Senate Standing Committee on Community Affairs

Inquiry into the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 [Provisions]

Personal Thoughts and Reflections:

I apologise for the contents of this document not being more structured, however time limitations mean that what I have presented here are my reflections on sections of the Proposed Bill that cause me concern and why I hold those concerns.

Prepared by: Peter Gregory Date: 16th May 2024

Summary of My Concerns:

a. Significant power is given to the Minister to focus on controlling the cost of supports increasing the probability that Participants will be denied the supports they need or will be allocated those supports in a form that exposes them to risk e.g. Shared support in a group home. b. The meaning and intent of the Reasonable and Necessary framework for funding is negated.c. The mechanisms for preparing a needs assessment and calculating the funding to be allocated are exclusively managed and controlled by the NDIA. This is very similar to the Independent Assessments proposed by the previous Government and rejected by the Australian people.d. The definition of an NDIS Support is inadequate and is regarded by legal experts as unusable law and easily challenged.e. The definition of NDIS Supports features a very specific sampling of words from the CRPD which distorts the true intention of the Convention.f. The proposal that APTOS be given the status of law as an interim measure to define eligible supports is inadequate. APTOS was not developed for this purpose and will create inconsistency and confusion.g. The appeal and review mechanisms are unclear and limited.h. Plans are flexible in name only. The limitations placed on what supports can be funded acts as a disincentive to exploring and designing innovative and creative support solutions.i. The information gathering powers of the CEO are extensive and potentially onerous on Participants to the point of threatening their continued participation in the Scheme.j. The reference to a “Class of Participant” raises the possibility that there could be specific NDIS rules applied to different groups of NDIA participants. This is a return to the personas proposed as part of the Independent Assessments approach.

If I were to make a further overarching recommendation it would be that the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 [Provisions] be withdrawn, and that reform enabling legislation should only be drafted after a thorough co-design process has been undertaken with people with disabilities where the focus is exploring, discussing and designing ways to implement the recommendations arising from the NDIS Review or developing more suitable alternatives.

Initial Impressions:

Submission re: NDIS Amendment Bill_2024 (Ver 1.0_16.05.2024) Page 1

Reasonable and Necessary Support:

a. This Bill presents a fundamental alteration to our understanding reasonable and necessary. b. The approach to deciding what are reasonable and necessary supports within the existing legislation is based on the application of key decision-making principles to the Participant’s individual circumstances in order to come to an understanding of weather a support should be funded by the NDIS. c. This is replaced by a different form of decision making. i. This is outlined in Section 32 and 32(k) ii. A budget will be made up of two components:

1. The Supports Needs Assessment. This is a report, created by an Assessor, using a mechanism that hasn’t been built yet. This report is returned to the CEO.
2. This Support Needs assessment is turned into a budget according to a method created by the Minister and approved through a legislative mechanism. This calculation method hasn’t been designed yet. d. Is this a return to the Independent Assessments proposal? i. There are very real reasons to be concerned that this approach will not provide the level of funding participants require and give preference to the level of funding the NDIA has determined they are prepared to provide. Given these risks we need to settle what a needs assessment looks like and how needs are translated into a budget. ii. The needs assessment and the tools will be created by a legislative instrument presented to the Senate. There are 15 days to raise an objection and 15 days in which the matter is resolved. The same process will be followed for the methods of determining how to create a budget from the needs assessment.

iii.

These processes create significant powers for the Minister of the day and the NDIA to determine the amount of funded support will be included in a Participant’s plan and the form that funding will take.

iv.

Because these processes are the same for similar legislative processes the challenge will be to adapt these to include co-design and evaluation. Co- design is not a feature of the design of these legislative processes.

v.

If this approach is followed, this should mean that all the documentation and feedback that led to the development of these instruments should also be tabled as evidence to substantiate the design of the assessment and budget setting mechanisms.

vi.

Future Ministers could change this method by legislative instrument. This means that mechanisms to protect the instruments should also be in place. A new way of thinking about reasonable and necessary also means a new way of Governing with checks and balances that protect the original intent of reasonable and necessary.

vii.

Under this Bill the only way to have the funding allocation, developed under these mechanisms, changed is through the legislative process. This will make it harder, if not impossible, to challenge the way in which the needs assessment and the budget has been developed.

####### viii.

This also means that co-design is central and critical to the development of these instruments so that they reflect what is reasonable and necessary for Participants. To date much promised co-design has not occurred in relation to the development of the proposed Bill and indeed the NDIS Review recommendations. It is therefore if is difficult to have faith that co-design will occur in relation to the development of these critical mechanisms. The require for co-design is certainly not included as part of the legislation.

######## ix.

To add to scepticism that these changes are nothing more than a means of cutting plan costs, the Proposed Bill also requires the Minister to consider extremely arbitrary and ill defined “scheme sustainability” when designing these needs assessment and the budget setting instruments.

######### x.

The power exists in the Bill to order replacement assessments, it’s going to be a key tool of quality control and can even affect appeal rights. It is unclear if the decision to refuse a replacement assessment will be a reviewable decision.

########## xi.

This Bill requires a significant amount of trust that the Government will “do the right thing” with these powers. That cannot be the foundation of approving a legislative instrument.

4. Section 124:

a. While we wait for the “blacklist” and “whitelist” of supports that will and will not be funded, Section 124 outlines a transitional approach that gives the status of law to APTOS: The Applied Principles document of 2015. This is a very vague document with ambiguous categories that was never intended to be a legal document. It also includes items that contradict the content of Section 10. b. This is not an acceptable transition arrangement.

Section 10:

Overview:

i. The implementation of Section 10 completely redefines an NDIS Support.

ii. Section 10 has the capacity to step us back from particular forms of support that are currently funded.

iii. The construction of Section 10 also has the purpose of showing where the Federal Government got the power to implement the provisions of Section 10. In doing so, this legislative instrument reshapes the Federal/State relationships. Curiously, inherent in the way Section 10 is structured it highlights that the Federal Government has a mandate to implement everything in the Convention on the Rights of Persons with Disabilities, but this Bill chooses not to do that.

What is an NDIS Support?:

i. The definition of an NDIS Support is central to the legislation.

ii. The key to the budget approach used within the legislation is to create a “flexible” budget rather than the “line by line” negotiation that happens now.

iii. The definition of an NDIS Support is a key part of providing plan “flexibility”, which is a key purpose of this reform.

iv. The definition is what will be used in the needs assessment and budget mechanism to state what will and will not be funded.

v. The definition also states what will be funded by the NDIS and therefore what must be paid for through other systems.

vi. Section 10 provides seven things that are NDIS Supports. Later a “whitelist” of items that will be funded by the NDIS will be created. There will also be a “blacklist”.

vii. The wording in Section 10 comes from the UNCRPD but it is a very specific sampling of the Convention. This immediately raises questions.

Section 10 right now is not usable law because it can be challenged because legislation cannot dictate what is a reasonable and necessary support item for a participant and what isn’t.

Definition of an NDIS support:

A support is an NDIS support for a person who is a participant or prospective participant if: (a) the support: 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;

(b) the support is declared by National Disability Insurance Scheme rules made for the purposes of this paragraph to be a support that is appropriately funded or provided through the National Disability Insurance Scheme: (i) for participants or prospective participants generally; or (ii) for a class of participants or prospective participants that includes the person; and

c) the support is not a support declared by National Disability Insurance Scheme ules made for the purposes of this paragraph to be a support that is not appropriately funded or provided through the National Disability Insurance Scheme: (i) for participants or prospective participants generally; or (ii) for a class of participants or prospective participants that includes the person.

Note 1: For subparagraphs (a)(i) to (vii), see the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006. Note 2: The Convention is in Australian Treaty Series 2008 No. 12 ([2008] ATS 12) and could in 2024 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au). Note 3: For subparagraph (a)(viii), see paragraph 51(xxiiiA) of the Constitution.

e. During his NDIS Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 – Second Reading Speech, the Hon Bill Shorten MP, Minister for the National Disability insurance Scheme of Australia said:

“Some operational changes to improve things can happen soon after the legislation is signed by the Governor General. One is the definition of NDIS Supports. The legislation will link the definition of ‘NDIS supports’ to your rights under the Convention on the Rights of Persons with Disabilities. This is the first-time parts of the UN convention have been incorporated into NDIS laws.”

On first hearing it could have been easily assumed that the proposed Legislation had adopted the UNCRPD as its foundation for determining what supports would be provided under the scheme. However close inspection of the Definition of Supports compared to the Articles contained within the UNCRPD shows that this is far from the case. It is more reasonable to say that some of the wording contained in the some of the Articles associated with the Convention have been selectively edited and, in doing so, distort the intent of the Article as a guide.

The words and/or themes included in the description of NDIS Support Section 10 Items (a) I to (a) vii are drawn from these Articles:

• Article 19 - Living independently and being included in the community
• Article 20 - Personal mobility
• Article 25 - Health
• Article 26 - Habilitation and rehabilitation

Section 34: Reasonable and Necessary Supports:

A related issue that requires close attention are the adjustments to the principles of reasonable and necessary support in Section 34. In the paragraphs below these additions are in red and the sections being repealed are crossed out. It is clear that the inclusion of the NDIS Support criteria in the Section has made the application and intent of the original Reasonable and Necessary criteria redundant and replaced it with a checklist of acceptable and unacceptable supports. This is a corrosion of the very core of the NDIS.

In the section below I have highlighted the additions and exclusions from the definition of Reasonable and Necessary supports that have the effect of overriding the intention of Section 34 of the current legislation.

Section 34 Reasonable and necessary supports

(1) For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support: (aa) the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see section 24) or the early intervention requirements (see section 25); (a) the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations; (b) the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation; (c) the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support; (d) the support will be, or is likely to be, effective and beneficial for the participant, having guidance to current good practice; (e) the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide; (f) the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered: i. as part of a universal service obligation; or ii. in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability. (g) The support is an NDIS support for the participant. (2) The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(aa) to (g).

7. Appeals: a. The role of the AAT will remain unchanged. b. The budget decision is no longer open to conversation about contestable principles under this Bill. c. The decision of the CEO to accept the Statement of Supports will be a reviewable decision, however we need to know that if the AAT finds that the Assessment is flawed that a new assessment can be developed. This is unclear and the way the Bill is drafted implies that a new assessment can be undertaken using the same flawed mechanism that developed the original assessment. d. The AAT decision making process is very different under this Bill because the logic underpinning Section 32(k) must be followed. Section 32(k) deals with establishing the Needs Assessment and Budget Development instruments. i. We need to stop anchoring everything in the Table of Supports. There are many decisions about items that are included in the Statement of Supports(e.g. Type of Plan Management) therefore to request a review of one of those decisions could risk the entire plan being reviewed. This may act as a disincentive to requesting am review of one decision a Participant disagrees with.

Reviewable or Not Reviewable

a. At the first webinar to explain the proposed legislation, hosted by DSS, I heard the presenters say that the NDIS funding budget in a Participant Plan would not be a reviewable decision. I was astounded and have tried to unpack the Draft Bill to understand this admission some more.

In Part 6 “Review of Decisions” the only reference to the Sections relating to plans and plan preparation is “A decision to approve the statement of participant supports in a participant’s plan” is a reviewable decision.

This relates to subsection 32D(2) or 33(2)

32D(2) States that “A participant’s plan must include a statement (the statement of participant supports), prepared with the participant and approved by the CEO, that specifies: (a) the participant’s reasonable and necessary budget in accordance with sections 32E to 32K;”

33(2) Refers to “](2) A participant’s plan must include a statement (the statement of participant supports), prepared with the participant and approved by the CEO, that specifies: (a) the general supports (if any) that will be provided to, or in relation to, the participant; and (b) the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme.”\n This section also refers to “Total funding amounts and funding component amounts.”

This says that a Participant can request a review of “A decision to approve the statement of participant supports in a participant’s plan” that has been made by the CEO and a “Statement of Participant Supports” includes “Total funding amounts and funding component amounts.” This does not say that the “Total funding amounts and funding component amounts” are reviewable decisions. Only that the decision to approve the statement of supports is reviewable. While the language in the Bill is convoluted, confusing and poorly drafted, these sections seem to reinforce what we heard at the Webinar: That is, the personal budget amount will not be a reviewable decision.

One of my concerns has been that the establishment of a “Total Funding Amount” as a flexible budget could make it more difficult to challenge the funding decision in the AAT. This is because the NDIA could argue that it is up to the Participant to decide how they want to spend their allocated budget across all their areas of support need. Because it was also apparent that there is no mechanism to translate the “assessment” into a “budget” (Which is constrained by the Section 10 NDIS Support definitions) trying to be explicit about the specific funding issue in dispute would also be far more difficult. Making these budget decisions that lack an evidence base and are messy, ambiguous, poorly designed and not reviewable removes any possibility of the NDIA being held accountable for these funding decisions and being required to demonstrate their validity.

9. Plan Flexibility:

a. A Total Plan budget will be made up of: i. A Flexible Budget provided the funds are spent on a Section 10 Support: ii. Stated Supports

b. The Bill staggers the release of funds. Any unspent funds will rollover from one period to the next and will disappear at the end of the funding period. c. However, we’ve got to have a better conversation about this “plan flexibility” that is being promoted as the core of a reframed NDIS. This central concept is used as the rationale for the substantial changes proposed and the extraordinary powers being given to the Minister, the CEO and the NDIA.

This term refers to a Total Support Budget that can be used to purchase the supports a Participant requires, provided those supports fit within the definition of an NDIS Support under Section 10 of the Proposed Bill.

We’ve been told that this flexible budget will be generated by a mechanism that is yet to be designed and will be informed by a Needs Assessment that is yet to be developed.

We’ve been told that the only way to generate this flexible budget, through the assessment and budget calculation instruments, is to define, prescriptively, what an NDIS Support is. This definition will be used to generate a list of “whitelist” and “blacklist” supports.

There is discussion about the shortcomings of the NDIS Support Definition, the Needs Assessment and the Budget Calculation Instrument elsewhere in my reflections. The question here is: “Is this Plan Flexibility in name only?”

It has always been possible to use Core Supports Flexibly, unless they were stated. Except for some items during the covid period, it hasn’t been possible to use Capacity Building Supports interchangeably with Core Supports. However, flexibility has always been possible within each Capacity Building Category. It has always been possible to design unique and creative solutions with the Core Supports Budget, even with Supported Independent Living (SIL), but providers have refused to do so and the NDIA have failed to encourage and support non-traditional approaches using Core Supports. If the NDIA has been incapable of encouraging creative support solutions within the already flexible Core Supports, there is nothing in this Bill that would encourage us to believe that this will change when all the funds are bundled together in a big squishy mass.

It is argued that this “Plan Flexibility” derives from not having to construct a plan budget from individual line items, because the Budget Calculation Instrument will do this. Because this instrument will be defined by a legislative mechanism this calculation will not be a reviewable decision. Does this look like Plan Flexibility?

The Bill Amendments state that when creating a Needs Assessment and Budget Calculation instrument the Minister must ensure the financial sustainability of the scheme, whatever that ambiguous statement means. Does this look like Plan Flexibility?

It appears that the construction of the Needs Assessment and Budget Calculation instruments will make it far more difficult to appeal the contents of the Participant Statement of Supports. Does this look like Plan Flexibility?

With the wide ranging powers given to the Minister to define who can access the scheme and control what will be funded, the unworkable definition of NDIS Supports and the power of the undefined Needs Assessment and Budget Calculation instruments to manipulate the budget outcome, is this Plan Flexibility in name only?

As I have alluded to elsewhere, these concerns clearly show we need robust safeguards in place to protect the core intent of the NDIS as described by the Productivity Commission.

10. Section 32(h): a. This section has the power to make requirements in relation to the provision and acquisition of supports. b. This provides the NDIA with the power to intervene in what service provision looks like. c. This power is very broad and could have unintended consequences including increase administrative burdens and prescribing services models that limit choice and control. d. This has been referred to as a “Statute within a Statute” the requires close scrutiny.

11. Information gathering powers: a. These are extensive and potentially onerous on Participants to the point of significant consequences. b. There needs to be significant co-design about how these powers are developed, with safeguards in place to ensure Participants don’t fall to potential negative consequences. c. These powers need to be drawn into balance using, for example, the principles such as supported decision making.

12. Plan Management: The decision about whether a Participant will be required to have their Plan Agency Managed will be associated with: a. The presence of risk b. An instance of non-compliance. At the moment, with the inclusion of APTOS, it becomes an extremely complex exercise to determine if an item is non-compliant. This is another one of those provisions that reveals potential for significant bureaucratic over-reach

Access:

a. In this Bill it is proposed that the power to make access rules will now include the ability to specify circumstances that would make a person eligible or ineligible for NDIS access. These are subject to agreement from the States.

b. Given NDIS costs are reduced by, fewer participants, lower plan costs and outcomes, it is not difficult to imagine that these provisions could be used to limit access of people with disabilities to the scheme, thus forcing them to use State based services that are currently not adequately resourced to take up these additional Participants. Unless the States are adequately resourced to provide these Foundational Supports, we can expect large numbers of people with disabilities being left bereft of the supports they require.

Class of…

a. Everything in the NDIS under this Bill can be tailored to a particular Class of Participant. This was the intention of the Personas under the Independent Assessment framework. Therefore, it raises the possibility that there could be specific NDIS rules for “Classes of Participants” who a treat and funded differently by the Scheme

b. Not only does this approach create a high level of fragmentation it also raises the prospect that this practice could be regarded as discriminatory and intent of deliberately excluding some Participants who have previously been considered as eligible for the Scheme.

A final word on “The Vibe”

The way we talk about people is important and therefore the way the Bill is framed can be supportive of people or be grounded in negative beliefs. We need to consider the assumptions underlying the Bill and whether these assumptions favour a positive view of participants. While the public discourse justifying the need for this Bill has emphasised cost blowouts because of the poor behaviour of a few unscrupulous service providers, the overwhelming focus in this legislation is on reforms that directly impact Participants in questionable and very negative ways. “The vibe” of the Bill promotes a negative view of Participants whose access to the scheme needs to be limited, whose supports need to be proscribed and controlled, whose funding needs to be limited in ways that potentially discriminate against particular “Classes of Participants” and who will be subjected punitive actions if they transgress reporting obligations in ways that the NDIA has shown they cannot meet themselves. Rather than being a Bill that seeks to build the skills, capacity and confidence of Participants to direct their own supports, this is a Bill that, at every turn, makes the ideal of full choice and control far more difficult to achieve. The “vibe” of this Bill is a return to the institutional funding strategies of the past. The strategies that were criticised by the Productivity Commission.