NDIA Accountability Project

Concerns over human rights and assessment processes in NDIS bill

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SUBMISSION

National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Bill 2024

Introduction:

I am a Lawyer, Disability Advocate and Registered Nurse with considerable experience navigating the NDIS. This has involved representing participants in appeals before the Administrative Appeals Tribunal. Also, obtaining legal representation and general advocacy for Persons with Disabilities. I was awarded as the Most Outstanding Advocate in the NDIS/Disability Sector in Australia in 2023.

Overview:

At the outset I wish to state that this bill is poorly drafted, authoritarian and deeply flawed. My submission does not seek to describe all of its flaws. Rather it will cover the following areas:

  • (A) Human Rights
  • (B) Mandatory Assessments
  • (C) Appeal rights
  • (D) Rules
  • (E) Supports
  • (F) Definitions.

Human Rights:

The NDIS amendment bill is incompatible with Human Rights for the following reasons:

1.) Australia ratified the United Nations Convention Rights of Persons with Disability (UNCRPD) which has been incorporated into domestic legislation as contained in the objects and principles of the NDIS Act (section 3).

2.) There is caselaw which states the UNCRPD must be followed in NDIS decisions (Kennedy and the National Disability Insurance Agency [2022] AATA 265).

3.) The UNCRPD remains in the amendment bill and is quoted throughout.

4.) The bill cherry picks the convention and actually states that Human Rights will be limited. It states that this in necessary to ensure the sustainability of the NDIS scheme. This is morally offensive. There are other ways of saving money than taking away the Human Rights of vulnerable NDIS Participants.

One of the Human Rights the bill seeks to remove is choice and control over living arrangements.

Forcing participants into a 1:3 ratio group home is morally repugnant and a breach of the UNCRPD (article 19). 1

There is no doubt that the bill will cause harm to participants. It is likely to rather than save money cost more. The reasons include:

  • Legal costs for tribunal appeals
  • Increased health costs for traumatised participants
  • Disability Discrimination claims
  • The cost of employing many assessors.

The bill seeks to provide unfettered power to the NDIA CEO and the Minister. This will cause participants having their needs and wishes denied.

The Dissenting Report by Labor Senators in 2021 2 states:

“ The most serious concern was the potential to give the Minister and the NDIA CEO unprecedented and unnecessary powers. Professor Bruce Bonyhardy AM from the Melbourne Disability Institute summarised this position in his opening statement: In summary, this legislation represents a bid for control of the NDIS by the Commonwealth. No Commonwealth Minister should have this position of power. The NDIS must remain a joint and shared endeavour which unites all jurisdictions and the disability community. It should retain its current checks and balances. In its current form, the proposed legislation fails both these tests.“

The arguments used against the 2021 legislation also apply to the 2024 bill.

The Statement of Compatibility with Human Rights draws the wrong conclusion. Due the breaches of the UNCRPD the bill is incompatible with Human Rights.

Mandatory Assessments;

The notion of NDIA assessors with questionable independence and experience making access decisions which may be difficult to appeal is of deep concern. It is akin to the Independent Assessment proposal introduced by the previous government. This was abandoned due to the successful campaign from the Disability community. Case law has stated that reports by qualified therapists who have interacted with the participant are better evidence of reasonable and necessary supports than a number of hours allocated by the NDIA (Castledine and National Disability Insurance Agency [2019] AATA 4240.

In the case of Occupational Therapists they are bound by the OT Code of Conduct which must be followed. This requires receiving consent from the participant. If this is not received the OT is in breach and can be reported to AHPRA.

Many participants will find being assessed by a stranger employed by the NDIA traumatic.

1 Article 19 UNCRPD

2 Dissenting Report Labor Senators 2021.

Appeal Rights:

The common law right of review is in the constitution and has been upheld by the High Court. It is exceedingly difficult for participants to obtain legal representation in often complex NDIS appeals. This has been made more difficult by the NDIA engaging corporate law firms and counsel. Also, by the fact the agency does not abide by the Model Litigant Obligations. Breaches with adverse effects on participants are commonplace. Reviewable decisions should not be limited as this bill appears to do. There should be the ability to challenge poor access decisions before a final determination is made. This could be based on the assessor not being suitably qualified and acting outside of scope. Also where the findings are contradicted by the participants treating health practitioners.

Rules:

It is very concerning that this bill seeks to introduce rules after legislation is passed as opposed to before. Currently the agency tries to rely on their rules to override the legislation in tribunal appeals. Further, the NDIA frequently acts unlawfully e.g. producing plans without the participants involvement. It is the case that the agency is not trusted by the disability community. Data and privacy breaches are commonplace. Incompetence is rife and a toxic unaccountable culture pervades the agency.

Supports:

That the bill seeks to limit supports which will assist the disabled is short sighted and very concerning. Section 10 of the bill makes for disturbing reading. It states “that a support is not an NDIS support for a person if declared by NDIS rules to be a “support that is not appropriately funded or provided through the NDIS for participants or prospective participants generally, or for a class of participants or prospective participants that include the person.” (10c). This raises the prospect of participants being left without supports if no alternative to the NDIS exists. This could lead to tragic consequences. With its reference to a class this may not cover participants with rare disabilities. It also denies the individuality of the participant.

Disallowing whitegoods could prevent a participant to independently achieve household tasks and may expose them to danger. In the case of a special washing machine to accommodate the persons disability it would likely be more cost - effective over the long term. The hourly rate for a support worker employed on weekdays is typically between $40 to $50 per hour. It doesn’t take many hours of support-worker time before purchasing a white goods appliance becomes more cost-effective.

“Narrowly defining disability supports could serve to reduce innovation within the scheme and result in poorer care outcomes. This would only add to cost pressures over the longer term.”

Definitions:

The term mobility is used frequently in the bill. It does not provide a definition of what this means. If it confines the meaning to those participants with limb deficiency this could exclude the盲. Clearly severely visually participants have mobility issues which require supports.

Conclusion:

The NDIS Amendment Bill 2024 is short sighted, authoritative and incompatible with Human Rights. It will harm participants with consequences which include increased costs. The flaws are such that it should be withdrawn.

Karen Kline Lawyer and Disability Advocate

LLB (QUT), GradDipLP(COL), BNurs (ATI), AVDipHlthSc (COL)

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{(ParticiRant Service Guarantee and Other Measures) Bill 2021 Dissenting ReRort bv.

Labor Senators Dissenting Report by Labor Senators

Dissenting Report by Labor Senators

The changes proposed in this Bill are aimed at implementing the recommendations of the 2019 review of the National Disability Insurance Scheme (NDIS) Act and the new NDIS Participant Service Guarantee by David Tune AO PSM (the ’Tune Review) and the Independent Review of the Act by Ernst & Young in 201 5. Many of the changes recommended by the Tune Review were welcomed however, Labor Senators do not agree that the Bill is fully faithful to those recommendations or with this report’s finding that the Bill be passed in its current form. The Minister for the NDIS recently characterised NDIS participants as ‘welfare recipients’ and stated that the scheme was never meant to provide support for life.l These comments are in direct conflict with the insurance principles of the scheme and the eligibility requirements set out in section 24 of the NDIS Act requiring participants’ impairment to be permanent. The Minister’s misrepresentation of the NDIS’ purpose and function is cause for alarm while this Bill - which deals with matters relating to permanency and eligibility

  • is under consideration by the Parliament. These comments and the Committee report, like much of the evidence provided by National Disability Insurance Agency (NOIA) and Department of Social Services (DSS) officials at the inquiry hearing, fails to address the numerous and legitimate concerns with this Bill outlined by legal experts, disability representatives and Labor Senators. Consultation

Labor Senators do not agree with the statement at 2.1 that the Committee received extensive engagement from the disability community, service providers and other stakeholders during this inquiry. Consultation on the Bill was not sufficient, with just four weeks allowed on the exposure draft while several states and territories were experiencing COVID-1 9 outbreaks and lockdowns; and two weeks provided for submissions to the Community Affairs Legislation Committee Inquiry on the Bill. Labor Senators do not agree with the Committee report at 2.74 that processes undertaken during the 201 5 Independent Review of the NDIS Act, the 2019 TL Review and other methods of engagement in the intervening period could be 1 as consultation on this Bill. The final articulation of the Bill and delegated Privacy - Terms

instruments

is not by default supported because of views expressed in entirely different contexts and settings for the distinct purpose of a review held over two years prior.

Submitters shared concern at the rushed consultation and the lack of time to consider technically complex changes to the NDIS Act and Rules. This was a missed opportunity to genuinely deliver on the Government’s commitment to rebuild trust through genuine co-design following the proposal to introduce unwanted compulsory Independent Assessments.

Measures to improve NDIS participant experience such as deadlines for decisions implemented by the Participant Service Guarantee have been in place without the need for legislation. There is therefore no urgency to implement these aspects of the Bill.

Labor Senators acknowledge stakeholders’ overwhelming view provided to the Committee Inquiry was that the Bill has the bones of a welcome legislative change, but in its current form any benefit is outweighed by the potential to damage the scheme and should not proceed. The most serious concern was the potential to give the Minister and the NOIA CEO unprecedented and unnecessary powers. Professor Bruce Bonyhady AM from the Melbourne Disability Institute summarised this position in his opening statement:

In summary, this legislation represents a bid for control of the NDIS by the Commonwealth. No Commonwealth Minister should have this position of power. The NDIS must remain a joint and shared endeavour which unites all jurisdictions and the disability community. It should retain its current checks and balances. In its current form, the proposed legislation fails both these tests. However, if the five changes outlined in the MDI submission are accepted, the proposed rules can be satisfactorily co-designed and the many issues raised by others are satisfactorily resolved then I believe that the proposed legislation could be supported. But, to be frank, I can see very few positive benefits from this legislation and, at the moment, enormous risks to the vision of the NDIS._

The Government’s written and verbal submissions to the inquiry did little to alleviate these concerns or even directly address them. It is therefore not possible for Labor Senators to agree with the Committee recommendation that the Bill be passed in its current form.

Use of delegated legislation

While the Bill offers symbolic recognition of important matters such as co-design, clarifying eligibility, and the need to improve the ‘participant experience’, it is effectively undercut by the proposed rules. The dynamic was described by La Trobe University legal academic Dr Darren O’Donovan:

As the bipartisan Joint Committee on Human Rights has stressed, if you can’t map the use of powers, if you don’t have rules confining and structuring power in your hand, you’re drifting out of a rights-centred space. There are parts of this package that are just a bit too unstable. They will drive that inconsistency and bureaucracy that we all want to avoid. Fundamentally, I think, what the department is going to call ‘flexibility’, I call ‘power’. What the department calls ‘details for later’, I call ‘rights uncertainty’. We all want to work together to create certain, usable legislation, and in key areas we are putting the rules at the wrong levels, engaging in drafting which is unclear and pushing some sensitive issues onto the NDIA. 3. Section 209(8) of the NDIS Act provides for NDIS Rules to be categorised into Categories A to D. Category A requires rules to be approved with a unanimous support of all jurisdictions. Category D only requires consultation - a threshold met just by writing to state and territories to inform them of a rule change. Labor Senators’ view is that the Bill’s reliance on Category D Rules only requiring consultation with states and territories throughout creates a ‘blank cheque’ for the Commonwealth to single-handedly decide who receives support and how much. The Government has not been able to explain why Category D powers are needed or provide tangible comfort that they will be used for participants benefit, and not to reduce funding in plans or exit or refuse access to applicants and participants of the scheme. They will have the effect of increasing flexibility for the Minister and the CEO and create uncertainty for participants. The Bill’s proposal to use Category D Rules to implement many of its provisions means the states and territories - which through bilateral agreements make significant financial contributions to the NDIS - will lose their say in the scheme and the Commonwealth Minister will as a result gain ‘God Powers’ to control where and who NDIS funding goes to. Dr Bruce Bonyhady from the MDI explained: The proposal to make the rules in sections 14, 47A(6) and 48(5) Category D rules gives the Commonwealth Minister almost complete control of the NDIS. It therefore completely undermines the shared governance of the NDIS. The rules in relation to sections 14, 47A(6) and 48(5) should be Category A Rules. Alternatively, the rules in section 47A(6) should not be rules and placed in the legislation. 1 The Morrison Government’s record on the NDIS - $4.6 billion in underspent funding, unwanted independent assessments, and cuts without consultation - has not earned it the trust needed for the community to support these powers. Wording in the Explanatory Memorandum that the changes are intended to benefit participants is an empty motherhood statement unl’ess it is reflected in the legislation or an acceptable rule category. Labor Senators share the concerns of submitters that Category D Rules will disrupt the shared governance of the NDIS by watering down the input of states and territories which contribute roughly half of the scheme’s funding. The position of

Plan Variation and Reassessment

Labor Senators support the introduction of measures that would increase the flexibility of the planning process in cases of emergency or where only small changes to a plan are required. However, the CEO’s own power to modify plans should not be granted without limitation.

The soft limits on the CEO’s power to vary a plan in Section 47A(l) and the prescription for category D Rules to decide when to initiate a variation are not sufficient. Labor Senators instead refer to the Tune Review’s positioning that these circumstances should be included in the Act and any additional circumstances should be enabled through a rule making power.

DSS and the NDIA did stress that the proposed variation power would not vest the CEO with any more powers than those that currently exist under the current review power under section 48 of the NDIS Act. Labor Senators disagree with this one-dimensional comparison.

Plan variation should not be treated the same as a plan reassessment because a line-item variation would not be subject the same oversight and resourcing of a reassessment process, which requires extensive input and supporting evidence from the participant and allied health and medical experts.

Labor Senators believe the inclusion of 47A(4)(c) power to change a participant’s request to vary a plan into a request for a reassessment under s48 (l) will in fact

Eligibility and Access

Proposed section 27(2) and (3) of the Bill empower the Minister to make rules which establish ‘requirements that must be satisfied’ for the purposes of meeting the permanence threshold to access the Scheme.

Rules made under this provision would create conditions for access to the Scheme designed to clarify access for people with psychosocial disability. The failure to meet any of these requirements means a person will not be able to access the Scheme - a departure from the current deeming provisions under this section.

Labor Senators do not agree that the ‘requirements’ for access should be Category D Rules placing eligibility for people with psychosocial disabilities at the Minister’s discretion.

The redrafted Rules relating to section 27 have not resolved problems raised by stakeholders in the exposure draft process. As Maurice Blackburn submitted:

We are concerned, however, that the provisions currently contained within the draft National Disability Insurance Scheme (Becoming a Participant) Rules 2021 7 may actually reduce clarity. More importantly, in practice, they could also further restrict eligibility and access .

The changes in 24(3) and 25(1 A) clarifying permanence only refer to psychosocial disability, causing Labor Senators to be concerned that people with fluctuating conditions other than psychosocial - such as Multiple Sclerosis, Motor Neurone Disease, stroke, Acquired Brain Injury, Parkinson’s, Huntington’s and early onset

Dementia - Will Receive Inequitable Treatment Under The NDIS

Public Interest Advocacy captured this issue in its submission: This issue arises because of the different wording used for these impairments, depending on the nature of the disability - between ‘vary in intensity’ (which applies to all disabilities) and ‘episodic or fluctuating’ (which applies only to psychosocial disabilities). The use of different wording suggests a different meaning is attributable to these words, and as a consequence, psychosocial and non- psychosocial disabilities are treated differently when it comes to episodic or fluctuating impairments. The Explanatory Memorandum states this is not the intention and when asked at the Senate Inquiry hearing NOIA CEO Martin Hoffman said, ‘There is nothing in this bill that is about making those conditions more difficult or worse off.’. If these statements were genuine, Sections 24(3) and 2 5(1 A) of the Bill would be amended to clarify that all impairments which are episodic or fluctuating in nature may be taken to be permanent, regardless of whether the impairment is attributable to a psychosocial or non-psychosocial disability. Without changes that address the concerns of Labor Senators in this dissenting report, and proper co-design and consultation with people with disabilities, this Bill cannot be viewed as anything other than a further attack on the NDIS by the Morrison government.

Insert procedural fairness requirements for CEO’s exercise of reassessment power on own initiative.

Section 48 to include a Category C rule making power to set our procedural fairness requirements for the CEO’s exercise of their power to reassess plans on their own initiative; • Strengthen language in section 4(9A) - from ‘should’ to ‘must’; • Make Rules in relation to section 14 Category A rules; • Amend section l 2 7(6) to specify that disabled people must sit on the board and that disabled people must make up minimum 50% of the board membership . • Remove sections 27(2) and (3) of the bill; • Amend sections 24(3) and 2 5(1 A) of the bill to include all disabilities in relation to the ‘episodic’ and ‘fluctuating’ qualifiers for establishing permanence; • Amend section 44 to more clearly provide a substantive standard of proof around the concept of ‘unreasonable risk’. Unreasonable risk should be connected to a risk of types of situations or harms to be prevented; • Clarify the drafting in section 45 of the bill to clarify that this change is not intended to remove the ability of participants to continue paying their service provider in the method of their choosing; • Insert new section l 00(68) requiring reasons to be provided following internal reviews.

Senator Nita Green Senator Helen Polley

•

2. Mr David Tune AO PSM, Review of the National Disability Insurance Scheme Act 2013, December 2019, at 8.33.

•

6. Maurice Blackburn, Submission 2, p.6.

• z PIAC, Submission 3, p. 11 .

•

8. Mr Martin Hoffman, Chief Executive Officer, National Disability Insurance Agency, Proof Committee Hansard, 12 November 2021 p. 48.

Contents

I About this inquiry

• llliluicv. home 1-2ag~

• Information about the bill

• Submissions

• Media Releases

• Public Hearingi

• Additional Documents

• Government Res1-2onse

• Re1-2ort

• Re1-2ort 2

Past Public Hearings

12 Nov 2021: Canberra

Choice and control: Are whitegoods disability supports?

Here’s what proposed NDIS reforms say Published: April 12, 2024 6.23am AEST

Shutterstock

Author [Email] Many Australians with disability feel on the edge of a precipice right now. The recommendations from the disability royal commission and the NDIS review were released late last year. Now a draft NDIS reform bill has been tabled. In this series, experts examine what new proposals could mean for people with disability.

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Helen Dickinson receives funding from the Australian Research Council, National Health and Medical Research Council and Children and Young People with Disability Australia.

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The government’s recently introduced bill aims to get the National Disability Insurance Scheme (NDIS) “back on track.” Against a backdrop of concerns over the scheme’s cost, it sets out changes that should substantially reform the NDIS over the next few years.

There is a promised transformation in terms of how NDIS support packages are calculated. The new approach will prioritise evidence-based supports and hopefully allow more flexibility to participants in how they spend their budgets.

But the bill also introduces a definition of what constitutes an NDIS support. Holidays, groceries, payment of utility bills, online gambling, perfume, cosmetics, standard household appliances and whitegoods will not be funded, the bill’s explanatory notes specify.

Such exclusions could prove shortsighted, creating more inefficiencies within the scheme and mean disabled people lose opportunities for independence. We believe in the free flow of information Republish our articles for free, online or in print, under Creative Commons licence. details have disability advocates worried

Changes to assessment and spending

The changes outlined in the bill will move the NDIS towards a needs-based assessment. This will be supported by the use of functional assessment tools, removing some need for people to collect evidence from medical professionals. “Your needs assessment will look at your support needs as a whole,” NDIS minister Bill Shorten said on the day the bill was tabled. “And we won’t distinguish between primary and secondary disabilities any longer.” At the moment plans are made up of a number of categories of funding and line items that set out how plans should be spent. The NDIS review noted this process is often confusing for people and limits how they can spend funds. So the changes offer more spending flexibility. But the bill’s new definition of NDIS support aims to: narrow the scope of […] constitutionally valid supports to those that are appropriately funded by the NDIS. Whitegoods are one of the exclusions listed to clarify guidance on what supports people with disability can access through the NDIS. At the moment, what an NDIS support is isn’t defined. Provided something is deemed reasonable and necessary and related to disability, it can be funded. At first glance, whitegoods might not seem like important disability supports – and therefore a category ripe for constraining costs. But banning these NDIS supports will likely increase costs and could reduce independence for NDIS participants.

Every Australian Counts @EveryAustralian · Follow #DefendChoiceAndControl #NDIS

The disability community have given our feedback on the @NdisReview saying ‘NO’ to any changes that take away the fundamental principle of choice and control. Read our final report at: everyaustraliancounts.com.au/ndis-participa… @billshortenmp @NDIS @SenatorJordon 2:41 PM · Apr 9, 2024 Reply Share Read more on X Read more: From glasses to mobility scooters, “assistive technology” isn’t always high-tech. A WHO roadmap could help 2 million Australians get theirs

Whitegoods are not just appliances

People with disability have long been at the cutting edge of technology, seeking to use different products and applications to support them in everyday tasks that many of us take for granted. In modern terms, an example could be a person with a physical impairment that means they find it difficult to lift heavy items. This may mean they struggle to lift wet washing out of a machine or to hang it on a washing line. So, a combination washer-dryer appliance could mean they are able to independently do their laundry. The alternative option would be to have a support worker to take clothes from the washing machine, hang them on a line and bring them in again once dry. Having such an appliance allows a person to independently achieve household tasks their disability could prevent or make more difficult or dangerous. It is also likely to be more cost-effective over the long term. The hourly rate for a support worker employed on weekdays is typically between $A$40–50 per hour. It doesn’t take many hours of support-worker time before purchasing a whitegood becomes more cost-effective. Three people at table share food preparation Fostering independence can mean less reliance on paid support workers Shutterstock/Miriam Doerr Martin Frommherz For some people who struggle to navigate a kitchen and cook safely, a device like a Thermomix multicooker (that can chop, mix and cook) can mean they are able to independently prepare meals These are expensive at around 2,000 But again this expense can be justified when compared with the cost of hiring a support worker to prepare meals. The Administrative Appeals Tribunal has previously overturned decisions by the National Disability Insurance Agency not to fund technologies like this on the basis these are disability related expenses Read more: States agreed to share foundational support costs So why the backlash against NDIS reforms now?

The importance of early investment for independence

The NDIS was introduced in response to the deficiencies of the previous system. It is meant to take a lifelong view of disability funding Unlike the previous crisis-driven system, the idea of the NDIS is to invest money in the short term to save money in the longer term Investment in disability care improves social and economic participation and independence Narrowly defining disability supports could serve to reduce innovation within the scheme and result in poorer care outcomes That would only add to cost pressures over the long-term Read more: There is overwhelming gender bias in the NDIS – and the review doesn’t address it