NDIA Accountability Project

NDIS legislative changes impacting co-design and participant rights

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Touching Base Inc submission

to the Senate Community Affairs Legislation Committee review of the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024

Community Affairs Legislation Committee submission email:

community.affairs.sen@aph.gov.au

DATE: 17 May 2024

Touching Base Inc

Saul Isbister

President, Touching Base Inc

president@touchingbase.org

Table of Contents

  • Legislated co-design required for the new ‘Rules’ 2
  • Changes to reasonable and necessary 2
  • Choice and control Section 10 3
  • Choice and Control section 32H 4
  • Appeals of needs assessment 5
  • Living arrangements 5
  • Foundational supports 6
  • Conclusion 6

Key recommendations:

Who we are

Touching Base Inc. is a charitable organisation, based in Sydney NSW Australia that has been active since October 2000. Touching Base Inc. developed from a need to assist people with disability and sex workers to connect with each other. We focus on access, discrimination, human rights, legal issues and attitudinal barriers. Touching Base Inc. has brought the disability sector and the sex industry together in respectful and meaningful ways, through education, policy development, lobbying, resources development, as well as training workshops for disability workers and sex workers. Touching Base Inc. is an associate member organisation of Scarlet Alliance - Australia’s peak sex worker association.

Why we are writing

Touching Base is concerned how aspects of the NDIS Bill will significantly change how the NDIS operates and therefore how participants are able to participate in the scheme.

There needs to be a legislative focus on ensuring co-design of any proposed Rules that are yet to be developed.

Legislated co-design required for the new ‘Rules’

The proposed NDIS Act changes heavily rely on supporting ‘Rules’ in the form of legislated instruments that are yet to be developed. For these regulations to effectively serve the needs of people with disability, a robust consultation framework must be established within the Act. This would entail instituting a legislated requirement within the Act for the Minister to engage in a co-design process with people with disability and stakeholder organisations. By embedding this collaborative approach into legislation, you not only acknowledge and value the expertise and lived experiences of those directly impacted by these rules, but also ensure their voices are heard in the policy making process into the future.

The Senate has a history of committing to uphold the highest standards of parliamentary process with regards to the NDIS, which are aimed to elevate the integrity and inclusivity of the NDIS legislative framework. Drawing from established practices, you have an opportunity to legislate a standard of transparency and accountability within the NDIS governance structure. Through legislative amendments, you can formalise openness in decision making and re-establish trust in the process within the disability community. This not only fosters greater public confidence, but also strengthens the legitimacy of the NDIS framework as a whole.

In advocating for legislative changes, we must recognise the importance of presenting lived experiences and stakeholder advice to inform parliamentary deliberations. As such, we recommend that relevant information, perspectives and evidence generated during the co-design phase must be documented and made accessible to the Senate. This will enable the voices of disabled people to be carried into legislative discourse, and also highlight a commitment to evidence-based development of regulations.

Changes to reasonable and necessary

Currently, the determination of reasonable and necessary supports under the NDIS is predominantly guided by the criteria outlined Section 34 of the NDIS Act. However, the forthcoming changes propose a shift towards a new structure for funding for

reasonable and necessary budgets. The scope and form of these new needs assessments will be determined by one of the new Rules (legislative instruments) that are yet to be developed.

We have concerns regarding the level of engagement and consultation with the disability community and relevant stakeholders in shaping these reforms. A codesign approach, centred on amplifying the voices and perspectives of disabled people is indispensable to ensure the legitimacy and efficacy of the new framework.

Regrettably, we see a need for more community input than there has been thus far.

One of the components of this restructure involves the translation of these needs assessments into tangible budgets for individual plans. The absence of detailed guidelines leaves stakeholders in limbo, exacerbating concerns regarding clarity and transparency in the funding process. This approach places greater emphasis on a technical set of assessments rather than funding for supports on a line by line basis.

Considering the disability sectors’ previous strenuous objections to functional assessments proposed by the previous government, it is essential that co-design be legislated to ensure that any needs assessments are fit and proper for purpose.

Choice and control Section 10

The Every Australian Count recent survey identified that choice and control remains a key issue for people with disability on the scheme1. The new definition of an NDIS support in Section 10 is of concern due the mental gymnastics required to try and comprehend it. There needs to be improved clarity regarding Section 10, as even lawyers specialising in the NDIS currently report having difficulty navigating its complexity.

Sections 10B and 10C will contain ‘Rules’ in regards to what supports are in and what supports are out. These will be made by the NDIS Minister in conjunction with

1 In regards to NDIS Review “recommendation to require participants to be restricted to registered or enrolled providers, 68% of NDIS participants surveyed disagreed or strongly disagreed with the NDIS Review proposal while only 13% supported the proposal.” Every Australian Counts Media Release: NDIS Participants and Families Slam the NDIS Review Recommendations, Survey Shows, 7th April 2024

state and territory disability ministers.

We are reassured that these will “be Category

A rules requiring the unanimous agreement of all States and Territories before they can be made”2 and these clauses must remain Category A rules.

However, the law currently allows the Minister to make rules without mandatory consultation with the disability community, even though the government has pledged to involve them. To strengthen this commitment, the NDIS Act itself should enshrine the need for genuine consultation and co-design with the disability community before creating new rules.

Choice and Control section 32H

Choice and control are integral to people with disability, as it supports them to shape their own lives and pursue their goals with agency. These are not simply ‘desirable attributes’, but fundamental human rights for people with disability. At the core of the NDIS ethos is the recognition that every person, regardless of their disability should have the autonomy to make decisions about their own lives.

However Section 32H sets out that a participant may be directed to obtain NDIS supports from a specified person in a specified class. There is no clarification of what type of supports would be included in this requirement. In the absence of any legislated constraints or requirement for co-design this clause creates excess power that could easily be abused.

Several previous NDIS Ministers have let their personal perspectives, religious and perhaps moral beliefs affect their responses and influence the decision making of the NDIA CEO and NDIS staff regarding access to sexual supports. Therefore constraints need to be written into the Bill and include written intentions of how and when Section 32H would be used.

We agree with PIAC’s position on this Bill that: “… the APTOS principles are not fit for purpose and should not be used as an interim measure”3. The Rules enabled by

Section 32H

Section 32H should be developed and negotiated between Commonwealth and State and Territory Governments in consultation with the disability sector before changes are made.

Appeals of needs assessment

While the Bill (Section 32L(5)) requires a completed needs assessment report to be delivered to the CEO promptly, the NDIS Review emphasised participants should receive the report before it is finalised. To ensure this, the legislation should be amended to explicitly state that participants are to get a copy of their assessment report before it goes to the CEO.

There needs to be a clear and straightforward legislated right of review of needs assessments to enable people to challenge a flawed assessment and seek a replacement assessment. This should be written into the Act, not enabled through new Rules.

By embedding this directly into the legislative framework, you can ensure that NDIS participants’ rights are protected and that the assessment process remains fair, impartial and responsive to the diverse needs of people with disability. This will enhance trust and confidence with the NDIA, fostering a culture of inclusivity for the disability community.

Living arrangements

Living arrangements represent a deeply personal aspect of any person’s life, with significant implications for well-being and autonomy. People with disability have the fundamental right to the same choice and control available to them as everybody else within the community.

However, concerns have been made whether a needs assessment may lead to a decision being made that someone needs to live in a group home, even if they would prefer to live by themselves or need to live by themselves for their psychological well-being.

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Any legislative instrument to enact Rules around living arrangements must be

code-signed and the requirement for co-design be included in the Act, and NDIS

participants must retain the option to live alone. This ensures that the rules are

informed by the lived experiences and perspectives of those directly affected.

It is imperative that this co-design is legislated as this is not merely a

recommendation, but a human right for the choice and control of people with

disability.

Foundational supports

It is imperative to ensure foundational supports for transitioning individuals with

disabilities to state and territory disability services are firmly in place before any

changes to the NDIS take effect. This step will prevent participants from falling into

the gap between existing NDIS supports and proposed services still in development.

Establishing these supports beforehand is essential for a smooth transition process.

It will build confidence among participants and the disability community to ensure a

coordinated and responsive support system.

By prioritising the development and implementation of these foundational supports,

you will safeguard the interests of NDIS participants, which will uphold the

fundamental rights and quality of life for people with disability across Australia.

Conclusion

Touching Base urges the Senate Community Affairs Legislation Committee to

carefully consider the proposed amendments to the NDIS Act. While we

acknowledge the aim of strengthening the scheme, we believe several areas require

further scrutiny to ensure participants retain choice, control, and transparency

throughout their NDIS journey.

Key recommendations:

  • Legislate co-design for all new NDIS Rules to guarantee genuine consultation with the disability community.

  • Constraints need to be written into the Bill and include written intentions of when a more clearly worded Section 32H would be used.

  • Amend the Bill to explicitly grant participants access to their needs assessments before finalisation and the right to appeal flawed assessments.

  • NDIS participants must retain the option to live alone.

  • Ensure foundational supports are established before changes take effect to prevent service gaps.

By prioritising these recommendations, the Committee can ensure the NDIS remains a scheme that empowers people with disability and upholds their fundamental rights.

We are confident that through collaborative efforts and a commitment to genuine co-design, a robust, inclusive and sustainable NDIS can be achieved for all Australians.