Submission on the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Bill 2024
About IDRS.
The Intellectual Disability Rights Service (!DRS) is a not for profit organisation that works with and for people throughout NSW living with cognitive impairment. !DRS auspices the Ability Rights Centre, (ARC), a community legal centre that provides legal and related services, including legal advice, representation and community legal education. !DRS also operates a separate non-legal criminal justice support service, the Justice Advocacy Service. !DRS engages in policy and law reform work with a view to advancing the rights of people with cognitive impairment. We have an NDIS Appeals Team who advocate for participants under the NDIS in relation to their NDIS Plans and Supports.
Our concerns.
We wish to inform the Senate of our concerns in relation to the Bill. They are:
- The proposed changes are very unclear because the details will appear in the New Rules which have not been published.
- The replacement of section 34 of the NDIS Act 2013, with section 1 o in the Bill. This means that the NDIS will no longer fund “reasonable and necessary supports”, but instead, it will fund supports through a “reasonable and necessary budget.”
- That “choice and control” in relation to reduced supports, and self-management offunding for supports will be reduced.
- That the participants will be restricted in being able to Appeal to the Administrative Appeals Tribunal as a last avenue of Appeal.
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The New Rules will empower the NDIA to determine the access criteria for participants, the arrangements for the needs assessment, the supports that will be funded, the supports that will not be funded, and the amount of funding for each support. These are the most important facts for participants to understand, and we submit they should be informed about them and have the opportunity to provide feedback before the Bill becomes law. The New Rules have not been published.
2. The replacement of section 34 of the NDIS Act 2013, with section 10 in the Bill.
Needs As..s_e_ssments: More information should be provided. The Bill requires a “needs assessment” for supports, and then it is used to ascertain a “reasonable and necessary” budget. So, who will do the needs assessments? Will they be health professionals or social workers? As of this moment it is unclear, however, it is certain the Minister will be nominating who will conduct the assessment. We submit it is imperative the Minister’s nominee has a comprehensive understanding of each participant’s history and needs. They should take a holistic approach. Also, it is unclear as to how these asse._ssments will be done, what assessment tools will be used, and what the assessments will contain. Furthermore, if the needs assessment is wrong, it cannot be appealed to the AAT! Apparently, it could be replaced, but again, it cannot be appealed to the AAT. We submit these details should be provided because they are fundamental for the participant to have a suitable NDIS Plan, and participants should also have the right to appeal their needs assessment if it is wrong.
NDIS Supports are to be stated in the New Rules, but we do not know what they ..are… These supports are to be expressly stated in the New Rules, and the New Rules will also state supports that are not to be funded. For example, will this change overturn Burchell’s case, (2019 AATA 1256), where the AAT held that the NDIA should fund a health-related service? Also, will this change overturn Mazy’s case, (2018 AATA 3099), where the AAT held that the NDIA had to fund a registered nurse to supply insulin injections? Also, will it overturn WRMFv NDIA, (2020 FCAFC 79), where the AAT held that a trained sex therapist was a reasonable and necessary support? So, will the New Rules exclude health-related services, and sex therapy? If they do exclude health related services, and if the NSW Government does not provide those services, will the participant miss out on those services and “fall through the cracks?” The point is that the New Rules should be published before the Bill becomes law so that participants are informed and have the opportunity to comment about the impact of the proposed changes upon them.
What is a reasonable and necessary budge_t1 The New Rules will also state the method and tools used to determine the “reasonable and necessary budget”, but we do not know the details. For example, will this change overturn McGarrigle’s Case, (2016 AATA 498), where the AAT held that the NDIA should fully fund his transport costs instead of only funding part of them as the NDIA wanted to do. The point is that participants should be informed if the New Rules will empowerthe NDIA to only partly fund a support!
That Choice and Control will be reduced.
If the New Rules narrow the supports, and lower the budgets, the participant’s choice and control will be reduced.
Also, the proposed Bill anticipates that there will be a shift to agency management because the NDIA has questioned some participants about their self-management decisions. For example, a client has complained that under the proposed Bill she will not be able to use unregistered support workers for her brother who resides in an SDA house, but only registered service providers. This result would seem to follow, if for example the NOIA replaced self-management for a participant with agency management, because the NOIA would only engage with registered service providers, and if they wanted all residents in SOA accommodation to use only registered service providers. The participant in our client’s case has been very satisfied with her/his unregistered support workers and has had unsatisfactory past experiences with registered support workers. Therefore, the client does not want agency management.
Restricted Appeals to the Administrative Appeals Tribunal (AAT).
Needs Assessments.
Most importantly, a “needs assessment” would not be a “reviewable decision” under section 99 of the NDIS Act and cannot be reviewed through the internal or external review. This means the Bill does not provide a way for a participant to challenge an inappropriate needs assessment- and therefore to prevent an inadequate budget being set based on that needs assessment…. This is a major issue with the Bill … (This quote is from a summary made by the Public Interest Advocacy Centre, (PIAC) entitled, “Explainer: Getting the NOIS Back on Track No1 Bill). This is a major concern for us.
Supports.
The new section 1o enables New Rules to state what is “in” and what is “out”. A participant cannot appeal a support that the NOIA states it will not fund, and for those that it will fund the participant will have to prove it is within the definition of the supports the NOIA will fund. Participants may “fall through the cracks” and be denied supports, for example for health-related services which are essential but are not available through any other system.
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The new section 1o enables New Rules to state the amount of the “reasonable and necessary” budget. In the past the AAT held that the NOIA must fully fund supports, however we are concerned that the New Rules can be used to only partly fund supports.
Concluding Remarks.
In evaluating the Bill, we acknowledge that changes are required, however it seems premature to be introducing the Bill before there has been agreement between the Commonwealth and State Governments in relation to the supply of government services
that may impact on people with disabilities. Also, it seems premature because consultation has not taken place between the government and the disability sector about the supports that will or won’t be funded. We submit that after these matters have been completed, information should then be provided about how the New Rules will address the access criteria, the arrangements for the needs assessments, the supports that will and won’t be funded, and the tools that will be used to determine the amount of “reasonable and necessary” funding, so that participants will be informed about how the new Bill will impact on their NDIS Plans. At present, there is not enough information, and therefore we are concerned that the Bill will reduce our client’s disability supports.
Janene Coates Tim Chate CEOoflDRS Solicitor of ARC
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