Submission re: NDIS Amendment (Getting the NDIS Back on Track No. 1) Bill 2024

Goals of this Submission

My goal in preparing this submission is to outline the impact of the NDIS Amendment ( Getting the NDIS Back on Track No. 1 ) Bill (2024) (the Proposed Bill) for Australians whose disability consists of multiple impairments.

A majority of Australian’s with disabilities have multiple disabilities.1

The Proposed Bill outlines a process for a support needs assessments. Comments from the NDIS review and Minister Shorten suggest that the goal of this assessment is to take a whole- of-person approach to participant support needs.

However, current Agency practice, which is empowered by the Proposed Bill risks not adequately considering the needs of Australian’s with multiple, complex and interrelated impairments, or impairments which change over time. This is because the Proposed Bill seeks to limit NDIS supports to only those supports that relate to specific, approved impairments. This brings the legislation in line with current Agency practice, which is to provide supports only for impairments ‘listed’ in their database.

The goal of the Proposed Bill is to make the NDIS more sustainable.

A more sustainable NDIS is one where decision-makers get it right the first time.

Getting it right the first time means having assessments that consider a person in their environment and context and provides timely supports to keep them out of crisis and facilitate their participation in the community. This can only be achieved if participants are viewed at a whole-of-person level.

Viewing people as divisible into approved and unapproved conditions results in inconsistent and flawed decision making. This reduces trust in the capacity of the Agency to make appropriate decisions. Inappropriate decision-making directly results in the employment of informal strategies such as spending significant proportions of plan funds on reports, intraplan reviews and basing support requests on ‘the worst possible day.’ These strategies arise in a context where participants, their families and those providing their care do not have trust in the Agency’s decision-making capacity. This could be avoided with holistic, person- centred planning that builds trust between the Agency and participants.

Rebuilding trust requires that the Agency build plans in a way that considers the totality of a person’s situation is an essential step to reducing reliance on informal strategies that may contribute to unsustainability in the scheme. Furthermore, facilitating timely options to review plans and add new impairments will create trust that participants will be able to access

Additional Support

additional support when they need it. This will reduce ‘use-it-or-lose’ it strategies employed by providers and participants and allow some people’s support needs to fluctuate across the life course.

In summary, I recommend:

• Removal of s34 (1) aa and consideration of an alternative formulation that would specify that NDIS supports are provided to people who meet access to the scheme for their disability-related needs.

• To build trust in Agency decision making, NDIA systems must reflect a whole-of- person approach, not an approach which relies on dividing people into recognised and unrecognised impairments.

• A support needs assessment must consider the whole person, not just specific recognised impairments. A support needs assessment that artificially disregards aspects of someone’s experience, for example that a participant with a psychosocial disability also uses a wheelchair, is not a support needs assessment with validity, or one that will facilitate trust in the agency.

• If listed impairments are to continue to be a key feature of the scheme, participants must be informed of their listed impairments and have a pathway to formal review of these impairments, as well as a pathway to add new impairments as they arise.

Proposed Changes

The Proposed Bill includes a definition of an NDIS support, which is a substantial change beyond the scope of this submission. However, in defining an NDIS support Section 31 (1) aa, states that a support will be an NDIS support if:

(aa) the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see section 24) or the early intervention requirements (see section 25).

This means that supports under the NDIS will be limited to supports for impairments which the National Disability Insurance Agency (the Agency) deems are impairments meeting access requirements.

This empowers the Agency’s current practice of determining which impairments meet access criteria through internal processes that are not communicated to participants or subject to review.

Current NDIA Practice

Villamanta Disability Rights Legal Service explains current NDIA practice in relation to planning decisions:

“The current practice of the Agency in relation to funding in a participant’s plan is to rely on the ‘impairment’ which the Agency assessed as meeting the access criteria for the Scheme. In practice, and in our experience, this approach has a significant impact on what the Agency says it can or cannot fund.”[2]

Procedural Fairness in Decisions About Listed Impairments

Listing an impairment in the NDIS database is not a reviewable decision.

The NDIS Act[3] does not contemplate the listing of impairments or disabilities and the access decision is a threshold decision, i.e., one becomes a participant in the scheme on the basis of meeting the access requirements, or not, and thereafter a separate decision about appropriate supports is made.[4]

Villamanta Disability Rights Legal Service notes significant issues with current Agency practice in relation to listing disabilities, stating:

“This approach is leaving participants who have multiple impairments (often physical and psychosocial impairments are intrinsically linked)”

AAT Decisions Relating to Multiple Impairments

There have been a number of AAT decisions that have affirmed the principle that a person’s disability for the purposes of reasonable and necessary supports, consists of all a person’s impairments, not just those for which the participant met access. These decisions separate the access decision, a threshold decision, from the planning process.

Despite a number of decisions not favouring the Agency position, the Operational Guidelines: Fair Supports for Your Disability Needs used by the Agency continue to state that:

        "When we make decisions about which supports we can fund, we
            consider whether a support is reasonable and necessary for you and
           apply the NDIS funding criteria. Sometimes, you might ask for
            supports to help with impairments that were not part of your Access
               eligibility assessment. When this happens, we need to make sure the
            support will help you address needs that arise from an impairment
              that meets the same eligibility criteria we consider at Access . You
            don’t need to make a new Access request if you ask for supports to
            help with an impairment that was not part of your Access eligibility
            assessment. We will work out if you need the support you have asked
             for to address an impairment that would meet our Access criteria. We
            may ask you to provide evidence to help us work this out. We will
           decide if the requested support is reasonable and necessary. We will
           apply the NDIS funding criteria based on the impairments that would
          meet our Access criteria. By funding the right disability supports for
           your permanent impairments that meet our Access criteria, we are
            ensuring the system is fair for everyone, and that the NDIS remains
             financially sustainable."7

The Review by the NDIS Joint Standing Committee into the Capacity and Culture of the NDIA stated that:

           "Legal precedents confirm that there is no legislative basis for
             distinguishing between 'primary disability' and 'secondary disability'.

5 Ibid. 6 For a review of these decisions see Villamanta ‘What does Disability Mean and who Decides,’ above. 7 NDIS Operational Guidelines ‘Fair Supports for your Disability Needs’ https://ourguidelines.ndis.gov.au/how- dis-supports-work-menu/what-principles-do-we-follow-create-your-plan/what-principles-do-we-use-create- your-plan/fair-supports-your-disability-needs Accessed 17 May 2024.

It would, therefore, appear to be an artificial distinction that the NDIA has introduced and imposed.“8

The proposed changes to the legislation appear targeted to address this discrepancy between the NDIS Act and the Operational Guidelines.

Issues with the Agency’s Current Approach Reconciling with Stated Aims of the NDIS Review The NDIS Review recommends a “consistent needs-based assessment process to set budgets at a whole-of-person level.“9

The review also specifically stated that this approach:

“focusing on the whole person, their circumstances and their support needs would also end the current unhelpful and inappropriate focus on establishing a primary or secondary disability.“10

When introducing the Proposed Bill into parliament, Minister Shorten stated:

“your needs assessment will look at your support needs as a whole - and we won’t distinguish between primary and secondary disabilities any longer.“11

This suggests that it is the intention both of the review and of the Minister to address and remove impediments to considering people’s disability related needs on a whole-person level, and to reorient away from the practice of listing approved and unapproved disabilities as the Agency presently does. This makes s 34 (1)(aa) appear out of place in the Proposed Bill and suggests that its goals are unaligned with the overall review goals.

8 Joint Standing Committee on the National Disability Insurance Agency, The Culture and Capacity of the NDIA Final Report https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/National_Disability_Insurance_Scheme/Cap abilityandCulture/Report/Chapter_2_-_Capability_and_Culture Accessed 17 May 2024. 9 NDIS Review Final Report, p. 88. 10 Ibid, p. 88. 11 NDIS Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 – Second Reading Speech, Minister Bill Shorten MP https://ministers.dss.gov.au/speeches/14261

Disability as a result of multiple impairments

Disability as a result of multiple impairments is commonplace and must be part of thinking about a sustainable and functional scheme.

The Australian Institute of Health and Welfare found that:

“over half of all Australians with disability had a combination of two or more intellectual, psychiatric, sensory/speech, acquired brain injury (ABI) and physical/diverse disabilities (about 10% of the Australian population or 2 million people).”[12]

This suggests that experiencing multiple impairments is not uncommon or an exceptional experience of disability.

The concept of functional capacity is inherently a whole-of-person measurement. The NDIS Occupational Therapy Community of Practice has already submitted to this enquiry that:

“reductions in function resulting in support needs are not always easily attributable to one specific impairment and this may create further barriers to identifying and meeting support needs.” The attempt to view people as a collection of eligible and ineligible impairments is dehumanising and it actively prevents person-centred approaches that consider an individual and their environment and seek to build supports to maintain and enhance their capacity for participation in their community.

To support people with multiple impairments to live dignified lives and build the capacities for more independence, decision making must contemplate their experiences at a whole-of-person level. The need for whole-of-person budget setting was a key finding of the NDIS Review and is particularly important in the case of people with multiple impairments.

Inadequate consideration or contemplation of multiple impairments will result in a scheme that cannot provide services in a way that meets needs and with further erode the trust of participants in the scheme leading to reliance on informal strategies to secure supports.

Recommendations:

1. Removal of s34 (1) aa and consideration of an alternative formulation that would specify that NDIS supports are provided to people who meet access to the scheme for their disability-related needs.

2. To build trust in Agency decision making, NDIA systems must reflect a whole-of-person approach, not an approach which relies on dividing people into recognised and unrecognised impairments.

a. Participants should not be grouped into ‘classes’ of participants on the basis of one recognised impairments, budgeting decisions must continue to contemplate disabilities consisting of multiple impairments.

b. NDIA systems should move away from listing impairments and focus instead on functional capacity.

3. A support needs assessment must consider the whole person, not just specific recognised impairments. A support needs assessment that artificially disregards aspects of someone’s experience, for example that a participant with a psychosocial disability also uses a wheelchair, is not a support needs assessment with validity, or one that will facilitate trust in the agency.

4. Assessments for access to the NDIS must contemplate multiple impairments. Any changes to definitions, for e.g. significantly reduced functional capacity should consider the totality of a person’s impairments, not specific impairments. Functional capacity is related to a person, not to an impairment.

5. If listed impairments are to continue to be a key feature of the scheme, participants must be informed of their listed impairments and have a pathway to formal review of these impairments, as well as a pathway to add new impairments as they arise.