17 May 2024
Purple Orange Chair Senate Standing Community Affairs Legislation Committee 104 Greenhill Road Unley SA 5061 C/o- Committee Secretary PO Box 6100 Parliament House Canberra ACT 2600
t: (08) 8373 8333 f: (08) 8373 8373 e: admin@purpleorange.org.au w: www.purpleorange.org.au
By email: community.affairs.sen@aph.gov.au
Dear Chair,
Re: Inquiry into National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024
Thank you for the opportunity to provide input into this important inquiry into the draft National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024.
Late last year, the NDIS Review delivered its Final Report with 26 recommendations and 139 supporting actions. The Federal Government is yet to formally respond to the Review, therefore it has come as a surprise that a new Bill has been tabled in Parliament at this time. Many in the disability community and sector are still digesting the Final Report and considering the implications of its recommendations. In this context, our view is that the Bill should be split into matters that are beneficial now, and those that can be delayed until an overall reform roadmap has been developed and genuine co-design processes with the disability community and other stakeholders to design fit-for-purpose reforms have occurred. We elaborate on this overarching recommendation, as well as some of the specific elements of the Bill, below.
Delay most of the Bill until genuine co-design processes have occurred
We strongly believe the tabling of this Bill is premature, and the Government has not articulated a clear case for its urgency. Large parts of the Bill, particularly those dealing with the creation of so-called ‘new framework plans’, will not be implemented for some time because the detailed design work is yet to begin. Not only does enshrining these provisions in law now constrain the scope for developing effective solutions to problems, but it is also likely a robust co-design process will result in a need to change aspects of what is proposed in the Bill before it can even take effect.
We strongly believe the Government’s repeatedly promised co-design approach should be the first step in developing sound reforms. The drafting of legislation and legislative instruments should then follow. The lack of detailed work undertaken in preparing this Bill is clearly reflected in how broad some of the proposed provisions are. In their current form, it is extremely difficult for stakeholders to assess what they will mean in practice.
legislated, they will generate significant uncertainty and fear, while adding to the
misinformation and disinformation about the impacts of reform on NDS participants that are already circulating.
We urge the Committee to probe the urgency of each element of this Bill and identify those parts that will be beneficial now, for example, more flexible plans, and those that are better drafted after genuine co-design processes and detailed design work has been completed. We continue to be concerned many of the processes that governments are currently referring to as co-design fall well short of best practice and do not include active involvement of people living with disability in decision making. The Committee may find our Guide to Co-Design with People Living with Disability, which was itself co-designed, helplful in considering the essential steps required in undertaking genuine co-design processes. It is available via our website.
Recommendation 1: The Committee should recommend the Bill is split into elements that are genuinely beneficial now, such as increased plan flexibility, and those that should be co-designed, including all aspects related to ‘new framework plans’, matters requiring more detailed planning work, or parts that are not intended to be implemented for some time. The former should proceed in this Bill now, while the latter should be deferred to future legislation.
Include important details in legislation, not instruments
The governance of the NDIS currently involves a labyrinth of documentation including the Act, Rules, practice standards, determinations, regulations, guidelines, directions, fameworks, and policies. The NDS Quality and Safeguards Commission offers providers a list of 23 documents to help them understand their obligations. Participants face a similar maze to try to understand how the Scheme works. It is unacceptable to us that a Scheme intended to support Australians living with disability has become so inaccessible and unnecessarily complex. Excessive complexity also enables fraud and other misconduct, makes it harder to detect, and ultimately undermines Scheme sustainability.
This Bill adds significant new powers and scope to create more legislative instruments regarding a range of important aspects of proposed reforms. Not only do we believe that it is inappropriate for so many of the important elements of the Schemes operation, including the critical question of access, to be relegated to instruments, but this approach also makes it very difficult to assess the merits or otherwise of much of what is included in the Bill due to the lack of detail. Many aspects of the Bill would allow for numerous different approaches to be implemented by current or future ministers. How these would impact on individual participants, or the Scheme as a whole, is unknown. This undermines certainty, the likelihood of achieving greater consistency, and the prospects for future Scheme sustainability. Likewise, it is impossible to take a considered approach to determining what elements should be in the legislation and what should be left to instruments before the comprehensive design work has been done.
We believe simplifying the governance and operation of the Scheme should be a central part of the NDIS reform agenda, but, instead, this Bill provides for the generation of further documentation. The aim should be to reduce the documentation to two clear
layers: one being the legislation and the other being the essential legislative instruments.
All core elements of the Scheme’s governance and operations should be clearly set out in the Act while subordinate administrative details can be placed in instruments. Internal- facing agency procedures, processes, and staff training and instructional information should be restricted to the day-to-day implementation of the legislation and instruments and not contain additional requirements or details pertinent to participants, providers, or other stakeholders.
Recommendation 2: The Committee should recommend there be two layers of documentation underpinning the National Disability Insurance Scheme (NDIS). Scheme principles, design elements, access and funding requirements, provider regulations, and similar core information should be set out in full in one piece of legislation, while necessary but genuinely subordinate administrative details should be contained in a single layer of accessible straight-forward legislative instruments. The Bill in its current form should be rejected on this basis.
Support in-principle for whole-of-person budgeting and ‘flexible funding’ approaches
We broadly support reform of the NDIS to adopt a ‘whole-of-person’ approach with the elimination of resource-intensive wrangling over each support line in a Plan. An approach whereby plans allocate an overall ‘reasonable and necessary’ budget covering most typical supports with some more expensive or complex supports being ‘stated supports’ sseems sensible, albeit there is little detail currently available about how this is proposed to work in practice. Reducing the complexity of the current approach to ‘stated supports’ would also be crucial for the success of this reform. We have heard from many NDIS participants who have described the burden of fulfilling requirements for quotes, especially in locations with limited choice of providers, as well as the widespread confusion about the roles of Local Area Coordinators (LACs), NDIA planners, support coordinators, and plan managers regarding who can receive and/or approve quotes.
We also broadly support the adoption of a ‘flexible funding’ approach for most NDIS supports within participant plans, which we understand will result in funding released in stages over the ‘maximum period’ of the Plan to be used at the participants discretion across a range of approved supports. This will give participants more control over how their funding is used and allow a necessary degree of adaptability for minor unforeseen needs that might arise from time to time (for example, an informal supporter being sick). We support the desire to provide for this greater funding flexibility as soon as possible and, therefore, support this element being retained in this Bill. However, we believe full details of the change should be clearly articulated within the Bill and not deferred to instruments.
Recommendation 3: The Committee should endorse a genuine co-design approach to further the development of a fit-for-purpose ‘reasonable and necessary’ budget approach for the NDIS and, therefore, recommend delaying legislating related provisions until this work is complete.
Recommendation 4: The Committee should recommend this Bill includes full details of the ‘flexible funding’ approach as it applies to ‘old framework plans’ and that this should be subject to at least six weeks of public consultation via a new
exposure draft of the Bill
The ‘flexible funding’ approach for ‘new framework plans’ should be excluded from this Bill and subject to genuine co-design processes before progressing to legislation in the future.
Problematic application of ‘class of participants’
We are concerned about provisions in the Bill that refer to ‘a class of participants’. Again, it is difficult to understand how this will be applied in practice given the lack of detail set out in the Bill. However, it seems likely to subvert a ‘whole-of-person’ approach because a person may be a member of more than one ‘class’ with conflicting requirements. Determinations, especially at the margins of specified ‘classes’, will be difficult and may result in imposing artificial or arbitrary boundaries for the purpose of making a distinction rather than best supporting each person to live a good ordinary life. Implementing an approach based on ‘classes of participants’ fails to account for intersectionality and the significant compounding barriers encountered by people with intersectional identities,such as First Nations people living with disability. This would contradict many parts ofthe NDIS Review Final Report that drew attention to intersectional barriers and needs(for example, pages 31-32).
Recommendation 5:
The Committee should recommend that genuine co-design processes closely examine the application of ‘classes of participants’ within the NDIS and, therefore, also recommend delaying legislating related provisions untilthis work is complete.
Simple ‘needs assessment’ consistent with Scheme values
The values and original promise of the Scheme should be at the forefront of all reforms.It is extremely important the Committee considers each aspect of the Bill against these to ensure consistency and values coherence. We are very concerned that it is proposed the ‘needs assessment’ occur “only in respect of impairments in respect of which the participant meets the disability requirements or the early intervention requirements” (new subsection 32L[3]).We strongly believe the ‘needs assessment’ should occur in relation to the support that is reasonably required to advance a person into, and/or sustain a person in,a good ordinary life involving active, valued, contributory roles in the social,economic, and cultural life of their community. It is this investment in the participant thatis most likely to deliver the best outcomes in line with Scheme values, reduce their needfor some NDIS supports over time, enable contributory economic roles, including asworkers in national productivity and the income tax system, and, ultimately, achieveScheme sustainability.
We are also extremely concerned the Explanatory Memorandum suggests the “needsassessment tool (or tools) will be highly technical” (page 23). This is likely to lead togreater inconsistencies in, and contestation of, assessment outcomes, as well as bemore costly and time consuming. The more elements of the assessment, the more likelydifferent results will emerge among assessors. We strongly believe a relatively simpleassessment approach(es) should be tested alongside any more technical models.This testing process should ascertain whether the results produced are markedly dissimilarand therefore justify the additional time and resources required to implement highly
Premature to articulate a new definition of an ‘NDIS support’
Defining a new definition of ‘NDIS supports’ cannot occur in isolation of developing and implementing a Foundational Supports Strategy. Importantly, the NDIS Review Final Report recommended the creation of a unified system where all parts work cohesively together to support people living with disability (for example, Action 1.1). It also made clear that all elements of the current arrangements should continue until alternatives are in place and working well (page 273). Therefore, it is premature to determine a new definition of ‘NDIS supports’ before the Foundation Supports Strategy framework is agreed, funded, and implemented.
For example, one of the core objectives of the NDIS has been to advance people living with disability into social and economic participation. Indeed, this lay at the core of the ‘Shut Out’ Report that contributed significant impetus to the establishment of the Scheme. Yet, neither appears in the new definition of an ‘NDIS support’ (new Section 10). We do not believe these objectives should be removed from the NDIS or that Foundational Supports will deliver an adequate substitute. Nor do we believe they should only be provided for in legislative instruments that are yet to be developed.
Further, utilising the ‘Applied Principles and Tables of Support’ (APTOS) is not a fit-for-purpose approach to determine what is an ‘NDIS support’ during the transition phase. This document was not designed for this purpose and there is nothing to suggest it could effectively fulfil this role even as an interim measure. In fact, the NDIS Review stated this document is based on a flawed assumption of clearly demarcated systems, “has failed”, and has “led to seemingly endless arguments about who does what and who pays for it” (pages 35-36 and 66). For a new Bill named with the stated objective of “Getting the NDIS Back on Track” to defer to this outdated 2015 document to underpin a crucial aspect of transition is highly problematic and we implore the Committee to recommend provisions referring to APTOS be rejected in full.
A note on language
We share the widely expressed concerns about the use of outdated language and phrasing that is inconsistent with the Social Model of Disability in this Bill. While the intention may be to fulfil constitutional requirements linking the Act to the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), we believe options to achieve the same legal effect without perpetuating outdated perspectives, such as “because of the person’s impairment”, should be fully explored. We have already recommended, above, that each of the relevant elements of the Bill be delayed to allow genuine co-design processes to occur, but wish to take this opportunity to reiterate that new and amended legislation should avoid using outdated language and phrasing.
Recommendation 9:
The Committee should recommend all NDIS legislation and legislative instruments are consistent with the Social Model of Disability and avoid using outdated language, such as “impairment”.
Over the course of the NDIS Review, JFA Purple Orange conducted an ‘NDIS Review Conversation Series’ in which we compiled papers about topics important to the reform of the Scheme and conducted fortnightly webinars. This work is highly relevant to the Committee’s considerations, and we urge members to access our final compilation report here.
Thank you again for the opportunity to provide feedback to this important consultation. We respectfully, but strongly, request an opportunity to discuss this Bill in further detail and answer Committee Members’ questions about our submission at a Committee hearing. To arrange this, could your office please contact Tracey Wallace, Strategy Leader, JFA Purple Orange, on or .
Yours sincerely
Tracey Wallace Strategy Leader JFA Purple Orange