National Disability Insurance Scheme Amendment (Getting
the NDIS Back on Track No. 1) Bill 2024
Submission by the Queensland Independent Disability Advocacy Network (QIDAN)
to the Community Affairs Legislation Committee for inquiry and report by 20 June 2024
17 May 2024
redacted
About the Queensland Independent Disability Advocacy Network
The Queensland Independent Disability Advocacy Network (QIDAN) is a group of organisations that provide independent advocacy services to Queenslanders living with disability. The member organisations include Aboriginal and Torres Strait Islander Disability Network Queensland; Aged and Disability Advocacy; Amparo Advocacy Inc; Capricorn Citizen Advocacy; Mackay Advocacy Inc; People with Disability Australia; Queensland Advocacy for Inclusion; Rights in Action; Speaking Up For You; and TASC.
QIDAN has three aims:
- Systemic advocacy: coordinated action to address systemic issues experienced by people with disability,
- Member support: a collaborative space for the exchange of information, resources and issues affecting disability advocacy organisations, and
- Sector advocacy: to promote the importance and value of independent disability advocacy on a local, state, and national basis.
The members of QIDAN offer various independent disability advocacy services across Queensland, including general disability advocacy, specialized individual advocacy (including National Disability Insurance Scheme appeals), citizen advocacy and systemic advocacy.
In the 2022-2023 financial year, Queensland State-funded individual disability advocacy services addressed 2458 advocacy issues. Of this number:
- 53.7% were provided to people with existing NDIS access
- 38% addressed NDIS related issues
- Over 10,000 hours were spent delivering advocacy for NDIS related issues
- 26.9% were provided to people who identified as having a psychosocial disability
- 18.5% were provided to people who identified as having a physical disability
- 15.8% were provided to people who identified as having an intellectual disability
- 13.1% were provided to people who identified as having autism spectrum disorder
This submission is grounded in the collective experiences of independent advocates in Queensland, aiming to specifically address the practical impacts that the proposed Bill will have on people with disability, including but not limited to NDIS participants.
QIDAN’s recommendations
Recommendations:
-
Suspend the parliamentary process of the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 until the Federal and State Governments provide a response to the NDIS Review Report and the DRC Report.
-
Ensure that changes in “plan framework”, including the introductions of complex concepts such as “NDIS Supports” and “needs assessment”, occur only when the recommended foundational supports are in place to offer supports outside the NDIS (as per Recommendation 1 of the NDIS Review Report).
-
Observe recommendation 3.8 of the NDIS Review Report which proposes that reforms to participants pathways should be designed through agile projects commissioned by the NDIS Experience Design Office.
-
As proposed in the NDIS Review Report, prioritize short-term recommendations over complex recommendations, to make immediate improvements in the NDIS participants’ experience.
-
Ensure that the following DRC recommendations are observed and, where applicable, are introduced in the NDIS Bill:
- Recommendation 7.29 Embed an ‘open employment first’ approach in the NDIS Participant Employment Strategy
- Recommendation 8.17 NDIS Applied Principles and Tables of Support concerning the justice system
- Recommendation 9.6 National Disability Insurance Agency Board
- Recommendation 9.7 Participation in cultural life
- Recommendation 11.13 Integration of community visitor schemes with the NDIS
-
Ensure that choice and control is reinforced throughout the NDIS Bill, in alignment with the objects and principles of the Act.
-
Ensure transparency, true co-design and close consultation with people with disability when developing NDIS Rules.
-
Ensure the proposed NDIS Bill is truly focused on the whole person and remove proposed sections 34(aa) and 32L(3) of the NDIS Bill.
Introduction
QIDAN submits this response to the Community Affairs Legislation Committee, contributing insights to the inquiry in relation to the proposed changes within the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 (‘the NDIS Bill’).
The NDIS Bill has been introduced at a time when people with disability and the disability community are faced with extensive reforms proposed the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (the ‘DRC Report’) and by the Independent National Disability Insurance Scheme Review (the ‘NDIS Review Report’). To fully realise the experiences and wisdom within these two reports, it is vital for a whole government approach and a roadmap to inform the way forward. In fact, the Bill is the first of an expected series of legislative amendments the Australian Government will make in response to the NDIS Review Report.
The introduction of the NDIS Bill has caused some agitation in the disability community, particularly because:
- It suggests that participants will have access to less supports through the NDIS, without first establishing foundational supports to meet the needs of people with disability.
- The NDIS Review Recommendations and Actions have not been prioritised as proposed.
- There is no evidence that the DRC Report recommendations have been considered in this legislative reform.
- The powers within legislation contradict the guiding principle of choice and control.
- There was no consultation with people with disability in preparation for this Bill. The process has not been transparent.
- The proposed needs assessments and tools may take away people’s review rights.
- The NDIS Bill conflicts with the “whole person” approach recommended by the NDIS Review.
Page 6
It is our view that the overall essence of the NDIS Bill does not align with the NDIS Review
Report. QIDAN has significant concerns in relation to some of the proposed amendments, that
if not properly reviewed, may derail the process of building and maintaining trust in the
National Disability Insurance Scheme (NDIS). More than that, it violates the objectives and
principles of the NDIS, disregards the exhaustive and traumatizing story-telling of people with
disability and, it is not transparent.
People with disability have told us that they want to see immediate changes and with this they
want to be part of the design and production of solutions, which must be done carefully,
gradually and efficiently. Therefore, QIDAN’s key recommendation is that the current NDIS Bill
process is paused while people with disability are consulted, and other key reforms are aligned
to ensure that no person with disability is left behind.
redacted
Page 6
The NDIS Bill in the context of the current disability reforms
In September 2023, we welcomed the DRC Report which contains a total of 222 recommendations distributed across 12 volumes.2 The DRC report was informed by 32 public hearings, 1,785 private sessions, 7,944 submissions and more than 700 activities to engage with people with disability.3
The DRC report makes specific recommendations for the National Disability Insurance Agency (‘the NDIA’) and the National Disability Insurance Scheme Act 2013 (Cth).4 Some of those recommendations propose changes to the NDIA’s guidelines and operation, but QIDAN identified the following recommendations that may require legislative implementation:
-
Recommendation 7.29 Embed an ‘open employment first’ approach in the NDIS Participant Employment Strategy
-
Recommendation 8.17 NDIS Applied Principles and Tables of Support concerning the justice system
-
Recommendation 9.6 National Disability Insurance Agency Board
-
Recommendation 9.7 Participation in cultural life
-
Recommendation 11.13 Integration of community visitor schemes with the NDIS
QIDAN is concerned that, as far as we understand, the above recommendations have not been included in the proposed NDIS Bill, and it is also unclear whether the other non-legislative recommendations are being considered or not.
Following the delivery of the DRC Report, in December 2023 we welcomed the NDIS Review Report which includes 26 recommendations and 139 supporting actions.2 Appendix C of the NDIS Review Report outlines the extensive consultation process and engagement with people with disability, their families, stakeholders and the broader community.
Relevantly, Appendix D of the NDIS Review Report includes a list of proposed legislative reforms, which “should be effectively coordinated across government and done in close consultation with the disability community”.5
QIDAN is concerned that the extensive experiences of people with disability provided to both
the DRC and NDSI Review have not been fully utilised in the drafting of this Bill.
The Bill’s Explanatory Memorandum notes that “The amendments in this Bill give effect to NDIS Review recommendation 3 and interconnected elements in recommendations 5, 6, and 7. The amendments also support the partial implementation of recommendation 17”.6 The NDIS Review recommendations chosen to be introduced in the NDIS Bill do not align with the priorities recommended by the NDIS Review Report. We quote: 7
Implementation of some recommendations should be prioritised in the short-term to
make immediate improvements to the participant experience, such as foundational supports (see Recommendation 1), updating guidance for making access requests (see Action 3.2) and strengthening the workforce (see Recommendation 15).
For more complex recommendations, a staged transition approach will be necessary to
allow for more substantial consultation, design and testing prior to a phased roll-out. For
example, a staged transition is recommended for changes to the participant pathway (see
Action 3.8) and implementation of a new regulatory model for providers (see Action
17.2).
The NDIS Review Report indicated the delivery of recommendations should occur sensitively in consultation with people with disability and in alignment with the best approach principles, genuine design with people with disability and frequent and transparent communications.8 It adds “This should aim to not only help people to understand the reforms and how they may be affected, but also to build and maintain trust in the scheme by showing how people with disability are being included in the implementation process”.9
Furthermore, the NDIS Review Report has expressly recommended the establishment of the NDIS Experience Design Office to work on projects to design reforms including changes to access, assessments, budget setting and navigation (Action 24.3). Once the projects complete, they should inform any changes to the NDIS Act 2013 and the NDIS Rules.
that this process has not been followed and the proposed legislative changes have been
introduced without the establishment of the NDIS Experience Design Office. With proper co- design these recommendations could be implemented in a way that best supports people with disability and is aligned with the vision of the NDIS Review.
Regarding legislative reforms, Recommendation 25 of the NDIS Review Report proposes:
Action 25.1 The Department of Social Services, with input from the National Disability
Insurance Agency and NDIS Quality and Safeguards Commission, should review the
recommendations from this Review and develop a proposed package of legislative
reforms.
Action 25.2 The Department of Social Services should undertake deep public consultation
and engagement on proposed package of legislative reforms.
We acknowledge that the current consultation for the Bill was extended however, we do not believe that this meets the requirement of deep public consultation and engagement as provided above. Additionally, QIDAN is concerned that people of disability have not been informed about the government plan to implement such legislative reforms, including justification for prioritising complex reforms over short-term reforms contrary to the NDIS Review Report recommendations. This is a good opportunity to legislate a standard of transparency and accountability when significant changes like the ones proposed in the NDIS Bill are introduced.
Since the tabling of the DRC Report in September 2023, and the NDIS Review Report in december 2023, the Australian Government provided a Progress Update on the Disability Royal Commission in March 2024.10 This update advised that a formal response to the DRC Report would be delayed and is to be provided by mid-2024 and the response to the NDIS Review in 2024. There was no indication of the development of “an implementation roadmap” as per Recommendation 26 of the NDIS Review Report. There was an expectation that the disability community would receive communication about next steps before any proposed changes occur. Therefore, QIDAN recommends that the NDIS Bill legislative process is paused until the
10 Australian Government Progress Update on the Disability Royal Commission: https://www.dss.gov.au/disability-
and-carers-disability-royal-commission-taskforce/australian-government-progress-update-on-the-disability-royal- commission-resources
Page 9
The Australian Government provides a formal response to both the DRC and NDIS Reforms, and, at least, until the NDIS Experience Design Office is implemented (as per Recommendation 24.1 of the NDIS Review Report).
Independent advocates expressed surprise when the proposed Bill was released without notice or information about its process and / or roadmap, if existent. The level of engagement by people of disability, as well as their families and advocates, in the NDIS Review and the DRC must be respected and valued. The legislative recommendations, including the consultation and engagement process, made by both reports must be observed and implemented.
Choice and Control
NDIS Supports
We welcome some of the amendments introduced by the NDIS Bill which allow more flexibility for participants, such as the introduction of flexible funding to pay for supports as opposed to line items. Whilst this appears to give participants choice and control to identify and pay for supports, it seems the flexible funding can only pay for supports as per the new definition of ‘NDIS Supports’ under s10A.
There are some key concerns in relation to this section as well as the introduction of a new plan framework.
Again, the NDIS Review Report expressely recommends that “Changes to access and budget setting processes can only be implemented once the recommended foundational supports are in place to offer support outside the NDIS (see Recommendation 1)”. This has not been observed. The NDIS Bill introduce a range of new measures related to budget setting processes that will impact participants who do not have any other supports available outside the NDIS.
This means little to no choice and control.
Additionally, it is unclear and difficult to understand how the definition of NDIS Supports connects with the principle of choice and control. The introduction of this section is such an important (and long) provision that will change the entire plan framework, and as such, it should be explained to people with disability and participants word by word. We have heard
Needs Assessment
Advocates are also concerned about the proposed needs assessment (s32L of the NDIS Bill), which modifies NDIS planning and budgeting, again potentially reducing people’s choice and control.
Despite the Explanatory Memorandum noting that the disability community will be consulted about the development of this tool, the NDIS Bill is silent about it, and given the high importance of this change, there should be a provision in the legislation ensuring that consultation and co-design will occur to make this process more transparent.
The NDIS Bill is also unclear about who the assessor will be, despite the NDIS Review Report indicating that it should be a qualified expert, employed or contracted by the NDIA. No justification has been given why this information has not been included in the NDIS Bill.
The final concerning point on the needs assessment is the participants’ rights if they do not agree with the outcome of the needs assessment. Any review rights should be clearly introduced in the NDIS Bill to ensure a fair and transparent process for people with disability.
Disability have expressed there is a lack of accountability on the part of the NDIA when it comes to powers, and without accountability mechanisms these powers seem to diminish participant’s choice and control even more.
The powers introduced in the proposed sections 30, 30A and 36 are substantial, allowing the
NDIA to impose punitive consequences on participants who do not comply with the proposed
requirements. The purpose of these powers is unclear and QIDAN is concerned that there will
not only be financial impacts on people with disability, but psychological impacts as well, given
that clients may feel threatened and at risk of losing their access to supports. The NDIS Bill fails
to include that where additional information is needed, the NDIS should pay for experts’
assessments and reports, to reduce inequity in the process.redacted These provisions should reflect
the NDIS Review Report as well as include clarity and transparency about the types of
information that can be requested and whether the NDIA will provide financial support for
participants to comply.
Other powers introduced by the NDIS Bill (clauses 32H and 32F) propose severe restrictions on participants, limiting choice and control. The result of these provisions might penalize participants via their NDIS plan, meaning they are unable to choose providers, rather than dealing with the issue of inadequate provision of supports that is better managed via compliance mechanisms. Similarly, the power to refuse a participant’s plan management request based on previous misspending seems an excessive measure. Advocates have assisted clients who have been victims of service providers misspending their funds without their knowledge or consent, where the NDIA changed the participant’s plan management as a punitive measure. QIDAN does not believe that this approach is effective or fair, given that participants already feel deceived. Limiting their choice by changing the management of their plan may only do more harm without addressing the real issue of fraud and compliance.
QIDAN’s experience has been that NDIS participants are usually very confused about the NDIS’
requirements and rules. The NDIA should ensure that NDIS participants are properly informed
by having ongoing conversations, particularly if there are concerns about the usage or
redacted
Whole person approach
QIDAN is supportive of a whole person approach, which ensures that a person with disability is
seen holistically and not in segments. The NDIS Review Report recommends that planning and
budgeting should be completed with a whole person approach (Action 3.3). The NDIS Review
Report justifies the approach explaining the following: “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. Budgets will be linked to support need
not diagnosis“. QIDAN have been advocating for this approach for many years and support
these recommendations.
Although the NDIS Bill has been proposed to give effect to Recommendation 3 of the NDIS
Review Report, we do not believe that the proposed sections 34(1)(aa) and 32L(3) of the Bill
give effect to Action 3.3 of the NDIS Review Report. We believe these proposed sections are
contrary to what is recommended in the NDIS Review Report.
The Joint Standing Committee’s inquiry into the Capability and Culture of the NDIA included in
their first recommendation for the NDIA to “assess people according to the totality of their
disabilities and no longer require participants to nominate ‘primary disability’ and ’secondary
disability“. This reflects the same approach in Action 3.3 of the NDIS Review Report.
Disappointedly, the NDIS Bill Explanatory Memorandum explains the introduction of these
amendments as follows: “This amendment reflects the Agency’s current operational guidelines
and will provide clarity to participants and other service systems about what supports will be
funded through the NDIS. It will not require participants to repeatedly prove their
disability“. This approach has no basis on expert opinion, the lived experience of our clients and
their opinion, the findings of the Joint Standing Committee and the NDIS Review Report.
Conclusion
QIDAN thank the Community Affairs Legislation Committee for the opportunity to contribute to and provide comments on the proposed National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024. We are happy to provide further information or clarification of any of the matters raised in this submission upon request.
We hope to see QIDAN’s recommendations embedded in future policies, regulations, and structural changes.