NDIA Accountability Project

Spinal cord injury participant’s concerns over funding changes

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Submission

National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track) Bill 2024

Introduction

I am a Geoffrey Baldwin - NDIS Participant. I am a spinal cord injury – complete (Cauda Equina Syndrome) participant with severe mobility issues, many consequential issues from the spine cord injury (associated with loss of function below L5 level), functional issues from spinal stenosis throughout the spine, and a stroke caused by high blood pressure during my AAT case. As a result of “supports ….. under a Commonwealth, State or Territory law” concept that they now wish to legislate in S35.1d, NDIA cancelled all my funding, and then reinstated partial funding. NDIA provided 1.75 hours a week of Assistant with Daily Living, $500 consumables, 20 hours a week of Assistance with Community Participation, some OT support, and no Capital Support. This funding is inconsistent with the Rules. For three years, I have been at AAT to get the support funding corrected, during which the AAT added 8 days of STA funding to assist in the meantime. The key legal principles for this submission (supported by legislation and Convention) are that:

  • if the ACT provides detail of assessment criteria, the Rules can expand on that, but not contradict that with a different meaning, and
  • If you do not apply the new criterion to all participants and only use it selectively to deny supports, then that is discrimination. I find this National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track) Bill 2024 unnecessarily confusing and destructive to the Scheme. I feel the proposed Bill:
  • expands the range of NDIS Supports that NDIS will fund rather than “Getting the NDIS Back on Track”. (S46.1 Acts Interpretation Act 1901)
  • defines NDIS Supports, and new assessment criteria, in the ACT that will conflict with the Rules. Consequently, the Rules will conflict with the proposed ACT, and that will nullify large sections of the Rules. (S46.1 Acts Interpretation Act 1901)
  • looks to implement Rule overriding assessment criteria within the ACT for all participants pointing at Commonwealth, State or Territory Schemes without COAG Agreement (35.1.d)
  • looks to legislate noncompliance with “Convention on the Rights of Persons with Disabilities: 2006” in that it proposes unequal benefit of the law by arbitrarily pointing to Commonwealth, State or Territory Schemes for some participants, and then bypass and overrule the Rules.

I am only looking at S34.1.f and 35.4d “NDIS and other Service Systems”, reasonable and necessary supports and the proposed “NDIS Supports”, as applied to catastrophic disabilities. Other Submissions will look at other aspects of National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track) Bill 2024. I just feel this aspect is critical.

Current Legislation

The Rules are set out by legislative instrument to provide more detailed operation of the NDIS and reflect the COAG agreement. The ACT summarises the detailed operation of the NDIS. S209 of the ACT allows the CEO to change the Rules by legislated instrument in accordance with the ACT and then lists them, closing the loop between where they are referred to in the ACT to support the creation of Rules.

Issues

NDIA has been referring to parts of the ACT; and disregarding other parts of the ACT, the Rules (sometimes in its entirety), and the Participant’s Disability: and then redefining reasonable and necessary using the ACT to suit a desired outcome. This is evident in my case in that they did not comply with Effective and Beneficial criteria, Part 4 Need Assessment method and assessment tools, or Schedule 1 of the Rules in funding 1.75 hours a week of Assistant with Daily Living.

They justify this behaviour by claiming the NDIS ACT overrules the Rules. I believe this has led NDIA to believe that the ACT is loosely defined and now needs strengthening to support the above behaviour.

National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track) Bill 2024

is now unfortunately creating more confusion and is conflicting the Rules in the way it is currently written.

Reference to S209 of the NDIS ACT

S209 refers to the Rules, created by legislative instrument as required or permitted by this ACT. Not sure if this permits this Bill, especially about expanding rules within the ACT.

NDIS and other Service Systems (S34.1.f)

“NDIS and other Service Systems” is currently detailed in the Rules and Schedule 1 in the Rules (reflective of the COAG agreement) and in a single subparagraph (S34.1.f) in the ACT.

This Bill seeks to replace S34.1.f with a reference to “NDIS Support” defined in the proposed “S10 Definition of NDIS support”. The Bill then proposes an alternate definition of “NDIS and other Service Systems” in the proposed 35.4d, which applies to -all NDIS participants as it is written.

See comments below on the proposed S10 and 35.4d in the Bill. These proposed changes will override “NDIS and other Service Systems” detailed in the Rules and COAG agreement because the Rules will conflict with the proposed definition and criteria within the ACT that refers to “NDIS and other Service Systems”.

Reference: R6.3 in Rules and S46.1 Construction of instruments in Acts Interpretation Act 1901.

S10

A support is an NDIS support for a person who is a participant or prospective participant if:

S10.a.iv

“(iv) is a health service that the person needs because of the person’s impairment or because of the interaction of the person’s impairment with various barriers;”

The Rules and the COAG agreement clearly define what health services are covered by NDIS. This states that a NDIS support is a health service that the person needs because of the person’s impairment, overriding the Rules and COAG definition. Under this definition for example, if a participant needs psychiatry because of depression caused chronic pain. and that limits the participant outings then the funding for the psychiatry will transfer to NDIS.

S10.a.iv is not necessary if NDIA complies with Rules, rather than putting alternate definition of Rules within the ACT.

Page Text

S10.a.v “(v) is a habilitation or rehabilitation service”

This states that a NDIS support is habilitation or rehabilitation service, overriding the Rules and COAG definition. Schedule 1 of the Rules and the COAG agreement clearly defines what health services are covered by NDIS, and states that rehabilitation services are not a NDIS support. In fact, most rehabilitation is a part of Disability Pathways before the disability stabilises and you get that disability accepted under NDIS.

“Rehabilitation means rebuilding or relearning skills that were lost. These are skills that you or a family member lost because of some sort of illness or problem. After someone breaks a bone, for instance, they spend weeks healing in a cast. Once the cast is removed, the limb must be rehabilitated in order to regain strength and range of motion. Any type of rehabilitation is about rebuilding something that you knew or could do before.”

“Habilitation sounds very similar to rehabilitation, but it’s markedly different. Whereas rehabilitation focuses on relearning something that was once known, habilation involves learning and mastering brand-new skills, particularly if the person learning those skills is developmentally disabled. These skills might involve motor skills, specific tasks, or even communication skills.”

Reference: What’s the Difference Between Rehabilitation and Habilitation? (rsicares.com)

If rehabilitation services are now part of NDIS supports then NDIS will be funding Medicare treatment plans, SPARKS, SPOT and other medical and rehabilitation supports across Australia. Rehabilitation is indicated by treatment cycles and short-term rehabilitation support which assumes the treatment will restore functionality and not need of ongoing NDIS support. S10.a.viii (viii) is provided by way of sickness benefits. Referencing (xxiiiA) of the Constitution

Medical and rehabilitation provide some short term supports with those services. NDIS does not provide medical and rehabilitation services unless this Bill is approved in its current form by Parliament.

S10.a.(viii) states that a NDIS support is a support that is provided by way of sickness benefits, overriding the Rules and COAG definition. Schedule 1 of the Rules and the COAG agreement clearly define what health services are covered by NDIS.

S10.a.(viii) refers to part of the Constitution for whole of Government but not saying it is the responsibility of NDIS. Other Sub paragraphs of S10.a Other sub paragraphs appear to narrow the scope of some areas of support compared to the Rules, which also puts the Rules in conflict with the ACT. S10.c “(c) the support is not a support declared by National Disability Insurance Scheme rules made for the purposes of this paragraph to be a support that is not appropriately funded or provided through the National Disability Insurance Scheme: (i) for participants or prospective participants generally; or

(ii) for a class of participants or prospective participants that includes the person“

This actually states, “A support is an NDIS support for a person who is a participant or prospective participant if “” the support is not a support declared by National Disability Insurance Scheme rules made for the purposes of this paragraph to be a support that is not appropriately funded or provided through the National Disability Insurance Scheme“.

I can see what they wanted to say but not what was stated. S10.c should be in a separate subparagraph or deleted. Proposed 35.4d “supports in respect of personal injury that may be funded or provided under a scheme of insurance, or under a Commonwealth, State or Territory law.

The Rules clearly define how to determine what supports are funded by NDIS and other schemes under Commonwealth, State or Territory law in compliance with COAG Agreement. The proposed 35.4d is a second bite at the apple. 35.4d is an overriding assessment criterion within the ACT for other Service Systems under a Commonwealth, State or Territory law, without COAG agreement.

From the “Convention on the Rights of Persons with Disabilities: 2006”: „Parties recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law.“

The proposed 35.4d is vague. It applies to all NDIS participants as every NDIS participant has access to supports from schemes under a Commonwealth, State or Territory law prior to coming to NDIS. There is nothing in NDIS Legislation to limits 35.4d. If it is not the Government’s intention to apply 35.4d to all NDIS participants, then 35.4d enables discrimination. Since discrimination goes against the “Convention on the Rights of Persons with Disabilities: 2006”: than 35.4d should not be legislated.

None of those schemes 35.4d in provide disability supports under the same assessment criteria or purpose as NDIS, nor do they provide the same level of support as NDIS does for catastrophic disabilities. Those schemes will not share their support with NDIS as NDIS Core supports are flexible and covers all that they provide. This is not something that can be fixed or addressed by 35.4d.

If you look at outside organisations the only question to ask is if that organisation can adequately provide the NDIS supports that were assessed under Part 4 of the Rules - Methodology and Tools and assessment criteria in the Rules. This means you must understand what the participants needs are before you compare them with the outside organisation so that you don’t disadvantage the NDIS participant.

The average spinal cord injury participant receives $107k of Assistant with Daily Living, and similar for other participants with Catastrophic Disabilities. Presumably all these participants were correctly assessed in accordance with the Rules. Schemes under Commonwealth, State or Territory simply do not provide that level of support for Catastrophic Disabilities.

I have been at AAT for three years fighting this policy even though that wasn’t yet legitimised. If 35.4d is not deleted, then any Participants with catastrophic disabilities can be randomly

selected (like I was) and put on supports like 1.75 hours a week of Assistant with Daily Living and $500 consumables. NDIA is now trying to legitimise it with 35.4d.

NDIA and their legal representatives have demonstrated that they will disregard the Rules (assessment criteria and schedule 1 definition) whilst pointing at the schemes under a Commonwealth, State or Territory law. Don’t encourage this behaviour by legislating 35.4d. Conclusion From a Reasonable and Necessary assessment perspective, if the Bill is approved by Parliament in its current form, then the Rules will display a contrary intention to the NDIS ACT and NDIS will be left with a broader range of supports to fund or will enable NDIA and their legal representatives to selectively discriminate against participants with catastrophic disabilities.

S10.a will override the Rules, as the Rules will display a contrary intention to the proposed NDIS ACT. (R6.3 of the Rules). “see the Acts Interpretation Act 1901 and the Legislative Instruments Act 2003”. (S46.1 Construction of instruments in Acts Interpretation Act 1901). I believe S10.a in toto needs to be deleted as it only provides confusion and confliction by expanding on the range of supports that NDIS funds within the ACT.

S10.c should be in a separate paragraph or deleted. Essentially you only need to point to the Rules with 10.1 “A Support is an NDIS support if it is a support declared by National Disability Insurance Scheme rules ….” and if necessary 10.2 “A Support is not an NDIS support if…“.

35.4d should not be in the Bill as it has no limiting criteria and it arbitrarily points at schemes under Commonwealth, State or Territory law without COAG agreement without regard to a participant’s disability, circumstance and functional ability. If you don’t assess the supports of a participant in the first place how can compare supports to avoid disability discrimination. 35.4d will contravene the Convention on the Rights of Persons with Disabilities for the participant to be treated equally in law, as 35.4d is unlikely to be applied to every participant.

The CEO may state that supports are defined by the Rules as per S10.b and that S10 is a summary, or that the 35.4d won’t be used discriminatorily. However, that would be contrary to the Acts Interpretation Act 1901 and Convention on the Rights of Persons with Disabilities, and what NDIA and their legal representatives have been stating in AAT cases over the last three years. If NDIA and their legal representatives behave this way now, please consider how they will use these proposed amendments if they are legitimised.

I believe that Disability Pathways is the right answer, where NDIS is on a pathway and not seen as an alternative scheme by participants or NDIA. That is a Whole of Government approach to disability support.

Geoff Baldwin (NDIS Participant number: redacted)

0 May 2024

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