participant in the NDIS.

For all children under 7 years of age (except children diagnosed with a condition on List A of this Operational Guideline) the NDIA will first consider whether the child meets the early intervention requirements before considering the disability requirements.

9.1 When is an impairment permanent or likely to be permanent for the early intervention requirements?

The NDIA must be satisfied a prospective participant has one or more identified impairments that are, or are likely to be permanent (i.e. lifelong or likely to be lifelong) (section 25(1)(a)(i) and (ii)).

The following principles provide guidance:

an impairment is, or is likely to be, permanent only if there are no known, available and appropriate evidence based treatments that would be likely to remedy (i.e. cure or substantially relieve) the impairment (rule 6.4 of the Becoming a Participant Rules);
an impairment may be permanent notwithstanding that the severity of its impact on the functional impact of the person may fluctuate or potentially improve (rule 6.5 of the Becoming a Participant Rules);
an impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its likely permanency to be demonstrated (rule 6.6 of the Becoming a Participant Rules). In this context, an impairment may be permanent notwithstanding that it may continue to be treated and reviewed after its permanency, or likely permanency, has been medically demonstrated; and
if an impairment is of a degenerative nature, the impairment is, or is likely to be permanent if medical or other treatment would not, or would be unlikely to improve the condition (rule 6.7 of the Becoming a Participant Rules). Accordingly, in certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant in the NDIS.

If a prospective participant has multiple impairments, the NDIA will consider each impairment separately and determine whether each impairment is, or is likely to be permanent. However, the NDIA only needs to be satisfied that at least one of a prospective participant’s impairments are, or are likely to be permanent.

Where there is a possibility of medical treatment (such as surgery) to treat the prospective participant’s condition, and the treatment has some prospect of success, the NDIA should not conclude that the impairment is permanent but should wait until the outcome of the treatment is known (Mulligan and NDIA [2015] AATA 974 at [71] ).

9.2 Developmental delay (early intervention in early childhood)

9.2.1 Requirements for children with developmental delay

Access to the NDIS under the early intervention requirements is also open to children under 6 years of age with a developmental delay (section 25(1)(a)(iii)).

Generally, developmental delay is a term used when a child is slower to reach, or has not reached age-appropriate developmental milestones.

For the purposes of the NDIS Act, developmental delay means a delay in the development of a child under six years of age that meets all of the following criteria:

is attributable to a mental or physical impairment or a combination of mental and physical impairments; and
results in substantial reduction in functional capacity in one or more of the following areas of major life activity:

i. self care;

ii. receptive and expressive language;

iii. cognitive development;

iv. motor development; and

results in the need for a combination and sequence of special interdisciplinary or generic care, treatment or other services that are of extended duration and are individually planned and coordinated (section 9).

Note, ‘receptive and expressive language’ is considered to be a singular area of major life activity. Therefore, a prospective participant will not need to specifically demonstrate a substantial reduction in functional capacity for both receptive and expressive language. A substantial reduction in functional capacity for either receptive or expressive language will suffice.

‘Expressive language’ is taken to include articulation and speech pronunciation.

9.2.2 Determining whether a child has a developmental delay

Access to the NDIS for a child with a developmental delay must be demonstrated by reference to evidence of a substantial reduction in functional capacity relating to the child’s daily routines and daily activities in one or more of the relevant areas of major life activity (i.e. self-care, receptive and expressive language, cognitive development or motor development).

In addition, the NDIA must be satisfied that any impairment which results in a substantial reduction in functional capacity in one or more area of life activity also results in the ‘need for a combination and sequence of special interdisciplinary or generic care, treatment or other services that are of extended duration and are individually planned and coordinated’ (section 9).

Current best practice in early childhood intervention has moved towards functional based assessments using developmental screening tools to evidence the degree of delay in a child’s development. Developmental screening identifies areas in which a child’s development differs from same age norms and identifies children presenting with developmental delay. For example, the Pediatric Evaluation of Disability Inventory Computer Adaptive Test (PEDI-CAT) is one of the functional assessment tools used for children in this context.

The NDIA may specify, in operational guidelines, assessment tools that may be used for the purposes of deciding whether a person meets the early intervention requirements (rule 7.2 of the Becoming a Participant Rules).

Without limitation, the NDIA may specify:

different tools to be used for adults and children; and
tools that are specifically tailored to particular impairments (rule 7.4 of the Becoming a Participant Rules).

A tool must be designed to ensure the fair and transparent assessment of whether a person meets the early intervention requirements and have reference to areas of activity and social and economic participation identified in the World Health Organisation International Classification of Functions, Disability and Health as in force from time to time (rule 7.5 of the Becoming a Participant Rules).

Generally, the NDIA will use a validated and reliable functional assessment tool which indicates a child is statistically below a normal range (i.e. that their needs are substantially different to the norm) to determine access to the NDIS under the developmental delay criteria for children aged under 6 years.

Qualitative information provided by parents to the NDIA regarding developmental skills and milestones may also assist in understanding the level of functional impact for a child. Where possible, the NDIA will assist parents to provide appropriate evidence of substantially reduced functional capacity relating to developmental milestones.

The NDIA will also consider the when determining whether a child’s impairment results in a substantial reduction in functional capacity in one or more of the areas of major life activity.

In some circumstances, the NDIA may request further information or request that a prospective participant undergo an assessment or examination (see requesting further information or reports to inform the access decision).

In summary, having regard to results from a validated and reliable functional assessment tool and any other relevant information, a child under the age of 6 who has a developmental delay as a result of an impairment that results in substantial functional limitations requiring a coordinated, long term, multidisciplinary service response will meet the early intervention requirements under the NDIS Act, provided the early intervention support is most appropriately funded or provided through the NDIS.

It should be noted that many children who meet the developmental delay access criteria will receive early intervention supports and then exit the NDIS. Therefore, meeting the early intervention criteria does not mean a child meets the disability requirements in the NDIS Act.

Children who do not meet the early intervention access criteria may be supported in the early childhood early intervention gateway. In these situations, the NDIA should refer children to other community/mainstream supports via the early childhood early intervention gateway (see early childhood early intervention (ECEI) approach)

9.2.3 Streamlined process for determining the early intervention requirements for children with a developmental delay

The NDIA will be satisfied the provision of early intervention supports for a child with developmental delay will be likely to benefit the child as required by the early intervention requirements without further assessment (rule 6.8 of the Becoming a Participant Rules).

Therefore, children with a developmental delay will be able to access the NDIS under the early intervention requirements provided the early intervention support is most appropriately funded or provided through the NDIS (section 25(3)).

9.3 Determining whether early intervention supports are likely to benefit the person

The NDIA must be satisfied that the provision of early intervention supports (except for children with developmental delay) is likely to benefit the prospective participant by:

reducing the person’s future needs for supports in relation to disability (section 25(1)(b)); and
achieving one or more of the following four outcomes:

i. mitigating or alleviating the impact of the person’s impairment upon the functional capacity of the person to undertake one or more activities (section 25(1)(c)(i)); or

ii. preventing the deterioration of such functional capacity (section 25(1)(c)(ii));

iii. improving such functional capacity (section 25(1)(c)(iii); or

iv. strengthening the sustainability of informal supports available to the person, including through building the capacity of the person’s carer (section 25(1)(c)(iv)).

When considering whether the provision of early intervention supports is likely to benefit the person, the NDIA should consider:

the likely trajectory and impact of the person’s impairment over time (rule 6.9(a) of the Becoming a Participant Rules); and
the potential benefits of early intervention on the impact of the impairment on the person’s functional capacity and in reducing their future needs for supports (rule 6.9(b) of the Becoming a Participant Rules); and
evidence from a range of sources, such as information provided by the prospective participant or their family members or carers. The NDIA may also in some cases seek expert opinion (rule 6.9(c) of the Becoming a Participant Rules).

When considering if a person is likely to benefit from early intervention supports, the NDIA may consider factors such as the time elapsed since the onset or diagnosis of the disability and whether there has been a recent, or impending, significant change in the person’s impairment or disability.

9.4 Is the support most appropriately funded or provided through the NDIS?

The NDIA must be satisfied that early intervention support is most appropriately funded or provided through the NDIS (section 25(3)).

Therefore, the NDIA will consider whether a prospective participant’s overall, or likely, need for early intervention support is most appropriately funded or provided through the NDIS.

A prospective participant does not meet the early intervention requirementsif the NDIA is satisfied that early intervention support for the person is not most appropriately funded or provided through the NDIS, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:

as part of a universal service obligation; or
in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability (section 25(3)).

When deciding if early intervention supports are most appropriately funded or provided through the NDIS, the NDIA must have regard to the considerations outlined in Schedule 1 of the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (see is the support most appropriately funded or provided through the NDIS?).

9.5 Streamlined process for determining the early intervention requirement for children under 7 years of age

In some circumstances the NDIA will be satisfied that a prospective participant meets the early intervention requirements by reference to List D appended to this Operational Guideline.

List D has been developed to streamline the access process for children under 7 years of age who have been diagnosed with a condition/s included on the list.

9.5.1 ‘List D’ conditions

Where a child under the age of 7 has been diagnosed with a condition/s on List D the NDIA will be satisfied that the child meets the early intervention requirements without further assessment.

A child does not need to have a condition on List D to become a participant in the NDIS.

9.5.2 Early intervention for hearing impairment for people aged 0-25

The NDIA will be satisfied that a person meets the early intervention requirements without further assessment when the person:

is aged between birth and 25 years of age; and
has confirmed results from a specialist audiological assessment (including electrophysiological testing when required) consistent with auditory neuropathy or hearing loss ≥ 25 decibels in either ear at 2 or more adjacent frequencies, which is likely to be permanent or long term; and
the hearing loss of the person necessitates the use of personal amplification.

This streamlined access approach for early intervention acknowledges a rich body of evidence that recognises that early intervention support up to and including the age of 25 is critical for people with hearing impairment as the developing brain requires consistent and quality sound input and other support over that period to develop normally and ameliorate the risk of lifelong disability.

This same body of evidence suggests that brain development and language capability have been achieved by the age of 26. Therefore, adults aged 26 years and over are not immediately accepted to be likely to benefit from the same early intervention approach because there is no requirement to support the development of the auditory pathways. Adults aged 26 years and over with hearing impairment will therefore be assessed normally, on a case by case basis, having regard to the availability of all relevant evidence.

9.6 Reassessment of early intervention supports

Where a person has become a NDIS participant under the early intervention requirements, the NDIA will reassess their circumstances when reviewing their plan. The purpose of the reassessment is to ensure that early intervention supports continue to provide a benefit to the person, as required by the early intervention requirements.

If a participant no longer meets the early intervention requirements, the NDIA will consider whether the person can continue to access the NDIS under the disability requirements.

In some circumstances, a person’s access to the NDIS may be revoked if they do not meet either the disability or early intervention requirements.

Where the participant is a child with developmental delay, there is no requirement to reassess access to the NDIS on the child’s sixth birthday, particularly where the child may have only recently gained access to the NDIS. In general, a plan of usual length for others with similar circumstances should be developed for these children (up to 12 months). The child’s status may then be reassessed when reviewing their plan.