A recent decision of the Administrative Review Tribunal (ART) provides important guidance on the interaction between the National Disability Insurance Scheme (NDIS) and the justice system, particularly for people subject to forensic orders who are living in the community.
The decision is particularly significant because it addresses a recurring tension between disability and justice systems: When does supervision become a justice responsibility rather than a disability support?
In QBMW and National Disability Insurance Agency (NDIS) [2026] ARTA 1467, the Tribunal considered the application of Schedule 2, NDIS Supports Rules which lists those things the NDIS cannot fund.
Item 21 in the list excludes “justice”-type supports including funding for “the day-to-day care and support needs of a person in custody”, and “supervision and monitoring to prevent or observe offending behaviour or to monitor adherence to justice system‑imposed conditions”.
The case centred on a forensic disability patient who remained subject to significant restrictions on liberty but had been residing outside a Forensic Disability Service (FDS) on long-term authorised leave. The participant required intensive disability supports, including two support workers at all times.
The first issue was whether the participant was “in custody”. If the participant was found to be “in custody”, the NDIS would be prevented from funding many of the supports sought.
The Tribunal found that while the participant remained subject to forensic orders and significant supervision requirements, he was not “in custody” when residing outside the FDS under approved leave arrangements. This meant the circumstances did not automatically prevent NDIS funding. It also means more broadly that participants not inside a declared facility (for example a prison, authorised mental health facility or youth detention centre) are not in custody for the purpose of the NDIS legislation.
Having made this finding, the second issue was whether the supports were monitoring and supervision in order to comply with justice-system conditions. The Tribunal accepted that support workers may, in practice, undertake some supervision and monitoring functions. However, the presence of those functions did not remove a support from the scope of the NDIS.
Rather, the focus remains on the purpose of the support, being required to the support the person’s disability. Importantly, the mere presence of a requirement to be supported for some or all of the time under a justice condition, in of itself did not mean the support would be disallowed under the NDIS, if the assistance is needed due to a participant’s disability.
Ultimately, and importantly the Tribunal rejected the notion that responsibility must sit entirely with either the NDIS or the justice system.
The Member recognised that the participant’s circumstances engaged the responsibilities of both systems. On one hand, the participant had substantial disability-related support needs requiring intensive assistance. On the other, he remained subject to strict restrictions arising from serious public safety concerns. He could not leave his residence without an authorised escort, his accommodation was secured to custodial standards, and he remained under an inpatient forensic disability order.
The Tribunal noted that the NDIA had previously acknowledged the situation as a shared responsibility, writing to the Queensland Government in 2024 that the participant’s support needs should be viewed as a joint responsibility of the NDIA and the state forensic system.
Ultimately, the Tribunal concluded that the existing cost-sharing arrangement was appropriate. While some supports were properly funded through the NDIS, the Member was not satisfied that all requested supports were most appropriately funded through the scheme.
The decision provides useful guidance for practitioners working at the intersection of disability, mental health and criminal justice systems.
First, it confirms that a person subject to a forensic order is not necessarily “in custody” for the purposes of the NDIS funding exclusions. Secondly, it recognises that disability support workers may provide some supervision and monitoring where those functions arise from disability-related needs. Finally, it acknowledges that responsibility for supports may be shared between systems where both disability-related needs and public safety considerations are engaged.
For people seeking to transition from forensic or custodial settings into the community, the decision reinforces that funding disputes should be resolved by examining the purpose of the support rather than the participant’s legal status alone. It is a practical reminder that the boundary between disability support and justice-system responsibility is rarely clear cut, and that collaborative funding arrangements may sometimes provide the most appropriate outcome.
Share this article