NDIA Accountability Project

Concerns about NDIS legislative changes and impact on participants

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Uniting Communities Law Centre

Level 3, 43 Franklin Street Adelaide SA 5000 GPO Box 943 Adelaide SA 5001 Ph (08) 8342 1800 lawcentre@unitingcommunities.org

Committee Secretary Senate Standing Committee on Community Affairs PO BOX 6100 Parliament House Canberra ACT 2600 Via email only – community.affairs.sen@aph.gov.au

Dear Honourable Members

RE: Submission – National Disability Insurance Scheme (NDIS) Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 [Provisions]

   1.  Uniting Communities (UC) is a not-for profit community services organisation working alongside more than 80,000 South Australians each year to reduce inequality, improve wellbeing, overcome disadvantage and support people to live the best lives they can. We value diversity and are committed to providing respectful, accessible services.

   2.  The Uniting Communities Law Centre (UCLC) operates under the umbrella of UC. We are a community legal centre providing free legal advice and advocacy assistance for those in our community who would otherwise be unable to afford or access legal advice. UCLC began as the Kilburn, Enfield, Prospect Community Legal Service in 1992 providing free legal information, advice and assistance to people living in the north-eastern suburbs of Adelaide, a legal service for young people with representation in minor criminal matters and (later) a state-wide disability discrimination service. UCLC has grown significantly and not only continues to provide generalist legal advice to those who live in the inner north and eastern suburbs of Adelaide and the Adelaide Hills, but also provides state-wide services in the areas of Social Security law (Centrelink), Consumer Credit, Elder Abuse, Disability Advocacy (NDIS), Child Support and Family law, Youth Law, Litigation Guardian and Mediation. We are a multidisciplinary team consisting of lawyers, social workers, financial counsellors and other allied health professionals.

   3.  Significantly, since January 2021 the Disability Advocacy Service (DAS) has been providing independent advocacy and legal representation for NDIS participants with regards to their funded supports or for those who would like access to the NDIS. DAS is separate from and independent to the disability services provided by UC. DAS is funded by the South Australia government through Department of Human Services (DHS). Since inception, DAS has provided advocate support to complete access requests, to request internal reviews of decisions to the National Disability

only 1 of 2 services, that we are aware of, that provides free legal advice and representation to

those who make applications to the AAT for external merits review of decisions made by the NDIA.

As of April 2024, DAS has responded to over 750 enquiries providing once off advice, advocacy, and legal representation.

Submissions

  • We welcome the opportunity to make submissions in relation to proposed changes within the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 (Bill) to National Disability Insurance Scheme legislation. These submissions are informed by our experiences within UCLC and the services we provide through DAS.

  • In principle, we support that amendments need to be made to the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act), but want to ensure the changes are fair, reflective of the needs of participants and will not be detrimental to current participants, future potential participants and the people who support them.

  • Our experiences in working with participants demonstrate that most people find the NDIS challenging to interact with. This not only includes the people that we work with, but also clinicians and other allied health professionals who provide supporting evidence. Processes are not clear, there is little to no transparency as to how decisions are made and there are often a number of hoops a person has to jump through to get to a decision or resolution. This adds an extra level of stress and anxiety to already complex and stressful situations.

  • We have witnessed many instances where one branch of the NDIA does not know what another branch of the NDIA is doing which results in multiple plans, changed decisions, more hurdles, even more complexity and increased frustration.

  • The Bill proposes significant changes to the NDIS. Changes include how a person is able to access the scheme, how support needs will be assessed and funded, and how participants can spend their plan funding. Importantly, the Minister will be responsible for making a range of legislative instruments that will determine the method of calculating budgets and how needs assessments are carried out. Since there is no draft available of these legislative instruments, we do not know what they will look like. This ‘not knowing’ has provoked a large amount of stress and worry with the people we assist.

  • We have met with participants of the NDIS and their families. There is huge anxiety about the impending changes and the uncertainty that these changes will bring to their lives and the lives of those they love. There are lots of assumptions floating around which is creating an almost hysterical response from participants when they think of any impending changes. Impact on participants will depend on the new legislative instruments yet to be made by the Minister. It is imperative that these legislative instruments are developed in conjunction with people with disability and changes are

Rural, regional, remote and very remote areas

  1. UCLC operates several statewide services, including the DAS, and believes that special consideration needs to be given to those who live in regional, rural and remote areas of Australia.

On 16 April 2024, we were able to provide evidence to the National Disability Insurance Scheme Joint Standing Committee at a public hearing held in Darwin on experiences of NDIS participants living in rural, regional and remote Australia. We provided case studies highlighting the difficulties of people who lived only 3 – 5 hours outside of the Adelaide CBD to access information, services and advice on NDIS matters. We then heard evidence from providers of truly remote communities and their experiences regarding the availability of support, services and the dissemination of information regarding NDIS supports and services. They spoke about the scarcity of providers, the lack of information that is accessible to the communities they serve and made suggestions as to different ways to provide service and support to those rural communities. People who live outside of metropolitan areas need to be considered, not as an afterthought to their city counterparts, but separately with their own unique needs.

Changes to planning and budgets – Needs Assessment

  1. The NDIS Review (Review) recommended changes to the way participants received funding and to the planning process. One of the major changes proposed by the Review was to change the basis for setting a budget to a ‘whole-of-person’ level rather than individual support items. The Review also recommended a new needs assessment process to set budgets.1They recommended a ‘needs assessment’ to determine a ‘reasonable and necessary’ budget which was built taking into consideration the needs of the whole person, rather than a line-by-line approach that is currently being used.

  2. The Bill, while adopting the recommendation of a new needs assessment process seems to have limited the concept of ‘whole person’ to assessment of disabilities only recognised by the NDIA. The assessment of participant’s needs for supports under proposed s32L, limits what can be assessed to ‘the participant’s need for supports only in respect of impairments in respect of which the participant meets the disability requirements or early intervention requirements’.2

  3. This is in direct opposition to taking a whole-of-person approach and seems to seek to formalise what is already occurring within the NDIS with regards to multiple disabilities and recognising primary and secondary disabilities. What happens to a person with multiple disabilities, where their

New Definition Of Ndis Supports

16.

Section 10 defines what is an “NDIS Support” and the NDIS will only fund eight categories of supports. These eight categories were based on selected elements in the United Nations Conventions on the Rights of Persons with Disabilities (CRPD) but, other elements of the CRPD were excluded. It is unclear how the eight ‘support’ categories were chosen and why they were chosen while other elements of the CRPD were left out. For example, the CRPD recognises the right to work and employment, but section 10 does not include supports that would facilitate economic participation or employment of a participant. Is it envisioned that supporting a person to find employment is the responsibility of another government department? Will employment supports be part of foundational supports?

17.

The concern with the eight categories is that it severely limits what can be funded by the NDIS, in the general sense. But looking closely at the wording of some of the clauses it also narrows what can be classed as a NDIS support. For example, s10(a)(i) says that ‘a support can be provided if the support is necessary to support a person to live and be included in the community, and to prevent isolation or segregation of the person from the community’. So, if the support is necessary to include a person in the community but does not prevent segregation, then ostensibly it cannot be funded as a NDIS support. With that logic, would a group excursion of a day options program qualify for NDIS supports? It could be argued that they are a segregated group out in the community.

18.

Additionally, this section seemingly overrides the requirements of section 34 of the NDIS Act and reasonable and necessary criteria. The use of funding would now depend on meeting the definition of “NDIS support” rather than the reasonable and necessary criteria.

Section 10

 19. Section 10 moves away from the current system, where any type of support could be funded as

     long as it met the legislative criteria6, narrowing what can be funded7 and what cannot be funded8

    as a NDIS support. This approach limits choice and control for a person with disability and how they

    access and receive the supports they need. The participant knows what they need best, if they are

    unable to use their NDIS plan to fund a disability related support, they are in danger of not utilising

   NDIS funding at all and not receiving any (or appropriate for them) supports.

 20. Great care and significant consultation should occur when developing the Rules as outlined in

     s10(b) – (c) so that the objectives of the NDIS9, amongst other things, to support people to live as

     independently as possible, have choice and control over the reasonable and necessary supports

     they receive and receive high quality and innovative supports to enable people to be fully included

       in society are upheld and realised.

Information gathering powers / Suspension or cancellation of plan funding

 21. The Bill gives the NDIA new powers, which are broad in nature, to request information and

    documents from a participant and also gives the NDIA powers to impose consequences that are

      punitive in nature when a participant does not provide the information requested.

 22. Conversely, there is nothing in the Bill that provides guarantees to the participant that the NDIA will

    respond in a timely manner for requests for information about their applications or plan funding

     requests. There is also nothing in the Bill that ensures the participant has adequate support in order

      to comply with the requests for information.

 23.  If the NDIA is considering a revocation of a person’s eligibility to access the NDIS, it can request

     information or request the participant undergo a health assessment.  If the information is not

     received within 90 days, the CEO is able to revoke the participant status, excluding them from the

    scheme.10 From  our  experience,   it  often  takes months  to see a  specialist and  obtain

     requested/relevant information. Many of the people we work with, who have our advocacy and legal

     support, are so overwhelmed they would not think to update the NDIA when processes take longer

     than expected. What about people who do not have advocacy or legal support? There is nothing in

     the Bill that compels the NDIA to check in with the participant before revoking a person’s eligibility.

 24. With regards to new framework plans, the CEO can request any information they deem  is

     reasonable and necessary for the purpose of creating the plan. They can also request the person

    undergo a medical assessment. If the person does not comply within 28 days, without giving good

     reasons, both their existing NDIS plan and upcoming NDIS plan are suspended until they comply

     with the request.11

Challenging and reviewing decisions

  1. This is problematic and concerning, as the onus is on the participant to ensure they have complied

with the requested information. There is no requirement for the NDIA to ensure the participant has

understood what has been requested of them, has the supports to comply with the request, and

actually not complied with the request. Anecdotally, from the people we assist, the NDIA repeatedly

say they have not received documentation, when in fact the participant has submitted information

multiple times and in multiple ways. Without the requirement to actually check in with the participant

before a plan is suspended, there is significant concern that participants will go without funding as

a result of systems or human errors.

  1. While the Bill does not alter the right of a person to seek reviews on decisions about their statement

of participant supports12, they do not have the right to seek a review of some of the new processes

the Bill creates. Significantly, the ‘needs assessment’ would not be a ‘reviewable decision’ under

section 99 of the NDIS Act13. This means that the Bill does not provide a way to challenge an

assessment that does not accurately reflect the needs of the participant and the subsequent funding

that arises from that assessment.

  1. Furthermore, the Bill does not ensure a participant has an opportunity to see the needs assessment

before it is provided to the CEO. Section 32L (5) provides that the needs assessment will be

prepared and given to the CEO as soon as practicable after the assessment is completed. Contrary

to what is recommended in the NDIS Review, where it was recommended that the participant receive a copy of the report before it is finalised. This does not give the participant an opportunity

to correct assumptions or facts before the final assessment is provided to the CEO.

  1. Replacement assessments are mentioned in the Bill14 but it does not mention if the participant is

able to request one or at what stage of the process this would happen. Instead, this process will be

defined by ‘Category A’ rules as to when the NDIA will arrange a replacement assessment.15 These

ules have not yet been developed.

  1. If assessments are going to form the basis of plan funding budgets, then the legislation must be

clear about how a person will be able to see a needs assessment before it is finalised to ensure that it accurately reflects their needs and current circumstances. Legislation must also be clear about when a participant is able to request a new needs assessment and the process to seek review if they do not agree with the needs assessment or the subsequent funding.

New powers - delegated legislation

30.

The Bill introduces new powers for the NDIS Minister to make Rules and determinations that do not need to be passed by Parliament. The Bill gives power to the Minister to develop new Rules, which are developed with State and Territory Governments, to, for example 1) determine what types of support the NDIS will fund16, 2) determine which supports are stated supports17, or 3) specify when plan management requests may be denied18.

31.

The Bill also allows the Minister to make determinations which have significant consequences in the context of the NDIS. For example, determining how assessments are undertaken19 and determining the method for setting funding amounts in a participant’s budget20.

32.

Reliance on rules and determination is concerning because it is difficult to see the full impact of the Bill and the proposed changes. There is no transparency and certainty as to what is being proposed and what any potential changes will look like.

33.

With co-design being at the heart of any changes, the disability community should have significant input into any proposed assessments, rules or determinations being considered.

Conclusion

34.

The proposed changes to legislation the Bill makes could be good and we acknowledge that change is necessary. But, because much of the practical change that will occur will be determined by rules and delegated legislation that is not yet been made, it is impossible to predict the true impact of the Bill.

35.

This Bill is the most significant change to the NDIS since its inception. With over 650,000 people now on the scheme, any changes need to take into account their lived experiences of the current NDIS (the positive and the negative).

36.

Participants and people with disability need to be consulted. Information and changes should be presented in a clear and considered manner. These changes can no longer be like ‘building a plane in flight21,’ there is an opportunity to make changes in a systematic and considered way. We have to ensure that people are better off as a result of the changes.

37.

The whole person needs to be considered, and not just what impairment they met access on. The NDIS is supposed to support a person for their entire life; needs and impairments change. People should not have to prove over and over again what supports they require to live an ‘ordinary life22.’

    1. Governments should be consulting with each other, so there are no gaps in support. The NDIS

  • should no longer be ‘an oasis in the desert23.’ Foundational supports should be available and

  • robust so that they meet the needs of people who do not otherwise qualify for NDIS supports.

  • Foundational supports should be in place in each State before changes to the NDIS legislation take

  • effect to ensure that no one is left without support.

We thank the committee for the opportunity to provide feedback on aspects of the proposed amendments and welcome any further questions.

23 A phrase often used to describe the NDIS and heard often in recent times. As the only supports available to someone with disability. If a person did not qualify for the NDIS, there were no mainstream supports or ’ tier 2’ supports available to help them. They received no help at all.