NDIA Accountability Project

Concerns over NDIS access and provider oversight

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

Submissions in Response to the Bill

By Dr Kay Wilson, Melbourne Post-Doctoral Research Fellow and Co-Convener of the Disability Law Network, Melbourne Law School, University of Melbourne

I have thoroughly reviewed the NDIS Review, Working Together to Deliver the NDIS, Final Report 2023 (‘NDIS Review’), the Bill, the Explanatory Memorandum, and Second-Reading Speech and I make these submissions based on my expertise as a former practicing lawyer, a current academic lawyer specializing in mental health, disability and human rights law, course coordinator of the NDIS and Disability Benefits Law Clinic and the Co-convener of a new disability research hub, the Disability Law Network, at Melbourne Law School.

I also have lived experience of the NDIS and disability support services pre-NDIS and with two children who are NDIS participants.

General concerns about the Bill

My general impression of the Bill is that it is primarily designed to reduce and control NDIS expenditure by reducing access to the NDIS and cutting participant’s plans. There is no doubt that clarification of what the NDIS covers is required and that the NDIA needs to take steps to contain costs, ensure that funds are spent appropriately and effectively and prevent the exploitation and abuse of persons with disabilities.

However, my concerns are that the very little of the Bill actually reflects the recommendations of the NDIS Review, to the point that it appears like the Bill may have been drafted before the NDIS Review was concluded. The Bill has skipped over most of the important substantive legislative reforms proposed by the NDIS Review especially in Appendix D, such as opening the NDIS to older Australians, reforming disability housing, monitoring providers and the NDIS workforce and reducing with a view to eliminating restrictive practices.

I am also concerned that the Bill unfairly penalizes participants without meeting their needs and may not even be effective to achieve the government’s and the Bill’s legitimate aims.

While the second-reading speech to the Bill was intended to calm the disability community some of the Minister’s comments are not reflected in the content of the Bill. For instance, he said ‘it is important for the CEO of the scheme to have the ability to request and receive information on whether participants meet the access criteria, including residence requirements, disability requirements or early intervention requirements. But let me be very clear—this will not result in people having to reprove their disability, but will allow the CEO to determine if a participant is receiving the most appropriate support.’ This is disingenuous – why request information about

whether a person meets the access criteria, if not to review their access? Questions of access are not the same as the issues in relation to a person’s level of support in their plan.

Further, the Minister gave the following assurances ‘to meet some of the rumours head on, I say, (1) psychosocial disability is still included in the NDIS—full stop; (2) autism is still recognised as a disability—full stop.’ However, it is clear that reading the Bill significant scaling back of supports for psychosocial disability and autism are planned with the Bill restructuring the NDIS accordingly, but the details are being left to future legislation and regulations. It is concerning that such scaling back may occur before alternative foundational supports are in place.

The Bill contains a number of ‘sticks’ which will give the NDIA significant powers to cull the number of participants, reduce their plans and control participant’s spending. Notably, there are no provisions in relation to the role of NDIS Navigator to guide and support participants in understanding their needs and managing their plans which was a key part of the NDIS Review.

While I understand that the Bill is intended to be the first in a series of NDIS reforms, I note that the vast majority of the Bill in Schedule 1 is aimed at participants, creating the impression that it is participants who are ‘the problem’ and who are solely responsible for driving up costs. Schedule 2 of the Bill aimed at providers is far ‘thinner’ and a rather disappointing attempt to control costs and abuses by service providers, which is often where most of the cost inflation and abuse is coming from.

The Bill also gives the CEO of the NDIA wide powers to exercise various discretions and create a range of regulatory instruments without many restrictions. While the second-reading speech and explanatory memorandum talk about such regulations being drafted in consultation with the disability community, there is nothing in the Bill which requires such consultation or co-design with the disability community, or which sets out how such a process will occur and who will be involved. However, there is the creation of ‘Category A’ rules which require the unanimous agreement of all States and Territories (with no mention at all of consultation with the disability community). This produces the impression that the ‘Category A’ rules and the agreement of all States and Territories are more important than consultation with the disability community which is a lower priority. Therefore, at the very least there should be a new provision in the Bill requiring that all delegated legislation will be made in consultation with the disability community and which set out a process for co-design.

However, there are also some provisions which should probably be in the Bill and not be left for secondary legislation (as noted below) which could be easily manipulated by a future government who is hostile to the NDIS. There is no reason why consultation and co-design cannot happen as part of the drafting of this Bill which is proposing significant reforms which will have real life impacts on participants. There are other provisions where the Bill should at least provide more structure and guidance to narrow those rule-making powers and discretions.

In addition, there are many parts of the Bill where the text and what the government is trying to achieve are simply unclear and confusing. My impression is that many of the proposed reforms in the Bill will actually make the NDIS more bureaucratic, not less. I foresee many new

flashpoints for battles between the NDIA and participants, with the consequent friction and loss of trust.

I set out my concerns in detail below and provide what are intended to be constructive suggestions for improvement of the Bill.

Specific concerns about particular provisions of the Bill

10 Definition of NDIS Support

The definition of NDIS Support is designed to clarify and tighten the supports which the NDIS will fund. It does not, however, mention something which many participants find the most useful – capacity building, which should be included. While this section provides some general principles, it really leaves the details of defining what is (and what is not) an NDIS Support to the NDIS rules. This is an important provision with significant consequences for participants. It should be set out in the Bill and not left to the rules. Also, the explanatory memorandum states that the definition of NDIS Support will be a Category A rule, with no mention of consultation with the disability community. The matters set out in 10(a) do not narrow or structure the very wide discretion to make rules in 10(b) or 10(c).

Interestingly health, habilitation and rehabilitation services are expressly included in section 10 which should be applauded because the exclusion of health services in the current scheme (s34(1)(f)) can result in buck-passing between the health system and the NDIS. It is also in accordance with article 25 (the right to health) of the Convention on the Rights of Persons with disabilities.

Further the explanatory memorandum states that:

      This new definition assists participants by providing clear guidance on what supports
      they can access through the NDIS. For example, things such as holidays, groceries,

payment of utility bills, online gambling, perfume, cosmetics, standard household appliances and whitegoods will not qualify as NDIS supports.

However, some of these items, such as a holiday, might be necessary as a part of social inclusion, while other standard household appliances and whitegoods might be necessary for some people because of their disabilities. For instance, a person with MS might need an upright vacuum-cleaner or a particular air-conditioner because of their condition and which they would not otherwise require. Section 10 should clarify that the standard items people require because of their disability are NDIS Supports.

27 National Disability Insurance Scheme rules relating to disability requirements and early intervention requirements

This section is extremely broad and given that the explanatory memorandum states that whether a person accesses the NDIS due to the disability requirements or early intervention requirements

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will eventually make a substantive difference to their entitlements, how the NDIA will determine which category a person accesses the NDIS is very important. Given the significance of whether a person meets the disability or early intervention requirements the criteria and process for making that decision should be set out in the Bill not the Rules.

There is also a concern that ‘early intervention’ participants could come to be seen as second class citizens in the NDIS with significantly less entitlements and that as noted above entitlements will be withdrawn by the NDIS before suitable alternative supports are in place.

30 Subsection 30(2)

The wording of section 30(3)(b)(ii) is unclear. The ability to request that a person undergo ‘whether or not at a particular place, a medical, psychiatric, psychological or other examination…’ suggests that the CEO and NDIA can direct a person to see a particular practitioner who is located at a particular place. This is inconsistent with the explanatory memorandum which states that people can chose their own practitioners for assessment. ‘Whether or not at a particular place’ should probably be omitted from the Bill for clarity.

The section does not explicitly state that the assessments are functional assessments as specified by the NDIS Review. Nor does the section state, in accordance with the NDIS Review, that the NDIS will pay for such reports. These matters should be expressly included in this section.

30A Requirement to Consider Status of Certain Participants

It is strange that this section only applies in circumstances prescribed in the NDIS rules (which have not been developed yet). Given the importance of this section, I would have thought the circumstances in which it can be used ought to be set out in the Bill. Otherwise, it feels like the tail is wagging the dog.

Section 31A(b)(ii) is unclear for the same reason as 30(3)(b)(ii) discussed above and should be amended.

Section 30(7) is heavy-handed especially in that the ‘CEO must revoke the participant’s status as a participant, unless the CEO is satisfied that it was reasonable for the participant, or other person… not to have complied…’ There are many legitimate reasons why a participant may not be able to get a report to the CEO in time which are out of the control of a participant, including the high demand for service providers and disability professionals which has been created by the NDIS. Nor does the NDIA always operate in a timely manner. A softer approach that doesn’t appear to be about punishing participants (but which would still motivate participants and others to act in a timely manner) would be for it to be drafted the same way as section 30(5) and (6) giving the CEO the power to revoke if a person doesn’t comply, rather than stating that the CEO must revoke a participant’s status as a participant unless the delay is reasonable. I imagine that however the section is drafted the NDIA would need to send the participants a reminder letter about the need to supply information by a particular date.

32B Participants that are to have new framework plans

The explanatory memorandum states that all participants will move to new framework plans over five years according to operational requirements. The ability of the Minister to create ‘classes’ of participants who will get new framework plans and to specify when it will happen is a wide power. The Bill should narrow that power by containing more information about how those classes will be formed and implemented.

32D Matters that must be included in a participants plan

The NDIS Review provided that the needs assessment could be done from information given directly by the participant supplemented by specialist reports paid for by the NDIA. It is not clear from the Bill that the participant is the primary source of evidence, or who will pay for any reports (p.38-39).

Section 32D(6)(b)(ii), (6)(f) and (8) create wide discretions for rules around how the CEO will approve the participant’s statement of supports. The Bill ought to provide more details about the sorts of matters those rules will cover.

The wording in subsection (9) ‘but if it is prepared other than in writing’ is very clunky. It should be more direct and say that if a participant’s statement of goals and aspirations is given verbally or another form of communication used by the participant then it should be recorded by the Agency in writing.

32E Reasonable and Necessary Budget – Entitlement to Flexible Funding or Stated Supports

The NDIS Review recommended that the NDIA ‘should allow greater flexibility in how participants can spend their budget, with minimal exceptions’ (recommendation 3.5, emphasis added). While this provision sets up two classes of supports - flexible funding and stated supports - the Bill should create a structure which emphasises that flexible funding is the norm and provide details of when a support will be a stated support as a narrow exception.

I should also say that there is a tension in the NDIS between planning for expenses and being flexible. The need for flexible funding arises from two sources. First it can be a failure of proper planning in the first place in that the participant will say I need X and the NDIA will say but we will only give you Y, which makes the participant want to use their funds for the things they think they need, not what the NDIA tells them. The disjunct between what participants say they need and what the NDIA will actually approve creates a sense among some participants that they need to try to get as much funding as they can (because they probably won’t get what they’re actually asking for) which is unhealthy and drives up costs. That is, the focus becomes trying to get the biggest plan possible, rather than on what the participant actually needs. The so-called principle that ‘people with disability know their own support needs and are best placed to determine how to meet these needs’ (explanatory memorandum p.16) should be respected more in the planning process, instead of being about flexibility after a budget is set.

The second reason flexible funding is needed is more reasonable in that it isn’t always possible to plan everything in advance and that flexibility is desirable for when things change. As noted below, (After subsection 47A(1) - permitted variations) going back to the NDIA all the time for permission for a variation for every little change is cumbersome and time-consuming.

32F Reasonable and Necessary Budget – Flexible Funding, s 32G Reasonable and Necessary Budget – stated supports, 39 After Subsection 33(2)

While I understand why the NDIA wants to limit funding to particular shorter funding periods to prevent participants from spending their funding too quickly - these provisions seem very bureaucratic, complex and coercive. Having multiple funding periods inside a single plan is likely to be quite confusing for participants. Further, it is not in accordance with recommendation 3.6 of the NDIS Review that the NDIA ‘should adopt a trust-based approach to oversight of how participants spend their budget, with a focus on providing guidance and support’ (emphasis added).

If restrictions on flexible funding are included in the Bill at all (which I don’t think they should be), the Bill should expressly state that those restrictions should only be used in those situations where the NDIA has good evidence that a participant is deliberately overspending (repeatedly not just a once off) or is being exploited. Of course, there are many reasons why a person might overspend and one of them is that their plan was totally inadequate and unrealistic in the first place. So, the NDIA should be required to have some sort of discussion with the participant about why the overspending has happened before it starts imposing strict spending controls on their plan. Natural justice requires that a participant should have an opportunity to explain what has happened and to show cause as to why the NDIA should not restrict the spending in their plan. Further the Bill should state that any controls imposed by the NDIA should be proportionate and individually tailored to that participant based on addressing the reasons for the overspending which have been identified in the participants meeting with the NDIA.

The Bill should also include a provision for the role of NDIS Navigator which forms a cornerstone of the NDIS Review. Use of the NDIS Navigator seems to me to be the preferable way of helping participants to stay within budget and to use their budget most effectively to meet their needs, rather than imposing coercive and confusing statutory limits. The NDIA needs to be more than an organisation which just hands out money, but rather one that helps people use that money to meet their needs, achieve their goals and improve their lives. As clause 78 of the Bill (section 47A(1AB)(j)) itself acknowledges if a person has genuine needs, even if they do overspend or run out of budget for whatever funding period, as a practical matter the NDIA can’t very well not give them the extra money they need to pay for essential supports and services if people are going suffer or die. For the NDIA to simply say that you overspent so you need to stay in bed until your next funding period and not be fed, or washed, or dressed, or have therapy or social contact, is not feasible and would be at odds with community expectations. Therefore ongoing guidance, communication and support is preferable to harsher social security-style bureaucratic ‘cut-offs’ and controls. As set out in the NDIS Review many participants report

that dealing with the NDIA is stressful and traumatising and disengage because of continual conflict with and lack of understanding from the NDIA.

The wording of the provisions about rolling over unspent funding within a funding period (eg s 32F(5)) are very clunky and confusing. They also do not explain that the rolling over is only in relation to shorter funding periods within a plan and will not necessarily continue to a new plan (which is in the explanatory memorandum but not the Bill).

32K Reasonable and Necessary Budget – Working Out Total Funding Amounts

This provision really looks to me like it is actually talking about creating a legislative instrument to provide for the use of AI and/or algorithms similar to earlier proposals for independent assessments which have already been rejected. If that is the case, it should explicitly say so. While I am in favour of the transparent inclusion of the power to use AI/algorithms in administrative decision-making in legislation, legislative instruments and rules (as opposed to their being used anyway without legislative authorisation), exactly how they are going to be used and any controls on their use should be far more explicit and detailed than is in this provision. Participants and potentially courts need to understand exactly what is happening inside the black box – so they can contest and challenge it if need be. NDIS access and funding entitlements should not be able to be changed retrospectively in a way which is ad hoc, arbitrary and capricious as to what will fit within a budget at a particular time, rather than taking into account the actual individual needs and goals of each participant. The use of a machine does not make up for a lack of clear and logical rules and principles.

The use of AI/algorithms produces the following problems:

  • it is too inflexible and is akin to a decision-maker rigidly applying a policy or acting under dictation;
  • it makes it difficult to identify who a decision-maker actually is so that a human being has ownership of and responsibility for an administrative decision;
  • it needs to give people accurate, comprehensible and principled reasons for how and why a particular decision was made; and
  • it needs to be able to be reviewed and adjusted by a human being where the results of it simply do not make sense for that participant.

As we saw with Robodebt, the use of AI/algorithms can lead to huge damage and injustice for vulnerable people. The use of AI/algorithms is at odds with the NDIS Review which provided that there should be continuity in the planning processes with the same person who interviews the participant making the decisions and then explaining the decision to the participant (p 39 NDIS Review).

1 Piers Gooding and Annabelle West, “Disability Assessments and the Algorithmic Veil: Lessons from the Abandoned ‘Independent Assessments’ Proposal for the National Disability Insurance Scheme” (2023) 29(1) Australian Journal of Human Rights 44-64.

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I note that the Bill in s32K and other sections uses the phrase ‘the need to ensure the financial sustainability of the National Disability Insurance Scheme.’ This is a meaningless catch-all phrase which indicates that the NDS will be based on rationing without specifying how participants needs will be balanced against sustainability. In his second-reading speech the Minister states, ‘I know that some people feel anxious when we talk about scheme sustainability—what they hear instead is, “Do I lose something?”’ However, I think participants are correct and well justified in their fears and that the meaning of this phrase ought to be clearly defined in the Bill.

While it doesn’t explicitly say so in this provision (although it does in s32L(3) and clause 46 s34(1)(a)(aa)), the explanatory memorandum states that the process will only take into account those impairments which meet the disability and early intervention requirements. This is not in accordance with a ‘whole-of-person approach’ recommended by the NDIS Review, as impairments which aren’t recognised by the NDIS are still likely to inter-relate and collectively impact a person’s functionality and life experience as a whole. This provision is likely to result in nonsensical outcomes and participants not getting support for things which are actually significantly impacting their lives which may effectively undermine the goals of their entire plan.

32L Assessment of Participant’s Need for Supports

Once again the needs assessment process isn’t set out in the Bill and has been left for another day in a legislative instrument which makes this whole provision quite vague and unsatisfactory in terms of how exactly need is going to be assessed. The ‘assessment tool’ once again is indicative of AI/algorithms of which I reiterate my concerns noted in s32K above. As this provision is going to have a significant impact on participant’s entitlements it should be expressly set out in detail in the Bill. The Bill also ought to state that the needs assessment will be a functional assessment as recommended by the NDS Review.

One wonders what the point of having planning meetings with participants and obtaining needs assessment expert reports to work out an individualised plan is, if the actual needs assessment may be made on a completely different basis and may not reflect that information. The requirement to ‘having regard’ to those reports is a very low standard of consideration of expert opinion by the NDIA. At the very least, the NDIA should be required in the Bill to provide participants with good reasons where it departs from the recommendations in expert needs assessment reports and evidence provided by participants about their functional capacity such as in a ‘statement of lived experience.’ The process described in the Bill is likely to increase friction and disputes between participants and the NDIS and decrease trust between the government and disability community.

Section 32L(4)(b) says that the assessment must, ‘have regard to any other information held in the records of the Agency that relates to the person.’ (There are similar provisions throughout the Bill which allow the NDIA to have regard to the way NDIS amounts have been acquitted in previous plans eg. s33(5)(g)). This is concerning first because it is extremely broad and second because having seen what happens in disputes between participants and the NDIA, the NDIA

Requesting Information and Reports - Subsection 36(3)

I reiterate my concerns about the harshness of stopping the preparation of plans where reports are late and the need to change in drafting as I set out in section 30(7) above.

After Subsection 43(2)

This section gives the NDIA the power to override the request of a participant for a particular type of plan management and appoint a different plan manager being the NDIA, a plan nominee, or a registered plan management provider where a participant is at risk of physical, mental or financial harm, a person has not complied with their previous plan and other unspecified circumstances under the NDIS rules. I have two concerns about this clause. The first is that it goes straight to a fairly punitive remedy of overriding the participant’s will and preferences, especially given that plan nominees are probably overused in the NDIS, rather than including a provision about ensuring the participant is first provided with support to guide them in implementing their plan, including by an NDIS Navigator. This is despite the fact that the Bill introduces provisions about supported decision-making in the definition of NDIS support (in clause 10 (iv)) being a service that will assist the person to access a support. Section 10 of the Bill also explicitly incorporates the Convention on the Rights of Persons with Disabilities, in which supported decision-making (rather than substituted decision-making by a third party) is key to equal recognition of persons with disabilities before the law (Article 12(3)). The second is that this provision should not apply where there has only been minor non-compliance with a previous plan, a misunderstanding, or something which has occurred that is explainable by the participant.

There should be a new section about supported decision-making and NDIS navigation. There should also be clarification that that the provision only applies where there has been serious and repeated non-compliance under section 46 of the Act.

This section allows the NDIS rules to prescribe when the management of a particular plan by a participant, registered management provider or plan nominee would present an ‘unreasonable risk to the participant.’ It is unclear from this provision what an ‘unreasonable risk’ is and what kinds of risks it applies to physical, mental, or financial. The term ‘unreasonable risk’ also appears in other provisions of the Bill such as After subsection 74(4). As a mental health lawyer I am aware that risk assessments are notoriously subjective, so the term ‘unreasonable risk’ and how it will be determined ought to be defined in the Bill. Also, it is interesting that the provision is worded paternalistically as protecting the participant. Whereas in reality where the risk is financial, that risk may often be more accurately to the NDIA (or a provider who may not get paid) rather than necessarily to the participant.

At the end of section 45

The prohibition of the Agency paying amounts that would exceed a person’s plan may have the effect that service providers may become reluctant to take on NDIS participants making services harder to obtain for participants. Service providers may also want to be able to check with the NDIA whether the services they want to provide will be paid under a participant’s plan before starting to provide services – increasing the NDIS’s administrative burden and costs.

After subsection 47A(1) – Permitted Variations

The provisions around permitted variations are very important and will probably be used quite regularly if people are anxious to avoid incurring an NDIS debt and other restrictions if the NDIA believes that they haven’t implemented their plan properly. This will likely also increase the administrative burden and costs of the NDIA.

However, a cause of stress for many participants is that the NDIA might make an error with their plans and that their plan doesn’t reflect what has been agreed. What is missing from this provision is an easy process for participants to be able to get the NDIA to correct errors, without necessarily having to start again or lodge an appeal. Such a process would significantly improve the Bill and make the implementation of it much more straightforward.

Schedule 2

I commend Schedule 2 of the Bill in terms of tightening up requirements for NDIS auditors. However, as noted above Schedule 2 is disappointing. It only scratches the surface of the recommendations in the NDIS Review for reform and better regulation of service providers. It also creates the impression that the government is unfairly targeting participants in the Bill.

Conclusion

In conclusion, while it is necessary for the government to tighten the operation of the NDIS, there are many concerns about this Bill and much scope for improvement and redrafting. In particular:

  • the wide discretions throughout the Bill for the creation of rules without requirements or a process for co-design with the disability community;
  • the coercive provisions which stop the processing of participants claims where they are late in giving the NDIA information;
  • rigid restrictions on flexible use of funding;
  • explicit recognition that decisions are made based on functional assessments of need looking;
  • not taking a ‘whole of person’ perspective in restricting supports only to NDIS accepted disabilities;
  • the use of AI/algorithms for needs assessments rather than basing needs assessments on information provided by participants and their expert reports;
  • the use of AI/algorithms in terms of lack of decision-making ownership, transparency and the ability to provide logical reasons;
  • decisions being made based on NDIA records which could be inaccurate and prejudicial;
  • the overriding of participant wishes for plan management without supported decision- making; and
  • a provision allowing for the easy correction of administrative errors in a participant’s plan.

The provision of more support for plan implementation through the use of an NDIA navigator may be more likely to achieve the government’s objectives, while being less punitive. Further, The focus on participants rather than service providers seems unfair and disappointing.

The Bill contains little with respect to the legislative reforms proposed by the NDIS Review especially in Appendix D such as opening the NDIS to older Australians, reforming disability housing, monitoring providers and the NDIS workforce and reducing with a view to eliminating restrictive practices and to this extent it is also lacking.

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