Submission to

Community Affairs Legislation Committee Inquiry into the ‘Getting the NDIS Back on Track No. 1 Bill 2024’

May 2024

Executive Summary

Every Australian Counts submits this report to the Community Affairs Legislation Committee to express our deep concerns about the ‘Getting the NDIS Back on Track No. 1’ Bill 2024 and its potential impacts on people with disability and their families. While we support the intent of getting the NDIS ‘back on track’, the proposed changes risk undermining the core principles of choice and control, and the scheme’s primary purpose to provide individually tailored, quality supports enabling people with disabilities to live full, self-directed lives.

Lack of Legislated Codesign Commitment

Of serious concern is the lack of legislated commitment to codesigning the new NDIS tools and processes in close partnership with people with disabilities and their representative organizations. Comprehensive codesign, research, testing and refinement of these reforms

in close partnership with diverse disability communities - must occur before any implementation.

Needs Assessments and Funding Concerns

The proposed shift to using needs assessments to determine funding could significantly restrict access to necessary supports, particularly for people with complex or multiple disabilities. The bill lacks clarity on who will conduct the assessments, their level of disability expertise, and does not provide participants the legal right to appeal inaccurate assessments. The assessment tools must be extensively researched, tested and codesigned to ensure they are reliable, accurate and accessible for diverse needs.

Impacts on People with Psychosocial Disability

The proposed changes to the eligibility criteria and assessment processes risk disproportionately impacting people with psychosocial disability. We are deeply concerned that the reforms could lead to people with psychosocial disability losing access to vital NDIS supports.

Reasonable and Necessary Supports vs. Defined Budget and Support Lists

Moving from ‘reasonable and necessary supports’ to defined lists of permitted and prohibited supports with budgets threatens to constrain participant autonomy, choice and control. It could significantly restrict access to previously covered supports that were more flexible and tailored to individual needs.

Concerns for People with High Support Needs

We hold deep concerns that a funding algorithm will discriminate against people with high support needs by limiting funding to 1:3 shared support ratios, undermining their rights to choice and control over living arrangements and supports. This is unacceptable and contrary to Australia’s obligations under the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD).

Plan Management and Review Rights

The bill grants the NDIA CEO broad powers to refuse requests for self or plan management of NDIS funds and change funding to Agency Managed, with limited clarification on the reasons for refusal or avenues for review. Participants must have the right to appeal decisions about plan management. The proposed changes to plan variation, reassessment and review processes also risk diminishing participant rights and autonomy.

Overreliance on Delegated Legislation

The bill’s overreliance on delegated legislation (NDIS rules) rather than detailed clauses in the primary legislation raises concerns about inadequate parliamentary oversight and the potential for diminished protections and appeal rights for participants.

To address these concerns, Every Australian Counts propose the following recommendations and amendments:

Enshrine in legislation comprehensive codesign requirements as outlined above.
Ensure needs assessors have disability expertise, that they work collaboratively with trusted experts who know the person being assessed and provide participants assessment appeal rights.
Ensure assessment tools and processes are suitable for the full range of disabilities.
Do not narrow the definition of a NDIS support, ensure flexibility and innovation in how funding can be used to achieve good outcomes.
Prohibit any algorithm or methodology that discriminates against people with high support needs and undermines their rights to choose where they live and how they are supported.
Strengthen requirements for explaining plan management decisions and provide avenues to review and appeal plan management decisions.
Enhance NDIS Act clauses to ensure sufficient parliamentary oversight and participant protections and appeal rights, rather than deferring to NDIS Rules.
Ensure that the legislative timetable accommodates the need to ensure that all changes to the NDIS are codesigned and thoroughly tested with the disability community.

Getting the NDIS back on track should mean realising its original vision of empowering people with disabilities with the flexible, personalised supports they need to thrive - not constricting their choices and control. As the Committee considers this legislation, we urge you to deeply engage with the concerns and expertise of the disability community, and ensure that people with disabilities and our families are at the centre of our NDIS now and in the future.

Introduction

Every Australian Counts (EAC) is the grassroots campaign that fought for the introduction of the National Disability Insurance Scheme (NDIS) and won. We are made up of thousands of people with disability, families, carers, and those who work to support them who have come together to fight for a fair go for people with disability in Australia.

This submission registers EAC’s position with respect to the proposed ‘Getting the NDIS Back on Track’ bill.

EAC has grave concerns with the practical implications of this bill, and the lack of protections for participants therein.

Our submission has drawn from the results of our recently conducted Community Survey, (See relevant extract Appendix A and full survey here) as well as from community forums and the advice and feedback of EAC’s various allies and supporters.

Executive Summary ………………………………………………. 2
Introduction ………………………………………………………….. 4
A Commitment to Codesign Must be Included in the Legislation ………………… 5
Needs Assessments to Determine Funding …………………………………………. 5
Reasonable and Necessary Budget and NDIS Supports ………………………… 7
NDIS Plan Budget Changes ………………………………………………….. 8
APTOS Unsuitable for Determining NDIS Supports …………………………… 10
Selective Reference to the UNCRPD ……………………………………….. 10
Changes to Eligibility and Access………………………………………………. 11
Increased Powers of the NDIA ………………………………………………… 11
Plan Management……………………………………………………………….. 11
Information Gathering Powers …………………………………………………. 12
Strengthened Quality and Safeguarding Measures ……………………………… 13
Challenges and Reviews of Processes and Decisions …………………………. 13
Over-reliance on Delegated Legislation ……………………………………….. 14
Recommendations ……………………………………………………………… 16
Contact …………………………………………………………………………… 18

A Commitment to Codesign Must Be Included in the Legislation

The Australian Government has promised that the development of new tools and processes for the NDIS, including early intervention pathways and other rules for upcoming plans, will be codesigned with people with disability and our representative organisations. Every Australian Counts note significant fear, uncertainty and distrust in the disability community about the proposed changes. It’s crucial that these commitments to meaningful codesign with people with disability are written into this bill and any future legislative changes to the NDIS.

People with disabilities must lead the way in designing and implementing any changes to the NDIS. The disability community have raised concerns about the lack of codesign in drafting this bill, and the lack of exposure draft for comment from the sector. Likewise, Every Australian Counts are deeply concerned by the short timeframe of this Inquiry. People with disability, families and our representative organisations need more time and resources to properly understand, discuss and respond to the proposed changes.

Moreover, the process of working together to design these changes must especially consider people with disabilities from diverse backgrounds. This includes ensuring the voices of people with disability living in regional and remote areas, First Nations people, persons from Culturally and Linguistically Diverse backgrounds, and LGBTQIA+ communities are prioritised.

Needs Assessments to Determine Funding

According to section 32(L) in the NDIS bill, people with disability who have met the eligibility criteria will undergo a ‘needs assessment’ which will be used to decide the funding in their NDIS plan. Both the needs assessment and the process to calculate the funding budget are described in the Explanatory Memorandum as ‘highly technical’, and will be decided by the Minister, with promises that they will be developed with input from the disability community and experts.

Every Australian Counts have very significant concerns about how the needs assessment will be used, and the potential limitations of the assessment tools. There is significant concern that the needs assessment process may not adequately capture the ‘whole of person’ support needs, as recommended in the NDIS Review’s final report, particularly for people with multiple or complex disabilities.

We are further concerned that the needs assessment will only consider impairments that meet the new eligibility requirements, which is not in line with the ‘whole of person’ approach recommended by the NDIS Review report. There is significant risk that people with complex and/or multiple disabilities will be unable to access all of the reasonable and necessary support they require. This is particularly the case where one type of disability will impact the participant’s ability to manage their milder disability.

Of further note, the bill does not clarify who will conduct the needs assessment, nor what their level of expertise would be. The NDIS Review report recommended that the needs assessment be conducted by allied health professionals or social workers with disability expertise. Every Australian Counts note that the final decision on who conducts the needs assessment, what assessment tools are used, and how the budget is calculated will be

made by the Minister (subclause 32L(8)(b)). Our community hold serious concerns about

the lack of information in the bill to this effect.

There is a serious risk that needs assessments will not fully understand or reflect the participants’ choices, circumstances and support needs. The needs assessors must be suitably qualified, knowledgeable and have relevant disability experience.

The NDIS Review report (p.37) was likewise clear in recommending that participants be given a draft of the needs assessment to check for accuracy and make corrections before it is submitted to the NDIA. The bill contradicts this recommendation, stating that ‘a report of the assessment must be prepared and given to the CEO as soon as practicable after the assessment is completed.’

While the bill does allow for ‘replacement needs assessments’, there is no information to explain when or how a replacement assessment would be available to participants, and whether the participant could request one (clause 32L(7)). This is a significant flaw in the current bill. There should be clear provisions in the legislation to enable participants the legal right to appeal a poor quality or inaccurate needs assessment and/or request a replacement needs assessment, rather than delegating this authority to Category A Rules (clause 32L(7)(b)).

In their Q&A webpage, the Department of Social Services (DSS) suggests that if a participant applies for a review of the NDIA’s decision on the ‘Statement of Supports’, the review would be able to consider the needs assessment. DSS also suggest that a participant would be able to ask for a new needs assessment to be conducted as part of the review of decision. Every Australian Counts notes that the wording in the bill does not confirm this process. Importantly, participants must have the right to appeal individual aspects of the process (such as the needs assessment), without being forced to seek a review of the entire statement of supports, potentially risking the loss of other necessary supports.

According to the legislation, after the needs assessment, a method will be applied to calculate a ‘reasonable and necessary budget’ for each participant, which could be used for flexible funding and/or specific supports (clause 32E). The method will be decided by the Minister (subclause 32L(8)(b)). The Explanatory Memorandum says: “New subsection 32E(2) will provide that flexible funding will be available to a participant where the needs assessment report for the plan indicates the participant requires at least some NDIS supports that are not stated supports.” The above wording raises significant concerns that NDIS participants may receive only stated supports in their NDIS plans, rather than the flexible budgets promised by the NDIS Review final report.

There must be a flexible approach to the needs assessment process and the tools chosen. Disability is diverse, and it’s common for people with disability to have more than one disability. A one size fits all approach will not work, and the assessments must be holistic in nature. Assessors must be flexible and responsive to the participant’s needs, varying the assessment process and tools used as required. There must be extensive research, testing and codesign to ensure that the assessment tools are reliable, accurate, and accessible for people with different communication, sensory, cognitive, cultural, language and literacy needs. The needs assessment must be designed to be appropriate and accommodate people with disability, including children and young people, people with complex communication needs and low levels of literacy.

It is also essential that the needs assessment tool(s) does not discriminate against and disadvantage people who have high support needs and who require 24/7 support. We are deply concerned that this tool could be used to enact the unfair and worrying recommendation by the NDC Review to fund people with high support needs and a ratio of 1:3. This is one-third of what people with high support need to live outside of a group home.

If this recommendation is adopted by the Government, it will take away our right to decide for ourselves where we live, whom we live with and who provides our support. This betrays the promise of the NDIS.

We are deeply concerned that the assessment algorithm will be set to 1:3 for people with high needs and force them into shared support models funded at a third of independent living costs. Article 19 of the UNCRPD says we have the right to decide where we live and who supports us.

Every Australian Counts are deeply concerned that the legislation to introduce these changes has been introduced before the needs assessment tools and budget calculation methods have been determined. While there are assurances that codesign will occur, there is nothing in this bill to guarantee that codesign of the assessment tools and budget calculation methods will eventuate. This legislation will dismantle an approach to allocating reasonable and necessary support and replace it with one that does not exist, is not individualised and not fit for purpose. In order for our community to be confident about changes to our NDIS, we need the Government to do the codesign work with us first and ensure that the approach is effective, before imposing it upon us.

Reasonable and Necessary Budget and NDIS Supports

The NDCS bill proposes a major change to the structure of the NDIS – replacing ‘Reasonable and Necessary Supports’ with ‘Reasonable and Necessary Budget’ and defined ‘NDIS Supports’. The Government proposes the development of permitted and prohibited lists of supports. The list of NDIS supports would specify items and supports that participants can claim from their NDIS funding, while the prohibited list would cover banned items which cannot be claimed. Every Australian Counts hold very significant concerns about how this proposed change would impact on NDIS participants:

 1) Restriction on Types of Supports: The shift toward defined NDIS supports limits
    the types of supports available to participants. This change could restrict access to
    broader and previously covered supports under the old "reasonable and necessary"
      criteria, which were more  flexible, tailored to individual needs, lower cost and
     effective.
 2) Impact on Participant Autonomy, Choice and Control: By moving to a predefined
   budget model and defined supports, participant choice and control over their support
    plans  will be significantly reduced.  The  flexibility to adapt supports based on
   changing needs or preferences would be constrained, affecting the ability to address
   unique and evolving participant requirements effectively.
 3) Potential Reduction in Support Quality:  The new framework would lead to a
    standardised approach that prioritises budget constraints over the quality of support.
    This could result in participants receiving supports that are specifically defined on the
        list of permitted NDCS supports rather than truly beneficial or suited to their specific
      disability, needs and circumstances.

Every Australian Counts

Every Australian Counts campaigned with the entire disability community for an individualised, person-centred NDIS. What constitutes a disability support for one person will not be the same for another, and NDS must continue to fund reasonable and necessary, individualised supports. The narrow definition of “NDIS Supports” is overly restrictive and risks undermining individual choice and control which are meant to be core pillars of the scheme.

The Explanatory Memorandum gives examples of white goods, holidays and cosmetics as items which would be prohibited. Every Australian Counts have heard from people with specific neurological disabilities for whom acrylic nails mean the difference between being able to work 1-2 hours per week or being able to work 20-25 hours per week. Assistive technology, including some white goods are a vital, low-cost disability-related support for some people with disability. Over the long term, it is significantly cheaper to fund a robot vacuum than to fund a support worker to vacuum every week, for example. We note also that technology evolves over time, with new assistive technology becoming available which could dramatically increase the independence of people with disability, and for lower cost. A defined list of NDIS Supports prevents participants from accessing new technologies as they become available. Whilst NDIS should not fund holidays, NDIS participants have the same right as other Australians to take holidays, and many require funded supports while taking their holidays, which needs to continue to be available. We note also that Short Term Accommodation (respite) must also remain a support option, as well as an opportunity for young people with disability to practice independence as part of building skills to move out of the family home and live independently.

NDIS Plan Budget Changes

After the needs assessment identifies a participant’s requirements for NDS support, a specific “method” will be used to calculate a “reasonable and necessary budget,” which will establish the amounts for flexible funding and/or stated supports (as per clause 32E).

Flexible Budget: This allows participants to choose and manage the supports they need, however the Government. It covers funding for NDIS supports that do not fall under stated supports.
Stated Supports: This is allocated for specific high-cost items and can only be used for designated supports. ‘Category A’ NDIS Rules will define these stated supports, which may include expensive items like assistive technology, home modifications, and supported independent living.

Every Australian Counts note significant constraints proposed in Section 32 of the bill and explanatory memorandum which will impact the ‘flexibility’ of the flexible budget, including:

Defined Funding Periods: The new framework plan will also introduce ‘funding periods,’ meaning that a participant’s total funding will be distributed in segments throughout the ‘maximum period’ of the plan (as outlined in subclauses 32F(2) and 32G(3)). This structure is designed to address ‘intraplan inflation’ - a scenario where funding is exhausted before the plan’s duration ends and needs additional topping up. We note that an extremely common reason for ‘intraplan inflation’ is due to insufficient funding in the original plan, especially in the development of the first NDS plan for a participant. The flexible budget will be allocated and distributed over specified funding periods, which would limit immediate access to the necessary amount of funds at any given time, depending on the participant’s immediate needs. PACE has been built with

capability to turn on one month funding periods. Disability is not static, and many participants have complex, episodic and/or degenerative disabilities requiring flexibility to spend more funding during periods of higher support needs, and less funding during periods of lower support needs. There is extreme risk that restricting participants to funding periods will put NDIS participants at higher risk of violence, abuse and neglect.

Requirements for Spending (Section 32H): Certain conditions must be met before funds can be accessed or used. These might include requirements such as obtaining services from specified providers or fulfilling specific procedural criteria before the funds can be utilised. This significantly limits flexibility of funding, and will especially impact people in regional, rural and remote Australia where there are thin to no markets and meaningful flexibility of funding is crucial to accessing any support.
Restrictions on Support Types: While the flexible funding aims to provide participants with the choice and control over their supports, there will be limits imposed on what types of supports can be funded. These are defined by what is categorised as ‘NDIS supports’ under the new rules, potentially excluding very reasonable and necessary supports, and preventing innovation. There is extremely high risk of people with disability experiencing gaps in crucial supports do to narrowly defined NDIS supports.
Monitoring and Approval: The use of flexible funding may require more stringent monitoring and approval processes to ensure that the funds are spent within the defined rules and restrictions, adding another layer of bureaucracy to accessing supports. Rather than simplifying NDIS processes and accessing supports, this risks further complicating an already over-complicated system.

These constraints limit the intended flexibility of the budget, affecting how participants can manage and use their funds to meet their needs effectively under the new NDIS plan structure.

The ‘method’ for calculating these budgets will be determined by the Minister (referenced in subclause 32K(2)). The effectiveness of these changes will largely depend on the decisions made by the Minister. For these reforms to result in fair and equitable plans, it is crucial that the government engages in genuine co-design with the disability community to refine the assessment and budget-setting process.

In addition to being given a draft copy of the needs assessment to be checked before being submitted to the NDIA, participants (or their nominee) must likewise be given a draft copy of the budget to review before being finalised. This will significantly reduce the high volume of requests for internal and external reviews of decision currently occurring due to poor decision-making by NDIS representatives, and demand for high cost reports to justify all requested supports.

Given the emphasis in this bill on participants spending in-line with their budget, ensuring that the needs assessment and budget are accurate and appropriate are vital.

EAC Submission on the ‘Getting the NDIS Back on Track’ bill Page | 9

Codesign and transparency are vital in the development of the method for determining

participant budgets. Diverse voices must be included in the codesign and testing of all methods, to ensure full consideration is given to:

People with all disability types, including people with multiple, complex and/or degenerative disabilities.
People with disability living in regional, rural and remote areas, with consideration of the impact of geographic isolation and thin markets – particularly given the NDIS Review’s controversial recommendation of mandatory provider registration or enrolment and its association impact on participants in regional and remote communities.
Aboriginal and Torres Strait Islander people.
Culturally and Linguistically Diverse people.
LGBTQIA+ people.
Age and developmental needs, inclusive of children and young people and their families.

It is essential that both the needs assessments and methodology to determine budgets are fully and extensively tested with all of the above cohorts prior to implementation. It can be challenging to predict the intensive supports participants require at different life transitions, with different informal or formal supports in place, and different geographic situations and access to supports. The method for determining budgets must also be sufficiently flexible to accommodate unexpected life events, such as loss of informal supports, changes in support needs, unexpected hospitalisation, or the need for new assistive technology, home modifications, or repair or equipment.

APTOS Unsuitable for Determining NDIS Supports

Every Australian Counts understands that according to the new Part 3 (2) and (3), the Applied Principles and Tables of Support (APTOS) will be used as the interim measure for deciding what is or is not an ‘NDIS Support’ until the new NDIS rules to create the list of permitted and prohibited NDIS Supports are developed. We note that APTOS was never designed to be operationalised in this manner. The APTOS principles were developed in 2015 as very broad policy guidelines for State Governments and NDIA in determining responsibility for various supports. They were never intended for insertion into legislation, and in some places are contradictory and contradict this bill. The draft bill says that rehabilitation falls under the remit of the NDIS, whereas the APTOS table places rehabilitation under the remit of the state-based Health Departments. There is significant risk that both NDIS and State/Territory Governments assuming they do not have responsibility for types of supports, leaving participants without the reasonable and necessary support they require.

The existing NDIS principles for Reasonable and Necessary should continue to be applied for deciding what qualifies as an NDIS support under subclauses 10(b) and 10(c).

Selective Reference to the UNCRPD

Every Australian Counts are concerned that the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) as referenced in the bill primarily revolves around the selective interpretation and application of its principles. The bill uses certain elements from

Changes to Eligibility and Access

The proposed changes in Section 24 and 25 of the bill risks increasing distress and trauma experienced by people with psychosocial disability applying for access to the scheme. Every Australian Counts is aligned with the Australian Psychosocial Disability Collective in stating that psychosocial disability is a legitimate disability, deserving of equal rights under the NDIS Act. We note also that under current NDIS eligibility criteria, psychosocial disability is considered a permanent disability which is not effectively addressed by existing mainstream services. The scope and level of support required, which is currently provided by the NDIS, are not available through mainstream mental health services. Many participants with psychosocial disability find the clinical mental health system, which is predominantly medication-focused, to be damaging, retraumatising, coercive, judgmental, stigmatising, and systemically oppressive.

Changes to eligibility and access are premature, given that Foundational Supports as recommended by the NDIS Review final report do not yet exist.

Increased Powers of the NDIA

Plan Management The Bill introduces new subsections 43(2A), (2B), (2C), and (2D), which address scenarios in which the CEO may deny a participant’s request for funding to be Plan Managed or Self-Managed in relation to new framework plans.

Circumstances permitting the CEO to make such decisions include:

Potential physical, mental, or financial harm to the participant if the decision isn’t made.
Non-compliance with section 46, which deals with the acquittal of NDIS amounts, regarding current or any previous plans.
Any circumstances specified by yet to be developed Category A NDIS rules.

Section 43 Amendment Recommendations

Every Australian Counts are deeply concerned about the significant power granted to the CEO to override a participant’s plan management preferences without clear limits. Changing a participant’s plan to Agency (NDIA) Managed has dramatic impact on a participant’s autonomy, choice and control; with serious repercussions impacting their access to supports – particularly in areas of thin markets such as regional and remote communities. It is critical that limits on how this power is used be clearly defined within the bill.

Section 43 of the bill should be amended to:

Detail the criteria for determining potential harm to the participant and ensure that risk assessments include the participant / nominee, with support for decision-making, family and/or carers, an advocate, and other important people in the participant’s life. This criteria must include assessment of the risk to participant in being unable to access any supports or losing current supports if funding is changed to Agency Managed.
Specify what constitutes non-compliance with section 46 and establish the threshold for such noncompliance that would allow the NDIA to override a participant’s preferred plan management type.
Ensure that NDIS rules related to this section are codesigned with people with disabilities and the broader disability community, and that these rules are accessible to all within the disability community. Codesign must particularly include the voices of regional, rural and remote participants and nominees, who will be most impacted by improper use of this power.

Information Gathering Powers

The NDIS bill grants the NDIA additional authority to request information or documents from participants, with severe consequences if these requests are not fulfilled. This includes:

Revocation of Participant Eligibility: If the NDIA is considering removing a participant from the scheme, it can demand information or require the participant to undergo a health assessment, which might include medical, psychological, or other evaluations. If the participant does not provide the required information within 90 days, the CEO has the authority to revoke their status, effectively removing their access to Scheme support (as specified in clauses 30 and 30A). Considering the extensive waitlists (6 months to 4 years) to access the various mainstream services NDIA are seeking such assessments from, there is significant risk of participants being removed from the NDIS and losing access to reasonable and necessary supports. Every Australian Counts are further concerned that the bill fails to include any constraints on this power, including what circumstances the NDIA can consider revocation of a participant’s eligibility, and whether the eligibility reassessment would be applied to all existing participants and/or specific cohorts of existing participants.
Requirements for New Framework Plans: While preparing a new framework plan, the NDIA can request any information it deems ‘reasonably necessary’ for this purpose, or require a participant to undergo a medical assessment. If the participant fails to comply within 28 days without a valid reason, both their current NDIS plan and any forthcoming plans will be suspended until they meet the NDIA’s request (as detailed in subclause 36(3)). Again, Every Australian Counts are extremely concerned by the short timeframe given to comply with the NDIA’s demand for medical assessments, and the lack of choice and control afforded to participants to be assessed by a medical professional of their choice. There is significant risk of the NDIA appointing an unsuitable medical professional without the relevant disability expertise to make the assessment (eg. Appointing a speech pathologist to assess physical or psychosocial disability).

Getting the NDIS Back on Track

These powers are extensive, allowing the NDIA the capacity to compel participants to consult with or be evaluated by a health professional of its choice, or to collect a wide range of personal information, such as notes from a psychologist. The ramifications of non-compliance can be quite harsh for participants.

Every Australian Counts believe the bill should significantly restrict these information-gathering powers, by limiting the types of information that can be requested, increasing the time-frame for compliance and reducing the negative consequences for failing to comply.

Strengthened Quality and Safeguarding Measures

Every Australian Counts support the proposed changes in the Bill (Schedule 2) that enhance the Quality and Safeguards Commission’s authority, such as attaching conditions to the approval of a quality auditor and expanding the Commissioner’s regulatory actions by delegating compliance and enforcement powers to a wider group of personnel. However, there must be substantial reforms to address violence and abuse against people with disabilities. There must be procedures introduced for unannounced site inspections of closed settings such as group homes to proactively prevent abuse, and improved systems to manage complaints effectively and identify patterns of complaints about providers – to trigger greater scrutiny. These changes should also ensure that the Commission monitor for and address conflicts of interest, capture of customers, sharp practices (including unfair service agreements), reduction of restrictive practices and improved code of conduct.

Challenges and Reviews of Processes and Decisions

In the proposed NDIS bill, participants retain the right to review the ‘statement of supports’, which includes the reasonable and necessary budget. However, the bill does not extend the right to review several of its new procedures, either through internal NDIA processes or externally through the Administrative Appeals Tribunal.

Critically, the ‘needs assessment’ will not constitute a ‘reviewable decision’ under section 99 of the NDIS Act, meaning it cannot be subjected to internal or external review. This limitation prevents participants from contesting an unsatisfactory needs assessment, potentially leading to the establishment of an inadequate budget based on that assessment.

Moreover, the Bill does not guarantee that participants can view the needs assessment report before it is submitted to the CEO. According to Section 32L(5), the assessment report must be prepared and delivered to the CEO as soon as practicable after completion. Contrary to recommendations from the NDIS Review, the report should be made available to the participant before finalisation. This provision should be clearly stated in the legislation to ensure participants have access to the assessment report before it reaches the CEO.

Although the Bill allows for ‘replacement assessments’, it does not specify when these might occur, nor does it confirm whether participants can request them (referenced in clause 32L(7)). New NDIS ‘Category A’ Rules are expected to outline the circumstances under which the NDIA should organise a replacement assessment (clause 32L(7)(b)) Should a participant request a replacement assessment that the NDIA declines to arrange, there would be no recourse to appeal or review the decision.

The Department of Social Services (DSS) suggests that during a review of a decision on a statement of participant supports, the needs assessment may be reconsidered to verify if it accurately reflects the participant’s needs and circumstances. It also mentions that

Over-reliance on Delegated Legislation

The NDIS bill introduces extensive powers for the NDIS Minister to establish Rules and determinations without requiring passage through Parliament. This form of ‘delegated legislation’ will play a crucial role in the implementation of the proposed reforms. Several NDIS Rules and determinations will formalise existing operational guidelines and policies, as was recommended in the NDIS Review final report.

NDIS Rules are formulated in conjunction with State and Territory Governments. The Bill empowers the Minister to create new Rules that will:

Define the types of supports the NDIS will fund (subclauses 10(b)-(c));
Establish decision-making processes regarding disability and early intervention requirements (clause 27);
Specify which supports qualify as ‘stated supports’ and set prerequisites for obtaining certain supports (clause 32J);
Dictate the circumstances under which a participant’s plan management request can be denied (subclause 43(2C)(c)).

Most new NDIS Rules will fall under ‘Category A’, necessitating unanimous agreement from all State and Territory Governments, providing greater oversight compared to ‘Category C’ Rules, which only need a majority agreement, or ‘Category D’ Rules, which merely require consultation.

The Minister also has the authority to make critical ‘determinations’ concerning:

The procedures for conducting needs assessments (subclause 32L(8));
The methods for calculating funding in reasonable and necessary budgets (subclause 32K(2)).

Although either house of the Commonwealth Parliament can veto these legislative instruments, they are not formally passed by Parliament and do not require consensus from State and Territory Governments. Despite the expectation for the Minister to consult appropriately before enacting a legislative instrument, these rules can be enforced without consultation. Given the Government’s pledge to involve the disability community in developing this legislation, this commitment should be explicitly stated in the NDIS Act.

The use of delegated legislation for administrative or technical details or to allow flexibility in rapidly changing areas may be suitable. However, relying on such measures raises several issues:

The full impact of the bill is challenging to understand. For instance, the community does not know how the Government will limit what is funded under the NDIS and what will be funded by States and Territories through foundational supports, because the

Rules to specify NDIS supports have yet to be seen by the community.

The Government should release the draft rules for people with disability and our representative organisations to consider.

Delegated legislation may not be suitable for all aspects of the changes proposed by the bill. Significant policy areas require more public scrutiny than what is needed to enact rules or determinations. For example, the new section 27 allows for the development of Rules about access, which is fundamental to the scheme and should be explicitly included in the primary legislation. Without knowing what is included in the delegated legislation, Every Australian Counts is unable to decide whether the bill has the balance right between the NDIS Act and the delegated legislation.
As the NDIS Review report recommended that co-design must be central to all of the NDIS reforms, Every Australian Counts are concerned that this bill proposes that major changes to the NDIS happen through delegated legislation, with no legislated commitment to ensuring that meaningful co-design occurs.

Recommendations

1)

Amend Section 4 to legislate a requirement for meaningful co-design and consultation with people with disability and their representative organisations in designing and implementing NDIS reforms. This must include:

Leadership by people with disability and our representative organisations.
Engagement plans and timelines which are publicly available and promoted to people with disability.
Meaningful codesign with people most impacted by any changes, including people with disability living in regional, rural and remote areas (prioritising geographically isolated people), First Nations people, Culturally and Linguistically Diverse (CaLD), LGBTQIA+, and people with diverse disability types.

2)

Amend Sections 24 and 25 to include more comprehensive criteria that do not disadvantage people with fluctuating or less visible disabilities such as psychosocial disabilities. This amendment should reflect an understanding that disability impacts can vary greatly and that recovery is not always a linear or achievable outcome for all. No changes to eligibility and access should occur until foundational supports are established and fully functioning.

3)

Amend subclause 32L to require that the Needs Assessor be a qualified allied health professional or social worker with experience conducting assessments and in the participant’s disability type(s).

4)

Amend subclause 32L(5) to require that the Needs Assessor provide a draft needs assessment report to the participant for review and corrections, before it is given to the NDIA. As recommended in the NDIS Review final report, the Needs Assessment must take a ‘whole of person’ approach to the assessment.

5)

Amend the bill to include a requirement for the needs assessment tool(s) to:

Be meaningfully codesigned and tested by people with disability from diverse backgrounds, families and carers, disability representative organisations, academics and health professionals, advocates and service providers.
Be developed using evidence from Australian and international peer-reviewed research about assessing the support needs of people with disability, and considerate of the impact of assessments on people with disability.
Not disadvantage people with 24/7 support needs and ensure that they have the 1:1 support they need to live independently and not be forced to share support.

6)

Amend sections 26 and 36 of the bill to require the NDIA to fully fund the cost of any assessments and reassessments of participants requested by NDIA.

7)

Amend Section 10 of the bill to ensure that ‘Reasonable and Necessary Supports’ continue to be the fundamental core of the NDIS, replacing the introduction of narrowly defined ‘NDIS Supports’.

8)

Remove Section 32H so that a flexible budget can be truly flexible. The provisions outlined in this section can be achieved when necessary by allocating stated supports

9)

Remove reference to using the APTOS principles to determine ‘NDIS Supports’ as an interim measure until Rules are created.

Require the NDIA to provide draft budgets to participants for review, before they are finalised.
Introduce a new provision or amend existing sections to make ‘needs assessments’ a reviewable decision, allowing participants to appeal or review these assessments and related plan decisions. This would involve changes to Section 99 to include needs assessments as reviewable decisions.
Address the extensive use of delegated legislation by amending relevant sections, such as those giving rule-making powers to the Minister (e.g., Sections 27, 32J, and 43(2C)(c)). These amendments should require more substantial public scrutiny and include key decisions about NDIS support and access criteria in the primary legislation rather than allowing them to be determined solely by ministerial rules or determinations.
Amend Section 43 to include clear parameters around when and how the NDIA can override a participant’s preferred plan management type.
Amend the bill to fully embrace the comprehensive framework of the UNCRPD.
Amend the bill to improve protections for participants where their eligibility is being reasses sed. There must be clear criteria under which eligibility may be reassessed, and constrictions on how often a participant’s eligibility is reassessed.
Amend the bill to improve protections for participants where NDIA have been unable to contact them. Consideration must be given to the fact that people fear answering phone calls from private numbers, may be homeless or have recently moved residence, and other factors impacting their ability to respond to correspondence from the NDIA.
Incorporate stronger quality and safeguarding measures as recommended by the Disability Royal Commission.

EAC

Submission on the ‘Getting the NDIS Back on Track’ bill

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Concerns about assessment processes and supports for people with psychosocial disability