NDIS Joint Standing Committee

Inquiry into the Capability and Culture of the NDIA

Supplementary Submission 86.2

Transcript of testimony given via teleconference during 29th August 2023 hearing in Melbourne, and completed during 30th August 2023 hearing in Launceston (Relevant supplementary material follows)

Melbourne, 29th August 2023

I didn’t know what to talk about today until I saw NDIA CEO Rebecca Falkingham’s response to Marie Johnson’s submission.

My impression of the CEO’s letter to the Secretariat was a well-crafted attempt to discredit Marie Johnson along with her concerns: That this is a disgruntled former employee making a mountain out of a molehill; that her claims had no basis in reality. Minister Shorten did the same thing when he dismissed Mark Toomey’s concerns on Q&A.

I don’t know Marie or Mark personally, but I’m traumatised after a year of this. They have been living through this and sounding the alarm for much longer. What I do know is which parts of her submission I can vouch for, because it happened to me and my loved one and the Committee has seen the evidence.

I am sick and tired of Minister Shorten and the agency — including the CEO — gaslighting me over what I have personally witnessed and experienced without substantiating their own claims.

They keep talking about trust and transparency without following through, while rubbishing our very real concerns as evidenced in the Robodebt Royal Commission’s final report and the submissions to this inquiry, including my own.

Here’s something the NDIA can trust: That when I use my research training to critically interrogate the NDIA’s claims, I will always have evidence behind my own. So, let’s examine some of the CEO’s claims.

In her letter to the Secretariat, the CEO said:

   "Mrs Johnson’s submission contains a range of concerning statements about the
  NDIA’s systems and processes, including as they relate to participant and staff
    safety. With respect, the submission appears to be based on an understanding of the
  NDIA’s systems and processes at a point in time and are not supported by
  contemporary evidence. The safety and wellbeing of staff and NDIS participants has,
  and continues to be, the highest priority for the NDIA."

With equal respect, I point Ms. Falkingham to my Submissions 86 and 86.1, together with

the many emails addressing my Loved One’s case and the systemic issues raised in good faith (only to be thrown back in our faces by those actioning the Good Egg Complaints Officer’s requests), and the submission I provided to the FOI branch regarding my outstanding FOI request for the Autism TSP evidence.

In particular, see my previous submissions for evidence of reckless disregard for participant safety and the Autism suicide risk. I can provide further commentary and quotes on this.

In fact, my loved one and I already raised this in our response to Good Egg Number One in March in the hopes it would be escalated to Ms. Falkingham in our comments on addressing the systemic ableism and inherently traumatic processes of engaging with the NDIA and LAC partners while Autistic and self-represented.

And when we were getting nowhere with Bad Cop Superior who took over, Ms. Falkingham’s office was also directly notified of informal support arrangements breaking down, with TWO informal supports attending the ED for heart problems while others including myself were at psychological breaking point.

Isn’t that contemporary evidence?

But let’s get to multiple disabilities.

The CEO said:

   "Mrs Johnson also reports 'case after case of systematic recording of the wrong

diagnosis’ in the NDIA’s Customer Relationship Management (SAP CRM) system. Mrs Johnson is correct that the current system requires the recording of a primary disability. However, all disabilities reported by an NDIS participant are captured in the CRM system, including a secondary disability or in free text fields. All disability information provided by NDIS participants is considered by NDIA planners. The NDIA’s new system PACE has not been designed with this constraint.“

This statement by the CEO is misleading and gaslights every traumatised participant who has fought the same fight I have. I thought speaking out last year would change things. Instead, the NDIA continued the pattern under Ms. Falkingham’s leadership.

The updated Creating Your Plan OG released last month doubled down on the separating impairments issue, keeping the line many have argued is illegal in recent years, so who are we to believe?

The CEO’s letter, or her published guideline?

I’m finding it very, very hard to reconcile everything Ms. Falkingham keeps talking about with what NDIA staff are actually doing in practice – because I believe in the same things she says she does – but I get the strong sense she isn’t getting the full story on this issue, from either those who drafted responses for this letter, or people like Mr. McNaughton.

Catherine Walker

Supplementary Submission 86.2

Page 3 of 22

Relating to evidence given at Melbourne and Launceston hearings in August 2023

I felt exactly the same way when I listened to the prepared talking points Ms. Falkingham recited to Senator Steele-John at Estimates when questioned on the Behavioural Compliance project and Jason Ryman’s involvement with it, because she did not substantiate the agency’s claims to ethics.

It made me doubt someone I really want to believe about trust, because she could have said much more to alleviate our fears while still affording Mr. Ryman and Mr. Britton procedural fairness throughout the Royal Commission, and instead chose not to produce a single shred of evidence.

But that was two months in. While I appreciate the uphill battle Ms. Falkingham acknowledged yesterday, we’re approaching a year now and that makes this statement feel disingenuous, because even if someone else authored it, she has had enough time to know better. Because again, my Loved One and I specifically raised the following to Ms. Falkingham when we were advised regular updates to the CEO had been requested:

• “Please advise Ms. Falkingham that addressing the multiple disability problem in a procedurally fair manner is the only reasonable pathway by which she can fulfil her legal obligation to ‘facilitate’ the preparation of [Loved One]’s plan.”

This was on Day 112 since my Loved One was granted access, when the agency had recognised the permanence of the secondary impairments but had been refusing to consider the collective impact as required by s24(1)(c) and the Access OG for weeks, for someone who had already passed the threshold for substantial functional impact via List A.

List A exists as a shortcut because the impact is already deemed met.

Ms. Falkingham could have, that very day, enforced the position on multiple disabilities she took in her letter and that the Branch Manager of NDIS Governance took on behalf of DSS in the official statement to another participant.

The DSS position is that the NDIS Act “provides that a holistic approach should be taken to planning. It does not matter how many disabilities a person may have, or which satisfied the access criteria, what matters is the impact of their disability - whether due to a single cause or multiple causes - on their capacity…”

But it took until Day 164 for the agency to approve my Loved One’s secondary disabilities. That’s another 52 days from the direct request to Ms. Falkingham, who had requested updates.

Then, we could finally engage with the trauma-informed planner Good Egg One had identified back in March. She was wonderful and earned the title of Good Egg Two, and I hope she can be my NDIS contact moving forward too.

But in any case, if Ms. Falkingham’s position changed between April, the DSS statement in June, and submitting the letter to the inquiry in July, why has it not been clarified in the new Creating Your Plan OG?

Isn’t this contemporary evidence?

In response to Marie Johnson’s submission

The CEO also said:

  "The NDIA rejects the assertion that 'robo practices have become embedded in the\n       NDIA'."

  "The automation of planning decisions (in the same manner as Robodebt) was not a\n       feature of Mrs Johnson's responsibilities whilst working with the NDIA, and it is not a\n       consideration in the design of the NDIA's systems, current or previous."\n
  "The Typical Support Packages (TSP) is one of several tools (including operational\n      and expert guidance) utilised in assisting NDIA staff and Partners to develop\n        individual NDIS plans. The primary function of TSP is to assist planners when\n       considering the level of funded supports to be included in a NDIS participant's plan\n      and to understand how the funding compares to other participants with similar\n        characteristics and support needs. TSP does not limit or otherwise prescribe the level\n        of reasonable and necessary funding a NDIS participant may receive."

Ms. Falkingham, I reject the NDIA’s repeated rejection of our legitimate concerns in the\nabsence of any evidence whatsoever to support the NDIA’s claims that the echoes of\nRobodebt culture we are worried about are not worthy of closer scrutiny.

I ask the Committee to review the concerns I raised to Commissioner Holmes, which I will\nforward,1 publish the sections they deem appropriate, and decide if the CEO should take\nsome additional questions on notice.

Launceston, 30th August 2023 [Continued from previous day]

My name is Catherine Walker and I’m appearing as a NDIS participant. My disability is\nAutism, ADHD and Ehlers Danlos Syndrome, and my insights also draw on my equine\nresearch and rehabilitation background.

I’m truly thankful for the opportunity to speak for 15 minutes, to which I have prepared. As an\nautistic individual, interruptions can completely disrupt my thought process and prevent the\nfull expression of my ideas. This can be disheartening, as I’ve put effort into a complete and\ncohesive perspective. Your consideration in this means a lot because it makes giving\nthoughtful oral evidence accessible to someone with my disabilities. It also ensures I can\nplace any adverse comments in their proper context.

I hope you find my final contributions to this inquiry valuable. I want to thank the inquiry’s\nSecretariat team for their support over the past year, and I invite any questions I can take on\nonce on this or my prior submissions, including from those Committee members unable to\nattempt today.

1 Follows transcripts of testimony

Catherine Walker Supplementary Submission 86.2 Page 4 of 22

      Relating to evidence given at Melbourne and Launceston hearings in August 2023

Yesterday, I explored some statements made by NDIA CEO Rebecca Falkingham

in response to adverse comments by Marie Johnson in this inquiry, because I felt some of these could not remain unchallenged. I provided my own “contemporary evidence” around participant safety engaging with the NDIA, and the systemic multiple disability issue.

I’d like to continue from Ms. Falkingham’s rejection of NDIS comparisons to Robodebt, before touching on so-called Unreasonable Complainant Conduct, the assumptions underlying Typical Support Packages such as the Autism TSP and finishing on epistemic injustice.

I once again challenge the NDIA’s repeated rejection of our legitimate concerns in the absence of any evidence whatsoever to support the NDIA’s claims that the echoes of Robodebt culture we are worried about are not worthy of closer scrutiny.

While the Behavioural Insights-focused NDIA Compliance program and the TSP used in planning are separate matters, they have earned this ‘Robo’ nickname due to the fact Mr. Ryman and Mr. Britton had more than five years to influence NDIA culture in the CRO division before Australia knew their names; and because the shroud of secrecy over the TSP has been heavily criticised for years for all the reasons highlighted in the Commissioner’s recommendations on Automated Decision Making; and because of their parallels in the participant experience.

When it comes to the TSP, the CEO and Minister are refusing to heed the Commissioner’s government-wide warning on Automated Decision Making on the basis that delegates get the final say, but it doesn’t matter how many times the legality of this approach is questioned, or how many times they assert that the TSP is just a starting point: Even with planner discretion, assumptions such as the fatal “Primary Disability” flaw bleed into every bit of data the NDIA publishes, creating a feedback loop for budget assumptions and research with no basis in reality.

That is the risk I first raised to the Committee last November, along with Villamanta’s Naomi Anderson, in the context of denied or missing secondary impairments and compliance audits. That is why the NDIA will continue to deserve this ‘RoboNDIS’ nickname until Ms. Falkingham makes good on her transparency promises and allows us to interrogate the ethics of agency tools and processes.

When it comes to disputed Robodebt tactics in Compliance, I heard a first-person account of NDIA Compliance last week that reeked of Robodebt culture.

I can request permission to share that account with the Committee if this concerns them, because it shocked me after Ms. Falkingham’s statement to Senator Steele-John at Estimates last year and the NDIS Minister’s casual dismissals of any comparisons to Robodebt.

Having a strong background in behaviour through my equine science studies, I’m curious about the use of Behavioural Insights and ethical safeguards for NDIA nudging. I recently attended a webinar called “Nudging for good: The ethics of behavioural science” hosted by Prime Minister & Cabinet’s Behavioural Economics Team. BETA’s tagline is “Putting human behaviour at the heart of policy.”

The question I asked was:

“What are the ethical implications in settings such as the NDIS, where there is both a vast range of different disabilities and an extremely high population of autistic participants and/or other neurodevelopmental disabilities? How is BETA working with the NDIA to ensure sound ethical applications of behavioural science?”

The chat host did not ask the speaker on the basis he hadn’t been involved with such work, even though he could have answered the first part. Perhaps the NDIA or BETA would like to address this in a statement.

But Robodebt culture is about other failings too, like the futility of complaints, and the very real risk of suicide in this context, with this population.

Counsel Assisting the Disability Royal Commission have already addressed the discrimination embedded in the Ombudsman-endorsed approach to so-called Unreasonable Complainant Conduct, and to put this in perspective, I’ll take you back to last October, just before this Committee offered the lifeline to tell my story in Geelong.

It is now abundantly clear to me that my complaints were being managed according to Unreasonable Complainant Conduct guidelines, whether or not any such assessment or conscious decision had been made, because of my textbook ‘Unreasonable Persistence’ in the face of a completely unaccountable NDIA. Everyone I dealt with from the Internal Reviews and Complaints branch followed the script perfectly.

They felt justified in denying me procedural fairness because I challenged an unfair, possibly unlawful practice, and both my autistic approach to communication and persistence in calling out injustice is deemed unreasonable by national guidelines, despite the factual nature and sound basis of my complaints.

And yet I never once threatened self-harm. I had actively toned down my distress while pleading to be heard, gaslighting myself and wondering if I was dealing with a double-empathy problem when a complaints officer comment about disabled employees was weaponised to shirk responsibility for acknowledging my own lived experience, only for the same name to pop up in relation to someone else’s multiple disability complaint.

I was never going to get anywhere, because saying “No” and forcing us to accept it is standard operating procedure, and when it comes to the systemic multiple disability issue, thats at Day One.

The Capability and Culture of the Internal Reviews and Complaints branch made me want to kill myself, to escape the learned helplessness they deliberately trapped me into.

If Id told them that, it would have been another black mark against my file.

Who is the unreasonable party here??

How is anybody meant to navigate this bureaucratic hellscape without trauma if those of us with various privileges and helpful strengths can’t do it?

Catherine Walker Supplementary Submission 86.2 Page 6 of 22

      Relating to evidence given at Melbourne and Launceston hearings in August 2023

As if I was going to let them get away with doing the same to my loved one.

This brings me to coercive control and fear of punishment, because I knew what to expect when it happened all over again to my Loved One.

After calmly but directly challenging the lawfulness of the agency’s actions via the Good Egg, my concern grew with every passing day, and I was sleeping poorly. I finally crashed in the wee hours of April 18th, for once falling back asleep after waking early, knowing whatever news arrived would be bad. The first notification I saw on waking was a message from my loved one.

When I saw it said only, “They’re going full ––”, I knew exactly what that meant before I opened the email from the Good Egg.

The even more senior delegate had not only denied EDS again for my loved one, but must have somehow threatened my own approval of EDS.

But when I called it out strongly and dismantled the executive delegate’s outrageous handling of the decision after a month of Good Egg’s earnest efforts, Bad Cop Superior took over.

None of the frustration in my response had been directed at the Good Egg, but at the delegates undermining her efforts over secondary disabilities, and my assertions were factual. And yet, it is no wonder that exceptions like the Good Egg don’t last in Complaints when we need more of them: Do they get moved on? Fired? Take stress leave? Quit?

I refused to tolerate Bad Cop’s nonsense either, given her rank, so she pulled out all the Managing Unreasonable Behaviour tricks in the book – while acknowledging the systemic issue was real.

The entire time, we were being punished for persisting and being done with the NDIA’s bullshit. I never made it personal, but I was direct, I let nothing slide, and I called out the agency’s ongoing and systemic Unreasonable Behaviour.

Do you think it ended because we complied like they were counting on?

No.

It ended because we were right, despite being gaslit and emotionally abused for months for our persistence.

It ended only because we dared to persist, and we survived it only because we had each other to vent to.

Because we knew it was a pattern, and we knew it was wrong.

But also, because persistence is a part of our disabilities that we have little control over.

I cannot disengage from these injustices, because I cannot rest or shift my focus while this continues. How “unreasonable” of me, to have been born this way.

Catherine Walker Supplementary Submission 86.2 Page 7 of 22

      Relating to evidence given at Melbourne and Launceston hearings in August 2023

I see the agency’s coercive control tactics, as exemplified through their complaints handling behaviour, for what it is, because I’ve witnessed it in action so many times, experienced it in so many different contexts, and I know how vulnerable autistic people are to it.

Do you see, yet, how abusive the Ombudsman approach to Unreasonable Autistic Persistence is? One would hope the NDIA’s Managing Unreasonable Behaviour Guideline is more intersectional, but that’s why I am now asking the NDIA to release it: Because my experience says otherwise.

I’ve never met or spoken to the Branch Manager of Internal Reviews and Complaints, but according to an Estimates answer, one person has held this role and seemingly nurtured this culture amongst delegates responsible for complaints handling and internal reviews since 2014.

To them, I say: This is your legacy. Are you proud of it?

But let’s be fair: They are just following the Ombudsman handbook, so I guess there’s no point complaining about complaints handling to the Ombo when they literally wrote the book on ‘How To Punish, Traumatise and Discriminate Against Autistic Complainants in Distress.’

Deputy CEO Scott McNaughton has been around just as long and dared to tell the ADHD inquiry that all we ever had to do was inform the agency if they didn’t have our other disabilities on file, while his division had continued fighting requests to do so.

Mr. McNaughton, you should check the original Access Request Forms of every single autistic participant, including mine. Because you’ve been informed plenty.

So, why are Mr. McNaughton, Ms. Falkingham, and DSS all pretending they don’t know that every delegate from BM level down is assessing s24(1)(c) separately in violation of their own official statements about the recognition of all reported disabilities and their published OG on collective functional impairment?

We’re beyond permanence now. We’re talking about the disability soup question.

So, who is full of it?

Who is feeding the media and inquiries like this one the multiple disability answer that has always been correct, while ensuring the agency is doing the opposite in practice?

I’m sure Ms. Falkingham can appreciate my confusion. I have been gaslit about this at every level from LACs to the NDIS Minister. So has the Committee.

This isn’t a Ms. Falkingham or Minister Shorten problem. It isn’t a partisan problem.

This is a “the NDIA does whatever it wants” problem.

This is a “Mr. McNaughton and friends are pleading ignorance when they’ve been running the show for a decade” problem.

And if Mr. McNaughton genuinely doesn’t believe he should answer for this issue, then who should take responsibility? Please do enlighten us.

As for the TSP, it is the disturbing way the TSP creates a flawed feedback loop of assumptions that is especially relevant to the Autism cohort and the evidence for Autism TSP assumptions I have been pursuing under FOI since January, because I think many of the NDIA’s assumptions about autistic adults are wrong, and my involvement as an autistic participant enables this feedback loop to perpetuate false ideas about my needs at every level from support worker assumptions to Australian disability research, with no way for me to correct errors used to inform policy.

If you were responsible for a multi-billion-dollar calculator, wouldn’t you want to know if your disability profiles needed tweaking to avoid waste and maximise value?

The substantive refusal of my FOI request, received on Friday 18th August, effectively says that the GM Analytics Data & Actuarial branch could not locate any documents addressing the supporting evidence aspects of my scope, other than a highly redacted one-page spreadsheet with the TSP calculator in its simplest form. The FOI branch therefore determined that no documents detailing the actual evidence for assumptions about Autism support needs exist, despite being referenced in the official statement provided to them for the decision letter.

As in, no documents exist to support the conclusions built into the multi-billion-dollar calculator.

Really?

And hang on, isn’t the General Manager of Analytics Data & Actuarial listed as David Gifford? The new Scheme Actuary?

Mr. Gifford, this is pretty embarrassing. I was hoping to have an acknowledgement that a huge mistake had been made by now, but the Assistant Director of the FOI branch has not responded to my immediate request for internal review, or my follow up due to the NDIS Review due date, and it has been almost two weeks.

I had agreed to speak to this Assistant Director on the phone despite the disadvantage I am at in phone conversations, in the hopes it would get things moving.

She told me her background in the agency, so when explaining what the FOI request was getting at as requested, I told her mine: That I’ve been unable to work for so long despite having a Master’s degree, that I still want that PhD, that I am interested in doing research that would feed back into the NDIA’s evidence base in a profoundly positive way, and that, unless the agency understands people with my disabilities much better so we get the support we actually need without toxic assumptions, it will never happen.

It was obvious I was being managed to feel I could trust her and should try to comply with her requests when I felt uncomfortable, rather than the other way around. But as I told her, I’ve been led to believe the agency is listening before and I would believe her when she followed through.

And she did…

…kind of.

• But not to meaningfully resolve the long overdue, contentious FOI request before the NDIS Review closed.
• Only to close the matter as fast as possible: The next day, after seven months.

But she also said something else I want to tell you about, because it goes to the heart of all I said in Submission 86.1 about the NDIA taking more than it gives, by simultaneously exploiting and devaluing my lived experience.

I was worried she would be pissed off that I had emailed (how very audacious of me to claim my right to accessibility and feeling safe!), but I figured she would get back to me.

That wasn’t what made me feel sick, and then angry, the more her words sunk in. It wasn’t the seemingly genuine positive feedback and gratitude, but her eagerness to boost her own portfolio on my unpaid intellectual labour and trauma, while disregarding the actual purpose of my feedback to her: A meaningful response to my FOI request, and why it mattered.

She said:

  Thank you for your time on the phone yesterday – I appreciate your candour in speaking with me and discussing your experiences interfacing with the agency. Our conversation has been incredibly illuminating for me and will be informing my future body of work in the hopes of making changes to better support participants in accessing the scheme, and I take your feedback very seriously.

Do you see the problem here?

There’s a term for this: Epistemic exploitation.

As Dunne and Kotsonis explain:

"Epistemic exploitation occurs when privileged persons compel marginalized knowers to educate them [and others] about the nature of their oppression…

Though some of these requests to ‘educate’ or ‘learn more’ masquerade as seemingly virtuous or innocuous epistemic inquiries, privileged persons underestimate or remain ignorant of secondary harms which stem from internalized epistemic obligations, oppressive double binds, and attendant emotional burdens oppressed knowers carry in relation to the ever-present possibility of ameliorating oppressor mindsets.“

This is where her insistence on phone calls, including for any follow-up, gives me pause. 2

I have absolutely no idea whether this person also has a disability or other valuable lived experience. I’m sure she is highly skilled to have moved up the ranks.

If the way this made me feel was unintentional (in which case, this should be considered a call-in to her and the entire agency, not a callout), I imagine she’d be alright to work with.

2 I have deleted a term from my original statement that I was unaware is considered offensive by some and apologise for its use.

Catherine Walker Supplementary Submission 86.2 Page 10 of 22

      Relating to evidence given at Melbourne and Launceston hearings in August 2023

None Of That Is At Issue Here

I also want to be clear that this Assistant Director may have a very good reason for ghosting me and I am giving her the benefit of the doubt on that.

I am taking issue with my expertise being exploited in a situation where I asked for help, and the wisdom and insight I shared to facilitate this was deliberately kept informal and off the record, so someone who is already on a great salary can appropriate my carefully considered feedback for their benefit, while denying me access to the requested information – which would not only help me make the NDIS better, but that I am qualified to interrogate as both researcher and autistic participant.

This is not okay.

The careers and “future body of work” of NDIA staff benefiting from my repackaging trauma and expertise with fragile hope and a call to action is not okay, when I remain shut out from the process and the agency’s understanding of people like me.

I’ve finally had one Participant First opportunity, but that is not enough. I am just as deeply committed to improving the NDS as Ms. Falkingham and this individual are, and I want to contribute to deeper co-design.

But I feel sick at the thought of people like this exploiting my NDIA-induced trauma, hard work, research training and agency-acknowledged expertise to pump up their own resume as Subject Matter Experts without actually helping me, and I will not allow the NDIA to both exploit and devalue my lived experience this way.

As for the other matters I have raised, I respond to the issues relating to FOIs dismissal of the mysterious missing Autism TSP supporting evidence in the relevant document and emails I will forward to the Committee, and I’ve shared the immediate actions the CEO can take on multiple disabilities in that supplementary material.

But in closing, there is just one thing to say.

I want Ms. Falkingham and the NDIA to do something she told us was important on Monday: To admit when they get things wrong; to promise this is the end of the multiple disability injustice and a deeply discriminatory complaints-handling process, and to help us build a better one.

The 6 Immediate Actions

The NDIA always wants to know if there is any available and appropriate treatment which would “remedy” an impairment. The first four actions here are the immediate steps the NDIA can take to “remedy” the multiple disability problem and the impact it has had on participants.

Action 5 is one for the Committee which would assist in holding the NDIA accountable.

Action 6 is one the NDIA’s CEO could take to do the same and significantly repair broken trust.

• Action 1:

The NDIA must immediately update the Creating Your Plan OG to reflect the Access OG (“If you have more than one permanent impairment we will consider them together, to see if they substantially reduce your functional capacity.”) and the official statements made by DSS and the CEO: That ALL permanent impairments are relevant and it’s the collective impact that matters; that additional impairments do not need to meet the functional impact threshold “in their own right” as is currently claimed by delegates and the Technical Advisory Branch.

• Action 2:

Ms. Falkingham should publish a CEO directive that all delegates of her authority are to immediately cease assessing the functional impact of secondary impairments separately to the impairment that has already met the access threshold for existing participants.

Failure to do so would violate the APS Code of Conduct and the Federal Court precedent that s24, and particularly, s24(1)(c), is a threshold provision.

Every delegate ignoring the current directive that “if you have more than one permanent impairment we will consider them together, to see if they substantially reduce your functional capacity” is breaking the same rule using Ms. Falkingham’s authority, and this Committee has ample testimony to demonstrate the harm it has caused to participants.

• Action 3:

Ms. Falkingham should immediately follow through on her claim that PACE has the capability to accept multiple impairments and add this feature now, before rollout. It doesn’t matter if second to fifth disabilities stay empty for now. This needs to be an action, not a promise, or they’ll just blame the system for another decade.

• Action 4:

Mr. McNaughton should make a formal apology to participants with multiple disabilities for allowing his division to inflict this systemic harm on us for so long. His first act after apologising should be to immediately audit the Autism cohort for known, frequently co-occurring disabilities including ADHD, Ehlers Danlos Syndrome and hypermobility conditions.

Action 5:

Any commentary on permanence in the Committee’s final report should be authored by Dr Ryan and Dr Freelander to add clinical weight to the NDIA v Davis Federal Court ruling on the meaning of s24(1)(b), to prevent the NDIA from reverting to this argument when existing participants “inform the agency” as advised by Mr. McNaughton at the ADHD inquiry.

Action 6:

Ms. Falkingham should facilitate an agency-wide APS Code of Conduct investigation enabling participants to give evidence against individuals without fear of reprisal, with a focus on restorative justice and NDIA behaviour change.

We can do it this way now, or they can be referred for disciplinary and potentially legal action at the otherwise inevitable NDIA Royal Commission.

The Joint Standing Committee could facilitate this by extending this inquiry after delivery of the main final report (and thus, the protection of parliamentary privilege), or creating a shorter inquiry for this purpose.

ROBODEBT, BEHAVIOURAL INSIGHTS, AND THE NDIS

I will preface this statement by saying that I am not against the use of so-called Behavioural Insights and Behavioural Economics in general. In fact, I’ve used them by choice in my own life at times. But the key word is “choice.”

This happens to be an important word in the NDIS too. What does that have to do with the Robodebt Royal Commission?

Ask Jason Ryman and Scott Britton.

I am writing not because I was a past victim of Robodebt, but because I fear those involved in its inception, and specifically, the choice to use “behavioural insights” to coerce vulnerable individuals into compliance with the process and the debts, have learnt nothing: They just moved over to the NDIA, where it’s full steam ahead with a new “Behavioural Insights” team (actually, Behavioural Compliance) within the Compliance branch.

Despite [the NDIA] attempting to direct media attention onto their efforts against provider fraud and noncompliance, recent position descriptions reveal that these activities will also target “potential or actual non-compliance by participants” using behavioural insights.

These positions reported to Jason Ryman until very recently, in parallel with Scott Britton’s branch, both within the Chief Risk Officer division. Both Ryman and Britton have disappeared from these roles after a 7th Dec 2022 directory update. [Whether or not they show up again later, recruitment of the teams intended to take this project forward has already occurred.]

In any case, it appears they moved sideways when the Robodebt storm was gathering and set to work on a new behavioural insights-driven compliance program. It sounds like they will also be using “advanced” fraud detection (we’re seriously going to leave it to computers AGAIN?) and simultaneously be given power to decide how to interpret operational guidelines when raising debts based on supposed noncompliant or fraudulent claims. Goodbye individualised supports.

Has NOBODY stopped to think how extraordinarily unethical this is in the context of “raising positive debts” against NDIS participants?

The horrible gut feeling I have about this relates to the ethics of Behavioural Compliance, but to understand just why it is so unethical and bound to cause harm, you need to understand this from the perspective of a NDIS participant who fears they would not survive the second coming of Robodebt.

What remorse did they show? What lessons did they learn? How many people did they mentor, even if they move on?

Robodebt: The NDIA Edition cannot be repaired if, all these years later and under immense scrutiny, the creators see nothing wrong with their use of behavioural insights.

1. It starts with “streaming factors” recorded at access.

Didn’t Scott Britton, among others, claim they identified higher risk participants for whom there would be more barriers or greater vulnerability?

Because the NDIA routinely fails to record these risk factors when “streaming” them at access. I have personal documentary evidence of this.3 How are they going to get this right for compliance when they can’t even get it right for planning?

(Even worse is that, on rereading Britton’s testimony [knowing where he was now employed], he comes across as subconsciously trying to justify the NDIA’s program relating to vulnerable customers, because he surely cannot be talking about Robodebt victims when, as the Commissioner called him out, “How were you going to minimise the hardship of debt by going back four years?”)

Catherine Walker Supplementary Submission 86.2 Page 15 of 22 Relating to evidence given at Melbourne and Launceston hearings in August 2023

2.

Then, there’s recording of impairments, which is a complete mess that feeds into even more dubious assumption-laden RoboPlans4, and an even bigger nightmare to have accurately listed on your record if you have more than one.

The legality of the agency’s handling of multiple impairments has already been called into question, but it stands to reason that their ongoing attempts to vivisect whole humans into approved and unapproved parts and wear existing participants down from their attempts to have other impairments added, will generate debts that are not in keeping with the wording of the NDIS Act5 and which will likely be overturned if participants make it to court.

If.

IF they don’t kill themselves first.

Has anyone actually done a survey of NDIS-related suicidal ideation and PTSD symptoms BEFORE rolling out this program? ’Course not. Then they can’t shift the blame [as certain individuals involved in Robodebt did].

3.

But wait… What if they never told you they didn’t add all impairments on your access form to your file?

Or what if they were added, but later mysteriously deleted?

Too bad, here’s your debt.

4.

So you get charged with a debt.

Do we have enough defibrillators in the country to survive the initial shock of a (possibly very, very large) debt notice given the nature of some disability supports?

Will the small percentage of homeowning participants lose their houses over this?

Will disabled first homebuyers be denied the opportunity over this?

Will they then be demonised even further for not being able to break out of the poverty cycle even WITH an NDIS plan?

5. Guess you’re gonna need lots of answers and documents from the agency fast to have any hope of contesting that giant debt.

Shame that FOI is constantly seeking additional extensions, PIAs are luck of the draw in accessing the actual documents requested, internal departments are uncontactable, and too many from those [writing guidelines, making decisions or providing technical advice] down to LACs in the community are constantly spreading misinformation while refusing to record relevant information, or worse, recording patently false information.

6. But we can report them under the APS Code of Conduct, right?

Yeah, good luck with that. No scrutiny for them. But plenty coming for us, based on doubtful foundations.

7. And then there are the higher risk demographics regardless of being identified as risk factors…

Those with well-founded fears of authority or culture and language barriers? Please tell me which community legal organisations have the capacity to take them on when none of us can access advocates for day-to-day dealings with the agency.

Autistic? Congratulations! You’ve probably been exposed to compliance-based behavioural therapy which conditions you to comply at any personal cost. Not formally? Bet you did at school.

Oh, you lose your ability to speak when stressed? Good luck trying to advocate for yourself.

And for those who will simply shutdown and withdraw in the face of what feels like, and actually could be, a life-threatening situation, how’s that going to work out if debt collectors turn up at their home? What other crap might they try on disabled participants? Has the NDIA committed to not using third parties?

Use of Behavioural Insights in this compliance setting is unethical when considering WHO they will be used to “nudge” and on what basis, and how they will respond in the face of the above.

But I guess participants being too scared to spend their approved plans and killing themselves when they get a huge, questionable debt anyway will support the scheme’s actuarial sustainability, right?

Because that’s all about money, right?

(Wrong. Have any of them read the insurance principles?)

Which brings me to my core question: Has anyone actually done a deep dive on the ethics of this whole “behavioural” aspect?

Where are all the references? I haven’t found any in the exhibits I’ve read yet.

Catherine Walker Supplementary Submission 86.2 Page 17 of 22

      Relating to evidence given at Melbourne and Launceston hearings in August 2023

When the NDIA was asked to comment on these concerns [by The Saturday Paper], they

stated it “would be wrong to link the Agency’s compliance work – which actively works to protect the funding of NDIS participants – to the focus of the current royal commission… Agency compliance activities are ethical and consistent with our commitment to focus on the welfare of participants at all times.”

CEO Ms Rebecca Falkingham only joined the NDIA in October 2022. When Senator Jordon Steele-John raised this at Senate Estimates, she responded with similarly deflective, clearly prepared talking points which she underscored by saying she would find any comparison to Robodebt abhorrent.

Yet, in this exchange, Ms Falkingham once again shifts the focus to providers rather than addressing the matters raised about participants.

   Senator STEELE-JOHN: Are you aware that these two individuals—Mr Ryman and Mr Britton—recently gave evidence to the royal commission into robodebt?
    Ms Falkingham: Yes, I am.

   Senator STEELE-JOHN: I believe that there has been a job advertisement posted on 14 November for a position in Mr Ryman's branch. It reads that the NDIA is seeking an assistant director of behavioural insights to work exclusively on projects that 'address potential and actual non-compliance by participants and providers'. Is that correct?
 Ms Neville: Yes, it is.
 Ms Falkingham: That's correct.

   Senator STEELE-JOHN: So at the moment we have two people who have just given evidence about their signature roles in the design of key elements of the so-called robodebt scheme now under investigation by the highest investigative body that the Commonwealth has the ability to commission. The agency has recruited or is recruiting for an additional individual to support Mr Ryman in that role. Is the agency concerned that two such significant contributors to the robodebt program are still currently in significant positions of management and responsibility in these relevant divisions of the agency?
 Ms Falkingham: I don't think it would be appropriate for me to comment on individual employment arrangements within the agency. I do want to point out, though, that I would not be linking that role and that position in relation to any of the practices we saw through robodebt. That would be abhorrent to me. Compliance activities that we conduct in this agency will be ethical and consistent with our commitment to focus on the welfare of participants at all times.
    Fraud, as you know, is a significant contributor to NDIS waste, and we are very much focused on that. I'll give you some good examples of using behavioural economics to nudge providers when they are often making errors. It is really important to us that we are educating both participants and providers all the time about compliance in order to ensure that the money is going to where it should be, which is directly to participants to deliver on the goals of their plan. We do use behavioural economics in those types of ways, which is more about

educating and informing people. But I don’t, for a second, want you to think that any of the

Catherine Walker

Supplementary Submission 86.2

Page 19 of 22

Relating to evidence given at Melbourne and Launceston hearings in August 2023

practices that we have seen through the robodebt issue will be replicated in this agency in any way.

Senator STEELE-JOHN: They absolutely should not be, given the harm that they have done to people, and that those practices are now under investigation. However, it is a reality, as you confirmed today, that two individuals who were deeply involved with the key design elements are now under investigation are currently employed in that relevant division.

It has been reported in the Saturday Paper that Mr Ryman, for instance, when given the opportunity to provide feedback to draft changes in relation to the former independent assessments program, in January of last year, not only failed to raise the broad concerns with the independent assessments program—which eventually led to its cancellation—but also saw an opportunity in the relevant proposed changes to, and I’ll quote directly from the article, ‘set out ordinary living expenses or goods and services that the minister could consider more appropriately funded or provided through state and territory services’. And that ‘funding not used for these purposes—the clear reference amount spent in the contravention of this subsection’ has the opportunity to be raised as a debt, as a positive debt. This is somebody who not only played a key role in robodebt but then looked at independent assessments and saw the opportunity to bring key elements of robodebt to the NDIS. Now they’re sitting in an active role in your complaints team.

Ms Falkingham: Senator, If I may, I do not disagree with any of your concerns around robodebt and what we are hearing through the royal commission.

But you would understand that as the CEO of this organisation I also have obligations to people both to provide natural justice and to look at issues of wellbeing. I absolutely can give you confidence that those processes through robodebt will not be replicated in any way within this agency, but I won’t comment specifically on those individuals, because there are appropriate processes and review, and we await the final recommendations of the royal commission.

Senator STEELE-JOHN: Okay. I’ll pass back to you, Chair.

Senator STEELE-JOHN: Okay, thank you. Chair, can you advise me who we have repping the government on the table today? I can only see the back of their heads.

CHAIR: Senator Tim Ayres is at the table, alongside Mr Griggs.

Senator STEELE-JOHN: Minister Ayres, I’ll just bring your attention to an article published in the Saturday Paper on 26 November by an extraordinarily well-versed journalist in the area of robodebt, Mr Rick Morton, who had written an in-depth article on the potential overlap of individuals involved in robodebt now working in senior compliance roles in the NDIA. I’m quoting directly from that article:

It was Jason Ryman who authored the June 24, 2014, paper that went to his then boss at the Department of Human Services (DHS), Scott Britton, outlining the early concepts for robo-debt. This document, discovered by the Royal Commission into the Robodebt Scheme, shows that a core feature of robodebt was present from the earliest stages: the reversal of the onus of proof.

Catherine Walker

Supplementary Submission 86.2

Page 20 of 22

Relating to evidence given at Melbourne and Launceston hearings in August 2023

Minister, given that you are sitting at the table today partially representing a minister, Mr Bill Shorten, who was one of the key advocates for the robodebt royal commission and has made rebuilding trust with the disability community a key priority of his, post taking on the role, do you agree with me that it is a concern that these two individuals are playing this compliance role at the agency he is responsible for?

Senator Ayres: Firstly, it was this government that called the robodebt royal commission. I’ve watched the evidence in the royal commission as closely as anybody else. And I have read some of the same articles that you’re referring to. I listened carefully to the evidence earlier this morning that indicated that those principles are not being applied in any way in relation to some of the questions that you asked this morning. Of course, at least one of these people that you’ve referred to is a witnesses in the royal commission. There may be others. We’ve called the royal commission as a government. The cards will fall where they may in terms of the royal commission’s findings. I listened carefully to the evidence of the CEO this morning, that I think was very clear, that went to some of the principles and issues that you’ve asked about—

CHAIR: Minister and Senators, given the bells are ringing, we do need to suspend…

While I respect Ms Falkingham’s inability to comment further on the individuals at [the time of the Royal Commission], the fact remains that this program has had major recent recruitment drives [in late 2022] and is proceeding regardless of the Robodebt Royal Commission.

[Yet,] Ms Falkingham didn’t engage with the question pertaining to participants. Nor did she substantiate the agency’s claims that any such program would be ethical and nothing like Robodebt.

In fact, as a participant, these dismissive statements from the agency made me even more concerned, essentially about “whether the [current and] previous Australian Government sought [seeks] to prevent, inhibit or discourage scrutiny of the Robodebt scheme”6 by moving it somewhere else and telling us it’ll be fine.

What story did Jason Ryman, Scott Britton and co sell Ms Falkingham regarding this program? What does Minister Shorten have to say about this? What evidence is the NDIA in possession of to justify these claims to ethics?

Have they considered suicide statistics for primary disabilities, listed diagnoses and participant demographics? Have they factored in the additional risk posed by our engagement with the agency?

Catherine Walker - Supplementary Submission 86.2

Page 21 of 22

Relating to evidence given at Melbourne and Launceston hearings in August 2023

I suggest you obtain such statistics7 and compare these to the Centrelink victims. If the NDIA had bothered, they would be engaging with participants very differently in all matters.

Where is the expert and community guidance on the ethics in these unique disability contexts?8

If they have it, they should release it.

If not, someone needs to pull the emergency brake.

Why on earth is this program moving full steam ahead before these questions have been answered? Because in the context of Britton and Ryman’s testimony, they MUST be answered, NOW, not after using us as unwilling lab rats while refusing to deal with our actual feedback regarding the impacts of the agency on our welfare.

I understand this doesn’t relate to the timeline of events of Robodebt under scrutiny. But it certainly relates to your recommendations and what happens next.

Because if the NDIA program is not rigorously examined for the same failings that have been examined here, your recommendations will mean nothing. And the greatest insult to the memory of those who didn’t survive Robodebt would be to let it happen again, especially when you’ve been warned.

I urge [the Royal Commission, and now this Committee] to identify other employees, contractors and consultants instrumental in the use of behavioural insights in Robodebt, and particularly those that subsequently transferred to the NDIA and built its successor.

Please ask [those involved in the development and delivery of the NDIA Behavioural Compliance program] to explain exactly how the NDIA program will be ethical when the Robodebt program was not.

Please ask them to substantiate any claims they, or their teams, made to Ms Falkingham’s office. Please obtain the talking points they prepared for the CEO and the media representatives. Please interrogate these claims as seriously as any other.

Please ask them to produce evidence that we won’t be back here in 7 years talking about NDIS participant Robodebt suicides. Because if you are, I don’t know if I will be.

Please tell them that whatever the cost of winding it back now after years of development, it

pales in comparison to the cost of letting this go ahead without waiting for the Commission’s findings [or outright rejecting them when participants say “these are whole-of-government recommendations which apply to your agency, too”], doing their due diligence and being transparent about their processes to identify and protect vulnerable participants when they don’t bother doing that properly now.

Should you expand your focus to the ongoing fallout of Robodebt [which I believe falls within the terms of reference of the Capability and Culture of the NDIA inquiry, including the potential impact on NDIS Participants], I am willing to testify in private about my personal experience of harmful behavioural strategies over my lifetime, how this relates to these ethical issues, and the harms I have experienced engaging with the agency, including as a result of what I believe to be the use of behavioural strategies in other completely unethical settings such as complaints handling.

I beg you to do so, because I do not believe Robodebt is over yet, and that seems to be fine by the country’s new leadership as well as the NDIA’s. I want to be wrong about this.

Submission to the Information Commissioner and NDIA

Grounds for requesting IC Review of FOI (OAIC:

                                 14th July 2023

Scope of FOI (Submitted on 31st January 2023 via email)

All assumptions and parameters underpinning the base Typical Support Package for an adult with a primary disability of Autism (Level 2) and not in Supported Independent Living, excluding dollar figures but including:

• The justification for the ratio or weighting of Core support categories
• The justifications for typical Capacity Building categories and the therapies or activities it is expected these funds will be directed towards
• Any documents detailing consultation, co-design, scientific research, technical advice, independent expert or other evidence for the assumptions used to build this TSP, including any overarching assumptions for TSPs based on a primary disability of Autism Spectrum Disorder
• Any documents detailing or further justifying how these assumptions and the associated TSPs contribute to agency strategic priorities, corporate plans, or scheme sustainability
• Parameters affected by inputs generated during the planning conversation
• Parameters affected by recorded streaming factors
• Parameters affected by system recognition of a secondary disability/impairment/diagnosis
• Parameters not affected by any factors except age
• If any assumptions based on advice from outside organisations or independent experts, the names and affiliations of these
• Any evidence that the NDIA’s obligations under the UN Convention on the Rights of Persons with Disabilities have been considered in developing these assumptions, and if so, how this justifies these assumptions

1. Identify the aspect(s) of the agency or Minister’s decision about which the review is sought

I am requesting IC Review of the agency’s deemed refusal of the entire request after multiple extensions with my cooperation.

However, as the final extension was specifically due to the sensitivity of one particular document provided to the FOI team on 28th April 2023, with no decision reached within the additional 30-day extension until 31st May 2023, I am seeking urgent, substantive review of this aspect and any other proposed refusals of sensitive documents within scope, to ensure “deemed refusal” is not used to refuse access without reasonable justifications, or the opportunity to respond to them, before final public submissions to the NDIS Review close.

Catherine Walker Page 1 of 7

Identify documents wrongly refused or exemptions incorrectly applied

The request is deemed refused in its entirety, but as noted above, the final extension and failure to reach a decision by the agreed date largely appears to hinge on one highly sensitive document. Per the 10th May 2023 OAIC update paraphrasing the NDIA:

“I am satisfied that the request is complex, as the NDIA advised that on ‘28 April 2023, an additional document was provided to the FOI team’, which ‘contains highly sensitive information relating to the sustainability of the scheme’ and therefore requires ‘discussions with subject matter experts on the complex sensitivities’. I have also considered your response and note that you have not provided any objections to the extension.”

I therefore consider all requested documents in scope wrongly refused, and urge the Information Commissioner to assist the NDIA in urgently reaching a fair decision that balances the legitimate interests of all parties (including myself and the wider Australian autistic community impacted not only by NDIA decisions but also media and political focus on autism). The NDIA indicated it was already consulting with relevant Subject Matter Experts and stakeholders back in April/May 2023, but never provided a substantive decision or explanation.

Simply now receiving a refusal with a belated explanation of decision as the outcome of this IC Review, without the opportunity to reach a mutually agreeable outcome or IC Review of any proposed substantive grounds for refusal by the NDIA, will deny me the opportunity to appeal before submissions to the NDIS Review and related consultation opportunities close. This would not be an acceptable or fair outcome in the context of a critically important 10-year review and a request for information submitted in January.

If the agency intends to refuse all or part of any relevant documents as exempt under the FOI Act (in particular, the sensitive document provided to the FOI team on 28th April 2023 or any other sensitive document in scope), I request the justifications for any proposed exemptions are explained to me with the opportunity to respond to any exemptions I believe are unfairly or incorrectly applied. This would assist the Information Commissioner in determining whether an exemption should apply.

If the agency intends to argue a practical refusal reason exists, I strongly reject any grounds for refusal based on substantial and unreasonable diversion of agency resources:

• While I accept the “complex and voluminous” nature of this request requires substantial resources to fulfil, it is more than reasonable to interrogate the assumptions underlying the expenditure of billions on disability support needs affecting the single largest “Primary Disability” group.
• Although the 10 separate components are indeed complex, they are necessary to cut through even more voluminous information a broader query would return, or extensive mathematical data I, among others, would not understand, and which would not reveal the underlying assumptions. The complexity seeks to pinpoint the evidence underlying Automated Decision Making and other relevant tools used to assist planners in building our plans by generating a TSP.

• Despite the collective Autism “Primary Disability” cohort making up one-third of all participants and therefore rendering release of all Autism TSP assumptions quite reasonable, I have endeavoured to reduce the volume and complexity by targeting one specific cohort (adults with a Level 2 ASD diagnosis) and eliminating SIL, except where assumptions are applied to a broader segment of the Autism “Primary Disability” group, or the entire group.
• The assumptions underpinning TSPs (and the decisions made using them) significantly personally affect every participant they apply to, along with their families, carers and other informal supports, while NDIS expenditure on Autism is a constant topic of national conversation. The significant public interest therefore strongly overrides any argument that granting access would “unreasonably” divert agency resources.

We don’t need the dollar figures, but we do need all the other information requested and it is fine for this to be expressed in different forms (e.g. percentages/weightings etc.) to clarify the nature rather than quantity of support assumptions.

“Nothing about us without us.”“

— (My email on 4th May 2023)

“As the extended due date to 31st May 2023 has now lapsed and the request has been deemed refused in its entirety, I urge the Information Commissioner to promptly reach a decision to support transparent and effective engagement between the NDIA, autistic participants, and the NDIS Review, and beyond that, effective and collaborative ongoing co-design.

As the media keeps reminding me, 35% percent of us have a so-called “Primary Disability” of Autism Spectrum Disorder, which means we ought to have some insight into the TSP assumptions that are currently painting significant targets on our backs and further marginalising us as members of the Australian community.”

— (My comments submitted with IC Review request)

(Emphasis added)

In relation to the “highly sensitive” document provided to FOI on 28th April 2023 – and any other highly sensitive documents within scope provided or identified to the FOI team before or after agreeing to the extension until 31st May 2023 – I note the following compelling grounds for releasing these documents regardless of any actual or proposed exemptions or reasons for refusal given by the NDIA:

• Without the agency releasing the evidence and assumptions underlying TSPs, participants can neither be reassured nor correct faulty assumptions that directly and substantially affect our lives and wellbeing. This is especially relevant to the Autism TSP and documents relating to the cohort targeted under this request, because we comprise one-third of all NDIS participants and are the true “Subject Matter Experts” on our own support needs, including supporting us most efficiently to ensure sustainability of the Scheme.

• Releasing this information – including the “highly sensitive information relating to the sustainability of the scheme” responsible for the delayed decision – is therefore not only an incredibly valuable co-design opportunity, but the only way the people it directly affects can meaningfully contribute to protecting the sustainability of the Scheme.

• The NDIA has a duty of care to release this information to remove the autistiphobic target from our backs by enabling us to address bias, inefficiencies and other wasteful or harmful assumptions so these can be corrected by the agency, while also enabling us to counter targeted attacks and misinformation with evidence.

Catherine Walker Page 4 of 7

Withholding this information only serves those who would continue to use the lives of people like me as a pot-stirring headline or political football.

On these grounds, I do not believe any available exemptions or reasons outweigh the public interest, or the impact of agency decisions (including Automated Decision Making) based on any of these documents on individual participants including myself.

However, it is also especially noteworthy that the final report of the Robodebt Royal Commission extended the following recommendations to all government services, not just Services Australia, and all usage of Automated Decision Making, not just Compliance:

Automated decision making

Recommendation 17.1: Reform of legislation and implementation of regulation

The Commonwealth should consider legislative reform to introduce a consistent legal framework in which automation in government services can operate.

Where automated decision-making is implemented:

• there should be a clear path for those affected by decisions to seek review
• departmental websites should contain information advising that automated decision- making is used and explaining in plain language how the process works
• business rules and algorithms should be made available, to enable independent expert scrutiny.

Recommendation 17.2: Establishment of a body to monitor and audit automated decision-making

The Commonwealth should consider establishing a body, or expanding an existing body, with the power to monitor and audit automate decision-making processes with regard to their technical aspects and their impact in respect of fairness, the avoiding of bias, and client usability.

In the context of the Robodebt findings and recommendations, I believe the decision in front of the NDIA with respect to this FOI request now goes far beyond the public interest or co- design value by presenting a priceless opportunity to build trust with participants and the public alike; to demonstrate leadership in embracing meaningful change through transparency and collaboration; and to deliver on the promises and claims made about “putting participants at the centre of everything we do”, by including us in the assumptions used to make decisions about us.

We can’t do that while the black box remains sealed.

Nonetheless, I appreciate the sensitivities here and as such, I ask that if there is any further deliberation over disclosure of this document, the Information Commissioner requests and mediates a confidential Teams meeting with myself and the relevant NDIA personnel and/or Subject Matter Experts to facilitate an outcome that weighs the sensitivities against our right as autistic Australians and participants to respond to this information in the urgent context of the NDIS Review, and our last chance to make any submissions about our own future support needs and visions for a sustainable Scheme.

Catherine Walker Page 5 of 7

Please do not hesitate to contact me to facilitate an outcome that balances (and recognises) all legitimate interests, or to request a further submission from me in response to any specific issues or reasons for refusal proposed by the NDIA. I genuinely want to work with the agency to achieve our shared goal of Scheme sustainability and look forward to a resolution which supports that.

Many thanks,

Catherine Walker

NDIA justifications for final extension:

Catherine Walker Page 6 of 7

Additional commentary on Automated Decision Making

“The Commission considers that transparency regarding the use of automation in decision making, and the ability of affected persons to review such decisions, are vital safeguards in the use of automated decision making.” (p. 486)

“The software used in any such system must not only ensure accuracy, but also ensure that persons subject to decisions made by an automated process can know or understand the reasons behind those decisions.138 A clear path for review of decisions is important in designing a system which adheres to the OECD AI principles: “a person affected by a decision should understand why the decision was made, and there should be pathways for review of these decisions that are accessible to them.“139 This goes hand in hand with aspects of possible legislative reform discussed above.” (p. 486)

“By adhering to these principles, an agency will ensure that decisions made using automation – and indeed, the design of the systems enabling such automation – are defensible, and that the systems being deployed to ease the burden on government through automation are not in turn creating further barriers for marginalised people to access help.

Government should act with transparency in automating systems which have the ability to affect people’s rights.

People should know how decisions are made, periodic independent audits should supplement the accountability of decision making, and safeguards ought be entrenched in the architecture of decision making. The use of algorithms needs to be consistent with these principles and the rule of law.145“ (p. 487)

“While the fallout from the Robodebt scheme was described as a “massive failure of public administration,“153 the prospect of future programs, using increasingly complex and more sophisticated AI and automation, having even more disastrous effects will be magnified by the “speed and scale at which AI can be deployed”154 and the increased difficulty of understanding where and how the failures have arisen.155 It is not all doom and gloom: when done well, AI and automation can enable government to provide services in a way that is “faster, cheaper, quicker and more accessible.“156 Automated systems can provide improved consistency, accuracy and transparency of administrative decision- making.157 The concept of “when done well” is what government must grapple with as increasingly powerful technology becomes more ubiquitous.$$

(Emphasis added)$

Catherine Walker Page 7 of 7

Page Text Start

From: foi foi@ndis.gov.au Sent: Friday, 18 August 2023 3:37 PM To: Cat Walker; foi Subject: RE: OAIC (Uragent attn ) – Further Clarification Required - Your IC review applications about the National Disability Insurance Agency [SEC=OFFICIAL] Attachments: FOI Decision - Document.pdf; FOI - Decision - Notice of Decision.pdf

Good afternoon Cat,

Thank you for your time on the phone yesterday – I appreciate your candour in speaking with me and discussing your experiences interfacing with the agency. Our conversation has been incredibly illuminating for me and will be informing my future body of work in the hopes of making changes to better support participants in accessing the scheme, and I take your feedback very seriously.

As promised, attached is a copy of the decision letter to close out your FOI request, and I hope this supports greater understanding of NDIS processes. If you have any further questions relating to this, I will be more than happy to continue the conversation via phone call into next week. Again, we appreciate your patience in this process.

Thanks and kind regards,

The NDIA acknowledges the Traditional Custodians of Country throughout Australia and their continuing connection to land, sea and community. We pay our respects to them and their cultures and to Elders both past, present and emerging.

From: Cat Walker Sent: Thursday, August 17, 2023 1:39 PM To: foi foi@ndis.gov.au Subject: Re: OAIC (Uragent attn – Further Clarification Required - Your IC review applications about the National Disability Insurance Agency [SEC=OFFICIAL]

Hi is fine thanks, let me know if there’s anything I can do to prepare. In-person meetings generally aren’t accessible to me but I’m sure we can figure something out once I understand where things are at and how we can move forward. 1 Page Text End

Your Freedom of Information Request — Notification of Decision

Reference: FOI

Dear Catherine Walker,

Our reference: FOI

I refer to your request for access to documents made under the Freedom of Information Act 1982 (Cth) (the FOI Act), received by the National Disability Insurance Agency (NDIA) on 31 January 2023.

You requested documents containing information including:

• All assumptions and parameters underpinning the base Typical Support Package for an adult with a primary disability of Autism (Level 2) and not in Supported Independent Living, excluding dollar figures but including:
  • The justification for the ratio or weighting of Core support categories
  • Justifications for typical Capacity Building categories and therapies/activities these funds are expected to be directed towards
  • Documents detailing consultation, co-design, scientific research, technical advice, independent expert evidence used to build this TSP, including overarching assumptions based on autism spectrum disorder as the primary disability
  • Documents detailing how these assumptions contribute to agency strategic priorities, corporate plans, scheme sustainability
  • Parameters affected by inputs from planning conversations
  • Parameters influenced by recorded streaming factors
  • Parameters impacted by system recognition of secondary disabilities/impaired diagnoses
  • Parameters unaffected except age
  • If any assumptions were based on external organisation/advisory input, names and affiliations involved
  • Evidence that NDIA’s obligations under UN Convention on Rights of Persons With Disabilities have been considered when developing such assumptions, if so, how it justifies them

Extension of Time

On 7 February 2023 we emailed you requesting consent to extend processing time per s15AA FOI Act. You agreed via email same day; new deadline set at April 1st.

Access Decision

On 11 April 2023, the Office of the Australia Information Commissioner (OAIC) granted a 30-day extension of time under section 15AB of the FOI Act to process your request.

On 10 May 2023, the OAIC granted another 30-day extension of time, making 31 May 2023, The new date to provide you with a decision on access.

I note this access decision is being released to you after extended due date and apologise for the delay. In the interests of providing you with our access decision without any further delays, i have decided not to apply for an extension to the processing period from the Office of the Australian Information Commissioner (OAIC) under section 15AC of the FOI Act.

Access to Operational Guidelines

The relevant line area has advised that the Operational Guideline available at this link (Creating your plan | NDIS) provides how Typical Support Packages are used to calculate participants’ plan budgets. In addition, Operational Guideline at this link (Reasonable and necessary supports | NDS) contains a link to the “NDIS Pricing Arrangements and Price Limits” which guide the price of individual support items.

As these documents are publicly available, I have not considered them as part of my decision.

Decision on access to documents

A search for documents has been conducted by the GM Analytics Data & Actuarial (ADA) branck and i have been provided with a copy of a document that falls within the scope of your request.

i have decided to grant access to this document in part. A detailed statement of reasons for my decision can be found at Attachment B.

With respect to part of your request, I have decided to refuse your request for access under section 24A of the FOI Act on the basis that no documents exist other than the one document that was identified. The reasons for my decision are set out at Attachment B.

I made this decision as an authorised FOI decision maker under section 23(1) of the FOI Act.

In reaching my decision, I took into account the following materials:

• Your correspondence dated 31 January 2023, outlining the scope of your request.
• The content of the documents falling within the scope of your request
• The FOI Act
• The FOI Guidelines published under section 93A of the FOI Act
• Consultation with NDIA staff
• Factors relevant to my assessment of whether or not disclosure would be in the public interest.
• The NDIA’s operating environment and functions.

Deletion of exempt material

I have decided that the document within the scope of your request contains material that is eempt. In accordance with section 22 of the FOI Act, i have considered whether it is possible to exempt material from this document and have concluded that it is reasonably practicable to do so.

Release of documents

The document for release, as referred to in the Schedule of Documents at Attachment A is enclosed.

Rights of review

Your rights to seek a review of my decision, or lodge a complaint, are set out at Attachment C.

Should you have any enquiries regarding this matter, please do not hesitate to contact me by email at foi@ndis.gov.au.

3

Attachment A

Schedule of Documents for FOI 22/23-1118

Modified Guided Plan Reference Package Check redacted: s47E(d) – certain operations of agencies

4

Attachment B

Statement of Reasons

Certain operations of agencies (section 47E(d)

Section 47E(d) of the FOI Act states:

 A document is conditionally exempt if its disclosure under this Act would, or could reasonably be expected to, do any of the following: 

… (d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency

The document within the scope of your request contains information relating to certain operations of the NDIA, specifically a typical support package calculator to assist staff in determining the level of supports of a participant may require.

The disclosure of this information would reveal methodologies the Agency uses to assist in determining the level of supports provided to NDIS participants, which in turn, ensures participants receive supports that are reasonable and necessary.

Releasing this information to the public could reasonably be expected to have an adverse effect on the proper and efficient conduct of the operations of the NDIA, namely the NDIA’s ability to provide its staff with the necessary tools, which is used as part of a methodology to assist NDIA staff in determining the reasonable and necessary supports to include with a participant’s final plan.

I am satisfied that the release of this information could lead to a distortion of funding levels that would adversely affect the integrity of the NDIS and its financial sustainability.

Accordingly, I find that disclosure of this information would or could reasonably be expected to have a substantial adverse effect on the operations of the Agency under section 47E(d) of the FOI Act.

Public interest considerations – section 47E(d)

Section 11A(5) of the FOI Act provides that access to a document covered by a conditional exemption must be provided unless disclosure would be contrary to the public interest. As I have found this document to be conditionally exempt under section 47E(d) of the FOI Act, I will now consider the release in the context of public interest factors.

I note that the factors favouring access to a document, on a public interest grounds, are outlined in section 11B(3) of the FOI Act.

In favour of disclosure, I have determined that disclosure of this information:

• would promote the objectives of the FOI Act by providing access to information held by the government; and
• would provide access to information relating to yourself.

Against disclosure, I consider that release of information:

• would not contribute to the publication of information of sufficient public interest to justify the likely harm caused by release
• would not enhance Australia’s representative democracy in the ways described in section 11B(3) of the FOI Act; and
• would not inform any debate on a matter of public importance, or promote oversight of public expenditure.

• Additionally, I find that release of information would:

• significantly inhibit the ability of the NDIA to efficiently and effectively carry out its statutory functions; and

• adversely affect the ability of the Agency to maintain internal processes and methodologies, which, in turn, helps to ensure the financial stability and integrity of the NDIS.

Accordingly, I have decided that in the circumstances, the public interest in disclosing this information is outweighed by the public interest against disclosure.

In summary, I am satisfied that that the information in the document is conditionally exempt under section 47E(d) and that disclosure would, on balance, be contrary to the public interest.

I confirm that I have not taken into account any of the irrelevant factors set out in section 11B(4) of the FOI Act in making this decision.

Refuse a request for access (section 24A) Section 24A of the FOI Act states:

(1) An Agency or minister may refuse a request for access to a document if:
    b.  the agency or Minister is satisfied that the document:
                      ii. does not exist

You sought the ‘parameters underpinning the base of Typical Support Package for an adult with a primary disability of Autism (Level 2)’ as part of your request. The FOI team have consulted with relevant lines areas, and it has been determined that the NDIA is not in possession of such documents, other than the one document that was identified. I note, however, that I have been informed of the following statement:

  >The Typical Support Package (TSP) is a formulaic recommendation the National Disability Insurance Agency (NDIA) Planning staff use in conjunction with legislative principles, operational guidance, and expert guidance in progress reports from medical professionals, and occupational therapists that was developed to assist the determination of appropriate support level to include within NDIS participant’s plan.

  >The TSP has been developed by the National Disability Insurance Agency (NDIA) by people with disability, disability experts and subject matter experts and considers many factors of a NDIS participants individual circumstances to create a recommendation for supports that may be beneficial in the preparation of a participant’s plan. TSP is not a fixed set of supports, it is expected that delegates responsible for building and approving participant plans review and adjust the suggested supports against the participants needs, this may mean deviation to include additional reasonable and necessary supports based on a participant’s unique needs.

I am satisfied that all reasonable steps have been taken by the Agency to find the documents within the scope of your request, and other than the one document that was identified, no further documents exist. I have therefore, decided to refuse access to your request in accordance with section 24A(1)(b)(ii) of the FOI Act.

Attachment C

Your review rights

Internal Review

The FOI Act gives you the right to apply for an internal review of this decision. The review will be conducted by a different person to the person who made the original decision.

If you wish to seek an internal review of the decision, you must apply for the review, in writing, within 30 days of receipt of this letter.

No particular form is required for an application for internal review, but to assist the review process, you should clearly outline your grounds for review (that is, the reasons why you disagree with the decision). Applications for internal review can be lodged by email to foi@ndis.gov.au or sent by post to:

Freedom of Information Section Parliamentary, Ministerial & FOI Branch Government Division National Disability Insurance Agency GPO Box 700 CANBERRA ACT 2601

Review by the Office of the Australian Information Commissioner

The FOI Act also gives you the right to apply to the Office of the Australian Information Commissioner (OAIC) to seek a review of this decision.

If you wish to have the decision reviewed by the OAIC, you may apply for the review, in writing, or by using the online merits review form available on the OAIC’s website at www.oaic.gov.au, within 60 days of receipt of this letter.

Applications for review can be lodged with the OAIC in the following ways:

• Online: www.oaic.gov.au
• Post: GPO Box 5218, Sydney NSW 2001
• Email: enquiries@oaic.gov.au
• Phone: 1300 363 992 (local call charge)

Complaints to the Office of the Australian Information Commissioner or the

Commonwealth Ombudsman You may complain to either the Commonwealth Ombudsman or the OAIC about actions taken by the NDIA in relation to your request. The Ombudsman will consult with the OAIC before investigating a complaint about the handling of an FOI request.

Your complaint to the OAIC can be directed to the contact details identified above. Your complaint to the Ombudsman can be directed to:

Phone: 1300 362 072 (local call charge) Email: ombudsman@ombudsman.gov.au

Your complaint should be in writing and should set out the grounds on which it is considered that the actions taken in relation to the request should be investigated.

From: Cat Walker Sent: Friday, 18 August 2023 5:18 PM To: foi; OAIC - FOI DR Subject: Re: OAIC (Urgent attn ) – Further Clarification Required - Your IC review applications about the National Disability Insurance Agency [SEC=OFFICIAL] Attachments: - Decision - Document.pdf; Decision - Notice of Decision.pdf

Dear

I appreciate the rapid follow-up and outcome, and I say this with utmost respect in the spirit of yesterday’s conversation, but given everything we covered yesterday about this scope seeking to get at the evidence used to develop this TSP rather than financial information (e.g. the NDIA’s understanding of which supports are appropriate for an autistic adult and why)… Have you actually read this decision letter? Because it seems to have entirely missed the point.

Fortunately, the statement provided to decision letter may be of assistance in a more targeted search:

   The Typical Support Package (TSP) is a formulaic recommendation the National Disability Insurance Agency (NDIA) Planning staff use in conjunction with legislative principles, operational guidance, and expert guidance in progress reports from medical professionals, and occupational therapists that was developed to assist the determination of appropriate support level to include within NDIS participant’s plan.

   The TSP has been developed by the National Disability Insurance Agency (NDIA) by people with disability,
     disability experts and subject matter experts and considers many factors of a NDIS participants individual circumstances to create a recommendation for supports that may be beneficial in the preparation of a
    participant’s plan. TSP is not a fixed set of supports, it is expected that delegates responsible for building and approving participant plans review and adjust the suggested supports against the participants needs, this may mean deviation to include additional reasonable and necessary supports based on a participant’s unique needs.

The first highlighted section references the underlying evidence targeted in my scope, especially the following points, which was clearly used to develop an understanding of the nature of “suggested supports” before money ever came into it:

   The justification for the ratio or weighting of Core support categories

E.g. if it is assumed there should be more funding in Assistance with Social and Community Participation than Daily Life, why? Did Occupational Therapy Australia or another peak body or expert consultant provide such an opinion? The dollars assigned to suggested supports are irrelevant; the scope is asking why an autistic participant would predominantly need S&CP over DL in Core, or vice versa. How did the agency draw this conclusion? Based on what evidence? Those are the kinds of documents sought.

   The justifications for typical Capacity Building categories and the therapies or activities it is expected these funds will be directed towards

• E.g. what evidence was used for and against different therapy types to arrive at “suggested supports” for CB across

• different categories for adults? Why does the agency assume the average autistic adult needs this kind of CB and not

• that kind? The suggested quanta of supports did not come before the evidence these supports were needed.

  Any documents detailing consultation, co-design, scientific research, technical advice, independent expert or
   other evidence for the assumptions used to build this TSP, including any overarching assumptions for TSPs
   based on a primary disability of Autism Spectrum Disorder
  

The consultation, co-design and expert opinions are directly referenced in the statement provided. Where are those documents? Nobody transcribed and summarised the sessions or provided an expert report on the kinds of supports autistic participants (particularly adults) are most likely to need or not need? That surely happened long before anyone started talking quanta of supports.

   Parameters affected by system recognition of a secondary disability/impairment/diagnosis

I’m confused about this one. Is the answer none if it doesn’t appear on the single-page calculator template? E.g. only the recorded Primary Disability is factored into the calculator?

        If any assumptions based on advice from outside organisations or independent experts, the names and
     affiliations of these

Again, directly referenced in the statement provided, and surely cited in whatever internal reports summarised the outcomes of engagement…

  Any evidence that the NDIA's obligations under the UN Convention on the Rights of Persons with Disabilities
   have been considered in developing these assumptions…

I find it hard to believe disability organisations did not address this if they were informed of the purpose of engagement, that the UNCRPD is not referenced anywhere in documents relating to the TSP (even early-stage project documents), or that any agency TSP subject matter experts were unable to direct the FOI branch to this. It would be deeply concerning to think it was never considered, and reassuring to see proof that it was. Is this a language problem on my part? I’m looking for documents created or received when the TSP was being developed, which reference the UNCRPD.

There surely must be documents containing all this expert advice if it was relied upon to build a tool that distributes billions of dollars. May I suggest you contact whoever provided this statement request they locate the documents in question? The “suggested supports” did not come out of nowhere and if the decision that no other documents in scope were found is to be believed, that would imply there is no documented expert evidence to support the multi-billion-dollar calculator.

You and I both know that cannot be true, and that it is absolutely in the public interest for us to know that the evidence relied upon to build this calculator is sound whether we can see the inputs and outputs or not.

The NDIA loves to preach evidence-based support and subject matter expertise. Well, as any research supervisor or professional journal would say: “References, please.”

Respectfully frustrated, Cat

From: foi foi@ndis.gov.au Sent: Friday, August 18, 2023 3:37 PM To: Cat Walker foi foi@ndis.gov.au Subject: RE: OAIC (Urgent attn ) – Further Clarification Required - Your IC review applications about the National Disability Insurance Agency [SEC=OFFICIAL]

Good afternoon Cat,

Thank you for your time on the phone yesterday – I appreciate your candour in speaking with me and discussing your experiences interfacing with the agency. Our conversation has been incredibly illuminating for me and will be informing my future body of work in the hopes of making changes to better support participants in accessing the scheme, and I take your feedback very seriously.

As promised, attached is a copy of the decision letter to close out your FOI request, and I hope this supports greater understanding of NDIS processes. If you have any further questions relating to this, I will be more than happy to continue the conversation via phone call into next week. Again, we appreciate your patience in this process.

Thanks and kind regards,

The NDIA acknowledges the Traditional Custodians of Country throughout Australia and their continuing connection to land, sea and community. We pay our respects to them and their cultures and to Elders both past, present and emerging.

From: Cat Walker Sent: Thursday, August 17, 2023 1:39 PM To: foi foi@ndis.gov.au Subject: Re: OAIC (Urgent attn – Further Clarification Required - Your IC review applications about the National Disability Insurance Agency [SEC=OFFICIAL]

Hi is fine thanks, let me know if there’s anything I can do to prepare. In-person meetings generally aren’t accessible to me but I’m sure we can figure something out once I understand where things are at and how we can move forward.

                                                       3

RE: OAIC (Urgent attn – Further Clarification Required - Your IC

review applications about the National Disability Insurance Agency [SEC=OFFICIAL]

From: Cat Walker Sent: Wednesday, 23 August 2023 4:00 PM To: ‘foi’; ‘OAIC - FOI DR’ Subject: RE: OAIC (Uragnt attn – Further Clarification Required - Your IC review applications about the National Disability Insurance Agency [SEC=OFFICIAL] Importance: High

deal

I am wriƟng to follow up on the below for a response regarding as while, if I recall correctly, , the NDIS Review deadline is now just two days away, an I believe a serious error has been made in the rush to close this FOI request out rather than address it properly aŌer seven months. To be clear, I am requesƟng urgent review of the s24A aspect of the decision (the documents “do not exist”).

As the first page of the decision leƩer states, the scope seeks supporƟng evidence documents of the type explained further in my email on Friday (below), not just the parameters:

  You have requested documents containing the following informaƟon:

              “All assumpƟons and parameters underpinning the base Typical Support Package for an adult with a primary disability of AuƟsm (Level 2) and not in Supported Independent Living, excluding dollar 
          figures but including:

• The jusƟficaƟon for the raƟo or weighƟng of Core support categories
• The jusƥifications for typical Capacity Building categories and the therapies or acƟviƟies it is expected these funds will be directed towards
• Any documents detailing consultaƟon, co-design, scienƟfic research, technical advice, independent expert or other evidence for the assumpƟons used to build this TSP, including any overarching assumpƟons for TSPs based on a primary disability of AuƟsm Spectrum Disorder
• Any documents detailing or further jusƥifying how these assumpƟons and the associated TSPs contribute to agency strategic prioriƟes, corporate plans, or scheme sustainability
• Parameters affected by inputs generated during the planning conversaƟon
• Parameters affected by recorded streaming factors
• Parameters affected by system recogniƟon of a secondary disability/impairment/diagnosis
• Parameters not affected by any factors except age
• If any assumpƟons based on advice from outside organisaƟons or independent experts, the names and affiliaƟons of these
• Any evidence that the NDIA’s obligaƟons under the UN ConvenƟon on the Rights of Persons with DisabiliƟes have been considered in developing these assumpƟons, and if so, how this jusƥifies these assumpƟons”

Conversely, the reason given for the 24A decision in AƩachment B is as follows:

   Refuse a request for access (secƟon 24A)
   SecƟon 24A of the FOI Act states:

(1) An Agency or minister may refuse a request for access to a document if:

b. the agency or Minister is saƟsfied that the document:

	eii. does not exist

You sought the ‘parameters underpinning the base of Typical Support Package for an adult with a primary disability of AuƟsm (Level 2)’ as part of your request. The FOI team have consulted with relevant lines areas, and it has been determined that the NDIA is not in possession of such documents, other than the one document that was idenƟfied. I note, however, that I have been informed of the following statement… [See my response to this statement in Friday’s email, below]

I am saƟsfied that all reasonable steps have been taken by the Agency to find the documents within the scope of your request, and other than the one document that was idenƢied, no further documents exist. I have therefore, decided to refuse access to your request in accordance with secƟon 24A(1)(b)(ii) of the FOI Act.

The flrst problem is that this decision and explanaƟon not only ignores the dot-points highlighƟng the types of documents sought, but even deletes the “assumpƟons” part of the flrst sentence of my scope, before the dot- points. This was never just about the parameters, but the assumpƟons and supporƟng evidence, as explained in my iniƟal response on Friday (below).

I can only draw two conclusions from this decision and explanation. Either:

- All reasonable steps were not taken by the Agency to find the documents within the scope of my request,

because the search focused only on the

From: Cat Walker < > Sent: Friday, 15 September 2023 2:48 PM To: Minister Shorten; foi; OAIC - FOI DR Subject: Request for urgent escalation (FOI 22/23- ) Re: OAIC - MR23/ - RFI - Your IC review application about the National Disability Insurance Agency [SEC=OFFICIAL]

Dear Minister Shorten and NDIA FOI Branch,

As discussed with please find the email chain regarding unactioned requests for contact from the NDIA by myself and the OAIC, to try and resolve this outstanding FOI review request before it proceeds to IC Review. The urgency is the OAIC deadline less than two hours from now. The NDIA was instructed to reach out to do so before today’s deadline, two whole weeks ago.

The NDIA reference is FOI 22/23 which is listed as closed since the inadequate and disputed substantive decision on 18/8/23, and OAIC reference is MR23/

I immediately responded to on 18/8/23 upon receiving the substantive decision, and followed up to on 23/8/23 due to the impending NDIS Review submissions deadline. Both these emails were sent to the foi@ndis.gov.au address and the OAIC FOI DR address. I have had zero acknowledgement from the NDIA about this, and these emails are apparently not visible on my participant record according to the NCC.

Per follow-up email on behalf of the OAIC, I “have provided satisfactory submissions that searches undertaken by the Agency to locate and provide documents relevant to your request were insufficient.”

She had also requested the NDIA contact me to try and resolve the matter before proceeding to IC Review, with today at the deadline. When I responded to this email on 1/9/23, I also sent this to the foi@ndis.gov.au address.

I am requesting urgent escalation of this matter as the FOI branch has not responded to three emails from me and a request to contact me on behalf of the Information Commissioner, and I have less than two hours to advise the OAIC if I wish to proceed with IC Review.

My sense is that the NDIA would rather wait me out so that I join the long queue of IC reviews with even further delays — after my full cooperation with multiple extensions for a FOI request lodged in January — rather than fulfil their obligation to try and resolve the matter informally without external review, because of the nature of documents requested and the agency’s lack of transparency around these.

I would be very, very happy for the NDIA to prove this suspicion wrong and live up to the transparency they keep talking about.

Many thanks for urgently following this up,

Cat Walker

From: Cat Walker < >

Sent: Tuesday, September 12, 2023 11:42:24 am To: OAIC - FOI DR foidr@oaic.gov.au Subject: Re: OAIC - MR23/ - RFI - Your IC review application about the National Disability Insurance Agency [SEC=OFFICIAL]

                                                       1

From: foi foi@ndis.gov.au Sent: Sunday, 17 September 2023 1:34 PM To: Cat Walker Cc: foi Subject: RE: Request for urgent escalation (FOI 22/23- ) Re: OAIC - MR23 - RFI - Your IC review application about the National Disability Insurance Agency [SEC=OFFICIAL] Attachments: QoN_01_IA (2).pdf

Dear Ms Walker I apologise that we have not been able to respond in a timely manner. Additionally, and with respect to the handling of this request, I also note my view that it is highly regrettable that informed consultation was not undertaken with you earlier in the handling of this request. The further comments provided show that there was a clear misdirection of our efforts. I note the OAIC’s requested that we undertake another conversation with you about this matter. Also, that we want to respect your preference for written communications. If it would be helpful, I would be happy to have a conversation with you. However, I will also attempt to put forward our position, so that we might progress this matter more proactively. Scope of your request A request consultation process should have been undertaken on receipt of your request. After consultation with you, it was apparent that you are interested in the history and development of the TSP. Your request as interpreted, prior to you conversation with , has focused on service delivery interactions and not the history or establishment of the TSP. In that respect, the answers provided to you are not aligning with your expectations. I note the following from your email 18 August: “I’m looking for documents created or received when the TSP was being developed….”. We will undertake further searches of a kind to uncover this material. Further publicly available information I note the Attached and hyperlinked are two separate Question on Notice responses, this is also for the OAIC’s information and understanding. Both provide in my view, neater explanation of how the TSP works. They also demonstrate information of the kind that will guide further discussion with the Scheme Actuary and further searches. IC review Assuming that this proposal is satisfactory and to address the progression of the IC review and its consideration of our handling of the request. This further search and consideration might more cleanly be dealt with as the commencement of a new FOI request. However, noting the breadth of the initial request and our failure to undertake a request consultation process, effectively identify the intent of the request. I appreciate you may wish to keep this action tied to the original request. Please let me know if the above is clear and whether a conversation will be of assistance. Regards

Parliamentary, Ministerial & FOI Branch Government Division 1

From: Cat Walker Sent: Monday, 18 September 2023 1:07 PM To: foi Cc: OAIC - FOI DR Subject: RE: Request for urgent escalation (FOI 22/23- ) Re: OAIC - MR23/ - RFI - Your IC review application about the National Disability Insurance Agency [SEC=OFFICIAL] Attachments: SUBMISSION Catherine Walker Grounds for IC Review of 22.23 .pdf; Summary of requested IC Review - Practical Refusal of NDIA FOI 22.23. pdf

Dear

Thank you for reaching out and following up on this. I will preface my response by asking that you and everyone else acting on this or performing searches assumes that I am across all information available in the public domain and that the available information has not satisfied my inquiries. It may also assist you to know that I have a research background and strong clinical understanding to support my lived experience in targeting the requested information, however I cannot access the information I am asking for through the research channel as I am unable to work or pursue further study until I have the right supports in place (I hope that will change in time, but that goes to the heart of the Autism TSP evidence requested).

I do appreciate your offer of a conversation, but that didn’t resolve this last time despite thinking I had been understood, and I am always at a disadvantage in processing information fast enough if verbal conversation is relied upon for decision-making, or if new information or questions are introduced.

Before I get into the request at hand, I also appreciate the suggestion of a fresh request being the cleaner option, but I hope you understand my reasoning when I say that accountability matters, and for that reason, it should be dealt with under the original request (FOI 22/23- OAIC ref MR23/

This is in part because of the other request proceeding to IC Review after refusal on practical grounds and the way that request consultation process and substantive decision was handled (FOI 22/23- and associated IC Review references MR23/ ). was also going to follow up on this, but I’ve heard nothing further except that OAIC has assessed it, decided to proceed, and has requested information from your department to assist with review (I realise there may be good reason for her not responding, I just wanted to flag the associated review of the other request if you were unaware of that one).

I would therefore appreciate if you can check in on this matter too, but it might also help you understand where I am coming from and why resolving these matters under their original requests matters to ensure the appropriate improvements are made and similar situations are avoided in future. I’m unsure if you have read the submissions relating to each request or only the emails after the substantive decision on the Autism TSP request, so I have attached both for your reference, including as general feedback on where the FOI team can improve and the importance of those up the chain following through on increasing staff.

I want to emphasise that I do greatly appreciate the hard work and important role your team fulfils, and as I said to , I know you have been understaffed and I desperately want your team to have more support so you can do your jobs properly. I’ve raised this multiple times, including to the OAIC and especially with reference to how seriously it undermines the integrity of the NDIS Review when you should have had far greater support this year of all years.

Your division is one of the most important in the agency and I do appreciate the pressures you are all under. But as a participant, I cannot let you off the hook when it directly impacts my life and the future of the NDIS, which is why I want to keep both reviews under their original references.

                                                       1

Page 46

But for that same reason, I want both the CEO and the NDIS Minister (who should receive this as direct feedback given I engaged his office to assist in escalating this) to know that the FOI team cannot do its job properly unless they have far more staff available, and far more granular document lists available not only to the team, but to the general public to facilitate our identifying the documents needed and thus avoiding tricky scopes like mine when we don’t know where to direct your searches. I cannot take the agency’s information publication scheme or claims of transparency seriously when the answers to systemic issues are never available in the information shared with the public, and the data published is superficial at best. Having a full document list would enable us to rapidly pinpoint the majority of information needed so that the FOI workload is largely assessing whether it can be released, and any redactions needed for operational reasons.

I apologise for the length of the general feedback above, but it’s because I care about the work your team does and being equipped to do it properly by the powers that be matters just as much as acting on feedback about improvements at a team level.

Regarding the Autism TSP review request and scope (FOI 22/23-

Essentially, I’m asking the agency to substantiate the expert opinions with evidence, but I keep being told some variation of, “You don’t need to know that.” By the NDIS Minister, the CEO, everyone who has ever given evidence to inquiries or Estimates, (in explaining where it sits within the broader planning process before I explained why I still wished to proceed), and now you.

I get that this is the line the NDIA and Minister take with everyone who asks this question, including in a formal parliamentary setting, but respectfully: That is complete nonsense.

I cannot begin to explain how offensive this position is to a disabled participant, and I imagine it would be just as offensive to the general taxpayer. But to put it in a different perspective: Can you imagine if I submitted the TSP as a hypothetical model to an academic journal, and I told the peer reviewers “You don’t need to know that” when they asked for my reference list and how I arrived at the Results, Discussion or Conclusion sections? It wouldn’t pass an undergraduate science assignment, let alone peer review.

Now, I’m not asking for the full formulaic and statistical analysis, but I want the NDIA to release the background information – all literature reviews, technical advice, expert opinions, consultation and so on – and any other qualitative information used or developed to arrive at assumptions or opinions about the nature and type of suggested supports – before that was then translated into suggested quanta of supports and associated formulae.

The original scope was trying to narrow this down for you by sticking to adults with Level 2 ASD and not in SIL, however I realise that there may be overarching evidence for Autism or autistic adults generally which is also within scope (or which may have been used, with inputs about levels simply adjusting things up or down). If it is less complicated to just go with the evidence used to arrive at suggested supports for autistic adults and guiding general evidence for autism to address the points of my scope, then go with that rather than the level.

But the real problem here is that we keep being told the TSP is sound and that its development was supported by “people with disability, disability experts and subject matter experts” (per the decision letter) and, as your attachment notes, “a combination of Allied Health expert judgement and statistical modelling of participant data”, while being told it is exempt from the scrutiny which might support this claim. And it just does not pass the public interest test, let alone the pub test.

I am therefore chasing the following aspects (worded however it needs to be to find these documents) claimed to have been used in developing the TSP, as it relates to Autism and the various matters addressed by my scope:

• Advice or opinions of, or summarised results of engagement with “people with disability”
• Advice, opinions, submissions, research and so on from “disability experts”
• Expert or technical advice, opinions, submissions, research and so on from “subject matter experts” (and the names, qualifications, and affiliations of these, for the purposes of identifying their areas of expertise)

Page 47

and prior published work in this area or recognised clinical expertise; these may be available as citations or on reports provided by them which would also be in scope)

• All “Allied Health expert judgement” relating to Autism generally (e.g. including autistic adults but excluding evidence focused on autistic children and intensive early intervention) or autistic adults and their support needs from a clinical perspective

All I am asking of the agency here is to facilitate transparent peer review of the evidence underlying assumptions built into the TSP by the public – including those of us these assumptions impact, those providing clinical advice that needs to demonstrate why these assumptions may not be correct for an individual, and the taxpayer.

Again, I want to emphasise that this is not about the quanta of supports or the mathematical formula, but the expert advice and any other supporting evidence used to arrive at the assumptions about what an autistic adult is most likely to need or not need as “suggested supports”, before this is then translated into mathematical and actuarial terms or dollar figures.

As I said to before the substantive decision and subsequent emails, I’m happy to drop three out of four of the “parameters affected by“ dot points, with the exception of “parameters affected by system recognition of a secondary disability/impairment/diagnosis”, as this is critical to understanding what the NDIA knows (or thinks it knows) about autistic support needs.

However, based on the one document released on 18/8/23, secondary disabilities do not appear to be included in the formula, or at least the top-level inputs. While I appreciate the usual access to documents, not answers to questions position, in this instance a simple yes/no answer would provide part of the necessary “freedom” of that “information” without compromising the security of the TSP by revealing where in the formulaic documents that information appears or does not appear (as the case may be). The second part of that dot point could be fulfilled by searching the supporting evidence used or created in the development of the TSP for documents addressing co- occurring conditions in autism. In the absence of this, or if the TSP explicitly excludes consideration of anything other than primary disabilities, this could also be clarified by internal documents instructing planners how to approach this where a secondary disability requires them to adjust a TSP based on the recorded primary disability, for example.

The scope of this request has nothing to do with chasing information to game the system by understanding inputs that can be manipulated, and this one specific dot-point addressing the formula is only relevant to the extent that participants with multiple disabilities deserve not to be pigeonholed incorrectly and to be able to hold the agency accountable to public statements made about multiple disabilities if all impairments are not on record. If the wording of that dot-point needs to be changed, please assist me with doing so, as the important thing here is identifying whether the TSP is impacted by the presence of secondary disabilities. That is the opposite of compromising operations. That is ensuring operations are fit for purpose.

Alternatively…

While my scope sought to pinpoint and cut through extraneous information, I am wondering now – particularly given the protracted timeframe and the fact the above dot points and previous clarifications should direct searches towards the clinical, rather than statistical, evidence used to develop the TSP – is it more practical to just provide all such documents relating to Autism and/or autistic adults specifically (excluding any with titles specifically addressing kids/early intervention), rather than trying to sort through which apply to my scope, even if this is a large volume for me to sort through?

If they are easier to locate through the clarified lens of the non-statistical side of TSP development, I’m wondering if this would save significant time on staff searching individual documents for the specific scope points, given this clinical information should predate any modelling deemed protected for operational reasons. Really, the only exception to that should be clinical-focused technical advice around any more recent updates or refinements to the TSP, which should be fewer and easier to check for any direct references to protected TSP information.

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I realise that might be a huge number of documents, but I’m happy to do the searching for relevant information myself and at my own pace to remove any potential practical refusal reason if granted access, because the documents in question should have no reason to be protected for operational reasons (as opposed to the modelling aspects, or isolated more recent advice which could be checked individually). All we are talking about is what the NDIA understands about Autism support needs, and the body of clinical/expert/technical advisory/lived experience evidence supporting that understanding.

If this is an option to simplify searches without limiting access to documents, and the above “answer” on secondary disabilities can be provided as a workaround to share this information while protecting the TSP formula (e.g., the yes/no answer, and any specific advice to delegates on how to consider secondary disabilities if the TSP doesn’t recognise them), I would be willing to submit the UNCRPD dot-point as a new request (and would be grateful for any advice on wording to assist with this), and to find the other answers myself through my review of the documents released. While not strictly “TSP-related” evidence, it may also assist to include the “Disability Snapshot”, disability navigator and disability “acumen” series information relating to Autism to fill in the gaps.

Is this a realistic option, and one where I won’t be inadvertently denying myself access to documents the scope would otherwise capture?

I just want to get to the bottom of this and essentially find a way to check the NDIA’s homework on what they understand about people like me and the kind of support we need. I’m happy to do the actual “literature review” myself if given access to a meaningful body of evidence, rather than meaningless summaries thereof.

I understand existing TSP assumptions are likely to inform execution of any NDIS Review recommendations on how budgets will be designed in future, so it is certainly in the public interest for current assumptions to be scrutinised before that happens. I am only too happy to contribute to that because getting the next stage right is as important to me and others like me as it is to the agency.

Please let me know your thoughts and my options considering the above (and the submissions, if you hadn’t already read them) so I understand my options properly before I decide how I wish to proceed.

Thanks again for reaching out, Cat

From: foi foi@ndis.gov.au Sent: Sunday, September 17, 2023 1:34 PM To: Cat Walker < > Cc: foi foi@ndis.gov.au Subject: RE: Request for urgent escalation (FOI 22/23- ) Re: OAIC - MR23/ - RFI - Your IC review application about the National Disability Insurance Agency [SEC=OFFICIAL]

Dear Ms Walker I apologise that we have not been able to respond in a timely manner. Additionally, and with respect to the handling of this request, I also note my view that it is highly regrettable that informed consultation was not undertaken with you earlier in the handling of this request. The further comments provided show that there was a clear misdirection of our efforts. I note the OAIC’s requested that we undertake another conversation with you about this matter. Also, that we want to respect your preference for written communications. If it would be helpful, I would be happy to have a conversation with you. However, I will also attempt to put forward our position, so that we might progress this matter more proactively. Scope of your request

Commonwealth Of Australia

Official Committee Hansard

Senate

Community Affairs References Committee

Barriers To Consistent, Timely And Best Practice Assessment Of Attention Deficit Hyperactivity Disorder (Adhd) And Support Services For People With Adhd

Public

Thursday, 29 June 2023

Canberra

By Authority Of The Senate

COMMUNITY AFFAIRS REFERENCES COMMITTEE

Thursday, 29 June 2023

Members in attendance: Senators Askew [by video link], Liddle [by video link], Rice [by video link], Marielle Smith [by video link] and Steele-John [by video link]

Terms of Reference for the Inquiry: Barriers to consistent, timely and best practice assessment of attention deficit hyperactivity disorder (ADHD) and support services for people with ADHD, with particular reference to: a. adequacy of access to ADHD diagnosis; b. adequacy of access to supports after an ADHD assessment; c. the availability, training and attitudes of treating practitioners, including workforce development options for increasing access to ADHD assessment and support services; d. impact of gender bias in ADHD assessment, support services and research; e. access to and cost of ADHD medication, including Medicare and Pharmaceutical Benefits Scheme coverage and options to improve access to ADHD medications; f. the role of the National Disability Insurance Scheme (NDIS) in supporting people with ADHD, with particular emphasis on the scheme’s responsibility to recognise ADHD as a primary disability; g. the adequacy of, and interaction between, Commonwealth, state and local government services to meet the needs of people with ADHD at all life stages; h. the adequacy of Commonwealth funding allocated to ADHD research; i. the social and economic cost of failing to provide adequate and appropriate ADHD services; j. the viability of recommendations from the Australian ADHD Professionals Association’s Australian evidence-based clinical practice guideline for ADHD; k. international best practice for ADHD diagnosis, support services, practitioner education and cost; and l. any other related matters.

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HOWDEN, Ms Jacqueline, Acting Assistant Secretary, Student Learning and Disability Branch, Department of Education [by video link]

McNAUGHTON, Mr Scott, Deputy Chief Executive Officer, Service Delivery, National Disability Insurance Agency [by video link]

O’CONNOR, Ms Rachel, Acting First Assistant Secretary, Improving Student Outcomes Division, Department of Education [by video link]

ACTING CHAIR: I don’t know if you managed to hear my opening statement, but I don’t think I need to redo it, because I think you know it—about the protection of officers et cetera. Just let me know if you feel you need to hear those words read into Hansard again. I invite you to make a brief opening statement if you wish to do so.

Ms O’Connor: In terms of an opening statement, we briefly want to thank the committee for inviting us to appear, and to acknowledge the important work of this inquiry. As you are aware, the Australian government does play a leadership role in education, particularly as it relates to funding, which is also a shared responsibility with states and territories, who have the lead responsibility for the regulation, administration and operation of schools. We have provided a short written summary to support the work of the committee, and we’re very happy to respond to any further questions you may have today. Thank you.

ACTING CHAIR: NDIA? Mr McNaughton: I also welcome the opportunity to participate as part of the hearing today and provide further information. I don’t have an opening statement, other than that.

ACTING CHAIR: I might kick off with a question to the Department of Education. In terms of the SRS students-with-disability loading which can be received, are you able to talk through some of the things that schools and systems might spend that on, to support students with ADHD?

Ms O’Connor: We can point to some of the types of examples, but, as per the opening statement, those funds are utilised at state and territory discretion and school discretion. We do, however, have a website where case studies are included. The Nationally Consistent Collection of Data on School Students with Disability website includes case studies, which supports both teachers in terms of the way that they work through the identification of students who may require adjustment but also the types of things that may be supported through the funding that is allocated to support. That could include things like training for teachers to ensure that they are able to respond appropriately to the needs of students. It could include different types of equipment where required. Those are some of the types of activities. As I said, the website includes a lot more detail in terms of case studies that help to give some insight as to how that is used within schools.

ACTING CHAIR: Mr McNaughton, some of the submissions we had highlighted issues with the quality of reports used to access services for ADHD via the NDIS. One of the issues raised was that allied health professionals writing these reports are doing so from a recovery based model as opposed to a deficit model. Is this something which you are hearing or has been reported up to the agency, or is there anything you can comment on there in terms of the quality of reports?

Mr McNaughton: It’s mixed and varied—that would be our observation of that. Certainly as we are assessing someone’s functional impairment, we’re often looking much more at the level of function rather than the clinical diagnosis. What is the impact of a person’s disability on a range of daily activities? That’s really where we are trying to work with allied health professionals to get that level of assessment from a functional capacity rather than a diagnosis, if that makes sense. That’s really important for us in determining access, but once someone meets access to this scheme, what supports do we need to put in their plan to help them connect with their core supports, build capacity, connect with community, employment and those other activities? So assessment of function is really important for us.

ACTING CHAIR: Thank you, Mr McNaughton. I’m going to pass the call to Senator Steele-John.

Senator STEELE-JOHN: I will start with the NDIA. I just want to establish some key facts at the outset. The overwhelming majority of submissions that have been provided to the inquiry so far have commented on the way in which ADHD is not listed as a primary disability by the agency, and the barriers created for people because of that. Can I confirm that ADHD is still not listed as a primary disability by the agency for the purpose of an access request?

Mr McNaughton: It’s really important that we clarify this, because I did see those submissions. The act itself doesn’t list disabilities. We have some lists that help us guide decision-making. We put those lists in place through the early days of transitioning and rolling out the NDIS; we’ve got lists A, B, C and D. They help us as a decision-making guide for people who may be testing access to the scheme, but you don’t need to be on any of those lists,

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er se, to test access the scheme. There are a whole range of impairments and disabilities that don’t appear on any of those lists, but we still assess a person’s functional ability and permanency to access the scheme. ADHD isn’t on any of those lists—that’s correct—but that doesn’t preclude anyone with ADHD testing access to the scheme.

• Senator STEELE-JOHN: With that confirmed, can I ask you how many participants currently on the scheme are participants on the scheme having gained access to the scheme on the basis of being a person who is solely diagnosed with ADHD, and having that listed as their primary disability in the NDIS system?
• Mr McNaughton: As at 31 March this year, so from the latest quarterly report, we had 4,864 participants who had ADHD as either their primary or secondary disability. Of those, 188 participants had it listed as their primary disability.
• Senator STEELE-JOHN: What was that first figure?
• Mr McNaughton: 4,864.
• Senator STEELE-JOHN: Of which 188 list ADHD as their primary disability. So that means for those 188 people, ADHD was the reason for which their access request was granted?
• Mr McNaughton: That’s correct.
• Senator STEELE-JOHN: Okay. And of that first figure, are you able to provide us with a breakdown of that based on gender? We have heard a lot about gender biases in relation to ADHD.
• Mr McNaughton: Yes, I can. Of that 4,864, 3,300 were male and 1,488 were female and a further 76 did not record their sex status.
• Senator STEELE-JOHN: Okay. And of the 188?
• Mr McNaughton: One hundred and forty-six are male; 42 are female.
• Senator STEELE-JOHN: Okay, so we do see that gender disparity there. Can you tell me, of the first figure, what their average plan size is?
• Mr McNaughton: I can, Senator. Of all participants who have ADHD as either their primary or secondary disability, the average annualised committed supports in their plan, so their average plan value, is $68,021. If ADHD is the primary disability, the average is $35,532. And if it’s not the primary disability, the average is $69,327.
• Senator STEELE-JOHN: Okay.
• Mr McNaughton: And just to balance that off, Senator, against the entire scheme the average committed supports at the moment is $74,421.
• Senator STEELE-JOHN: Okay. I don’t suppose you would have the utilisation rates for those plans?
• Mr McNaughton: You’ve got me on that one, Senator, but I’ll see if I can get that through the course of the hearing for you.
• Senator STEELE-JOHN: Thank you. Stepping back to get a slightly broader view of scheme participants, are you able to tell us, of the scheme participants that we’ve got across the NDIS, how many of them have ADHD as far as the NDIS is aware but it is listed neither as their primary nor their secondary disability?
• Mr McNaughton: The figure I gave you, the headline number of 4,864, is the total number of participants who have ADHD recorded as either a primary or secondary disability.
• Senator STEELE-JOHN: Alright. Do we have any more data beyond if it’s neither a primary—for instance, earlier today we had evidence from a witness who has cerebral palsy, a psychosocial disability, they’re autistic and they have ADHD. So just across that there are more than two disabilities, so I’m wondering if we have any data on the number of participants who have ADHD, but it is neither their primary nor their secondary disability.
• Mr McNaughton: I don’t believe there are more out of the numbers I’ve given you but let me come back on notice with that. Of course, it also might depend on if we’ve been advised of that. So that’s not to say there aren’t other participants in the 590,000 who have ADHD but just haven’t advised us of that.
• Senator STEELE-JOHN: Okay. Sorry to keep going back to this specific pool, but it’s an issue of great interest to the community—and I haven’t forgotten the Department of Education is there. Is there any kind of geographic breakdown that you’re able to provide us with for either that first or second number?
• Mr McNaughton: Can I take on notice the jurisdictional breakdown?
• Senator STEELE-JOHN: Yes. That would be great. Are you able to step us through any particular training that is provided to NDIS employees, specifically planners, around making determinations in relation to access requests, or indeed determinations, around reasonable and necessary supports that are specific to ADHD?

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Mr McNaughton: There are two groups of staff who are involved in access decisions. Our access team receive a whole range of training around not only the legislation but a range of disability types, through our disability acumen series. Their role is to work with all the information and evidence available from the person’s treating clinicians and practitioners, to make a determination around access to the scheme. If a person meets access requirements for the scheme then there are planners who will work with the participant around what are reasonable supports. Again, we haven’t done specific training in ADHD. We do a broad range of disability awareness training. We have a series of disability snapshot work that we do around different types of more common disabilities within the scheme itself—autism, MND, physical disabilities and various others—through our acumen series, but I’m not aware of any specific ADHD training we do for planners. I’ll take that on notice, but I’m not aware of any.

Senator STEELE-JOHN: Have you got any information to hand on how many access requests were rejected where the applicant listed ADHD as their primary disability?

Mr McNaughton: We’ve had 8,442 access requests where ADHD was either the primary or secondary disability. Of those, 61 per cent were eligible.

Senator STEELE-JOHN: What’s the time frame for this?

Mr McNaughton: The data is from the beginning of the NDIS.

Senator STEELE-JOHN: You’ve had 8,442 access requests in the last 12 months. How many of those access requests were approved?

Mr McNaughton: A total of 5,167, which is 61 per cent. Where ADHD was the primary disability, 11 per cent were determined as eligible. Where it was a secondary disability, 85 per cent were determined as eligible.

Senator STEELE-JOHN: I’m very glad that Hansard are recording all these numbers! Thank you so much. It’s great to finally be able to have these numbers provided to the committee. It’s very useful. I just have a last question for the Department of Education, following on from Senator Smith’s question about the supported funding loading that is available to students with ADHD. When you say ‘students with ADHD’, are you referring to those with diagnosed ADHD or undiagnosed ADHD?

Ms O’Connor: Students don’t need to have been diagnosed. It’s about the teacher making a practical assessment of need within the classroom environment, so it’s based on what they identify in terms of the sorts of supports that would be required for that child. They do that both within the classroom environment and through partnership and conversations with parents and families to understand the needs of the child.

Senator STEELE-JOHN: Fabulous. I’m going to pass back to the chair now.

ACTING CHAIR: I don’t believe Senator Askew or Senator Liddle had questions but I’ll just give them an opportunity in case they did. No? In that case, I would like to thank you for the evidence you’ve given to our committee today.

Senator STEELE-JOHN: Chair, would I be able to ask just a couple more questions of the Department of Education or have we run over time? I didn’t want to be just the one person speaking, but, if nobody else has got questions, I’ll ask—

ACTING CHAIR: We have not run over time, so please ask your few questions.

Senator STEELE-JOHN: That’s wonderful. To the Department of Education then: in terms of school exclusions, are you able to give us any figures or data on the number of children with ADHD that are subject to school exclusions or for whom school refusal is a factor or a phenomenon?

Ms O’Connor: Great question. No, we’re not able. With ‘school exclusion’, are you able to elaborate on the sort of—

Senator STEELE-JOHN: Of course. We had a number of witnesses share with us in their submissions earlier today that, upon their child finally attaining a diagnosis for ADHD, the school said, ‘That’s great; they’re no longer welcome at the school,’ and decided no longer to provide them with education. If there is any data around that, that’s what I was meaning in relation to ‘exclusion’. The phenomenon of school refusal, I’m assuming, is more well known to the department.

Ms O’Connor: Thanks for clarifying. In terms of school exclusion, we do not have data that would give us insights around that. Certainly the requirements under the act and through the standards are ensuring that schools provide an inclusive environment for all students, including students with a disability and students with ADHD. That would be the expectation. We can certainly take on notice if there is any form of information that may assist to offer further insights, but I don’t believe we’ve got data on the exclusions. In terms of school refusals, this is obviously an area of great interest to us. Of course we’re aware of the Senate inquiry into school refusal, which we

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also appeared before. What is currently missing in that space is data that identifies the reasons for students not attending school. We don’t have any form of national data that helps to inform us in terms of the reasons for school refusal. That is a current gap in information.

• Senator STEELE-JOHN: In relation to the question of teacher training, which has been raised as well, and the value that could be found in providing more training to teachers, what is the department’s understanding of the training that an Australian teacher receives before they enter the classroom, if you like, that is specific to ADHD?

• Ms O’Connor: Another good question. The initial teacher education training that people receive before entering into teaching is operated by universities, who operate as autonomous entities. The Australian government doesn’t specify the course content of initial teacher education. However, in saying that, there is nationally agreed accreditation of initial teacher education programs, so there are standards and procedures that are set. More recently, there has been the initiation of a Teacher Education Expert Panel, which is chaired by Mark Scott. That panel has been tasked with exploring further recommendation 15 of the Quality Initial Teacher Education Review. That really goes to strengthening the link between performance and funding of initial teacher education. It also goes to looking at programs that deliver confident, effective and classroom-ready graduates. We would consider that includes considering the needs of students in the classroom and whether the teacher education programs are properly equipping students to that effect. That is underway, and the panel is due to provide advice to education ministers imminently.

• Senator STEELE-JOHN: Okay, thank you. I’ll just bring you back to the agency. What does the agency view as the purpose of the category A, category B and category C listing structure that currently exists?

• Mr McNaughton: As I mentioned earlier, the lists were put in place in the early part of the transition to help with the big increase in participants joining the scheme over the past several years. The conditions that are list A essentially mean the will satisfy all the disability requirements of section 24 of the act. So if you’re in there, it’s essentially going to meet access to the scheme. If you’re on list A, you’ll satisfy all the disability criteria. List B is a list of conditions that are likely to result in permanent impairment but will need evidence around the functional impact of that impairment. So you’ll meet some parts of section 24 but will need further evidence from your treating health professionals and allied health and clinicians around the impact of the disability. And List D goes to the criteria around early intervention mainly for children. They’re the lists as they currently stand. Of course, the government has announced the NDIS review. They’re looking at all sorts of issues, including access, as you’d imagine. But we’re administering the act as it is currently legislated, and the lists help to provide that guidance for our staff.

• Senator STEELE-JOHN: I’m just wondering for the benefit of the committee, if you are neither in category A, category B nor category D condition or disability, what is then the impact on making an access request? What are you required to provide? What does the process look for you compared to someone with a category A, category B or category D condition or impairment?

• Mr McNaughton: There are many, many conditions and disabilities that aren’t covered by those lists. Through the access request process, we would be working with the prospective participant or the person testing access and all their treating professionals, whether they’re GPs, psychiatrists, psychologists or allied health professionals, to get information around the disability—we’re not a diagnosis driven scheme, of course, but if there is one, that’s useful and very helpful—but then get other information from the GP and the other treating professionals around the impact that that person’s disability has on their life and evidence around whether all the further treatments have been explored or whether it’s likely to be permanent or whether there are other mainstream health or universal service system treatments available that are better supported outside the NDIS, because that’s part of the act as well, and then getting that information test if the criteria in section 24 are met. And if they are, then the person will meet access and move into the planning process.

• Senator STEELE-JOHN: So, functionally, you have to provide more information to the agency in order to complete an access request if you fall outside of those categories?

• Mr McNaughton: Yes, that’s correct.

• Senator STEELE-JOHN: I’m familiar with the history of the scheme. I understand where the original ideas for categories A, B and D came from. But, in terms of where we are now in 2023, when was the last time that a condition or impairment was added to the category A or category B listing?

• Mr McNaughton: To my knowledge, we haven’t updated the list now for a good two or three years. I’ll stand corrected, but I will check that. And there’s a question, as I mentioned. The independent NDIS review is looking at the future of access. We wouldn’t be making too many further changes pending the results of government considerations of any recommendations coming out of that.

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Senator STEELE-JOHN: You’ve been able to provide me with the number of access requests made in the last 12 months by people who have ADHD as a primary or secondary disability and the approval or rejection rate of those applications. To clarify: is the 61 per cent approval rate that you gave me for requests made and then agency approved or is that for requests made, agency rejection of the initial decision, the participant then appealing and then eventual approval? Can you shed any light on that for us?

Mr McNaughton: I’d have to take that on notice. I don’t have that level of detail. I’ll check the figures for the time series over which those access decisions were made and come back to you.

Senator STEELE-JOHN: That would be good. This is so we can understand whether the number of approved you’ve given us are approved as the result of the conclusion of an appeal—a request for a review and a decision, or a process through the AAT—or simply granted. Could you also provide me with the access request numbers and also the acceptance and rejection figures for the last 24 months and the last three years so we can get a slightly larger data set of the trends we’re looking at.

Finally—you’ll probably have to take this on notice—you’ve indicated that the vast majority of people who are currently in the scheme with ADHD as a primary or secondary disability have more than one disability; they have a primary and a secondary disability. It would be good for us to know what those secondary disabilities in the case where the ADHD is the primary disability and vice versa. I know that sounds a bit convoluted, but I’m trying to get a bigger picture of the actual cohort that we are looking at.

Mr McNaughton: I know exactly what you mean. We’ll see if we can break down that data. I think you said autism and ADHD or something else and ADHD. We will see if we can get some data on that for you.

Senator STEELE-JOHN: Yes. We know they are highly co-occurring conditions. Thank you very much. I really appreciate that time of both yourselves and the Department of Education. I might well think of some questions to put to you more formally on notice. Thank you for your time today.

ACTING CHAIR: That concludes the committee’s questions. If you have taken questions on notice, we’re asking for them back by 15 July, but otherwise you are free to drop off our hearing. Thank you for your time today.

Applying to the NDIS

Quick summary:

If you want to become a NDIS participant and get supports through an NDIS plan, you’ll need to apply to the NDS. There are some requirements you need to meet to be eligible for the NDIS.

First, you need to be younger than 65 when you apply, be an Australian citizen or permanent resident, and live in Australia. Then, you’ll need to meet the disability or early intervention requirements.

You may be eligible under the disability requirements if you have one or more impairments that are likely to be permanent and this substantially impacts your ability to do daily life activities. Your impairment must also affect your social life, or your ability to work and study and you must be likely to need support under the NDIS for your whole life.1

Or you may be eligible under the early intervention requirements if you have one or more impairments that are likely to be permanent and supports would help you by reducing your need for supports in the future. We will also consider if these needs could best be met by the NDIS, or by other government and community services.

If you think you might be eligible, we can help you apply to the NDIS. We’ll look at all the information you give us to decide if you’re eligible. If you’re eligible for the NDIS, you’ll become a participant and we’ll work with you to start creating your plan. If you’re not eligible, we can help you connect to other government and community services available to you.

What’s on this page?

• What do we mean by applying to the NDS?
• Do you meet the age requirements?
• Do you meet the residence requirements?
• Do you meet the disability requirements?
• Do you need early intervention?
• What about children younger than 6 with developmental delay?
• How do you apply to the NDIS?
• How do we decide if you’re eligible?
• What happens after we decide?

What do we mean by applying to the NDIS?

Applying to the NDIS means doing things to find out if you can become a participant and start getting supports under the NDIS. There is a process to follow when you apply to the NDIS. After you apply, we’ll look at all the information you provide and decide if you’re eligible.

If we decide you’re eligible, you’ll become a participant in the NDIS. We’ll then work with you to create your first plan, which will include funding for any reasonable and necessary supports.

If you’re not eligible, there are other services available to you, such as other government and community services. We can help you connect to these other services.

For children younger than 9, we encourage families to talk to an early childhood partner before applying to the NDIS. They can help families connect to the right supports and let families know if the NDIS is right for their child. Learn more about our early childhood approach and early connections.

Are you eligible for the NDSI?

To be eligible for the NDIS, you first need to meet the age and residence requirements. This means you need to be younger than 65 when you apply, live in Australia, and be an Australian citizen or permanent resident.2

You also need to have a disability caused by an impairment.

When we say impairment in this guideline, we mean a loss or significant change in your body’s function, structure, or in how you think and learn. Under the law for the NDIS, we check if you’re eligible based on your impairments, not your type of disability or diagnosis.

You will need to meet either the disability requirements3 or the early intervention requirements4.

Disability Requirements

To meet the disability requirements, we must have evidence of all the following:

• You have a disability caused by an impairment.
• Your impairment is likely to be permanent.
• Your impairment means you have a substantially reduced functional capacity to do one or more daily life activities. These activities include moving around, communicating, socialising, learning, undertaking self-care, or self-management tasks.
• Your impairment affects your ability to work, study or take part in social life.

You don’t need to stay in Australia all the time

You can still work overseas or go on a holiday.

You will need to show a stronger connection to Australia than other countries if you spend a lot of time overseas.

If we decide you’re eligible and create your plan, there may be times you can’t use your NDIS funding overseas. This is usually after you’re overseas for more than 6 weeks, unless we give you more time. Learn more about when you can’t use your plan.

Do you meet the disability requirements?

You meet the disability requirements if we have evidence of all of the following:19

• Your disability is caused by an impairment.
• Your impairment is likely to be permanent.
• Your permanent impairment substantially reduces your functional capacity to undertake one or more of the following activities: moving around, communicating, socialising, learning, or undertaking self-care or self-management tasks.
• Your permanent impairment affects your ability to work, study or take part in social life.
• You’ll likely need support under the NDIS for your whole life.

If you give us evidence you have been diagnosed with one or more conditions on List A, we’ll likely decide you meet the disability requirements.

If you meet the disability requirements, it’s likely you’ll need the NDIS for a long time. This means you won’t have to prove your disability every time we reassess your plan.

If at any time your disability support needs or situation changes, we many need to check your supports or NDIS eligibility. We will talk with you if this happens.

Learn more about how we check if you are still eligible for the NDIS.

Is your disability caused by an impairment?

When we consider your disability, we think about whether any reduction or loss in your ability to do things, across all life domains, is because of an impairment.

An impairment is a loss or significant change in at least one of:

• your body’s functions
• your body structure
• how you think and learn.

Disability Requirements

To meet the disability requirements, we must have evidence your disability is caused by at least one of the impairments below20

• intellectual – such as how you speak and listen, read and write, solve problems, and process and remember information

• cognitive – such as how you think, learn new things, use judgment to make decisions, and pay attention

• neurological – such as how your body functions

• sensory – such as how you see or hear

• physical – such as the ability to move parts of your body.

You may also be eligible for the NDIS if you have a psychosocial disability.21 This means you have reduced capacity to do daily life activities and tasks due to your mental health.

It doesn’t matter what caused your impairment, for example if you’ve had it from birth, or acquired it from an injury, accident or health condition.

It also doesn’t matter if you have one impairment, or more than one impairment.

Is your impairment likely to be permanent?

We need evidence that you’ll likely have your impairment for your whole life.

You might have some periods in your life where there is a smaller impact on your daily life, because your impairment may be episodic or fluctuate in intensity22. Your impairment can still be permanent due to the overall impact on your life, and the likelihood that you will be impacted across your lifetime.

Even when your condition or diagnosis is permanent, we’ll check if your impairment is permanent too. For example, you may not be eligible if your impairment is temporary, still being treated, or if there are remaining treatment options.

Generally, we’ll consider whether your impairment is likely to be permanent after all available and appropriate treatment options have been pursued.

If you give us evidence you have been diagnosed with a condition on List B, we’ll likely decide your disability is from an impairment that’s likely to be permanent.

Is there any medical treatment for your impairment?

We don’t fund supports to treat your impairment.

Instead, the supports we fund can help you reduce or overcome the impact your impairment has on your daily life. They can also help you increase your functional capacity, independence, and your ability to work, study or take part in social life.

Your impairment will likely be permanent if your treating professional gives us evidence that indicates there are no further treatments that could relieve or cure it.

Your treating professional will tell us or be asked to certify if there are medical, clinical or other treatments that are likely to remedy your impairment. We need to understand whether there are treatments which are:

• known and available
• appropriate for you and your impairment
• evidence-based - that is, there’s proof they are likely to be effective.

The word treatment should be understood in the broadest sense and may include changes to your diet and lifestyle. So, for example, conditions such as obesity are unlikely to be found to be permanent.

If you’re still undergoing or have recently had treatment, we’ll need to wait until you know the outcome of the treatment before we can decide your impairment is likely to be permanent.

In some situations, it may be clear your impairment is likely to be permanent while you’re still undergoing treatment or rehabilitation. For example, you may still need treatment and rehabilitation for a spinal cord injury, but it’s clear you’ll have a permanent impairment.

You might still have a permanent impairment, even if its effects may change over time.

For degenerative impairments, or those that get worse over time, we consider them permanent if treatment isn’t likely to help or improve the impairment’s effects.

Does your impairment substantially reduce your functional capacity?

Your permanent impairment needs to substantially reduce your functional capacity or ability to undertake activities in one of the following areas:

• Communicating – how you speak, write, or use sign language and gestures, to express yourself compared to other people your age. We also look at how well you understand people, and how others understand you.
• Socialising – how you make and keep friends, or interact with the community, or how a young child plays with other children. We also look at your behaviour, and how you cope with feelings and emotions in social situations.
• Learning – how you learn, understand and remember new things, and practise and use new skills.
• Mobility, or moving around - how easily you move around your home and community, and how you get in and out of bed or a chair. We consider how you get out and about and use your arms or legs.

• Self-care – personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.

• Self-management (if older than 6) – how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-to-day tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.

Your impairment substantially reduces your functional capacity if you usually need disability-specific supports to participate in or complete the above tasks.27

These disability-specific supports include:

• A high level of support from other people, such as physical assistance, guidance, supervision or prompting.28

• Assistive technology, equipment or home modifications that are prescribed by your doctor, allied health professional or other medical professional.29

To help us decide if you’re eligible, we need to know your capacity and where you need more help. We get this information from your NDIS application.

If you have more than one permanent impairment we will consider them together, to see if they substantially reduce your functional capacity.

We consider how you’re involved in different areas of life like home, school, work and the community, and how you carry out tasks and actions. We also consider any other factors that may impact your day to day life.

Your needs might go up and down each day or each month. Progressive Multiple Sclerosis (MS) can be a good example of this. We consider your ability over time, taking into account your ups and downs.

How does a child’s impairment affect their daily life?

To help us decide if a child’s ability is substantially reduced, we compare their abilities with other children of the same age.

If a child’s ability is much less than most other children the same age, they may meet the disability requirements. For example, if they:

• Need assistive technology, equipment or home modifications to participate in daily activities – except for common items like glasses.

• Usually need more assistance to join activities, or they can’t join in.

Sometimes when a child’s impairment doesn’t substantially reduce their ability right now, but might in the future, we will look at the early intervention requirements. Similarly, if a child’s

When do we make priority eligibility decisions?

If you’re in one of the following situations, we’ll decide if you’re eligible within 2 to 5 business days.

• Child younger than 7 years with a hearing impairment, either:

  - Identified as Hearing Australia or Early Childhood Partner Priority
  
  - Identified as ‘newly diagnosed’
  

• A child is identified as having a developmental delay and is turning 6 years old within 30 days of a valid NDIS application.

• Immediate risk to self, others, community or agency where appropriate disability or informal supports are not in place.

• Unexpected, significant deterioration of disability-related functional capacity where appropriate disability or informal supports are not in place.

• Rapid deterioration in functional capacity of a person with one of the following permanent disabilities:

  - Amyotrophic Lateral Sclerosis (ALS)
  
  - Brain Cancer
  
  - Motor Neurone Disease (MND or Lou Gehrig’s Disease)
  
  - Progressive Bulbar Palsy (PBP)
  
  - Primary Lateral Sclerosis (PLS)
  
  - Progressive Muscular Atrophy (PMA)
  

• Imminent risk (within 1–14 days) of breakdown of either:

  - Accommodation – risk of homelessness
  
  - Caring arrangements, including informal supports, due to death, serious illness or injury of informal supports, or significant and unexpected deterioration of disability-related functional capacity.
  

• Appropriate disability supports are not in place and are re-entering the community after a long-term residence or hospital stay (specific release date not required):

  - A person with a newly acquired, significant disability, such as spinal cord injury, being discharged from hospital
  
  - A younger person living in residential aged care
  
  - A person being discharged from an inpatient mental health facility
  

Creating your plan

Quick summary:

Once you’re an NDIS participant, we will work with you to create your plan. We will first have a planning conversation with you. This helps us decide what supports to fund in your plan, who will manage your funding, and when we’ll change your plan.

What’s on this page?

This page covers:

• What principles do we follow to create your plan?
• What is an NDIS plan?
• How do we create your plan?
• How do we decide what supports to include in your plan?
• What are your options for managing your funding?
• How long will your plan go for?
• When will we approve your plan?
• What happens once you have your plan?
• Appendix A: Plan duration guidance You may also be interested in:
• Applying to the NDIS
• Your plan
• Changing your plan
• Reviewing our decisions

What principles do we follow to create your plan?

The NDIS was set up as a world first approach to disability support. It puts people with disability at the centre of decision-making, through the principles of reasonable and necessary supports and individual choice and control. As an insurance-based scheme, we take a lifetime approach to a participant’s support needs. We provide assurance to people with permanent and significant disability or developmental delay, and to people who might acquire disability or developmental delay,

What Supports Can We Fund?

NDIS supports should complement, not replace, other supports available to you. That’s why we consider:

• The things you’re able to do for yourself
• Support you have from others in your network, including family members, relatives, friends, local community services and mainstream government services.

One of our aims is to help maximise your independence by working with the local mainstream government and community services that help you live an ordinary life. We all do best when we’re connected to our communities.

And as an active consumer, it’s important you are able to shop for and access providers who meet your needs. We can help you find providers who meet your needs.

Once we’ve considered your circumstances, we need to follow the rules determined under the law for the NDIS in our planning decisions.1 We fund supports that are reasonable and necessary. This means we will only fund a support if it meets all of the following criteria:

• The support is related to your disability2
• The support will help you pursue your goals and aspirations3
• The support will help you undertake activities that will increase your social and economic participation4
• The support is value for money,5 which means that the costs are reasonable:
  • When compared to the benefits to be achieved, for example, whether purchasing the support is likely to reduce the cost of funding other supports in the long term6
  • When compared to alternative options that may provide you with the same outcome at a similar or lower cost7
• The support is likely to be effective and beneficial for you, having regard to good practice and evidence8
• The support is required to complement the informal supports you have available, by considering what is reasonable for families, carers, informal networks, and the community to provide9
• The support is most appropriately funded or provided by the NDIS10

• the support is not more appropriately funded by another service system, agency, person, or body, such as the education system or the health system.11 We can’t fund a support if it’s the responsibility of another service system.

What supports don’t we fund? We do not fund a support if:12

• it is likely to cause harm to you or others13
• it is not related to your disability14
• it duplicates other supports delivered by the NDIS15
• it is considered a day-to-day living cost (for example, rent, groceries or utility costs like your water bill) that are not attributable or caused by your disability support needs16
• providing the support would be against the law17
• it consists of income replacement18
• it is the responsibility of other service systems to provide (for example, your state government, the education system, or the health system).19 These different systems have different responsibilities and are designed to complement each other to form a government safety net. Like all Australians, NDIS participants continue to have access to these systems. We can’t fund a support if it’s the responsibility of another service.

How do we manage the financial sustainability of the NDIS? The NDIS is an insurance scheme, and one of our core functions is to manage the financial sustainability of the Scheme.20 When we make decisions about the supports we fund in your plan, we must also consider our need to ensure the financial sustainability of the NDIS.21 This means we must work within our funding budget, set through agreements between the Australian, and State and Territory governments. It’s also important to know the NDIS is only one part of the broader National Disability Strategy that supports people living with disability. The overall success and sustainability of the National Disability Strategy relies on:

• people accessing their informal support network to get the help they need from day- to-day

• People using their personal income to pay for their day-to-day living expenses, as is expected of all Australians
• Mainstream and community services being available from state and territory governments, and other federal government programs such as Medicare
• A fair distribution of NDIS supports to those who need them, provided within our funding budget.

Staying within our budget ensures the NDIS will be here to support generations of Australians and their families.

What principles do we use to create your plan? We use the following 7 principles, to create plans that help you get the reasonable and necessary supports you need, and to make sure the Scheme is financially sustainable:

• Fair for everyone, both today and for future generations
• Fair funding to pursue your goals
• Evidence-based best practice
• Fair early investments
• Fair support across service systems
• Fair supports for your disability needs
• Fair assistance from multiple programs

Fair for everyone, both today and for future generations While we need to consider your individual circumstances and disability needs, we also need to make consistent decisions and treat people fairly. This means participants with similar circumstances and disability needs should receive similar amounts of supports in their plans. We also need to ensure the total cost of all participant plans are within the overall NDIS budget set by governments.

We use Typical Support Packages to help us do this. The Typical Support Package gives us an indication of what supports we’d usually expect to include in your plan, based on your situation and disability support needs. Each support in your plan must be reasonable and necessary, but they also need to be reasonable and necessary as a package of supports. We approve your whole plan, not the individual supports in your plan in isolation.22 The Typical Support Package helps guide this validation process.

Fair Support Across Service Systems

The support you need may be the responsibility of another government service, such as education or health. We don’t fund these services, and need to consider the supports you should receive from these services when determining the supports in your plan.

Fair Supports for Your Disability Needs

When we make decisions about which supports we can fund, we consider whether a support is reasonable and necessary for you and apply the NDIS funding criteria. Sometimes, you might ask for supports to help with impairments that were not part of your Access eligibility assessment. When this happens, we need to make sure the support will help you address needs that arise from an impairment that meets the same eligibility criteria we consider at Access.

You don’t need to make a new Access request if you ask for supports to help with an impairment that was not part of your Access eligibility assessment. We will work out if you need the support you have asked for to address an impairment that would meet our Access criteria. We may ask you to provide evidence to help us work this out. We will decide if the requested support is reasonable and necessary. We will apply the NDIS funding criteria based on the impairments that would meet our Access criteria.

By funding the right disability supports for your permanent impairments that meet our Access criteria, we are ensuring the system is fair for everyone, and that the NDIS remains financially sustainable.

Fair Assistance From Multiple Programs

NDIS funding can’t duplicate other funding or supports you may receive due to your disability.

For example, you may have received a lump-sum payment or receive regular payments as a form of compensation for an accident. Or, you may be receiving ongoing supports from another program or insurance scheme, for example WorkSafe or the Transport Accident Commission.

We don’t duplicate this funding, or these supports. We may reduce the total value of your NDIS plan to account for compensation you receive, or we may not fund certain supports.

What Is An NDIS Plan?

Once you’re an NDIS participant, we will work with you to create your NDIS plan. You can find out more about how to become a participant in Applying to the NDIS.

Your NDIS plan sets out your goals and the supports that will help you pursue those goals. We create your plan based on the support needs directly related to your disability. Your plan

• informal supports like your friends, family, or other people you know in your community
• community supports which are open to everyone in the community, like sporting clubs, activity groups or libraries
• mainstream supports – other government services such as the health and education systems. General supports are not funded through your NDIS plan. General supports can be provided by:
• an early childhood partner for children younger than 9
• a local area coordinator for people aged 9 or older
• Remote Community Connectors
• Aboriginal Disability Liaison Officers
• community organisations through the Department of Social Services’ Information, Linkages and Capacity Building program. We can provide these general supports to everyone with a disability, including people who are not NDIS participants.41 Reasonable and necessary supports Reasonable and necessary supports are the disability supports we fund in your plan. You can use this funding to buy supports from service providers. All NDIS supports funded in your plan need to meet the NDIS funding criteria. For example, it needs to directly relate to your disability, be value for money, and be effective and beneficial. We also consider how your supports will work together as a package to address your disability support needs, or to achieve an outcome. The supports we fund must be reasonable and necessary both individually and as a package of supports.42 If you need a new support, which now means your overall package of supports doesn’t meet the NDIS funding criteria anymore, we may either:
• not include the new support in your plan
• include the new support in your plan, but also reduce the other supports in your plan. For example, a home modification may reduce your need for other supports. We’ll need to take any planned home modification into account when we think about what other supports you need. For example, you might need less supports for care at home.