31 October 2021
Committee Secretariat
Joint Standing Committee on the National Disability Scheme
PO Box 6100
Parliament House
Canberra ACT 2600
By email: ndis.sen@aph.gov.au
Dear Committee Secretariat
**General issues around implementation and performance of the National Disability Insurance
Scheme | Current Scheme Implementation and Forecasting for the NDIS**
Thank you for the opportunity to provide feedback on issues related to implementation, forecasting
and performance of the National Disability Insurance Scheme (the NDIS). Aged and Disability
Advocacy Australia (ADA) has considered the terms of the Committee’s inquiries into the general
implementation and performance of the NDIS, as well as the terms of reference provided in relation
to forecasting needs (the Inquiries). As the issues related to each of these inquiries intersect, we
seek to provide feedback to the Inquiries in this correspondence. ADA appreciates being consulted
on the important issues considered by the Inquiries.
About ADA Australia
ADA is a not for profit, independent, community-based advocacy and education service with nearly
30 years’ experience in informing, supporting, representing and advocating in the interests of older
people, and persons with disability in Queensland.
ADA also provides legal advocacy through ADA Law, a community legal centre and a division of ADA.
ADA Law provides specialized legal advice to older people and people with disability, including those
living with cognitive impairments or questioned capacity, on issues associated with human rights,
elder abuse, and health and disability legal issues related to decision-making.
Advocacy for persons with disability
ADA provides information, assistance and individual advocacy to people with disability who are
experiencing issues with abuse, neglect and discrimination as well as to those requiring support to
access or interact with systems and support services. In relation to the NDIS, we support clients who
are experiencing difficulty with gaining access to the scheme, accessing supports, planning, service
delivery and reviews.
The NDIS is a critical social program and a key tool in the funding and delivery of disability services.
However, there are ongoing concerns in relation to its operation, procedural fairness, transparency
and consistency in decision-making, and the impacts of these upon the scheme’s ability to provide
Australians with disability with equal opportunity for community participation, choice and control, in
accordance with the requirements of the National Disability Insurance Scheme Act 2013 (the Act).
Our advocates report that clients with disability regularly encounter significant barriers when seeking
access to the scheme and in dealing with the National Disability Insurance Agency (the NDIA), usually
associated with undertaking a review of approved support services or negotiating a change in
circumstances. The issues raised demonstrate a need for cultural reform, to ensure that the NDIA
and delegated arms reflect the principles and objectives of the Act.
General issues around implementation and performance of the NDIS
Access, communication and eligibility criteria
ADA advocates regularly assist persons with disability who seek to access the NDIS. Clients
consistently describe experiencing confusion, distress and prolonged delays when engaging with the
NDIA. Whilst the NDIS website includes useful accessibility options to assist a wide range of
stakeholders and possible applicants in obtaining general information about the NDIS, our clients
regularly face communication obstacles and process inflexibility when engaging the NDIA in relation
to scheme application or plan review. Examples of this include NDIA officers only communicating
with a client using means which are inaccessible to the individual, such as attempting to use the
telephone for a person who is hearing impaired despite requests to communicate via email. This
inflexibility leads to the exclusion of persons from the scheme who meet the eligibility criteria set out
in the Act.
Limiting means of communication is a breach of Article 21 of the Convention on the Rights of Persons
with Disabilities (the CRPD), which confers a positive obligation on the Australian government and its
agencies to ensure that persons with disabilities enjoy the freedom to seek, receive and impart
information on an equal basis with others, through all forms of communication of their choice.
The need for operational changes to improve communications by the NDIA and the consequential
impact upon participant experience is well-known, recently described in the 2019 review by Mr David
Tune AO PSM (the Tune Review)¹ and acknowledged in the Australia government’s response to the
review.²
We note that some recommendations relating to improving communication by the NDIA were
agreed by the government, and others supported in principle. Whilst the implementation of some
recommended strategies is welcomed, such as additional funding to support people with disability
navigate the NDIS, uncertainty persists regarding the continuation of these services. Funding
provided for these measures is based upon short term delivery periods, despite an ongoing need for
assistance.
For example, ADA supports the introduction of the targeted outreach program to spread awareness
of the NDIS in Aboriginal and Torres Strait Islander communities. However this program is limited in
its efficacy because it does not extend to assisting an individual navigate the application process – as
recommended by the Tune Review. Rather, the expectation of the program is that an individual who
is made aware of the scheme via the outreach program will then seek access having independently
¹ Tune, David, Review of the National Disability Insurance Scheme Act 2013: Removing red tape and implementing the NDIS Participant Service Guarantee, December 2019 < https://www.dss.gov.au/sites/default/files/documents/01_2020/ndis-act- review-final-accessibility-and-prepared-publishing1.pdf>.
² Australian Government response to the 2019 Review of the National Disability Insurance Scheme Act 2013 report, August 2020, < https://www.dss.gov.au/sites/default/files/documents/08_2020/australian-government-response-tune-review-28- august-2020-release.pdf>.
2
prepared their application. Our advocates report that this is rarely the outcome for persons in
community. We also note that the targeted outreach program is only funded to operate for relatively
short periods in each identified area. For example, phase 2 relating to the Townsville LGA,
Rockhampton, Bundaberg, Toowoomba and west to the borders was funded to operate between
September 2020 and August 2021 only. Phase 3 covers a significant number of geographically diverse
communities located across a very large land area, including Mackay, Burdekin, Mount Isa, the Gulf,
Cairns, Cape York and Torres Strait, and is funded for the period of March 2021 to February 2022.
The permitted timeframes allocated to each region are insufficient, and do not make adequate
provision for the time it takes to ingratiate and build trust in community. Doing so is particularly
important for government agencies, for whom there remains significant wariness and distrust
amongst Aboriginal and Torres Strait Islander communities. This is a key reason why referrals
through this program have not reached expected levels.
These efforts alone do not deliver sufficient assistance to aid eligible persons in these areas gaining
access to the scheme, and Aboriginal and Torres Strait Islander persons (particularly those in remote
areas) continue to be at a greater disadvantage in respect of opportunity to access the NDIS. The
numbers of Aboriginal and Torres Strait Islander NDIS participants will continue to be under-
representative of disability rates in these communities if initiatives such as the targeted outreach
program are not continued and expanded.
Generally, information resources established by the NDIA for Aboriginal and Torres Strait Islander
persons with disability are useful. However, there are concerns about the degree of cultural
understanding and competency held by the agency and demonstrated by its officers, delegates, and
within its processes.
There is an urgent need for Aboriginal and Torres Strait Islander NDIA planners and delegates in
community, to improve cultural competency and assist eligible Aboriginal and Torres Strait Islander
persons with disability in accessing the scheme and necessary support services. For many NDIS
participants, undergoing a yearly review is a difficult and draining process. The negative impacts of
this are amplified for Aboriginal and Torres Strait Islander persons with disability who are exposed to
the NDIA’s lack of cultural competency. We suggest the establishment of a dedicated team within
the NDIA, including identified positions for Aboriginal and Torres Strait Islander staff who can identify
how internal processes can be adapted to provide cultural safety. This would improve Aboriginal and
Torres Strait Islander persons’ engagement with the scheme.
File management by the NDIA
ADA acknowledges that the NDIA has sought to introduce measures aimed at service enhancements
and participant experience, for example, through the National Information Program, the Individual
Capacity Building (ICB) Program, and the Information, Linkages and Capacity Building Program. ADA
supports the intention of these programs, which aim to deliver longer term capacity building and
scheme understanding for individuals, community and support services.
In the meantime, significant issues regarding NDIA communication and management of files
continues to impact individuals across all aspects of the scheme. This includes applicants who are
3
seeking a review of a decision about NDIS access, participants seeking a plan review, and general
communication with participants who have requested information or clarity about their plan.
The NDIA’s obligation to provide relevant and accessible information, and to ensure that persons
with disabilities can exercise the right to freedom to seek, receive and impart information and ideas
on an equal basis as per Australia’s obligations under Article 21 of the CRPD, extends not only to the
availability of accessible general information (such as the information published on the NDIS website)
but also to reports, information, file notes and management of individuals. The obligation includes
implementing a communication strategy with each individual that uses contact methods that are
effective and accessible to the person with disability.
In our experience, this is seldom the reality. File transfer of an individual’s active matter to a new
NDIA officer is a regular occurrence, and upon this transfer it is commonplace for the individual to be
advised that the new NDIA contact does not have access to the information, reports or evidence that
has already been provided, or has not yet had the opportunity to read this evidence. The same
frequently occurs when carriage of a matter is transferred by the NDIA to an external solicitor to
represent the agency before the Administrative Appeals Tribunal (the AAT).
The result is further delay to resolution of the issue and increased confusion, distress and anxiety for
an individual. Being compelled to repeatedly tell your story of disability and hardship can be very
traumatising – particularly when an individual has already gone to significant effort to obtain and
provide information for the NDIA, often a complex and costly process in itself. For persons with
psychosocial disabilities who are subjected to delays, miscommunication and NDIA requests for
information which has already been provided, can have the effect of exacerbating the symptoms of
their disability.
Lack of understanding by the agency to appreciate and accommodate individual circumstances
continues to be a concern. For example, a recent client and NDIS participant who has experienced
domestic violence was sent an email by the NDIS advising that her request had been rejected.
Participants who are affected by domestic violence are managed by the NDIA’s Restricted Access
team, comprised of specialist staff who operate in accordance with higher level privacy protections.
The email received by our client was sent from a generic email address and appeared to be a
template response. The client attempted to call the NDIA to seek clarification, expecting to be
transferred to the NDIA Restricted Access team. However, in order to be transferred the client was
adsised that she needed to provide the NDIA officer on the general enquiry line with detailed
information – including her full name, address, NDIS participant number and a reason why she
should be put through.
The presumed motive for this process is well-founded: to ensure that only approved persons are
transferred to the Restricted Access team. However in practice it fails to recognize that persons who
have experienced domestic violence are likely to be deeply concerned about sharing identifying
details – particularly their address – with NDIA officers who are not part of the Restricted Access
team. This interaction, and the fear associated with providing her residential address, caused the
client considerable distress. Further education for general NDIA staff about the importance of
confidentiality, and how to appropriately have these discussions with a concerned individual would
be beneficial. Alternative processes may also be considered, such as requiring only the NDIS
participant number by the general enquiry line before transferring the participant to the Restricted
Access team, who can then undertake further identity screening before providing information to the
caller.
4
Subordinate legislation, guidelines and NDIA policy
Part 2 of the Act sets out the objects and principles underpinning the operation of the scheme.
We note the independent review undertaken by Ernst & Young in 2015 in accordance with section
208 of the Act. In a report tendered to the government, the review recommended legislative
amendments to sections 4, 5 and 17A of the Act. ADA supports the review’s recommendation to
amend these sections, which are necessary to ensure that these sections reflect the inclusive
intention of the scheme.
The objects, general and guiding principles of the Act set out in this Part are the basis upon which all
subordinate legislation relating to the scheme must be grounded.
It is difficult to assess if this is the case, as guidance materials which appear to be relied on by the
NDIA to assist decision-making are often not publicly available. It is our strong recommendation that
comprehensive public consultation involving key stakeholders should inform development of all
guidelines and policies associated with the scheme. This would assist in ensuring that these
documents align with the primary Act and are fit for purpose. It would also invite public engagement
with the NDIA about the scheme, building the relationship with the community and improving
understanding and transparency.
Examples of inadequate understanding of the legislation or misinterpretation of the subordinate
legislation by the NDIA or its delegates are common. For example, NDIA officers attempting to draw
inferences from the Operational Guideline to support decisions, though no corresponding authority
can be found in the primary Act.
Effective communication, including publication of factors considered by the NDIA when determining
whether an applicant is likely to meet the eligibility criteria as set out under the Act, is urgently
required. Doing so will not only clarify the assessment process for NDIA staff, but it will also allow
persons with disability, carers and advocates to better self-assess the prospects of success for a
person who is weighing up making an application or considering plan review. Application and review
processes are complex, involved and exhausting, and receiving notice of rejection is distressing. This
may be avoided in some cases. Publication of guidance material relating to eligibility and review
assessments and criteria will also drive greater consistency in decision-making by NDIA officers.
ADA strongly supports recommendations 1 – 4 made by the Public Interest Advocacy Centre in its
submission to this Committee dated 13 July 2020, which relate to the publication of NDIA guidelines
and settlement outcomes for matters before the AAT.³ Publication is in the interests of transparency
and will increase community understanding and confidence in the scheme.
³ Joint Standing Committee on the National Disability Insurance Scheme, Inquiry: General Issues around the Implementation and Performance of the NDIS, Public Interest Advocacy Center, Submission 33, 13 July 2020, < https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/National_Disability_Insurance_Scheme/GeneralIssues /Submissions>.
5
Failure to appropriately manage the application/review process and act in accordance with the
general principles
ADA’s advocates report numerous examples in which an application was rejected based on what
amounts to administrative error, rather than the application lacking substance. This is evidenced by
examples where an individual has received a rejection decision which appears to accept the reports
tendered by medical specialists, but suggest that the evidence does not use the correct language or
terminology preferred by the NDIA and therefore, cannot be approved.
Significant administrative work, organisation and cost is often associated with making an application.
This is usually undertaken by the person with disability, their families and carers. For persons with
complex or psychosocial disabilities, the reports and information provided in the course of review
(often additional to that provided in the original application, at the NDIA’s request) are costly and
extensive.
The considerable power and resources imbalance between applicants and the NDIA is well-known. A
reasonable degree of mistake and administrative oversight in an individual’s application is to be
expected, and processes should be implemented by the NDIA to determine:
- if the error/oversight is substantial enough to necessitate correction; or
- the application can otherwise be approved having regard to the balance of the evidence provided, in accordance with the principles of the Act.
This approach would reduce the significant number of NDIA decisions which are overturned or
amended by the AAT in favour of the applicant, as well as reducing distress and delay caused to
individuals, and NDIA expenditure on legal fees. We note the NDIA’s testimony to the Senate
Community Affairs Legislation Committee on 29 October 2020 that the agency spent over $29 million
on external legal fees in the 2019-2020 financial year. $13.4 million of that amount was spent on
matters involving the AAT.⁴ The NDIA has acknowledged that 65% of applications made to the AAT
lead to a new decision or a new settlement of some form. The remaining 35% of applications are
withdrawn, or the AAT finds that the decision stands.⁵
Evidence and time frames
Many clients with psychosocial disabilities struggle to provide enough evidence to support an
application.
We note the introduction of the National Disability Insurance Scheme Amendment (Participant
Service Guarantee and Other Measures) Bill 2021 (the Bill). ADA will provide detailed feedback about
the Bill in a separate submission. For the purpose of this inquiry, ADA supports making amendments
to the Act which are intended to improve flexibility and certainty for applicants. This includes
clarification of the eligibility criteria for persons with psychosocial disability, and recognition that
⁴ Commonwealth of Australia, Senate Community Affairs Legislation Committee, Estimates, 29 October 2020, <https://parlinfo.aph.gov.au/parlInfo/download/committees/estimate/1bad3d3e-80f8-498e-a93b- 585809f8dd26/toc_pdf/Community%20Affairs%20Legislation%20Committee_2020_10_29_8267_Official.pdf;fileType=appli cation%2Fpdf#search=%22committees/estimate/1bad3d3e-80f8-498e-a93b-585809f8dd26/0000%22>
⁵ Ibid, 40.
6
disability of this kind can be fluctuating in nature. We hope that this will reduce the evidentiary
burden for many clients with psychosocial disability.
ADA also supports the Bill’s proposal to introduce timeframes by which the NDIA must advise an
applicant of a decision. However, these changes will only result in improved outcomes for persons
with disability if implemented in conjunction with other operational, communication and file
management advancements which are urgently required. For example, persons with psychosocial or
complex conditions often encounter significant delays in receiving a decision. Lengthy delays almost
always occur when a file is transferred between NDIA officers, or to external legal advisors. Evidence
previously submitted is unread, sometimes as a result of file transfer. Clients are then often advised
that their evidence is now too old, and they need to submit a more recent report. This is very
distressing and frustrating. For many people, obtaining a new report is impossible due to cost. The
application stalls or is rejected, and an individual is forced to make an application to the AAT if they
wish to proceed. Most people with disability and families are worn down by the application process
and feel intimidated and anxious about making an application to the Tribunal.
Quality and Safeguards Commission – registration process
Our advocates have observed that new providers with poor practices and understanding of disability
are enabled by the lack of adequate safeguards for plan and self-managed participants, who may
utilise providers that are not registered.
Registration is complex, lengthy and expensive, and often discouraging for new providers. However it
ensures that persons with disability are better supported, conflicts of interest are appropriately
managed, and critically, that the client’s safety is at the forefront.
Uncertainty of SDA and rental rights
A lack of clarity regarding rental rights exists in relation to specialist disability accommodation (SDA).
Legal rights and avenues for persons with disability differ depending on their location: for example in
Victoria, SDA residential agreements became part of the Residential Tenancies Act 1997 (Vic) in 2019,
providing a legislative framework for this specialist accommodation. Queensland has developed four
principles for inclusive communities in the Queensland Housing Strategy 2017-2027 - rights, control,
choice and inclusion. Whilst development of the principles is an important and welcome step, the
Queensland legislation governing residential tenancy agreements does not include specific provisions
about persons in SDAs.
This is a complex area that can be very difficult to navigate. Persons who require SDA housing already
face limited choices about where they can live, and a substantial power imbalance often exists
between landlord and tenant. For example an ADA client residing in an SDA experienced a sudden
increase in rental payments without reasonable explanation, placing them in a vulnerable position.
The NDIS Quality and Safety Commission (the NDIS Commission) considers this a rental payment
dispute and will not assist.
Whilst we appreciate the complexity and limitations of a dispute involving issues governed by both
federal and state laws, the current gap in assistance and necessary safeguards can leave persons in
an SDA in an exposed and vulnerable position.
7
The federal government should engage with state and territory governments to consider if there
should be an intersection between the role of the NDIS Commission and state/territory rental laws,
and particularly, whether the NDIS Commission’s safeguarding procedures might be appropriately
utilised in this space.
Resistance of NDIA to support applicants’ accommodation choices
Our advocates report multiple examples of clients requiring assistance in dealing with the NDIA
regarding housing needs. Often, this occurs because the person with disability encounters resistance
from the agency in approving housing that meets their needs.
For example, an ADA client with severe psychosocial disability and in need of robust housing was
living in a supported independent living (SIL) arrangement that did not meet her needs. A section 100
review process was commenced, supported by a large team of allied health and housing support
professionals who all provided reports to evidence the application for an SDA. In spite of the
extensive evidence submitted, the NDIA planner decided that the client did not meet the criteria,
though no reasonable explanation was provided to support that finding. The client was extremely
distressed by the experience, worsening the symptoms of her disability and resulting in
hospitalisation for self-harm. The matter has since been referred to the AAT, which we hope will
correct the decision. Even if it is corrected, it will have been at significant mental, emotional, and
physical cost to the client and her family.
Oftentimes, the NDIA will refer to section 34(c) of the Act to suggest that there may be equivalent
alternative accommodations available at a lower cost, such as living in a SIL arrangement rather than
an SDA. This thinking often negates to consider other key principles of the Act: choice and control of
the individual, as well as the other requirements of section 34. It also identifies a misconception that
SDA costs equates to less value for money than the SIL model. For example, a SIL model with support
worker arrangements for 24/7 assistance of 3 residents may be significantly higher overall than an
SDA in a specialised building or complex with concierge support workers onsite, as required.
Current Scheme Implementation and Forecasting – response to terms of reference
The limited consultation period to provide the Committee feedback on the terms of reference does
not permit ADA to deliver a comprehensive response. We provide the following comments for your
consideration.
- a. The impact of boundaries of NDIS and non-NDIS service provision on the demand for NDIS
funding, including:
- i. the availability of support outside the NDIS for people with disability (e.g. community-based or ‘Tier 2’ supports), and
- ii. the future of the Information, Linkages and Capacity Building grants program;
With respect to a(i) – the availability of supports outside the NDIS, and within it, is heavily
determined by an individual’s location and personal circumstances (including, for example,
educational and financial capacity of the person and/or their family).
8
The Information, Linkages and Capacity Building grants program has been a helpful initiative for
support services to develop resources intended to build capacity and connection with individuals. We
are pleased to see funding for the Individual Capacity Building and Economic and Community
Participation streams will continue until 2023.
- b. The interfaces of NDIS service provision with other non-NDIS services provided by the States, Territories and the Commonwealth, particularly aged care, health, education and justice services;
ADA considers that better integration between the NDIS and aged care, hospital and healthcare
systems, and education institutions is required. Our advocates regularly assist clients and carers
seeking to ensure NDIS support services can continue when a person with disability attends one of
these settings. Issues affecting support continuation are frequently encountered in schools and
hospitals.
For example, a recent ADA client was supporting a child with Autism Spectrum Disorder (ASD). As a
result of the child’s distressing behaviours, a home school program was implemented until learning
support from Autism Qld became available (approximately a 5 month wait list). The client’s request
for increased support worker input at home to assist with home school was rejected, with the agency
advising that home-schooling was both a ‘parental responsibility’ and a ‘Qld Education issue’, and
unrelated to the NDIS. As with housing, improved integration between the NDIS and state-based
education systems is required.
Similar gaps are experienced by NDIS participants who are hospitalised. An ADA client with Down
Syndrome and NDIS participant who requires assistance with eating and drinking was admitted to
hospital. Staff brought the man three meals a day, but the hospital would not provide any staff to
physically assist him with eating even though he was unable to do it himself. Upon advising the NDIA
about the issue, the client was advised that no funding will be used to support a person in hospital.
As a result, persons without family or friends who are able fill this gap are left in an impossible
situation, and hospital staff or NDIA support coordinators are forced to ‘break the rules’ to ensure
that basic needs are met.
- c. The reasons for variations in plan funding between NDIS participants with similar needs,
including:
- i. the drivers of inequity between NDIS participants living in different parts of Australia,
- ii. whether inconsistent decision-making by the NDIA is leading to inequitable variations in plan funding, and
- iii. measures that could address any inequitable variation in plan funding;
We refer to issues raised above (see particularly pages 3 – 7). Intersecting challenges, including
access to specialists and ability to procure multiple reports or additional evidence when requested by
the agency interplay with the NDIA’s file management, communication and interpretation of
guidance material and subordinate legislation when making a decision.
9
- Invalid interpretation of the Act and/or supporting legislative framework, an applicant’s location, and inconsistent decision-making by the NDIA will all influence an applicant’s opportunity to receive equitable funding.
f. The measures intended to ensure the financial sustainability of the NDIS (e.g. governance, osight and administrative measures), including: i. the role of state and territory governments, and the Disability Reform Ministers Meetings, ii. the arrangements for providing actuarial and prudential advice about the scheme, and iii. | the way data, modelling, and forecasting is presented in public documents about the NDIS, (e.g. NDIS Quarterly Reports and Reports by the Scheme Actuary), and iv. measures to ensure transparency of data and information about the NDIS;
ADA supports a comprehensive and public consultation into the scheme’s financial sustainability, including a review of the NDIA’s spending model, the NDIA price guide, and reconciling the full costs associated with correction of incorrect decision-making (including NDIA labour costs associated with undertaking an internal review, as well any external legal fees).
Increased transparency is urgently needed to improve community confidence in the scheme. This should include publication of all data and information relied upon to support policy and process development.
Thank you again for the opportunity to comment. ADA would be pleased to further assist the Committee with its inquiry. Should you wish to discuss this submission, please do not hesitate to contact , Solicitor and Senior Policy and Research Officer on or via
Yours faithfully
Geoff Rowe Chief Executive Officer