NDIA Accountability Project

Concerns regarding participant revocation and access criteria

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Safeguarding and promoting the rights and

Disability Rights

Advocacy Service Inc

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Safeguarding and promoting the rights and

Disability Rights

Advocacy Service Inc

Acknowledgement of Country

The Disability Rights Advocacy Service Inc acknowledges that this submission was completed on Kaurna Land. We pay our respects to Elders past, present and emerging. We recognise the continuing relationship with the lands and seas and connection to culture.

Kaurna Miyurna yaitya yarta-mathanya Wama Tarntanyaku, parnaku yailtya, parnaku tapa puru purruna. Kaurna Miyurna ithu yailtya purruna, yarta kuma puru martinthi, puru warri-apinthi, puru tangka martulayinthi.

Adelaide Office Riverland South East
411 Henley Beach Rd Brooklyn Park SA
5032
PO Box 411 Brooklyn Park SA 5032
Phone: 08 8351 9500
Email: administration@dras.com.au		 2a Ahern Street Berri SA 5343
PO Box 868 Berri SA 5343
Phone: 08 8351 9500
Email: administration@dras.com.au		 PO Box 1210 Mount Gambier SA 5290
Phone: 08 8351 9500
Email: administration@dras.com.au

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Disability Rights Advocacy Service (DRAS) is part of the Australian Network of Disability Services funded by the Australian Government www.dras.com.au

Safeguarding and promoting the rights and

interests of people with disability, their families

Background

Disability Rights Advocacy Service (DRAS) is a community organisation that is run by our members and our Board, which is made up of people with a disability. DRAS is part of a national network of disability advocacy organisations funded by the Australian Government Department of Social Services to provide individual advocacy and NDIS appeals support, individual capacity-building and systemic advocacy for persons with disability.

What we do

Our advocates listen to people with a disability and learn from them, so that we can work alongside them to promote and defend their human rights. It means helping people with disability to get a fair go. It means helping people with a disability to enjoy all the things they are entitled to – all the things a person who doesn’t have a disability can access.

Our locations

Disability Rights Advocacy Service has three office locations in South Australia:

  • Our Brooklyn Park office represents people who reside within greater metropolitan Adelaide, Mount Barker, Adelaide Hills and Murray Bridge.
  • Based in Mount Gambier, our South-East service assists people throughout the South-East and Coorong region.
  • People living within the Riverland region can access our Riverland office, which is based in the township of Berri.

Our Mission

Safeguarding and promoting the rights and interests of people with a disability, their families and carers. We do this through our four governing principles:

  1. People with disabilities have the same rights as other members of the Australian community.
  2. People with a disability should be able to maintain and develop their culture without prejudice or disadvantage and should be encouraged to understand and embrace other cultures.
  3. People with a disability should be able to receive services necessary to enable them to achieve their maximum potential as members of the community.
  4. People with a disability are entitled to participate in decisions that affect their lives and to receive services in a manner that results in the least restriction of their rights and opportunities.

ADELAIDE OFFICE RIVERLAND SOUTH EAST

411 Henley Beach Rd Brooklyn Park SA 2a Ahern Street Berri SA 5343 PO Box 1210 Mount Gambier SA 5290
5032 PO Box 868 Berri SA 5343 Phone: 08 8351 9500
PO Box 411 Brooklyn Park SA 5032 Phone: 08 8351 9500 Email: administration@dras.com.au
Phone: 08 8351 9500 Email: administration@dras.com.au

Like us on Facebook D

Disability Rights Advocacy Service (DRAS) is part of the Australian Network of Disability Services funded by the Australian Government www.dras.com.au

Safeguarding and promoting the rights and

Disability Rights

Advocacy Service Inc

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Safeguarding and promoting the rights and

Disability Rights

Advocacy Service Inc

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            9. We also note that NDIS participants should be given the opportunity to provide input and feedback to a needs assessment report before the report is finalised.
          10. We understand that section 32L(7) provides the option for a ‘replacement assessment’.7 While this inclusion is a potential safeguard, we note that there should be ample opportunity for NDIS participants to feel confident that their needs assessment report will be an accurate depiction of their current and ongoing needs.

HOW BUDGETS ARE CREATED

          11. We acknowledge that the terminology of reasonable and necessary supports will no longer be used and will instead be replaced with ‘reasonable and necessary budgets’ where NDIS Plans will be packaged into ‘funding periods’.
          12. The reforms are proposed to provide a larger pool of ‘flexible funding’ while also allowing for ‘stated supports’ in a more consistent way under section 32H(1).8 Stated supports could be for supports such as Assistive Technology, Home Modifications and Supported Independent Living.
          13. The Bill provides that under section 32K(2) that the Minister may, by legislative instrument,

determine methods for working out total funding amounts for a reasonable and necessary budget.9 14. Again it is important that the Government provide the opportunity for co-design and consultation with the disability community for the legislative instrument and method that will be used to implement this legislation. 15. In practice, regardless of whether an NDIS participant has a ‘flexible budget’, participants will still be required to budget within the funding period of their NDIS Plan. We understand from taking part in Town Hall sessions with the Department of Social Services that the government’s intention is to prevent over-spending in participants plans. It is unclear how having access to a pool of ‘flexible funding’ will be a change from line-by-line planning in practice. Participants and their NDIS supports will still be required to budget within the constraints of their NDIS plan funding period. 16. At this stage there is no indication that NDIS participants will be able to view and comment on a ‘draft budget’ before it becomes available in its final form as a Statement of Participant Supports. 17. A key part of the input from the disability community into the NDIS Review was that NDIS participants should be given greater opportunity to provide input into their NDIS Plan before it is finalised. 18. We recommend that a process be included either in legislation or delegated legislation for meaningful engagement with NDIS participants before their NDIS Plan is finalised. This will also ensure that lengthy internal or external reviews processes can be avoided.

 7 Ibid
 8 Ibid section 32H(1)
 9 Ibid section 32K(2)

ADELAIDE OFFICE RIVERLAND SOUTH EAST

 411 Henley Beach Rd Brooklyn Park SA              2a Ahern Street Berri SA 5343        PO Box 1210 Mount Gambier SA 5290
 5032                                 PO Box 868 Berri SA 5343             Phone: 08 8351 9500
PO Box 411 Brooklyn Park SA 5032                 Phone: 08 8351 9500                   Email: administration@dras.com.au
 Phone: 08 8351 9500                                Email: administration@dras.com.au

Disability Rights Advocacy Service (DRAS) is part of the Australian Network of Disability Services funded by the Australian Government www.dras.com.au

Safeguarding and promoting the rights and

Disability Rights

Advocacy Service Inc

NDIS Supports

  1. Section 10 of the Bill provides a new definition of ‘NDIS supports’. As part of this section there are eight categories of supports that the NDIS would fund based on selected elements of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD).10

  2. Advocates and legal experts have queried why some elements of the UNCRPD have been included in section 10 but not others. For example, access to employment has not been included in section 10, despite funding for Supported Employment being included as a key NDIS support in current NDIS Plans.11

  3. We understand that the Bill is the overarching legislative framework for allowing for supports that are ‘in’ and ‘out’ of being funded by the NDIS, with a more specific legislative instrument to come later.

  4. While we support the concept of having clearer guidelines for NDIS participants about what the NDIS will or will not fund, we note that there should be safeguards for NDIS participants for inadvertently or accidentally misspending funds on what is defined as a non-NDIS support.

  5. The NDIS Review recommended that there should be more emphasis placed on education and support for NDIS participants in managing their NDIS Plans, rather than a focus on punitive compliance measures. For example, the NDIS review recommended that the NDIA should adopt a trust-based approach to oversight of how participants spend their budget, with an emphasis on providing guidance and support.12 We note that the Bill, or delegated legislation to be proposed, should include safeguards for NDIS participants for minor non-compliance or mishaps.

  6. Furthermore, advocates and legal experts have raised concerns about section 124 being used as an interim measure until NDIS rules are made for the purposes of section 10(b). For example, they have raised concerns that the Applied Principles and Tables of Support (APTOS) referred to under section 124(2) was never designed to be applied as legislation, in that APTOS was developed as a discretionary guide. The Public Interest Advocacy Centre (PIAC) has noted that the APTOS principles are not fit for purpose and should not be used as an interim measure and that instead the Commonwealth, State and Territory Governments should develop Rules before changes are made to supports the NDIS will fund.13

NDIS Powers And Appeals

  1. The Bill introduces powers for the NDIA to request any information reasonably necessary to determine whether an NDIS participant meets the early intervention or disability criteria. The circumstances for when the CEO would do this are to be prescribed within rules to be developed.14

Safeguarding and promoting the rights and

Disability Rights

Advocacy Service Inc

26. Section 30A(5) notes that the NDIA will have the power to request the participant do an assessment and provide a report within 90 days. If the NDIS participant does not do so within 90 days the NDIA can revoke their status as an NDIS participant.
27. We are concerned that there are limited protections for NDIS participants who are not able to respond within the 90-day period. There should be support from the NDIA to help participants understand why the information is being requested and to work with both the participant and their support networks to assist them in gathering the evidence required.
28. The Bill does not outline who will be responsible for organising or paying for the information or reports referred to under section 30A(5). We believe that the NDIA should be responsible for doing so considering it is at the NDIA’s request. This would assist in minimising NDIS participants having their status revoked due to not meeting the requirements for providing information and reports.
29. The Bill also does not provide a process for having the NDIA’s decision reviewed, if the NDIA decides to revoke the status of an NDIS participant.

ACCESS

31. The Bill does not seem to address in detail the specific changes that will be made to the disability access criteria. Under the current disability requirements, if the medical evidence demonstrates that a person’s impairment substantially reduces their functional capacity in certain domains, then they can become an NDIS participant (along with other considerations).
32. While there are ‘List A’ conditions that may mean that a person with disability is more like to get access to the NDIS, in practice the NDIA still currently assesses a person’s Access Request based on their medical treatment history and functional capacity.
33. At this stage it is unclear what (if any) changes are being made to the NDIS Access Rules and how they will be implemented in practice.

15 Ibid

16 Recommendations and actions | NDIS Review recommendation 3

####### 17 Do you meet the disability requirements? | NDIS

Adelaide Office Riverland South East

411 Henley Beach Rd Brooklyn Park SA 2a Ahern Street Berri SA 5343 PO Box 1210 Mount Gambier SA 5290

######### ######### 5032 PO Box 868 Berri SA 5343 Phone: 08 8351 9500 ######### ######### PO Box 411 Brooklyn Park SA 5032 Phone: 08 8351 9500 Email: administration@dras.com.au ######### ######### Phone: 08 8351 9500 Email: administration@dras.com.au

Disability Rights Advocacy Service (DRAS) is part of the Australian Network of Disability Services funded by the Australian Government www.dras.com.au