NEW FRAMEWORK PLANNING RULES

Department of Health, Disability and Ageing

6 March 2026

AFDO author and contact:

Matthew Hall
National Manager - Systemic Advocacy & Policy
matthew.hall@afdo.org.au

Reviewed and approved:

Ross Joyce
Chief Executive Officer

Contents

• Acknowledgements

• Language used in this document

• About AFDO

• 1. Acronyms and abbreviations

• 2. Executive summary

• 3. Background

  • 3.1 The documents released as part of this consultation
  • 3.2 What the Department has not released
  • 3.3 Information provided at the Briefing.
  • 3.4 Relevant obligations under the CRPD

• 4. What this means for the consultation

  • 4.1 Process, order of steps and timing is wrong and piecemeal
  • 4.2 Inability to provide meaningful feedback on the released information
  • 4.3 No confidence that consultation will be ongoing
  • 4.4 Conclusions government may not draw from this submission

• 5. Transitional rules pending consent

• 6. Assessor qualifications and standards

• 7. Inadequacies of ICAN

• 8. Deficit based language

• 9. Therapy supports

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Consent to publication:

Australian Federation of Disability Organisations (AFDO) consents to the publication of this submission, including the names and contact details of AFDO staff. The relevant AFDO staff also give that consent.

2026, Australian Federation of Disability Organisations (AFDO) Ltd
A.B.N. 25 105 510 898

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Acknowledgements

Aboriginal and Torres Strait Islander people

Australian Federation of Disability Organisations (AFDO) acknowledges Aboriginal and Torres Strait Islander people as the First Peoples and traditional custodians of the land now called Australia. We recognise their deep and continuing connection to Country and community. We pay our respects to the traditional custodians of Country where we work, connect, or meet, which always was, and always will be, Aboriginal land. We also pay our respects to Elders past, present, and emerging.

People with disability

AFDO acknowledges people with disability in all their diversity, particularly those individuals who have experienced or are continuing to experience violence, abuse, neglect, or exploitation. We also acknowledge their families, carers, supporters, and representative organisations and express our thanks for the continuing work done by the many people supporting, protecting, and advancing the rights of people with disability.

Language used in this document

AFDO has chosen to use person-first language (like “people with disability”) in this document. Person-first language puts the person before the disability and values the individual by seeing them as a person, not a condition. This aligns with the CRPD and matches the language used by all governments in Australia. Most other Australian disability peaks also use person-first language.

We recognise many people with disability prefer identity-first language. Disability is a part of their identity and shows a connection to their community and pride in disability. Views on language reflect people’s identities, experiences of disability, and community attitudes. It is a matter of individual choice and agency. AFDO respects everyone’s right to choose how to describe their identity and experiences.

About AFDO

Since 2003, the Australian Federation of Disability Organisations (AFDO) has been the pre-eminent national peak for people with disability, championing their rights through our extensive member organisation network uniquely representing both disability-specific and cross-disability communities with a reach of over 4.5 million Australians.

We are, firstly, a Disabled People’s Organisation (DPO), led, governed, and predominantly staffed by people with disability. We are also a Disability Representative Organisation (DRO) funded by the Australian government. The majority of our member organisations are DPOs, family led, or specific disability not for profits. This ensures that our work is informed by lived expertise and experience, truly representing our communities.

AFDO is a strong, trusted voice for the disability sector. We advocate on national policy, inquiries, and initiatives with the Federal and state and territory governments. We work to build a community where people with disability:

• have real participation in community life
• can build respectful, valued relationships
• participate socially and economically, and
• contribute as valued citizens.

Our vision

All people with disability can take part equally in all aspects of social, economic, political, and cultural life.

Our mission

Using the strength of our member organisations to harness the collective power of uniting people with disability to change society into a community where everyone is equal.

Our strategic objectives

• To represent the interests and united voice of our members and people with disability at a national and international level in all relevant forums.
• To build the capacity, profile, reputation, and sustainability of AFDO through the strength of our member organisations.
• To enhance the connection and influence in international disability initiatives by policy, advocacy, and engagement, focused on the Asia Pacific region.

Our members

AFDO’s member organisations contribute to the national policy agenda and address issues that impact the lives of people with disability in Australia. We understand that disability-specific organisations play a key role in the provision of information and peer support to people with disability and their families. This role keeps them closely connected to their grassroots communities. Each community has its peak organisation that uses its voice to advocate on issues.

Information about AFDO’s members can be found on our website.

Every Australian Counts

AFDO has been involved in Every Australian Counts since the beginning of the grassroots campaign that successfully advocated for the introduction of the NDIS.

AFDO continues to support Every Australian Counts by auspicing the campaign, holding a position on the Steering Committee, and providing administrative, governance, marketing and communications support.

More information about Every Australian Counts, including its current priorities and activities is available on the Every Australian Counts website.

1 Acronyms and abbreviations

This list of terms may assist users of this document to understand what we mean when we use the following terms or abbreviations.

paper | Supports Consultation with Allied Health Sector’.8 | | WHO | World Health Organisation |

2 Executive summary

AFDO welcomes the opportunity to provide feedback on the proposed New Framework Planning rules for the National Disability Insurance Scheme. However, the consultation process is significantly limited by the absence of key documents and information necessary to enable meaningful engagement by people with disability and their representative organisations.

At the time of this consultation, the Department has not released exposure drafts of the proposed legislative instruments that will establish the rules governing the new planning framework. In addition, explanatory documentation and key operational information relating to several core elements of the proposed system have not been made available.

These include the rules relating to plan budgets, support needs assessments, NDIS supports, and plan variations. Without these materials it is not possible for stakeholders to understand how the different components of the framework will operate together or how they will affect participants.

As a result, the consultation process does not provide the disability community with sufficient information to offer informed and constructive feedback on the proposed reforms. The absence of key documentation and design information also raises serious concerns regarding Australia’s obligations under Article 4(3) of the Convention on the Rights of Persons with Disabilities, which requires governments to closely consult with and actively involve people with disability and their representative organisations in the development and implementation of disability policy.

AFDO is also concerned that the reform process appears to be proceeding in a fragmented way. The planning framework is being developed and tested operationally before the policy settings and rules that govern the system have been fully defined and consulted on. This risks embedding system constraints into policy and legislation rather than ensuring that operational systems are designed to reflect agreed policy objectives.

The information that has been released also raises a number of substantive concerns about the proposed assessment model and planning framework. In particular, the disability community has not been provided with evidence demonstrating the reliability and validity of the proposed Support Needs Assessment and the ICAN assessment tool across the diverse disability cohorts that will be assessed under the new system. There is also limited transparency regarding how assessment outcomes will translate into funding decisions,

what safeguards will apply during the transition to the new framework, and what review

and appeal mechanisms will be available to participants.

AFDO is committed to constructive engagement with government to ensure that reforms to

the NDIS planning framework strengthen participant rights, safety, and scheme

sustainability. However, the current consultation process does not provide the

transparency, information, or level of engagement required to achieve this outcome.

Owing to these factors this submission focuses on three key priorities:

• ensuring transparency and accountability in the design of the new planning

  framework

• ensuring genuine consultation and co design with people with disability and their

  representative organisations

• ensuring that the assessment and planning model is evidence based, rights

  focused, and safe for participants.

AFDO calls on the government to release all outstanding materials relating to the

proposed reforms, including exposure drafts of the relevant legislative instruments, and to

undertake a genuine consultation process that enables people with disability and their

representative organisations to meaningfully influence the design and implementation of

the new framework.

AFDO calls on the government to:

1. provide, as soon as possible, clear timelines for the release of the exposure draft

   Instruments, explanatory documentation and all other outstanding materials,

   including clear communications to DROs, DRCOs and NDIS participants setting out

   what information will be released, when it will be released, and how the disability

   community and representative organisations will be able to influence the design and

   decision making in relation to those materials, and

2. release, in accordance with those timelines, all outstanding reform materials for

   thorough, genuine and comprehensive consultation with NDIS participants, their

   families, kin and carers, and Disabled People’s Organisations and Disability

   Representative Organisations. These materials should include exposure drafts of all

   relevant Instruments, explanatory documentation, and operational policy

   documents.

1. publish the methodology and validation evidence underpinning Support Needs

   Assessment, including accessibility testing, cultural and linguistic bias testing,

   and sample outputs

2. publish the outcomes, test results and evaluation scores or similar data from all

   desktop reviews, validation testing, and evaluative processes undertaken by the

   Department or the NDIA, in the design, modification, implementation and testing

   of all components of the NFP model

3. provide clear modelling demonstrating how assessment outcomes will translate

   into funding decisions, including transparency regarding the role of flexible

   supports and whether automated or algorithmic decision-making processes are

   used

4. clarify the review and appeal mechanisms available to participants under the

   new framework, including confirmation that accessible and effective merits

   review through the Administrative Review Tribunal will remain available

5. publish the government’s proposed participant safeguards during the transition

   to the new framework including how inequitable outcomes will be prevented and

   addressed, and

6. publish a clear and detailed rollout schedule, for the New Framework Planning

   model including transition cohorts, implementation, timelines, performance

   targets, and risk mitigation strategies.

7. If the government proceeds with transitional rules as indicated during the

   Department’s briefing, AFDO calls on the government to ensure that:

   a. any changes to transitional rules before they are replaced with final rules, b. the development of policy, content and drafting of all final rules, c. occur through close consultation with and active involvement of people with

   disability and their representative organisations in an open, meaningful and

   timely process. d. this process should include a commitment by the government to:

   (i) release exposure drafts of all proposed final Instruments and

      accompanying explanatory documentation at the commencement of
   
      the consultation process
   

   (ii) fully consider all contributions received during consultation (iii) take those contributions into account in finalising the rules, and

(iv) provide clear explanations to Disability Representative Organisations

 outlining how the views of Disabled People’s Organisations and the

 broader disability community were considered and why particular

 decisions were made.

4.a. clearly set out the legal basis on which it asserts that it has the authority to make

transitional rules covering all components of the New Framework Planning

model using Instruments that address all topics of the proposed rules, including

those listed in the table in section 209(8) of the Act but not included in Item 139

of Schedule 1 of the Amending Act.

4.b. clearly set out the legal basis on which it asserts that the Minister may issue a

transitional rule, prior to the unanimous consent of the states and territories, for

a period of up to five years.

5. AFDO recommends that an Instrument clearly sets out the required education,

   training, skills and capabilities of an assessor, including each of the following:

   a. relevant allied health registration and specific training in autism,

   psychosocial disability, degenerative disability, sensory and physical

   disability, intellectual disability and complex communication needs b. mandatory training in trauma-responsive practice, cultural safety and

   intersectional approaches to disability c. requirements for assessors to demonstrate expertise with the disability

   cohort they assess d. a blanket prohibition on conflicts of interest, including financial interests in

   provider organisations e. a participant’s right to request, and receive, a different assessor where the

   participant or participant’s nominee has concerns about cultural safety,

   disability expertise or a past negative experience f. independent oversight of assessor quality, and g. a clear and accessible complaints handling scheme.

6. ensure that the NDIA, codesigns with people with disability:

   a. participant facing language that replaces the use of the term “impairment” in

   Agency communications and notices, while remaining consistent with the

   requirements of the NDIS Act and the relevant legislative provisions that must

   be referenced in those notices, and

b. a name for the assessment tool that is not weighted with ableist assumptions

        or patronising of many people with disability, as a suitable replacement for

       “ICAN”.

7.a. ensure that any proposed framework for categorising therapy supports that interacts

   with the New Framework Planning model is transparently disclosed and considered

  as part of the NFP reform process. This should include clear explanation of how

  therapy support categories, ICAN assessment domains, support item groupings and

  plan funding arrangements will interact under the NFP rules.

7.b. that NFP rules should not rely on therapy categorisation frameworks or assessment

  outputs that have not been publicly consulted on and supported by published

   validation evidence.

3 Background

3.1 The documents released as part of this consultation

To date, the Department has released the following documents and supporting materials9

as part of the consultation:

1. Discussion paper on new framework planning

2. Discussion paper on new framework planning – Easy Read

3. Discussion paper on new framework planning – text only Easy Read

4. Auslan summary of the discussion paper

5. Explanatory document – Notice of impairments

6. Explanatory document – Transition to new framework plan

7. Explanatory document – New framework plan spending rules

8. Explanatory document – Stated supports, and

9. Factsheets dealing with:

   (a) Step 1: Preparing for a support needs assessment (b) Step 2: The support needs assessment (c) Step 3: Building a plan (d) Step 4: Using a plan, and (e) Reviews and appeals under the new way of planning.

The Department has also released a summary report of disability sector feedback between

September 2025and December 2025.

Each explanatory document outlines the intended operation of the draft National Disability

Insurance Scheme rules for the stated topic (Instrument) and will form the basis of the

explanatory statement for each Instrument that must accompany the Instrument when it is

tabled in Parliament10.

Each of the proposed rules covered by the explanatory documents that have been

released as part of the consultation are Category D rules.

Most of the consultation questions go to communication, rather than the design or

operation of systems or processes

3.2 What the Department has not released

The Department has not released a draft Instrument for any of the topics.

The Department has also not released explanatory documents or fact sheets dealing with

the proposed rules for:

1. Plan budgets
2. Support Needs Assessments
3. NDIS supports and
4. Plan variations,

(collectively, missing rules).

The discussion paper also does not include any meaningful or detailed information on the

missing rules.

Each of the missing rules are Category A rules.

In addition to this consultation occurring without the release of exposure draft Instruments

and explanatory documents, the Department has not released or explained key elements

that are necessary to properly assess the proposed reforms.

These missing key elements and information include:

• how the Support Needs Assessment has been validated, including accessibility and

  cultural and linguistic bias testing

• sample reports and clarification of assumptions regarding informal supports

• clear explanation of how assessed need will translate into funding outcomes,

  including whether automated or algorithmic decision-making will be used

• details of review processes and appeal rights

• confirmation that full merits review through the Administrative Review Tribunal will

  remain accessible and effective

• safeguards to prevent inequity during transition, and

• clarity regarding the staged rollout cohorts and timelines.

3.3 Information provided at the Briefing.

The Department held two sessions to brief DROs on the documents the Department

released as part of this consultation on the proposed NFP rules. AFDO attended the

briefing held on 5 February 2026.

We appreciate that the information available to the Department may have changed since

the Briefing, however, we can only rely on the information that has been provided or

disclosed to us and the other DROs at, and after, the Briefing.

This section sets out some of that further information.

The government will not publish:

• the draft Instruments for the Category D rules, nor

• any draft Instruments for any of the missing rules or any other document explaining

  or relating to the missing rules,

before 6 March 2026 (when the consultation process closes).

The Department cannot give any indication of when we can expect those documents to be

publicly available, other than (as of 5 February 2026) the Department was “a long way off”

publishing those documents. The Department also advised DROs that it is planning to

release an exposure draft of each of the Instruments and explanatory documents before

the Minister makes the Instruments, and before the Instruments are tabled in the

Parliament. However, the Department was very careful to also note that any decision in

relation to the release of any exposure draft Instrument is a “decision of government”.

The Department considers that the explanatory documents for the four topics that have

been released provide “detailed information” about the four Category D rules. However,

the Department also acknowledges that the information is “high level”11 and that it is still

“working through the details” of, for example, how a notice of impairment will relate to and

inform the support needs assessment. This is not included in the explanatory document.

As of 5 February 2026, the Department was “hoping”” to publish some additional fact

sheets by Friday, 13 February 2026, providing further information on the following topics:

• content of a support needs assessment report
• circumstances in which a participant can ask for a replacement assessment, and
• circumstances in which a plan may be varied, and the process for variation.

As far as ADFO is aware (as of 5 March 2026), those additional fact sheets have not been

published.

The Department advised that complete information is not available because the processes

are still undergoing validation testing of the various components by the NDIA. The

Department and the NDIA are also still working through an holistic end-to-end process

validation testing (which is still being planned) but could not confirm if DROs and DRCOs

will be involved in that process and, if so, the management, extent, and timing of that

involvement.

In response to a question posed during the Briefing, the Department was also not able to

provide any information about the details of the management of the risk of one part of the

system operating validly and executing correctly but having an adverse or unintended

effect on how another component operates or interacts with it, or the operation of the

system as a whole.

The Department says it will publish the results of the validation testing, but we have not

seen any written commitment to do this. The Department has not provided any information

on the timing or extent of publication of those test results.

The Department advised DROs in the Briefing that if the government does not have the

required unanimous consent of the states and territories to any Category A rules by the

time the government wants to start the rollout of the NFP, the Commonwealth will proceed

to implement the NFP without that consent, using transitional rules. During the term of the

transitional rules, the government will continue to negotiate with, and secure the necessary

consent of, the states and territories before the Minister makes final rules.

The Department asserted in the Briefing that it will be able to use transitional rules for up

to five years. (We return to this issue in section ##).

Lastly, the Department confirmed that all support needs assessors will be full-time,

permanent employees of the NDIA, trained to use the ICAN and the Support Needs

Assessment process, and administer the PECQ correctly.

However, the Department and the Agency were still having conversations “around” the

issue of whether an assessor needs to have an allied health qualification (and noting that

this is not a matter that will be covered by any Instrument and is not part of the current

consultation process).

3.4 Relevant obligations under the CRPD

Australia ratified (that is, agreed to the terms of) the CRPD on 17 July 200812.

The CRPD creates an obligation on Australia (as a “States Party”) when developing and

implementing disability policy to “closely consult with and actively involve” people with

disability through their representative organisations13.

The CRPD Committee has clarified the scope of this central obligation of government.

Consultation with and the involvement of persons with disability is

a mandatory step prior to the approval of laws, regulations and policies, whether mainstream or disability specific. Therefore, consultations should begin in the early stages and provide an input to the final product in all decision making [sic] processes.14 (our emphasis)

Further, to closely consult with and actively involve people with disability and their

representative organisations requires government to

systematically and openly approach, consult and involve, in a meaningful and timely manner15 (our emphasis)

people with disability and their representative organisations. We must also have access to

all relevant information.16

The government must also give

due consideration and priority to the opinions and views of organizations of persons with disabilities when addressing issues directly related to persons with disabilities [and has] a duty to inform organizations of persons with disabilities of the outcomes of [decision-making] processes, including an explicit explanation in an understandable format of the findings, considerations and reasoning of decisions on how views [of DPOs] were considered and why.17 (our emphasis)

Without each of these essential features, any consultation the government undertakes in

connection with the NFP, including the NFP rules, will not comply with Australia’s

obligations under Article 4(3) of the CRPD.

4 What this means for the consultation

4.1 Process, order of steps and timing is wrong and piecemeal

AFDO believes that the Department is approaching the setting of the NFP rules in

completely the wrong way. It will draft rules that support a system and processes that have

been (or are being) implemented, tested and accepted. Policy is being dictated by the

constraints of that system and those processes. The proper process is to set policy and

draft rules aligned with that policy, before implementing a system that aligns with that

policy and complies with those rules.

It is also AFDO’s position that the NFP system must be designed and considered

holistically, and not in the piecemeal, fragmented way that the Department has adopted.

The Department’s approach is inconsistent with, and contrary to, the government’s

approach (as published by the Department of the Prime Minister and Cabinet) to achieve

the Government’s vision and goals for the care and support economy, in which an “holistic,

harmonised approach to the implementation of these reforms is vital”.18

4.2 Inability to provide meaningful feedback on the released

information

The government will not meet its obligations under Article 4(3) of the CRPD if it proceeds

with the current consultation, and without full disclosure of all necessary and relevant

materials.

Further, the current deficiencies in the information available as part of the consultation

process prevent AFDO, the other DROs, and the broader disability community from

developing any understanding of each of the component parts and their relationships with

the other components. It also means that we cannot properly analyse, nor provide fully

informed, constructive feedback on, the government’s proposed framework, systems, and

processes. As a result, the integrity of the consultation process is compromised.

We are unable to provide any real, meaningful comment on the NFP without the benefit of

all the draft Instruments, and complete explanatory documents for all topics of the

proposed rules, namely

1. Notice of impairments
2. Transition to new framework plan
3. New framework plan spending rules
4. Stated supports
5. Plan budgets
6. Support Needs Assessments
7. NDIS supports and
8. Plan variations.

It is not sufficient to provide some of the explanatory documents (which themselves are

incomplete) in replacement of draft Instruments for people to understand each of the

separate components of NFP and to understand how these separate components relate to

and interact with each other, as a whole.

4.3 No confidence that consultation will be ongoing

The stated intention or plan of the Department to release exposure draft documents

following the consultation stage (given that it is, in fact, a decision of government) is of no

assurance to participants, AFDO, or the wider disability community. We have no

confidence that any exposure draft Instruments or associated explanatory documents will

be released, or that any consultation process will occur in respect of those exposure draft

documents.

This is particularly so because of our recent experience with the Integrity Bill.

The Integrity Bill was introduced into the Senate by the Minister without the prior release of

any exposure draft, and without any prior notice to the disability community.

The government considered that it undertook extensive consultation with the disability

community and disability peaks in developing the Bill, and before its introduction into the

Senate. This removed any need for an exposure draft of the Bill. According to the Integrity

Bill’s explanatory memorandum19, the amendments in the Integrity have been developed

following a public consultation process and targeted consultations with state and territory governments and disability sector peak organisations. This includes consultation by the Commission through a consultation paper, survey and Ministerial town hall event in late 2024 [27 November 2024]. … [A] consultation paper describing the policy behind the measures in Schedule 1 was published on the Commission’s website, seeking feedback from the community. A survey was also available for community members to respond to if they wished. (our emphasis)

The first point to note is that this statement says nothing about consultation in respect of

Schedule 2 of the Integrity Bill.

It is correct that consultation on matters now included in Schedule 1 of the Integrity

Bill occurred in late 2024. It is not correct to classify this as consultation on the

amendments, or the Integrity Bill. As the government notes, this was consultation on “the

policy behind” the amendments. The amendments or the wording of the Bill was not part of

this consultation process.

The Bill was not introduced in the Parliament until 26 November 2025. This occurred after

an election (at which the government was returned) and the appointment of two new

Ministers for the NDIS.

Without the release of an exposure draft of the Integrity Bill in these circumstances, the

Integrity Bill took the community by surprise. Even though the Bill (for the most part) is a

positive development for participants, the government’s actions caused a lot of anxiety,

stress, and concern among participants. The community was very concerned that the

secrecy and lack of transparency by the government must mean that the government had

something to hide and was rushing through changes to the Scheme that were adverse to

participants.

We think there is a significant likelihood that the government will make a similar decision in

relation to any Instruments, and determine that release of exposure draft documents is not

necessary because of the current “consultation” process.

RECOMMENDATION 1

AFDO calls on the government to:

b. provide, as soon as possible, clear timelines for the release of the

exposure draft Instruments, explanatory documentation and all other

outstanding materials, including clear communications to DROs,

DRCOs and NDIS participants setting out what information will be

released, when it will be released, and how the disability community

and representative organisations will be able to influence the design

and decision making in relation to those materials, and

c. release, in accordance with those timelines, all outstanding reform

materials for thorough, genuine and comprehensive consultation with

NDIS participants, their families, kin and carers, and Disabled People’s

Organisations and Disability Representative Organisations. These

materials should include exposure drafts of all relevant Instruments,

explanatory documentation, and operational policy documents.

RECOMMENDATION 2

AFDO also calls on the government to:

a. publish the methodology and validation evidence underpinning Support

Needs Assessment, including accessibility testing, cultural and linguistic

bias testing, and sample outputs

b. publish the outcomes, test results and evaluation scores or similar data

from all desktop reviews, validation testing, and evaluative processes

undertaken by the Department or the NDIA, in the design, modification,

implementation and testing of all components of the NFP model

c. provide clear modelling demonstrating how assessment outcomes will

translate into funding decisions, including transparency regarding the role

of flexible supports and whether automated or algorithmic decision-

making processes are used

d. clarify the review and appeal mechanisms available to participants under

the new framework, including confirmation that accessible and effective

merits review through the Administrative Review Tribunal will remain

available

e. publish the government’s proposed participant safeguards during the

transition to the new framework including how inequitable outcomes will

be prevented and addressed, and

f. publish a clear and detailed rollout schedule, for the New Framework

Planning model including transition cohorts, implementation, timelines,

performance targets, and risk mitigation strategies.

If the government proceeds with transitional rules as foreshadowed in the Briefing, in

addition to the close consultation with and active involvement by people with disability in

an open, meaningful, and timely process to set and finalise those transitional rules (in line

with recommendations 1 and 2 above), the government must ensure that:

(a) any changes to those transitional rules before they are replaced with final rules,

and

(b) the policy, content and drafting of all final rules,

are developed and finalised through a consultation process with people with disability and

representative organisations that is open, meaningful, and timely. This must include a

commitment to publish at the start of the consultation exposure drafts of proposed final

Instruments and explanatory documentation.

RECOMMENDATION 3

If the government proceeds with transitional rules as indicated during the Department’s briefing, AFDO calls on the government to ensure that:

a. any changes to transitional rules before they are replaced with final rules, b. the development of policy, content and drafting of all final rules, c. occur through close consultation with and active involvement of people with disability and their representative organisations in an open, meaningful and timely process. d. This process should include a commitment by the government to:

(i) release exposure drafts of all proposed final Instruments and accompanying explanatory documentation at the commencement of the consultation process (ii) fully consider all contributions received during consultation (iii) take those contributions into account in finalising the rules, and (iv) provide clear explanations to Disability Representative Organisations outlining how the views of Disabled People’s Organisations and the broader disability community were considered and why particular decisions were made.

4.4 Conclusions government may not draw from this submission

AFDO ultimately decided to participate in this consultation and to make this submission,

because we have identified several significant issues in the limited materials that have

been published, where we believe improvements can be made. We also think it is

important to remain constructive and engaged with government to meet our obligations to

our members and the wider disability communities.

AFDO is participating in the current flawed and inadequate process that the government

describes as consultation, in a spirit of making the new planning process the best it can

be, with the participants at its centre, and that ensures the safety, dignity and agency of all

participants and the sustainability of the Scheme. However, no government can assume

that if governments adopt all our recommendations completely:

AFDO will be content that the consultation process has been adequate and compliant with

Article 4(3) of the CRPD the NFP system will be fit for purpose, participant centred, safe,

and sustainable, and the fact that we do not comment on a particular matter means AFDO

accepts, agrees with or supports that matter.

Where we comment on any matter, that comment is limited to our assessment based on

the information and documents currently available. We reserve the right to review, amend

or withdraw those comments, in light any additional information that may be disclosed by

government or that otherwise enters the public domain, or because of that component’s

proper relationship to or effects on other parts of the system.

5 Transitional rules pending consent

Items 138 and 139 of Schedule 1 of the Amending Act authorise the Minister to make rules

prescribing matters of a transitional nature relating to the amendments or repeals made by

Schedule 1. The provisions expressly include a process that allows the Minister to make

Category A rules, as transitional rules, without the consent of all the states and territories.

These processes allow the Minister to implement new legislative structures immediately,

without waiting for approval processes, while maintaining a cooperative federal framework.

We have not found any authorising provisions (in the NDIS legislation or legislation and

rules that apply to all legislation) that allow transitional rules to remain in place for five

years.

In any event, there is a more fundamental problem with the government’s approach.

Item 138(2) provides:

Without limiting subitem (1), rules made under this item before the end of the period of 12 months starting on the day this Schedule commences may provide that provisions of this Schedule, or any other Act or instrument, have effect with any modifications prescribed by the rules. Those provisions then have effect as if they were so modified. (our emphasis)

The Department confirms, in “NDIS Legal Instruments Explained”, that a transitional rule

is a type of rule that the Minister can make within the first 12 months of legislation being passed in Parliament, ahead of final rules (likely category A) being agreed with states and territories. 20(our emphasis)

The Schedule commenced 28 days after the Royal Assent. Royal Assent was given on 5

September 2024. Accordingly, the Schedule commenced on 3 October 2024.

Unless the government can rely on item 139, NFP transitional rules can no longer be

made.

Item 139 only applies to:

(a) subsection 32B(1) (Participants that are to have new framework plans)

(b) subparagraph 32C(c)(ii) (Application of provisions relating to the content of new

framework plans)

(c) subsection 32E(4) (Declaration of a support as a “stated support”)

(d) subsection 32K(1) (Reasonable and necessary budget—working out total funding

amounts)

(e) subsection 32L(2) (What a support needs assessment covers)

(f) subsection 32L(6) (Requirements of needs assessment reports)

(g) subsection 32L(7A) (requirements for the CEO to be satisfied that another support

needs assessment should be undertaken).

We accept that transitional rules can be made for each of these matters.

We note that the list of relevant provisions in Item 1 of the table in section 209(8) is

significantly longer than the list in Item 139. There are many Category A rules that are not

included in Item 139. Consequently, there are many Category A rules which can no longer

be the subject of a transitional rule.

For example, ”NDIS supports” is a topic of the NFP rules in respect of which no

explanatory documentation or other information has been released as part of this

consultation. Subsection 10(1) of the Act sets out, subject to subsection 10(4), when a

support is an “NDIS support”. Subsection 10(4) allows for rules that set out what are not

NDIS supports. Subsections 10(1) and 10(4) are listed in section 209(8) as Category A

rules. However, neither provision is listed in Item 139.

As a result, the Minister cannot make any rule that sets out what is or is not an NDIS

support without the consent of all states and territories. Further, the Minister’s power to

make a transitional rule in respect of NDIA supports was limited to within the first 12

months from the commencement of the Amending Act.

Without the consent of all states and territories to all the NFP rules in respect of NDIS

supports by the date of the commencement of the rollout, the Minister has no power to

make those rules as transitional rules. Any NDIS support rules can only be made as final

rules.

We also accept that item 139 does not contain any express time limitation. That power

must be limited by time. A power to implement a transitional rule without any time limitation

is a power to implement a final rule without the consent of the states and territories. That

time limitation must have been so obvious it went without saying and must be implied as a

reasonable period.

Item 139 will not allow the government to fully implement NFP relying only on transitional

rules limited to each of the topics listed in the item. We did not understand the

Department’s statements in relation to the use of transitional rules as limited to only those

matters listed in Item 139.

The Department was not suggesting, that, absent consent from all states and territories,

the Minister will make a mix of final rules and transitional rules, in separate Instruments, to

start the rollout. Rather, we understand the Department’s position is that absent the

necessary consents by the time rollout commences, all Instruments will contain only

transitional rules, until such time as all consents are given. It will be at that point that the

Minister will, by the relevant Instruments, make the final rules.

We are unaware of the position of any of the states and territories in response to this

proposition.

RECOMMENDATION 4

AFDO calls on the government to:

a. clearly set out the legal basis on which it asserts that it has the authority to make transitional rules covering all components of the New Framework Planning model using Instruments that address all topics of the proposed rules, including those listed in the table in section 209(8) of the Act but not included in Item 139 of Schedule 1 of the Amending Act. b. clearly set out the legal basis on which it asserts that the Minister may issue a transitional rule, prior to the unanimous consent of the states and territories, for a period of up to five years.

6 Assessor qualifications and standards

The “What We Heard” summary notes participants’ concerns that assessors without

appropriate skills may not understand their needs. The Explanatory Document on Plan

Spending Rules states that assessors must understand different disabilities and cultures,

but does not explain how this will be achieved.

The education, training, skills and capabilities of assessors are critical to the operation of

the NFP and to participant experience. These matters must be set by an Instrument, and

not left to the Agency to determine. The limited information that is currently included in the

explanatory documentation is insufficient to ensure assessors are appropriately qualified

and have all the necessary skills to perform the role.

RECOMMENDATION 5

AFDO recommends that an Instrument clearly sets out the required education, training, skills and capabilities of an assessor, including each of the following:

a. relevant allied health registration and specific training in autism, psychosocial disability, degenerative disability, sensory and physical disability, intellectual disability and complex communication needs b. mandatory training in trauma-responsive practice, cultural safety and intersectional approaches to disability c. requirements for assessors to demonstrate expertise with the disability cohort they assess d. a blanket prohibition on conflicts of interest, including financial interests in provider organisations e. a participant’s right to request, and receive, a different assessor where the participant or participant’s nominee has concerns about cultural safety, disability expertise or a past negative experience f. independent oversight of assessor quality, and g. a clear and accessible complaints handling scheme.

7 Inadequacies of ICAN

The What We Heard Summary Report documents the disability community’s concerns

that the ICAN assessment tool is able to do the job required of it as part of the NFP

processes. The community seeks assurances, in the form of evidence that the tool has

been tested and validated for diverse disability cohorts, including complex

communication needs, people with disability from CALD backgrounds, queer people

with disability, First Nation’s people with disability, and people in rural and remote

areas.

The necessary evidence has not materialized. Many in the disability community remain

unpersuaded. The Discussion Paper states only that ICAN version 6 ‘has been refined

over 20 years and is used in programs including the national Disability Support for Older

Australians [DSOA] program’.

Validation evidence supplied by the Agency and the Department from the Centre for

Disability Studies (CDS) to-date shows that almost all validation testing has been

conducted on people with intellectual disability. This is not evidence of validation for

the disability cohorts who will be assessed under the New Planning Framework.

The DSOA program serves a fundamentally different population with different support

needs, service contexts and assessment requirements, and anecdotal reports from

people with disability and families under the DSOA program indicate that funded

supports in that system have been consistently inadequate to meet needs.

8 Deficit based language

AFDO appreciates that the Act expressly requires the Agency’s DEO to issue an

“impairment notice”, and this is a term used in the Act. Notwithstanding this, AFDO and our

members continue to check and challenge the accessibility of the language the Agency

uses to describe the Scheme and communicate with participants.

The community has significant and valid concerns with the use of deficit-based language of

“impairment”.

On 30 May 2025, the then CEO of the Agency, Ms Rebecca Falkingham, told the

attendees at the Quarterly Reform Forum with DRCOs that the language, at least, of

“[notices of] impairment…keeps me awake at night”. Ms Falkingham also conceded that

this language was in contrast to the Agency’s preference for taking a strengths-based

approach to Scheme participants and their plans.

This language is antithetical to a strengths-based approach to Scheme participants and

their plans. It also remains a legacy of the medical model of disability, focusing on:

• diagnosis and deficit
• the participant’s condition, and
• what the participant is unable to do.

These are all matters which the Scheme has always claimed to disavow, in favour of the

social model of disability, which focuses on the challenges and obstacles that stand in the

way of optimal social and economic participation of people with disability.

Use of the language of impairment carries a particular sting for people with an acquired

disability, such as Acquired Brain Injury or spinal cord injury. For many people with an

Acquired Brain Injury, coming to terms with their disability (often accompanied by profound

grief for the life they led before their injury) remains a lifelong struggle. To be then

assessed for, and notified of, how they are also “impaired” is unhelpful, to say the least.

We accept that the Agency must comply with the NDIS Act in “giving notice of

impairments” to Scheme participants.

One solution is to amend the NDIS Act to replace “impairment” with strength-based

language.

However, AFDO remains of the view that, even without any amendment to the NDIS Act,

the Agency can comply with the legislative requirement to give notice by issuing a notice

that cites the relevant section of the Act, without using the term “impairment” in its

participant facing language.

By referring to the relevant legislative provision and framing the notice in strengths based

and accessible terms, the Agency could meet its legal obligations while avoiding deficit

based language. This approach would better align with the social model of disability and

the commitment to strengths based approaches in the Scheme.

AFDO member Brain Injury Australia has sought to pursue Ms Falkingham’s concerns

with senior staff of the Agency, as part of Scheme reform since the DRCO Quarterly

Reform Forum in May 2025. No progress has (yet) been made.

Secondly, the name of the assessment tool “ICAN” may have been chosen deliberately

(and that is patronising to many people with disability, and is coming from an ableist

presentation.

This language, and the attitude, are disrespectful, and dehumanising. It is certainly not

based on compassion, or core principles of disability awareness. recognising and

confronting ableism, individual agency, choice, or control.

RECOMMENDATION 6

AFDO recommends that the NDIA, codesigns with people with disability:

a. participant facing language that replaces the use of the term “impairment” in Agency communications and notices, while remaining consistent with the requirements of the NDIS Act and the relevant legislative provisions that must be referenced in those notices, and b. a name for the assessment tool that is not weighted with ableist assumptions or patronising of many people with disability, as a suitable replacement for “ICAN”.

9 Therapy supports

AFDO also has identified significant issues arising out of the Therapy Supports

consultation paper released by the Department last week. This separate consultation is

limited to allied health practitioners. The consultation paper:

provides background and context for NDIS supports, as well as setting out a proposed approach to categorising and describing therapy supports in the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2026 (Amending Rules). The approach to the categorisation and description of therapy supports are still subject to policy refinement and consultation.

The department is planning to a full public consultation on the Amending Rules in March 2026.”

We consider that the “proposed approach” to categorising and describing therapy supports

is directly relevant to the current NFP rules consultation and intrinsically part of and

interconnected with the proper operation of the NFP rules.

AFDO very concerned that this approach to categorising and describing therapy supports

is not disclosed in and does not form part of the NFP consultation.

More significant than this process issue, however, is the stated approach to categorise

supports under ‘Support Item Groupings’, by linking support access to ICAN domains and,

possibly, impairment categories.

How ‘Support Item Groupings’, impairment categories, and ICAN domain slicing of support

access, interact is unclear and concerning. The proposal is to divide therapy into “social”

and “physical and health related” categories. This reflects a reductionist separation that

does not reflect contemporary disability practice. Therapeutic interventions routinely target

transferable skills across multiple domains. Rigid categorisation (as proposed) may:

• constrain clinical reasoning
• restrict interdisciplinary practice
• limit flexibility in thin markets, and
• reduce participant choice.

We have been made aware of significant concerns within the allied health sector that the

proposed framework:

• is not compatible with the Act

• is conceptually inconsistent with the biopsychosocial framework of the ICF and

  contemporary evidence-based allied health practice, and

• relies on the ICAN assessment tool that has not been validated for the purpose of

  determining therapy categories or therapy access.

Further, and of greater concern, is this proposed approach has implications well beyond

therapy. Categorising therapy in this way may stand as a precedent that the government

will apply to other support types. If therapy can be confined to domain-linked categories

based on assessment outputs, the same logic can be applied to assistive technology,

behaviour supports, employment supports, and capacity building more broadly. This would

represent a structural shift in how NDIS supports are conceptualised under section 10 of

the NDIS Act.

The proposed separation of therapy into “social” versus “physical” categories reintroduces

a dualistic model that the ICF explicitly rejects. Therapeutic interventions frequently

address body functions to enable participation outcomes. Similarly, participation-based

therapy often influences physical function. Under the ICF, functioning is dynamic and

interdependent. The proposal’s domain-linked therapy categories risk fragmenting that

integrated model and incentivising siloed intervention rather than whole-of-person practice.

In addition to the concerns with the suitability of ICAN in section ## above, the ICAN

assessment has never been used, piloted, or trialled in any context to determine therapy

categories or therapy eligibility.

The ICAN:

• contains no set or standardised questions

• has no structured focus on capacity measurement (the binary of “can” versus “can’t”

  is conceptually inadequate in disability assessment)

• does not embed a theory of change regarding “improving, maintaining or reducing

  decline”

• relies heavily on the ability of the assessor (who may not be clinically qualified) to

  ask the right questions, and

• relies equally on the participant’s ability to articulate needs.

There is no published evidence that the ICAN can reliably identify therapy support needs

or determine which therapy category applies.

Therapy categorisation is inherently a clinical decision. It requires professional reasoning,

an understanding of intervention mechanisms, and an analysis of how functional capacity

can change over time. An assessment tool that does not embed clinical reasoning or

outcome theory cannot substitute for this. This is aggravated by the failure of the

Department and the Agency to confirm that the Support Needs Assessment and the use of

the ICAN will be undertaken by Agency staff who have allied health qualifications and

practice experience (see above).

Without published psychometric validation demonstrating reliability, inter-rater consistency,

construct validity, and predictive validity for therapy allocation, the proposed use of ICAN

risks arbitrary or inconsistent outcomes.

Our community needs to know that this assessment has reliability and validity before it is

used in the way proposed.

Further, it is AFDO’s position that this intended approach highlights the need, as set out in

Recommendation 4, for the NFP rules:

• to clearly set out the minimum levels of skills, capabilities, competencies, and

  training of Agency staff administering SNA, and

• require those staff to have allied health qualifications and professional practice

  experience.

As designated ‘stated supports’ can only be obtained through funding specified for that

purpose in a plan (and cannot be obtained using flexible funding), the ‘assistive

technology’ definition is concerning in its breadth. It will be important that the wording of

the rule when released allows participants to purchase common essentials without

requiring specified funding for that purpose.

Given the clear interaction between the proposed therapy support categorisation model

and the operation of the New Framework Planning rules, it is not appropriate for these

proposals to be considered in isolation. The proposed approach appears to rely on ICAN

assessment domains and impairment related classifications to determine access to

therapy supports, yet the interaction between those elements and the NFP rules has not

been explained in the current consultation materials.

Without clarity on how therapy categorisation, assessment outputs and plan funding

structures will operate together, stakeholders cannot properly assess the implications of

the proposed planning framework for participants.

RECOMMENDATION 7

AFDO recommends that the government:

a. ensure that any proposed framework for categorising therapy supports that interacts with the New Framework Planning model is transparently disclosed and considered as part of the NFP reform process. This should include clear explanation of how therapy support categories, ICAN assessment domains, support item groupings and plan funding arrangements will interact under the NFP rules. b. that NFP rules should not rely on therapy categorisation frameworks or assessment outputs that have not been publicly consulted on and supported by published validation evidence.

Endnotes

1 Subsection 209(4) of the Act.

2 Subsection 209(7) of the Act.

3 United Nations Convention on the Rights of Persons with Disabilities, 2515 UNTS 3 (entered

into force 3 May 2008), retrieved from

https://social.desa.un.org/issues/disability/crpd/convention-on-the-rights-of-persons-

with-disabilities-crpd, accessed 7 January 2026.

4 Department of Health, Disability and Ageing, “NDIS rules: public consultation on new

framework planning Discussion paper ”, Commonwealth of Australia, January 2026, retrieved

from https://consultations.health.gov.au/ndis/nfp-public-

consultation/user_uploads/public-consultation-on-nfp—discussion-paper-1.pdf,

accessed 29 January 2026.

5 UNCRPD, General Comment No. 7 (2018) on the participation of persons with disabilities,

including children with disabilities, through their representative organizations, in the

implementation and monitoring of the Convention, 20th sess., UN Doc CRPD/C/GC/7 (9

November 2018), retrieved from https://docs.un.org/en/CRPD/C/GC/7, accessed 10

February 2026.

6 Centre for Disability Studies, About the I-CAN, retrieved from https://cds.org.au/clinical-

services/i-can/, accessed 3 March 2026.

7 WHO, “International Classification of Functioning, Disability and Health” retrieved from

https://www.who.int/standards/classifications/international-classification-of-

functioning-disability-and-health, accessed 3 March 2026.

8 Department of Health, Disability and Ageing, “Defining Therapy Supports Consultation with

Allied Health Sector ”, Commonwealth of Australia, 16 February 2026, retrieved from

https://www.health.gov.au/sites/default/files/2026-02/defining-therapy-supports-

consultation-with-allied-health-peak-bodies_0.pdf, accessed 27 February 2026.

9 Retrieved from https://consultations.health.gov.au/ndis/nfp-public-consultation/,

accessed 29 January 2026,

10 Legislation Act 2003, subsection 15G(4).

11 Note 8, p. 2.

12 UN Treaty Body Database, retrieved from

https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/Treaty.aspx?Treaty=CRPD,

accessed 10 February 2026.

13 Note 3, Article 4(3).

14 Note 5, paragraph 15.

15 Note 5, paragraph 22.

16 Note 15

17 Note 5, paragraph 23.

18 Department of the Prime Minister and Cabinet, Care and support economy – state of play, 28

May 2024, retrieved from https://www.pmc.gov.au/resources/care-and-support-

economy-state-play, accessed 24 February 2026.,

19 Parliament of Australia, National Disability Insurance Scheme Amendment (Integrity and

Safeguarding) Bill 2025 Revised Explanatory Memorandum , 2025, pp. 2-3, retrieved from

https://parlinfo.aph.gov.au/parlInfo/download/legislation/ems/s1478_ems_10de23e3-

516d-4c2e-965f-

da3bc682e567/upload_pdf/EM_JC017189.pdf;fileType=application%2Fpdf#search=%22

legislation/ems/s1478_ems_10de23e3-516d-4c2e-965f-da3bc682e567%22, accessed 5

February 2026.

20 Retrieved from https://www.health.gov.au/sites/default/files/2025-07/ndis-legal-

instruments-explained.pdf), accessed 5 February 2026/