Peter Freckleton has been disabled since he was six but is currently ineligible
During the polio pandemic in the 1950s, he developed polio in both legs.
He was already over 65 when the NDIS came out and was therefore ineligible to access the scheme.
Now he’s one of dozens of class-action plaintiffs who say they’ve been discriminated against because of their age.
“They made the limit not on whether you had a disability before 65, but how old you were when you applied,” Mr Freckleton said.
“I was really stunned when I found out they had an age limit because I and other people have had (our disability) since childhood,” he said.
“And I thought it’s really unfair, and there are a lot of people in a much worse position than I was, just not getting the help they need when the national system is already in place and they’re banned… I just thought it was absolutely cruel and unfair, and something needs to be done about it.”
Mr Freckleton said the funding available through My Aged Care was not enough to fund the care and equipment needed by people with disabilities, such as a specific type of wheelchair, leg braces or home modifications.
“Disability in itself is not the end of the world, you can have a perfectly good life as long as you get some of the help you need to just get around and participate in society,” he said.
“There are different kinds of equipment and so on that you need, but once you have them … you can go on living well and contributing, but to deprive people of that just randomly because of their birthday is what I call it a calendar. crime”.
Peter Freckleton developed polio in both legs as a child during the polio pandemic of the 1950s. Source: Delivered / Peter Freckleton
Mitry Lawyers launches class action lawsuit against federal government.
the exclusion of disabled people aged 65 and over from the NDIS has led to “hardship and inequality for thousands of people” who need disability benefits but are limited to accessing funds through My Aged Care rather than the NDIS.
The class action will seek to remove the exemption so that all age groups can access the NDIS.
Rick Mitry, principal attorney at Mitry Lawyers, said more than 200 people have expressed interest in joining the class action since it went public last weekend.
“Too many people are suffering needlessly … the incapacity of these people is, in my view, intolerable,” Mr Mitry told SBS News.
“It doesn’t take much to get them out of the situation and back to some kind of normalcy … basically, that’s why we (do it).”
“I think the only way to bring this to the attention of the government is if these poor people file claims.”
What is a class action?
The case seeks compensation for those who lost their NDIS plans, which Mitry’s lawyers said averaged about $111,000 a year.
Mitry Lawyers also looks at the psychological or health consequences of not being able to access the NDIS, as well as carer costs, travel costs, medical bills and loss of opportunities.
The case will allege that the government acted beyond its constitutional powers by implementing the “age limit” in Section 22 of the National Disability Insurance Scheme Act 2013.
The overall aim of the litigation is to remove section 22 from the NDIS Act.
“We’re just asking for equal treatment”
Under section 22, a person applying to access the NDIS must be under the age of 65 at the time of the request to be eligible.
Mr Freckleton believes this is both age discrimination and disability discrimination.
He believes legal action is the only way forward.
“We’ve tried, we’ve talked to both major parties and … they won’t budge,” he said.
“And when governments go astray, the only thing you can do is try to go to court … it’s not something you do lightly, but it seems – in desperation – the only way forward.”
“We are not asking for special treatment. We’re just asking for equal treatment.”
A spokesperson for the Department of Social Services told SBS News that the NDIS, which operates in all states and territories, is part of a wider disability support system in Australia.
“People over the age of 65 can access support through the aged care system,” the spokesman said.
“Those people receiving support under the NDIS who are over 65 can choose to either stay in the NDIS or move into the aged care system.”
What is the NDIS and how does it work?
The NDIS is an Australia-wide government initiative designed to help meet the costs of people with disabilities.
The NDIS Act was passed in 2013 and the scheme was rolled out in 2020.
Through the NDIS, eligible people can access funding for “reasonable and necessary” support needs related to their disability.
To be eligible, applicants must be aged between seven and 65, hold Australian citizenship, a permanent visa or a protected special category visa, live in Australia and have a “disability caused by persistent impairment”.
Once approved for access to the NDIS, individual plans are created based on need.