NDIA Accountability Project

National Disability Insurance Scheme Amendment: ACDL Submission

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Australian Centre for Disability Law

ABN 15 992 360 253

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

17 MAY 2024

About the Australian Centre for Disability Law

The Australian Centre for Disability Law (ACDL) is a specialist State-wide Community Legal Center, based in Sydney, Australia. ACDL provides services to clients with disability across metropolitan and regional New South Wales, representing clients in human rights cases. Our clients come from socially, financially and legally disadvantaged backgrounds and are provided with legal assistance free of charge.

We provide specialist legal advice and advocacy services where our clients have experienced discrimination and in other areas of law relevant to disability, including providing advice on NDIS matters. We also provide community legal education to build awareness and prevent legal issues from arising.

Our clients contact ACDL in circumstances where they feel their rights have been breached by employers, schools, or service providers who do not fully comprehend their circumstances. The exclusion that they are facing is highly varied and can be compounded by factors such as their socio-economic background, gender identity, race, or sexuality.

Our vision is a society in which persons with disability live with dignity, and in which their human rights and fundamental freedoms are recognised, respected, protected, and fulfilled.

National Disability Insurance Scheme Amendment (Getting the NDIS back on track No.1) Bill 2024

Background

The NDIS Act 2013 (the Act) was originally entered into force in 2013 to support the independence and social and economic participation of people with disability and ensure that people with disability had a voice in plans that affected their lives. The Act aimed to provide reasonable and necessary support for participants, enable people with disability to exercise choice and control in pursuit of their goals, promote the provision of high quality and innovative support to people with disability and facilitate a national approach to funding support for people with disability.

Over the past decade, there have been a number of amendments to the NDIS Act, the most recent of which came into effect on 18 October 2023; however, the current proposed amendments under the National Disability Insurance Scheme Amendment (Getting the NDIS back on track No.1) Bill 2024 (the Bill) signify the most significant changes to the NDIS since the Acts implementation in 2013.

Notes:

As outlined by Minister Shorten in the Second Reading Speech for the Bill, the Bill aims to:

  • Provide a better experience for participants,
  • Restore the scheme to its original intent to support people with significant and permanent disability,
  • Be equitable, and
  • Be sustainable.

The Bill proposes two main areas of change, namely how participants access the scheme and how plans for participants are created.

While the Bill proposes a number of amendments to the Act, ACDL’s submission will focus on the following proposed amendments:

  • The Needs Assessment – Section 32L of the Bill
  • The Definition of NDIS Supports – Section 10 of the Bill
  • Information Gathering Powers – Sections 30, 30A and 36 of the Bill, and
  • Delegated Legislation.

The Needs Assessment

Historically, there have been three support categories that are funded by the NDIS, which include: Core Supports, Capacity Building Supports and Capital Supports. The Act uses a line-by-line approach for creating funding budgets for participants. The Bill proposes a new framework for categorising supports, removing the line-by-line approach and implementing a ‘needs assessment’ to determine a ‘reasonable and necessary’ budget for NDIS participants, with the aim of creating a holistic ‘whole of person’ approach to NDIS supports.

The previous NDIS plans required that each support be reviewed to determine whether the support is reasonable and necessary to pursue a participant’s NDIS goals. The new approach proposed under the Bill focuses on flexibility of funding, with the inclusion of a ‘needs assessment’ as a means to determine which supports are ‘reasonable and necessary’. The Bill proposes that the Minister be given the power, by legislative instrument, to determine the assessment tools to be used, the requirements for undertaking assessments, what information should be included and the requirements for reports. It is important to note that what will be included in the ‘needs assessment’ is yet to be determined.

The move away from assessing each support as ‘reasonable and necessary’ is intended to allow for greater flexibility for participants when using their funding to achieve their goals; however, at this time there is very limited information about the requirements of the ‘needs assessment’. Further, it is unclear who will be responsible for conducting the assessment, whether that will be an allied health professional, social worker with disability expertise or some other person, as well as the contents of the assessment and what it may entail. This lack of information gives rise to fears about the nature of the ‘needs assessment’, the broad powers of the Minister to create a ‘needs assessment’ and the potential for an inappropriate or excessively burdensome ‘needs assessment’ which may curtail

access to NDIS funds and supports

Providing a clear and defined scope for what will be included in the ‘needs assessment’, as well as implementing checks and balances to ensure the efficacy of the assessment tool is vital to ensure that the ‘needs assessment’ is just, equitable and meets the needs of participants.

The Bill also proposes under Section 32L(3), that an assessment will only consider impairments which meet the disability or early intervention requirements. This subsection greatly narrows the scope for what supports will be considered under a ‘needs assessment’ and may mean that only part of the person is being considered through this approach, contrary to the ‘whole of person’ approach that is intended through this assessment. As argued (and found to be persuasive by the Tribunal) in McLaughlin and National Disability Insurance Agency:

    "Medicine is not advanced enough, and people are too complex, to be able to
     conclusively attribute specific impairments to specific conditions or causes."9

The narrow approach proposed under the Bill will likely negatively impact those with multiple diagnoses and overlapping conditions, especially if not all their diagnoses satisfy the definition of impairment under the Act. ACDL has assisted a number of clients who have had one or more of their conditions fail to be accepted under the NDIS definition of impairment. At times, this rejection has occurred for reasons outside of the disability itself, including the excessive cost of specialist reports, protracted wait times to obtain diagnoses and meet with medical professionals and a myriad of other barriers. The proposed approach under the Bill will limit the support available for people with disability and contrary to the intentions of the Bill, fails to provide for a holistic approach to supporting people with disability.

A further concern in relation to the ‘needs assessment’ is that it does not seem that the outcome of a ‘needs assessment’ is a ‘reviewable decision’ under section 99 of the Act. Further, the Bill does not currently ensure a participant has the opportunity to view or review the ‘needs assessment’ report before it is given to the CEO. While the Bill provides for ‘replacement assessments’, it does not provide guidance as to when these replacement assessments would happen, or whether a participant will be able to request such a replacement assessment. As such, the Bill does not currently propose a means by which a participant can challenge an inappropriate ’needs assessment’. A lack of review avenues prevents participants from having their voices heard and ensuring that assessments reflect their diverse and individual needs.

Recommendations:

  - The 'needs assessment' to be created via co-design with the disability community and experts.
  - Participants to be provided with an opportunity to review and comment on their 'needs
     assessment' prior to it being provided to the CEO.
  - Section 99 of the Act to be amended to include 'needs assessment' as a reviewable decision.

NDIS Supports

The Act proposes a new definition of ‘NDIS Supports’. The new definition outlines eight specific categories by which support will be funded by the NDIS, including:

(i) is necessary to support the person to live and be included in the community, and to prevent isolation or segregation of the person from the community; or

(ii) will facilitate personal mobility of the person in the manner and at the time of the person’s choice; or

(iii) is a mobility aid or device, or assistive technology, live assistance or intermediaries that will facilitate personal mobility of the person; or

(iv) is a health service that the person needs because of the person’s impairment or because of the interaction of the person’s impairment with various barriers; or

(v) is a habilitation or rehabilitation service; or

(vi) is a service that will assist the person to access a support covered by subparagraph (iv) or (v); or

(vii) will minimise the prospects of the person acquiring a further impairment or prevent the person from acquiring a further impairment; or

(viii) is provided by way of sickness benefits.

The aim of creating these categories of support is to allow for more flexible use of NDIS funds. The NDIS will only fund supports that meet this new definition and participants would only be able to spend their funding on supports that fall within these eight categories of supports. The support must also comply with the updated NDIS Rules (which are yet to be drafted).

While the categories listed above seem broad in nature, the effect of these prescriptive and exhaustive categories proposed in the Bill may actually limit the support that a person may be entitled to through the NDIS. The Second Reading speech suggests that the categories reflect the rights entrenched in the Convention on the Rights of Persons with Disabilities 2008 (CRPD), however, some rights under the CRPD do not seem to be specifically covered by the proposed categories of support. One such right is the right to work and employment. While it may be argued that this right could fit under another category heading, such as community engagement, there is no specific category that speaks to the right to work, creating a reliance on the interpretation of the categories to allow for the inclusion of this right under the Bill.assistance, which would support people with disability to thrive in the workplace. Without economic support through the NDIS, it may be difficult for some people with disability to effectively continue working or enter the workforce, creating additional barriers for people with disability to achieve their employment goals. As such, it is vital that the definition of NDIS support explicitly includes a reference to the right to work and that the categories of funding are not exhaustive.

Further as will be explored below in the section titled: Delegated Legislation, the Rules will provide further guidance on these support categories, but at this time, the updated Rules have not been written. How the Rules are formulated could dramatically reduce what supports may be funded under these categories and could restrict access to supports to the detriment of NDIS participants.

11 National Disability Insurance Scheme Amendment (Getting the NDIS back on track No.1) Bill 2024 (Cth), Section 10. 12 Commonwealth, Parliamentary Debates, House of Representatives, 27 March 2024 (Minister Bill Shorten). 13 Convention on the Rights of Persons with Disabilities 2008 opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008).

Recommendation

Inclusion of Additional Support Categories

  • Inclusion of additional NDIS Support categories to ensure all rights under the CRPD are explicitly included in the Bill.

Co-design with People with Disability

  • The proposed Rules be created via co-design with people with disability and experts and published as part of finalising the Bill.

Information Gathering Powers

The Bill proposes that additional powers be given to the NDIA to gather information, including to request information or documents from a participant or requesting that a participant undergo a health/medical assessment in situations when the CEO is considering revoking a participant’s status as an NDIS participant. Under subsection 30(5), if information is requested and the information is not received within 90 days, the CEO may revoke the participant’s status as a participant of the NDIS. There are circumstances where the CEO would not revoke the participant’s status, namely if the CEO is satisfied that it is reasonable for the participant to not have complied with the request within the prescribed time period. Section 30A provides for similar provisions when the CEO can request assessments or documents when considering the status of certain participants.

Under section 36(3), there are similar information gathering powers held by the NDIA to request ‘any information that is reasonably necessary’ or request that a participant take a medical assessment when preparing a new framework plan. If the participant does not comply with these requests within 28 days of the request (without a good reason), both their existing NDIS plan and the new NDIS plan will be suspended until they comply with the request.

It is noted that if the CEO is satisfied that it is reasonable for the participant to not have complied with the request within the 28 day period, the CEO can instead make a further request for information or for the participant to undergo an assessment. While there is this exception to the proposed time frames, it is unclear what would be considered ‘reasonable’ or a good reason for delay under these provisions and the onus is placed on the participant to prove why they have a good reason for delay.

ACDL’s experience in the field has seen many examples of the difficulties that clients experience attempting to obtain further medical documentation required by the NDIS and other bodies. Our clients have at times failed to obtain the requested documents due to excessive wait times for appointments with specialists, high fees associated with appointments and lack of guidance as to what should be included in these further medical reports. The proposed powers under the Bill are broad in nature and could lead to the replication of current reports or information despite documents already provided to the NDIA in relation to a participant’s disability. The work of ACDL in the discrimination sphere has provided evidence of multiple situations where other parties such as employers service providers or healthcare professionals request additional medical information from clients where the client has already provided sufficient information about their disability and needs. These information/medical requests at times are excessively burdensome on clients and do not necessarily provide new medical information to the other party. The broad powers of the NDIA to request additional information could lead to similar outcomes in the NDIS sphere that result in additional burdens on clients especially if participants are made to pay for reports themselves given the often expensive costs of obtaining these reports.

Recommendations

  • There must be clear guidelines as to what reports or assessments can be requested under these powers.
  • The NDIS should be required to pay for any additional medical reports or assessments required to be undertaken by participants through these powers.
  • The time period for providing information should be extended to ensure reasonable time to respond to requests under these powers.

Delegated legislation

The Bill introduces new NDIS Rules which are intended to provide guidance on a range of matters under the Bill, including but not limited to access to the NDIS, supports funded by the NDIS and how funds can be spent. Most of the new rules would require agreement between the Commonwealth and all States and Territories before implementation, however, there are some rules that only require that a majority of States and Territories to agree (Category C) or where the Commonwealth only needs to consult with States and Territories and no formal agreement or majority is required (Category D).18 Alongside the Rules, there will also be legislative instruments (‘determinations’) that will determine other applications of the Bill, including for example how needs assessments are to be conducted.

As the Rules are yet to be written, the Minister has significant power, with at times limited parliamentary oversight, to shape how the NDIS will be run through these Rules. These Rules could dramatically reduce what the NDIS may fund and could restrict a participant’s choice and control over what support they are able to obtain through the NDIS.

A draft of the Rules is essential to better understand the scope and powers of the Bill and to understand the practical implications of the Rules on NDIS participants. For the Rules to be effective and appropriate, they must be created in consultation with the disability community and experts. As such, there must be consultation requirements as part of the creation of these Rules. The Disability Standards for Education 2005 (the Standards) provide an effective example of this requirement and can provide guidance on this matter. Under the Standards, there is a requirement that schools consult with people with disability on the adjustments required to ensure that the person thrives in schooling.19 ACDL has seen the effectiveness of consultation as a requirement when supporting people with disability and this same approach should be implemented as part of the Rules to ensure that the voices of people with disability are heard and shape the design process and to ensure the effective creation of the Rules.

Recommendation

  • The Minister be required to consult with and obtain input from people with disability on the Rules.
  • The Rules to be drafted prior to the Bill being passed through Parliament.

We thank you for this opportunity to provide submissions on the proposed Bill.

Mark Patrick

Managing Principal Solicitor

Australian Centre for Disability Law

PO Box 989 Strawberry Hills NSW 2012 Tel: (02) 7229 0061 Fax: (02) 8088 6069 NRS: 133 677 adviceline@disabilitylaw.org.au www.disabilitylaw.org.au Page 7