NDIA Accountability Project

QDAC concerns regarding Bill impacts on NDIS participants and state involvement in decision-making

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Ms Apolline Kohen Committee Secretary Senate Standing Committees on Community Affairs PO Box 6100 Parliament House Canberra ACT 2600

Dear Ms Kohen

The Queensland Disability Advisory Council (QDAC) has reviewed the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Bill (the Bill) on its introduction to the House of Representatives on 27 March 2024.

QDAC is established under Queensland’s Disability Services Act 2006 and is a key avenue for independent advice to Queensland’s Minister for Seniors and Disability Services, and the Department of Child Safety, Seniors and Disability Services, on disability-related issues.

QDAC’s 14 members are appointed by the Queensland Government and include people with lived experience of disability and representatives from peak and advocacy organisations. QDAC consults with its networks to generate high-quality, evidence-informed advice that represents the broad views of Queenslanders living with disability on regional, state and national disability-related matters.

The Bill is extensive and complex. The changes that the Bill will make to how the National Disability Insurance Scheme operates are significant and will have life altering impacts for people with disability. It is disappointing that the Commonwealth Government did not consult with people with disability on the Bill.

QDAC would like to take the opportunity to identify critical issues that have been identified with the Bill.

QDAC thanks the Committee for its inquiry into the changes proposed by the Bill and would be happy to discuss any of the issues and ideas further with the Committee.

Kind regards,

Dr Sharon Boyce QDAC Chair

SUMMARY

The QDAC hopes this submission will support the inquiry into the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Bill (the Bill) by the Community Affairs Legislation Committee.

The Bill introduces significant reforms to the National Disability Insurance Scheme (NDIS), without sufficient consultation and accompanying materials (including subordinate legislation) to enable appropriate review or understanding of the Bill by the disability community. Based on the limited engagement by the Commonwealth Government, and within the timeframes provided, QDAC does not support the Bill proceeding in its current form.

The amendments propose to alter how and when people with disability can access the NDIS, is pre-emptive of the development of a co-designed Foundational Supports Strategy. The provisions relating to funded supports, plan management, funding and funding amounts do not on their face demonstrate an improvement to plan management and the ability of participants to navigate the Scheme and exercise choice and control.

The Bill inappropriately prioritises scheme sustainability from a financial perspective, rather than participant and Scheme outcomes and experiences. An NDIS that is not jointly designed and administered will never achieve its intended principles of sustainability providing high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community.

FOUNDATIONAL SUPPORTS HAVE NOT BEEN ESTABLISHED

The Bill introduces major policy changes to the NDIS that alter how current or future participants access supports. The NDIS Review recommended the Commonwealth, states and territories should develop a foundational supports strategy. QDAC supports a service system that provides inclusive mainstream services, foundational supports and the NDIS working to complement each other.

The Bill should not introduce access pathways for eligible and current participants as either ‘early intervention’ or ‘disability’ without a service system having been co-designed with people with disability and the sector and consulted on and approved by governments.

The NDIS is a Scheme that is jointly funded, and founded on upholding the rights, choice and control of people with disability. The intention of the Scheme is to uphold the human rights of people with disability and provide the means and supports to maximise their lives and live independent lifestyles within the community.

As members of the Queensland disability community, QDAC is concerned about the negative impacts of the Bill for current and future participants, including changes to what the NDIS means for them now and in the future. The Bill has substantial impacts on people and their lives, including the mental and physical health and wellbeing of people with disability. The introduction of the Bill in its current state gives the message that people who are currently receiving supports, may not require them, or that supports can be provided elsewhere, when these service systems have not been designed or implemented.

2. LACK OF PLANNING FOR EXISTING PARTICIPANTS

The development of the NDIS was complex and hard fought, and involved decades of advocacy, cooperation, good will and support by the disability community. Once established, the transition was long and challenging for participants receiving supports from state and territory disability services, and private providers. Families and carers were instrumental in supporting the transition and navigating a bureaucratic and new Scheme.

The changes proposed by the Bill, including the newly introduced participant pathways, reassessment processes, new funding frameworks and delegation of the development of the assessment tool to a legislative instrument, do not consider the lived experiences of current participants. The Bill as drafted provides no supports to transition new participants to the new pathways, understand and undertake assessments and reassessment processes, access funding and manage new plans. The Commonwealth has also undertaken no consultation with QDAC, or the Queensland disability community more broadly, on whether these changes are required and beneficial to current NDIS participants, or give effect to the intent of the NDIS Review.

QDAC holds significant concerns existing participants will be required to undergo an assessment to determine disability status and support need requirements, and that this assessment could occur at any point from when the Bill commences. The Bill also does not include an explicit right of review of a decision made under the newly proposed assessment tool. These concerns are exacerbated by the lack of detail in the Bill, or any supporting Rules or subordinate instruments outlining the criteria of the new assessment and funding requirements and how participants can seek a review of the outcomes of these processes.

It is critical that any reforms to the Scheme, through the Bill or other mechanisms resulting from the NDIS Review or Disability Royal Commission maintain the founding principle that eligible or current participants are supported to exercise choice and control, including their right to dignity of risk, to make decisions about their own lives. While the NDIS Review and Disability Royal Commission confirmed the significant evidence of violence, abuse, neglect and exploitation of people with disability, this does not mean narrow legalistic and paternal regulatory approaches regarding supports, and provider access should be introduced.

The disability community cannot provide support for such extensive changes without the supporting legal and operational details required to understand how the proposal will impact their ability to access the supports they currently are entitled to receive, in a manner that upholds their human rights protected by the United Nationals Convention on the Rights of Persons with Disability and the principles of the NDIS Act 2013.

EXISTING SERVICE DELIVERY ISSUES PERSIST

QDAC understands the complexity of the NDIS, and the need to reform processes and amend the legislative framework to support these changes, to ensure the NDIS can continue to provide supports for future generations. QDAC consider it critical that the NDIS remains focused on assessing success by measuring positive outcomes for participants, rather than a transactional business solely focused on managing budgets.

There are critical issues with the operation of the NDIS that should remain the focus of the Commonwealth and the NDIA. It is concerning that the Bill does not address these longstanding problems with the operation of the Scheme.

Outlined briefly below, and also found here in QDAC’s submission to the NDIS Review, are some key operational and policy issues that should be the priority for resolution, before the changes proposed by the Bill.

  • Access and planning: the current access processes for the NDIS are complex and a deterrent for participants, carers and health and disability professionals. The processes fall short of the aimed ‘no wrong door approach’. The amendments proposed by the Bill do not address the accessibility of the Scheme or support current or future participants to be informed and empowered users of the Scheme.
  • Of particular concern are the amendments proposed in the Bill which require a person to ‘divide up’ their impairments against the access criteria in order to access supports from the NDIS for the whole of their disability. This contradicts the findings of the NDIS Review which recommended focusing on the whole person, their circumstances and support needs, and not solely their diagnosis. Access criteria that is tied to extensive medical evidence for each diagnosis also disadvantages the large proportion of people who live with multiple diagnoses and complex comorbidities, and existing participants that transitioned to the Scheme from state-based systems with a sole diagnosis.
  • Further, there are significant powers given to the NDIA in the Bill, which if applied strictly and without a human rights framework, could be detrimental to current and future participants’ ability to exercise choice and control and access the NDIS. The power to revoke or suspend a plan if a participant doesn’t provide information requested by the NDIA is one example. QDAC is concerned these powers will impact those who are least able to navigate these complex systems, including people experiencing homelessness, fleeing domestic violence situations, or those who have limited access to health care.
  • Reform of Information, Linkages and Capacity Building and Local Area Coordination: the programs do not deliver on their intended purposes to bridge the gaps between the community, mainstream services and participants.
  • Reasonable and necessary supports: the lack of consistency and transparency regarding eligible supports and availability has created an inequitable and burdensome Scheme for participants. The proposed amendments to remove ‘reasonable and necessary’ and insert a new definition does not address the ambiguity created by the current approach. The lack of information as to how

4. BILL WAS NOT CO-DESIGNED

As outlined in this submission, the reforms in the NDS Bill will make changes that will impact fundamental aspects of how the NDS works. The Bill will change how people access the Scheme in the future, and what supports current participants are eligible for going forward. The Bill also changes how persons will be funded for supports, and how need will be assessed. Despite how broad these changes are, significant amount of detail is missing from the Bill.

QDAC considers that the consultation process for the Bill was disappointingly deficient. Further to the lack of consultation, was the complete disregard of the findings of the NDIS Review and Disability Royal Commission Final Reports that recommended significant policy changes are made by and with people with disability. The process of conducting reviews and inquiry processes, does not remove the requirement for consultation and co-design to implement policy changes.

5. STATES AND TERRITORIES NOT INVOLVED IN DECISION MAKING PROCESSES

The NDIS is a joint Scheme between the Commonwealth, state and territory governments. The Scheme is jointly funded and governed by all governments, to support the independence and social and economic participation of people with disability. The Bill introduces provisions that delegates significant decision-making about major policy and operational changes, to the Commonwealth Government. It appears that these provisions will either reduce and/or remove the requirement of the Commonwealth to seek state and territory agreement, reducing the influence states and territories have in certain areas of the Scheme. As the advisory council to Queensland’s Minister for Seniors and Disability Services, this is concerning.

The provisions that are delegated for the Commonwealth Minister for the NDIS to have unilateral decision-making power include the criteria for assessment for a new framework plan; the classes of participants that will require a new framework plan; the length of a new framework plan; the total funding amount of a plan and state support and transitional arrangements. These powers go to the central operation of the Scheme and relate to a current and future participant’s ability to access the Scheme and supports, obtain appropriate funding, how to expend that funding and be accountable for it. Unlike certain Rules and regulation making provisions, there is no mandatory requirement for the Commonwealth to consult with states and territories when making legislative instruments.

It is QDAC’s role to consult to generate high-quality, evidence-informed advice to Queensland’s Minister for Seniors and Disability Services that represents the broad views of Queensois living with disability on regional, state and national disability-related matters.

It is unacceptable that the Bill allows for such influence and control to be exerted by one party to a joint Scheme, this is of even more concern, as the Bill was prepared without consultation with people with disability, or state and territory governments.