NDIA Accountability Project

Defending Against NDIS Cuts

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Rights on Fire: Defining Against NDIS Cuts

A submission to the Senate Committee - Bolshy Divas, June 2024

Contents

  1. Introduction

  2. Executive Summary

  3. Findings and Potential UNCRPD Breaches

  • Finding 1: Definition of “NDIS Supports”
  • Finding 2: Incorporation of APTOS Principles
  • Finding 3: NDIA Powers under Section 32H
  • Finding 4: Changes to Planning and Assessments
  • Finding 5: NDIA Powers to Revoke Access
  • Finding 6: Debt Recovery and Plan Management
  • Finding 7: Key Details Left to NDIS Rules
  • Finding 8: Lack of Oversight Measures
  • Finding 9: Risk of Segregated Settings
  • Finding 10: Exposure Draft Amendments
  • Finding 11: Limited Appeal Rights

Introduction

The proposed amendment bill for the National Disability Insurance Scheme (NDIS) present changes that pose significant threats to the rights and well-being of people with disability. Rather than improving the scheme, these amendments are primarily driven by cost-cutting motives that risk undermining the foundations of support, choice and control that the NDIS is supposed to provide.

This document outlines the critical findings and breaches of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) inherent in these proposed changes. These proposed changes threaten to set the disability rights movement back twenty years, limiting the lives of disability and in many cases presenting serious dangers to lives.

Australia supported a vision for the future of people with disability – a national scheme that would be supported in a bipartisan way, a scheme that would not rely on a postcode lottery or be run by States and Territories, a scheme that would make sure that all Australians have access to reasonable and necessary care and support in the same way Australians have access to Medicare.

Australians expect better from our governments, our disability representative bodies and disabled persons organisations.

These changes aren’t able to be fixed with further amendments or by changing words in the Bill. The Bill must not be passed. Instead of destroying our rights and lives, destroy the idea that we cannot live free and equal, in the same way as other Australians.

Executive Summary

The amendments to the NDIS threaten to narrow the scope of supports, destabilise access, and impose undue burdens on participants.

After careful review of both the Bill, explanatory memorandums and a series of amendments, irreconcilable issues still remain with the proposed Bill. Here is a summary of the issues, which include:

  • The proposed definition of ‘NDIS supports’ risks excluding essential services, undermining the ability of people with disability to live independently.
  • Incorporating the 2015 APTOS policy principles without proper co-design and returning responsibility to States and Territories will lead to confusion and inconsistency.
  • Broad powers given to the NDIA to impose requirements on participants lack clear restraints, infringing on autonomy and control.
  • The changes to planning and assessments do not ensure a whole-of-person approach, risking underfunding and inadequate support.
  • Expanded powers to revoke access and require information without robust safeguards put vulnerable participants at risk of losing critical supports.
  • The punitive approach to debt recovery and plan management exposes participants to financial hardship for inadvertent misuse of funds.
  • Key details left to future NDIS rules limit scrutiny and fail to guarantee co-design.
  • The lack of strong oversight measures undermines transparency and accountability.
  • The amendments may incentivise segregated settings, contrary to UNCRPD requirements.
  • Finally, the limitations on participants’ appeal rights restrict access to justice and legal recourse, breaching multiple UNCRPD articles.

Findings

The findings below have been compiled after careful analysis of the Amendment Bill, the explanatory amendments and exposure draft, the NDIS Review and Analysis and the subsequent proposed amendments.

We have reviewed the United Nations Conventions on the Rights of Persons with Disabilities (UNCRPD) and have noted breaches and potential breaches in the Amendment Bill against the UNCRPD.

Finding 1:

The proposed definition of “NDIS supports” in Section 10 is problematic. It risks narrowing the range of supports funded, is unstable and open to volatile interpretations that could exclude necessary supports. This definition should not shape NDIS access decisions under sections 24-25.

Potential UNCRPD Breach:

Article 19 of the UNCRPD recognises the equal right of all persons with a disability to live independently and be included in the community. It requires States Parties to take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community.

The proposed Section 10 definition of “NDIS supports”, by potentially narrowing and destabilising the scope of funded supports, could undermine the ability of people with disability to access the supports they need to live independently and be included in the community. If this restrictive definition is then used to shape NDIS access decisions under Sections 24-25, it may prevent some people with disability from accessing the scheme and the supports it provides, breaching their Article 19 rights.

A submission to the inquiry emphasises that “NDIS supports should enable the equal participation and inclusion of people with disability in the community, as required by Article 19.” The UN Committee on the Rights of Persons with Disabilities in its General Comment No. 5 (2017) also stresses that access to individualised assessed supports is essential for living independently in the community.

Finding 2: Section 124, which incorporates the 2015 APTOS policy principles, is poorly drafted and will lead to disputes about what is “in or out” of NDIS. It does not reflect proper statutory design and rule of law values like clarity and consistency. The interface between NDIS and mainstream supports needs to be carefully defined through co-design, not by pressing APTOS into a role it was never designed for.

Potential UNCRPD Breach: Article 4(3) of the UNCRPD requires States Parties to closely consult with and actively involve persons with disabilities, including children with disabilities, through their representative organisations in the development and implementation of legislation and policies and in other decision-making processes concerning issues relating to persons with disabilities.

By incorporating the APTOS principles into legislation in Section 124 without proper co-design with people with disability and their representative organisations, the government may be breaching its obligations under Article 4(3). The confusing and potentially restrictive application of APTOS in this way, without the active involvement of the disability community, fails to uphold the participatory and consultative spirit of the UNCRPD.

A submission to the inquiry notes: “We need to carefully design early intervention outside and inside the scheme – sit down with the mental

  • health sector and design early intervention programmes… We need to
  • go right upstream to get the best outcome… in the words of Professor
  • McGorry, ‘the missing middle’.“ This underscores the importance of co-
  • design in delineating responsibilities between the NDIS and other
  • service systems.

Finding 3: The Bill gives the NDIA broad, unchecked powers to impose requirements on participants in relation to supports under Section 32H. This needs clear restraints to avoid undue burdens on participants and uphold choice and control.

Potential UNCRPD Breach: Article 3 of the UNCRPD sets out general principles that include individual autonomy including the freedom to make one’s own choices, and independence of persons. Article 12 reaffirms the right of persons with disabilities to equal recognition before the law and to enjoy legal capacity on an equal basis with others, including access to the support they may require in exercising their legal capacity.

The broad powers given to the NDIA under proposed Section 32H to impose requirements on participants in relation to their supports, without clear checks and balances, risks infringing on participants’ autonomy and independence in decision-making about their supports. It may limit participants’ ability to make free choices and exercise control if NDIA has unchecked powers to dictate how and by whom supports are provided.

The NDIS Independent Advisory Council, in a 2021 statement, im emphasised that “The NDIS is about maximising participant choice and control over supports and services” in line with the UNCRPD. A submission to the inquiry also notes “The amendment to s32H, that

Finding 4: The changes to planning and assessments in Sections 32K- 32L do not ensure a whole-of-person approach:

 · Basing funding only on impairments related to NDIS access risks

underfunding support needs arising from co-occurring conditions.

 · Using the term "impairments" rather than functional capacity risks

funding not reflecting a person’s actual support needs in their daily life.

 · The legal status of assessment reports is unclear - participants need

rights to obtain and challenge these if dissatisfied.

Potential UNCRPD Breach: Article 26 of the UNCRPD requires States Parties to take effective and appropriate measures to enable persons with disabilities to attain and maintain maximum independence, full physical, mental, social and vocational ability, and full inclusion and participation in all aspects of life, through comprehensive habilitation and rehabilitation services and programmes.

The proposed changes to planning and assessments in Sections 32K- 32L, by failing to ensure a whole-of-person approach, may not adequately provide for the comprehensive supports required under Article 26. Basing funding only on impairments directly related to a person’s NDIS access (Section 32L(3)), rather than holistically considering a person’s co-occurring conditions and functional support needs in their daily life, risks compromising the maximisation of independence and full inclusion.

The NDIS Review, which the Bill aims to implement, in fact recommends that “budget setting for participants needs to take a whole-of-person

view, rather than focus on specific functional impairments… reflecting a ‘whole of person approach’ based on individual need and the degree and nature of supports required for the participant to meet their goals.“

A submission cautions regarding Section 32L(3): “It risks an abstract evaluation of impairments isolated from the life context of the person… If a participant is blind, has a physical disability and has a cognitive impairment, who is to say how the NDIA will record this? If the person’s primary disability is listed as vision impairment, how will they be identified as having a cognitive disability that is connected to the capacity building support…”

The unclear legal status of assessment reports and lack of clear rights to access and challenge them also potentially breaches Article 12 and the right to equal recognition before the law, as well as Article 13 on access to justice.

Finding 5: The expanded NDIA powers to revoke access and require information under Sections 30-30A create risks for vulnerable participants who may be unable to understand or respond to requests in time, leading to sudden loss of critical supports. Robust safeguards and active case management are needed.

Potential UNCRPD Breach: Article 28 of the UNCRPD recognises the right of persons with disabilities to an adequate standard of living and to social protection without discrimination on the basis of disability. This includes ensuring access by persons with disabilities to social protection programmes and poverty reduction programmes.

The expanded powers for the NDIA to revoke a participant’s access under Sections 30-30A, particularly if they fail to respond to information requests within 90 days, may lead to vulnerable participants losing

access to crucial NDS supports. This risks compromising their standard of living and access to social protection under Article 28, especially if they are unable to understand or respond to the request due to their disability.

There is also a potential breach of Article 4(3) if these expanded revocation powers were designed without close consultation and active involvement of people with disability and their representative organisations, to build in appropriate safeguards and protections.

According to a submission to the inquiry, under the proposed Sections 30-30A: “There is a very real risk that participants will be asked for information the NDIA already has or will provide information that does not find its way to the person making the decision… All of which is not apparent to the participant, whose only option is to call the contact centre (if they can) and try to discuss the situation. As noted above, this is a fairly hit and miss endeavour, and unlikely to actually resolve the matter.”

Finding 6: Debt recovery and plan management provisions expose participants to punitive compliance action for inadvertent misuse of funds under the complex new support definitions. A trust-based, guidance- focused approach is needed as per the NDIS Review recommendations.

Potential UNCRPD Breach: Article 28 of the UNCRPD on adequate standard of living and social protection requires States Parties to take appropriate steps to safeguard and promote the realisation of the rights of persons with disabilities to social protection.

The punitive approach to debt recovery and compliance action for inadvertent misuse of funds under the proposed changes may undermine participants’ right to NDS supports as a form of social

protection under Article 28. The complex new definitions of “NDIS

supports“ in Section 10 combined with the strict compliance approach, rather than a trust-based supportive approach, exposes participants to risk of financial hardship and loss of supports for unintentional mistakes.

This is inconsistent with the NDIS Review recommendations (referenced in the Bill’s Explanatory Memorandum) for “a trust-based approach to oversight of how participants spend their budget, with a focus on providing guidance and support, rather than punishment for genuine mistakes.”

A submission to the inquiry emphasises: “Entirely replacing the current NDIS Supports regime, while also introducing harsh consequences for participants if they, or their paid NDIS supports, get it wrong, is going to create unsafe situations for participants… There must be a requirement in the Bill for the NDIA to proactively support the participant to build their capacity to understand the identified misuse and how that can be avoided in the future.”

Finding 7: Key details are left to NDIS Rules not yet drafted - e.g. the “funding assessment method”, despite this being critical to participant outcomes. This limits scrutiny. Co-design of the Rules with people with disability is essential but not guaranteed in the Bill.

Potential UNCRPD Breach: Article 4(3) of the UNCRPD requires close consultation with and active involvement of people with disability, including children with disabilities, through their representative organisations in decision-making processes concerning issues relating to persons with disabilities. This extends to the development of legislation and policies to implement the Convention.

Leaving key details that have significant impacts on the rights of people with disability to the NDIS Rules, with no guaranteed mechanism for co- design and consultation, limits the ability for robust scrutiny and input by the disability community. This is not aligned with Article 4(3) obligations.

A submission to the inquiry points out: “Core details like the ‘funding assessment method’ and supporting Rules need to be transparently developed and evaluated before legislation that enables major changes to participants’ supports is passed. Stronger safeguards, a commitment to individualisation, and rigorous oversight are essential to upholding the UNCRPD.”

The Bill’s Explanatory Memorandum states that the Rules “will be developed in consultation with people with disability, the disability community, health and allied health technical professionals, and with all States and Territories.” However, there is no provision in the Bill’s text itself mandating this co-design process for the Rules.

Finding 8: There is a lack of strong oversight measures in the Bill to ensure transparency and accountability in NDIA decision-making, especially funding decisions. The “method” needs evaluation to identify any inequitable impacts.

Potential UNCRPD Breach: Article 33 of the UNCRPD requires States Parties to designate one or more independent mechanisms to promote, protect and monitor implementation of the UNCRPD. It also requires civil society, in particular persons with disabilities and their representative organisations, to be involved and participate fully in the monitoring process.

The lack of strong, independent oversight and monitoring measures for NDIA decisions in the Bill, particularly around funding, fails to fully

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implement Article 33. Without appropriate mechanisms to scrutinise decisions for transparency, accountability and any discriminatory or inequitable impacts, the rights of people with disability cannot be adequately monitored and protected.

A submission to the inquiry recommends: “The Bill does not reflect a full commitment to implement all required effective measures under Article 19. The subsection does not recognise the broad right in the opening paragraph, or the right to support choices expressed in (a), it evades the obligation to support de facto equality in (c). The language incorporated is literally just one example, one instance of implementing what is a broad Convention obligation.”

The NDIS Independent Advisory Council has also previously stressed “the importance of the NDIS being transparent and accountable to people with disability in delivering on the objects of the NDIS Act.”

Finding 9: The Bill’s changes risk incentivising more segregated/congregate settings for people with disability to manage costs, rather than promoting choice, control and inclusion as required by the UNCRPD. Stronger safeguards are needed.

Potential UNCRPD Breach: Article 19 of the UNCRPD, as mentioned, recognises the equal right of all persons with disabilities to live independently and be included in the community. It requires States Parties to take effective and appropriate measures to facilitate full enjoyment by persons with disability of this right and their full inclusion and participation in the community.

Changes in the Bill that potentially incentivise more segregated or congregate settings for NDIS participants as a cost-saving measure would directly undermine Australia’s obligations under Article 19.

Facilitating or encouraging segregation rather than full inclusion and participation in the community is a clear breach of Article 19 rights.

A submission to the inquiry notes: “The changes risk funnelling participants towards specific ‘disability housing’ options rather than promoting greater choice and inclusion in the community… The Bill places perceived bureaucratic convenience over engaging with, and making decisions about, people’s actual needs.”

A position paper by a disability representative organisation also asserts: “Continuing to support segregated and congregate settings is inconsistent with Australia’s obligations under Article 19… Segregation of people with disability in congregate and institutional settings is discrimination and a breach of human rights.”

The UN Committee on the Rights of Persons with Disabilities in its General Comment No. 5 (2017) on Article 19 clarified that living independently and being included in the community is a right that “entails an obligation on the part of States parties to ensure that people with disability have access to a whole range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community…” It also reiterated “the need to shift from institutionalisation to independent living.”

Stronger safeguards are therefore essential in the Bill to ensure the NDIS does not revert to segregation as a default approach, but continues to enable real choice, control, independence and community inclusion for people with disability in line with Article 19.

Finding 10: The amendments to Section 10 in the Exposure Draft do not fundamentally address the concerns raised about the narrowing of

supports, access decisions, planning, debt recovery, and transitional provisions. The shift away from “reasonable and necessary supports” to “reasonable and necessary budgets” and the potential for differential treatment of participant groups based on impairment type or other characteristics remain.

Potential UNCRPD Breach: Several Articles of the UNCRPD are potentially impacted by the issues that remain unresolved in the Exposure Draft amendments, including (but not limited to):

  • Article 5 on equality and non-discrimination
  • Article 12 on equal recognition before the law
  • Article 19 on living independently and being included in the community
  • Article 26 on habilitation and rehabilitation
  • Article 28 on adequate standard of living and social protection

A submission summarises: “In short, the exposure draft fails to make essential changes to resolve fears that the Bill fails to match the spirit, aspiration or contents of the UNCRPD. An approach based on simply refining our old ways of defining and delivering disability support is insufficient to meet this historic moment…”

Despite the amendments, the shift from “reasonable and necessary supports” (which reflects an individualised approach based on each person’s unique needs and goals) to a “reasonable and necessary budget” approach still raises questions about how well the scheme will deliver on its promise of choice and control and support the realisation of UNCRPD rights.

As noted by the NDIS Independent Advisory Council: “Getting the balance right between an individual’s right to exercise full choice and

“control and the financial sustainability of the NDIS is critical.” However, “the rights of people with disability should be the primary focus in any reforms.”

Conclusion

The proposed NDIS Amendment Bill represents a grave threat to the rights, autonomy and inclusion of people with disability in Australia. Rather than enhancing the scheme’s ability to deliver on its promise of choice, control and independence, the Bill risks undermining the very foundations of the NDIS and setting back the disability rights movement by decades.

Worse still – people with disability will die. It is against the expectations of most taxpayers and voters that we fail to protect the most vulnerable in our society. We are sure that in the conceiving of this arrangement, somebody said ‘tough choices’ – this choice, to destroy a bipartisan, national scheme and leave people with disability behind, is a choice no real Australian would accept.

The findings outlined in this submission, backed by careful analysis of the Bill and the UNCRPD, paint a disturbing picture. From the narrowing of supports and destabilising of access, to the lack of co-design and the erosion of appeal rights, the Bill fails to uphold the human rights principles at the heart of the NDIS. It trades away the individualised, whole-of-person approach in favour of rigid, cost-cutting measures that will leave countless people with disability without the essential supports we need to live full, equal lives in the community.

This is not the NDIS that Australians fought for. It is not the scheme that was promised to revolutionise disability support in this country, to end the postcode lottery and ensure no one is left behind. The flaws in this Bill cannot be fixed with mere amendments or tweaks - they are fundamental and pervasive, betraying a disregard for the voices, exterprise and lived experience of people with disability.

We therefore urgently call on the Parliament to reject this Bill in its entirety. To pass it would be to abandon the principles of the UNCRPD, to turn back the clock on disability rights, and to fail the very people the NDIS was created to serve. Instead, we must reaffirm our commitment to an NDIS that truly empowers people with disability, that provides the comprehensive, flexible supports needed for full inclusion and participation, and that enshrines choice, control and human rights as non-negotiable.

The disability community has spoken loud and clear - this Bill is a betrayal of the NDIS and all it stands for. It is now up to our elected representatives to listen, to stand with us, and to defend the scheme and the rights it represents. To do anything less would be to abandon Australians with disability and the vision of a truly inclusive society.

The choice is stark but clear. We call on our Parliament to choose people with disability, to choose rights, to choose the NDIS we were promised.

Reject this Bill, and let us work together to build an NDIS worthy of the hopes and dreams of the disability community, and the principles of equality, dignity and inclusion at the heart of the UNCRPD and our shared vision for Australia.

References

  • DPOA (Disabled Persons Organisations Australia) in their “Ending Segregation of People with Disability” position paper

  • A submission by Dr Darren O’Donovan to the inquiry on the Bill

  • A submission by Villamarta Disability Rights Legal Service to the inquiry