Proposed Changes to NDIS Access Eligibility for Justice-Involved People with Disability

This paper is addressed to the Hon. Linda Reynolds as the Federal Minister for the National Disability Insurance Scheme as part of the Inquiry: The General issues around the implementation and performance of the NDIS By John Ludlow

Summary:

The Current application of the NDIS eligibility criteria is unjust and inequitable to justice- involves people with disability. The requirements to demonstrate NDIS eligibility sets an unattainable bar to those in prison resulting in decreased access to the scheme (Clift, 2014; Spivakovsky, 2021). This is most evidently seen in the application of the criteria that a disability is only considered permanent if all ‘reasonable and available’ therapies have been attempted and that is has a significant impact on a person’s functioning (National Disability Insurance Agency, 2019). By definition, both of these requirements represent unattainable criteria to those incarcerated resulting in further criminalisation for a group already at heightened risk in prison (Mackay, 2015).

Response:

Whilst there are many areas for change within the current criminal justice system, this paper proposes that greater attention is required to prevent current NDIS eligibility criteria further marginalising justice-involved people with disability. In order to do so, eligibility criteria must be appropriate for the targeted population to provide equitable access and NDIS assessors need to better understand the relationship between disability and offending behaviour. What is needed is a transition from disability related behaviour being interpreted as offending, and instead viewed as an opportunity for support (Rushworth, 2016). This would be achieved through further engagement between the NDIS and disability/criminalisation by implementing an appropriate framework of access.

Resourcing and Expected Outcome:

The current framework for access is inequitable and there is no training for NDIS assessors to understand the relationship between disability and criminalisation. Whilst change is needed, it does not require restructuring of the entire system. This paper presents simple changes that can have significant impacts on the lives of people with disabilities. Through implementing these recommendations and making these small changes to the current system, the current services provided to justice-involved people with disability can and will hopefully present greater diversions from the criminal justice system and a further alignment with a human rights framework (Office of the Public Advocate, 2020; United Nations, 2008).

Recommendations:

• Recommendation 1: Broaden the NDIS access and eligibility criteria for people in prison: The current NDIS eligibility criteria is inequitable to those in prison. The resources required to demonstrate eligibility for someone in prison are not made available and therefore present an unfair barrier to access.

• Recommendation 2: Increased training for National Access Team (NAT) to recognise offending behaviour as component of eligibility At present, NDIS assessors are not trained to understand the relationship between disability and offending. Many behaviours associated with disability are misunderstood as offending behaviours resulting in further criminalisation (Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, 2020). Various charges and offences of justice-involved people may actually demonstrate areas in need of disability support and meet the required functional deficit of NDIS eligibility criteria. There is not scope for NDIS assessors to acknowledge such behaviours as a means of meeting eligibility.

• Recommendation 3: Further data reporting and transparency of NDIS access requests and participants in the criminal justice system: The NDIS does not report on the number of participants incarcerated. Further to this, they do not report on the number of NDIS access requests made, accepted or rejected by those in prison. As a publicly funded scheme, it is important this data is released to hold the national provider accountable.

Acronyms:

NDIS – National Disability Insurance Scheme UNCRPD – United Nations Convention on the Rights of Persons with Disability Disability Royal Commission – Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability OPA – Office of the Public Advocate ABI – Acquired Brain Injury *The medicalisation of disability and associated terminology do not represent the views and understanding of the author. Such language is necessitated by the NDIS and its deficit view of disability and is therefore required in this policy proposal.

About the Author

I am a qualified social worker with extensive first-hand experience working with justice-involved people, many of which with disability. Through my involvement in this space, I have been able to identify emerging themes with respect to unmet needs associated with one’s disability. Primarily, there is a major disconnect between the NDIS and justice-involved people. There are large proportions of people who are unaware of the NDIS existence and through various attempts to engage, have found the process fraught with challenges, bureaucracy and inconsistency. Through my experience, I have seen the benefits to those who receive NDIS support and wish to extend and streamline this process to all of those who are eligible. Although I have experience in this space, justification for this policy submission comes from peer-reviewed research and public submissions. My experience has been the catalyst for this policy submission.

Background and Issues

Support for people with disability is considered a human right as defined in the UNCRPD (United Nations, 2008). However, in Australia many people with disability experience significant barriers to accessing the NDIS in what can be understood as an overly bureaucratic and difficult to navigate system (Doran, 2020; Woodley, 2019). Whilst this is a challenge for people in the community, the problem is significantly amplified for people with disability who are in prison. Spivakovsky (2021) has identified that justice-involved people with disability are less likely to access support services including the NDIS.

The NDIS sets out strict criteria to determine eligibility to the scheme (National Disability Insurance Agency, 2017).Whilst there are a number of these, two primary requirements have led to a significant barrier in justice-involved people accessing the NDIS. These are:

• Section 24(1)(b) - The impairment/s are, or are likely to be permanent.
• Section 24(1)(c) - The impairment/s result in substantially reduced functional capacity (National Disability Insurance Agency, 2019)

In order for the impairment to be considered permanent, there must be “no known, available and appropriate evidence-based treatments that would likely remedy the impairment” (National Disability Insurance Agency, 2017). The subjectivity of ‘available and appropriate’ is called into question when a person with disability is denied on this basis despite them not having access to such services by nature of their incarceration. Further to this, there is a decreased likelihood of previous and positive engagement with disability support services that would constitute previous attempts at treatments (Clift, 2014). To further emphasise the lack of ‘available and appropriate’ treatments, one must consider the pre/post-release experiences of homelessness, mental illness and economic disadvantage for justice-involved people that leads to further barriers to access (Australian Institute of Health and Welfare, 2018; Cortese, 2020; Ennals et al., 2017). Therefore, one may argue this requirement is inherently met by definition of incarceration and that a justice-involved person cannot be expected to have further access to known and available treatments.

Secondly, evidence of reduced functional capacity presents further challenges for justice-involved people. A person must be assessed as having reduced functional capacity on at least one of the six predetermined functional domains. A significant conflict arises when assessing the various functional deficits one may experience by nature of their incarceration. For example, a person who requires support to manage daily tasks like grocery shopping and public transport are not able to be assessed for their functional deficit due to their incarceration. Whilst they may in fact meet eligibility criteria, this can not be demonstrated to the NDIS. In addition to this, a person with disability may present with disability related behaviour that is misunderstood as offending behaviour (Eriksson et al., 2019).

The implication of this is that such criminal charges and conviction may actually demonstrate the reduced functional capacity of a person and therefore demonstrate NDIS eligibility. There is no present framework for this information to be assessed and acknowledged by the NDIS.

This paper contends that the current NDIS Access framework represents a strict binary view of eligibility and fails to consider the intricate nature of disability and criminalisation. The inadequate attention paid to this sector represents a social attitude attributing criminality to individual deficits rather than social impacts (Adolphs et al., 2018). Attempts to curb criminal behaviour demonstrate a punitive approach to justice and failure of human rights informed practice that only entrenches social

Policy proposal

Recommendation 1 : Broaden the NDIS access and eligibility criteria for people in prison

  The rigid nature of current NDIS eligibility criteria sets an unattainable bar to justice-involved

eople. Whilst understandable that a person must be diagnosed with a disability in order to access the

scheme, there are other elements of the eligibility requirements that are inequitable. Requiring a

person to have accessed all ‘available and appropriate’ therapies prior to application is unjust for a

group of people who don’t have access to such services in the first place (Australian Institute of

Health and Welfare, 2018).

  The intersecting nature of criminalisation, homelessness and economic disadvantage often

experienced by justice-involved people presents a cohort of people who have limited prior access to

health services and are unlikely to have access when incarcerated (Clift, 2014; Cortese et al., 2020; Ennals et al., 2017). This provides justification to call into question the validity of using the term

‘available and appropriate’ to deny access to the NDIS. I argue that for a justice-involved person such

services cannot be considered available and appropriate either whilst in prison or in the immediacy of

their release.

    Therefore, through the subjectivity of these terms the NDIS is able to acknowledge their

inability to deny access to justice-involved people on this basis. In explicit terms, justice-involved

people with disability should be automatically considered to have exhausted all available and

appropriate therapies that would likely improve their disability. Such rethinking of current criteria

would avoid people being denied NDIS funding for not having accessed services that are not available

to them.

Recommendation 2: Increased training for National Access Team (NAT) to recognise offending

behaviour as component of eligibility

A person’s ability to live independently and complete daily tasks are not available for assessment whilst incarcerated. This presents an inequitable barrier to justice-involved people as they are denied access to services due to their incarceration and is at odds with the NDIS commitment to the same level of support afforded to those in the community (National Disability Insurance Agency, 2020).

Many offenses are the result of a person’s disability due to their reduced functional capacity (Eriksson et al., 2019; Centre for Innovative Justice, 2019). I argue that this has the ability to demonstrate eligibility to the NDIS by way of a deficit in a functional domain. Examples of this may be:

• A person who has breached an Intervention Order as they did not understand or could not remember the conditions of it and therefore demonstrate a deficit in the ‘Learning’ functional domain.

• A criminal charge of theft may demonstrate one’s inability ‘to plan and make decisions, and to take responsibility for oneself’ that is a requirement of the Self-Management functional domain (National Disability Insurance Agency, 2019).

Of course, criminal convictions should not guarantee entry into the NDIS, however when framed in the context of someone with a diagnosed disability, they lend themselves to further support the impact of their disability in their functional capacity. NDIS assessors need to be trained in recognising how this may demonstrate eligibility. At present, there is no training or framework to acknowledge these examples and it presents a particularly unjust barrier when the information is available but not able to be interpreted appropriately.

Recommendation 3: Further data reporting and transparency of NDIS access requests and participants in the criminal justice system

The NDIS does not currently report on the number of participants is has within the criminal justice system. Nor does it provide data on the number of access requests made, accepted or rejected by justice-involved people. This was evident in its most recent quarterly report (National Disability Insurance Agency, 2020).

Impact and resourcing

The over representation of people with disability in prison is often attributed to the misinterpretation of disability related behaviour as offensive behaviour and the lack of supports people receive leading to criminalisation (Royal Commission in Violence, Abuse, Neglect and Exploitation of People with Disability, 2020; Rushworth, 2016). It is important that appropriate support services are made accessible to those in prison to prevent the continuation of this criminalisation.

Articles 9, 13 and 25 of the UNCRPD state that people with disability should have access to various aspects of life, healthcare and justice on an equal basis to those without a disability (United Nations, 2008). Implementing the recommendations is not a way of giving justice-involved people better access to the NDIS than those in the community, it is about providing equitable access so that people in prison are not held to an unrealistic standard. Such implementations would see the current access to services brought more in line with a human rights framework. This would mean making the necessary provisions to ensure justice-involved people do not face increased barriers to access.

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The outcome of such an approach may also see greater diversion from the justice system and reduced likelihood of people being caught in a cycle of criminalisation. This sentiment is shared by OPA and the Disability Royal Commissions Interim Report which believe NDIS supports are needed as a means of reducing disability related offending (Office of the Public Advocate, 2020; Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, 2020).

Importantly, this approach is not seen as a silver bullet and does not seek to oversimplify this issue, but rather reduce one of the key barriers that leads to this over representation.

With regards to resourcing, funding is already provided by the federal government as this is a federal scheme although is expected to become entirely self-sufficient by 2050 (Productivity Commission, 2011). It is important to note, the above recommendations are not designed to expand eligibility criteria to allow new people to enter the scheme, but rather change criteria so that people who may already be eligible are more easily able to demonstrate this. In recent years, the Treasurer Josh Frydenberg has delivered federal budgets highlighting $1.6 billion dollars of NDIS underspending (Dalzell, 2020; Woodley, 2019). Despite this, in a media release on 1 July 2020, the NDIS claims to be fully rolled out and available to all Australians (National Disability Insurance Agency, 2020). One may contest this by claiming that is not fully rolled out across the criminal justice sector and nor will it be until the above recommendations are adopted.

Providing more equitable access to people in prison may present a cost saving. The average cost of imprisonment in Australia for one person is over $100000 per year (Bushnell, 2017; Morgan, 2018). This is contrasted with the average yearly cost of an NDIS plan at $52000 (National Disability Insurance Agency, 2020). One may make the case that provided the NDIS creates pathways of diversion from criminal justice systems, as highlighted by various sources (Office of the Public Advocate, 2020; Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, 2020), this is a fiscal argument to be made in justifying appropriate access for justice-involved people with disabilities as opposed to imprisoning them. Whilst it is important to note that the NDIS is a federal scheme and corrections are state and territory based, this does demonstrate an economic trend towards punitive punishments as opposed to social support.

Implementation and Evaluation

Since the NDIS rollout began in 2014, the scheme has seen multiple changes to its funding structure, eligibility requirements and roles (Buckmaster & Clark, 2018; National Disability Insurance Agency, 2019). This demonstrates that the NDIS is not a static scheme and has the ability to adapt and change as required. However, what is being asked for is not an entirely re-modelled system as much of the framework exists already.

Changes are approved by the federal minister for the NDIS, in this case The Hon Linda Reynolds, who can amend eligibility criteria to allow for more equitable access to justice-involved people. For this change to be effective, it must then be reflected in training to current NDIS assessors. Considering this, and in order for these recommendations to be implemented effectively, it is important to acknowledge the interplay of each recommendation as their efficacy relies on each being adopted. In order for NDIS frameworks to be effective (Rec. 1), it is important that staff are better trained in understanding disability in the justice context (Rec. 2). Finally, these are only effective if they are to be successfully evaluated which is achieved through transparent reporting on justice figures (Rec. 3).

The above recommendations are predicated on three main themes: human rights, diversions from criminal justice systems and financial justification. It would therefore seem appropriate to evaluate the effectiveness of the recommendations against these metrics.

With respect to human rights, justice-involved people with disability are at additional risk of having their human rights breached (Mackay, 2015). Such practices are unacceptable, and it is not the position of this paper that these can be entirely addressed via the above recommendations. However, they are designed to play a role in improving the current situation. One would hope to see greater access achieved through the implementation of these recommendations and measure this approach within a human rights framework.

Whilst there are multifaceted issues contributing towards the over representation of people with disability in the criminal justice system (Perlin, 2016), these recommendations cannot be expected to redistribute the entire prison population to reflect that of the broader community. However, it would be hoped that these changes see fewer people entering prison with disability and

Conclusion

We must move away from viewing disability and criminalisation as the result of individual

deficits and psychology (Adolphs, Gläscher, & Tranel, 2018) and begin to see it as a social issue that

affects people disproportionately (Australian Institute of Health and Welfare, 2018; Mackay, 2015). It

is not only the mandate of the NDIS to provide support to Australians with disability, but also that this

be on an equal basis to those in prison (National Disability Insurance Agency, 2020). Therefore, to

align with the values of the NDIS and human rights law, it is important that the necessary

arrangements are made to ensure that people with disability are provided with every opportunity to

access the scheme. Such a change would not only benefit the individuals themselves, but society more roadly.

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