Submission to the Community Affairs Legislation Committee Inquiry

National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Bill 2024

Submitted May\nby Tandem \n2024\

Tandem Inc., Wurundjeri Country\n70 Trenerry Crescent, Abbotsford 3067\nTelephone: 03 8803 5555\nAuthorised by: Marie Piu\nPosition in organisation: CEO\nEmail:\n For more information about this submission\nplease contact:\ntandem \nMarie Piu, CEO, email:

About Tandem

Tandem is the trusted voice of family, carers and supporters in mental health in Victoria. As the Victorian peak body with a sole focus on the needs and interests of mental health carers, Tandem’s role is to provide leadership, coordination and knowledge for the organisations and individuals who are working to improve outcomes for Victorian people living with mental health challenges.

Tandem is committed to ensuring that the importance of the contribution, expertise, experiences and needs of family, friends and other carers is recognised and addressed, and that they will be essential partners in treatment, service delivery, planning, research and evaluation.

What we do

Tandem helps raise community awareness about mental health issues and the challenges faced by family, carers and supporters of people with mental health issues and

provides information, education and training to Members and others involved in caring for people with mental health challenges.
ensures state and federal governments recognise the role, contribution and needs of the carers of people with mental health challenges.
facilitates communication between carers, government and other stakeholders in the mental health system.
advocates for policy changes and improved services to address carer needs.
supports carer participation in the planning, delivery and evaluation of services for people with mental health challenges and their carers.
facilitates the development of relationships between carers and carer-focused organisations and other stakeholders in the mental health service system, and facilitate the establishment of partnerships between carers and service providers; and
encourages research on best practice in carer support.

Who is a mental health carer?

a. a family member, partner, friend or other person; b. of any age; who will commonly; c. be actively involved in caring for and supporting a person with mental health challenges, with this role not necessarily a static role, but rather a role that is capable of fluctuation over time according to the needs of the person with mental health challenges and the carer; d. have their life impacted by the wellbeing of the person with mental health challenges; and e. undertake for the care of and support of a person with mental health challenges (from Tandem’s Rules of Association, 2023 p. 7)

About Tandem ………………………………………………………………………………………………………………….. 3

What we do …………………………………………………………………………………………………………………… 3

Contents …………………………………………………………………………………………………………………………… 4

What informs our submission ………………………………………………………………………………………. 4

Recommendations …………………………………………………………………………………………………………… 5

This submission is informed by DANA’s submission to this inquiry. We endorse their recommendations included below. In some cases, we have expanded on a recommendation to include a family, carer supporter perspective. We have done this using highlighted text ……………………………………………………………………………………………………… 5

Response summary …………………………………………………………………………………………………………. 8

Needs assessment - Sections 32C-32L …………………………………………………………………. 10

Co-design is critical ……………………………………………………………………………………………….. 10

Person-centered needs assessment …………………………………………………………………….. 11

Ensuring a copy of the assessment report is provided to the person on completion ………………………………………………………………………………………………………………..12

Correcting errors in needs assessment reports …………………………………………………… 13

Ensuring external material and the views and needs from chosen family, carers and supporters are considered in the assessment. ……………………………………………… 14

Defining ‘NDIS supports’ - Sections 10 ………………………………………………………………………… 15

Initial principles create uncertainty - Section 10 (1)(a) ……………………………………………. 16

Suitability of APTOS Principles ……………………………………………………………………………… 16

Shifting away from ‘whole of person’ approach - section 34 (1) (aa) …………………. 17

Limits required for expanded NDIA powers- Sections 30, 36, 46 ………………………… 18

Punitive powers for non-compliance for request for information ………………………. 18

Rules for plan management …………………………………………………………………………………… 19

Recommendations

1)

Sections 32K and 32L of the Bill be amended to include a requirement that people with disability and their family, carers and supporters must play a leadership role in the design and implementation of reforms to the NDIS, including related legislation, subordinate legislation and Ministerial determinations, including direct engagement with Disability Representative Organisations, the Independent Advisory Council and a public consultation process.

2)

Trials must be conducted of the proposed needs assessment and budget setting, with full, transparent reviews and evaluations, which are co-designed with people with disability and their family, carers and supporters to test the process before wide-scale implementation.

3)

Ensure those instruments and frameworks are reviewed 6, 12 and 18 months after implementation, then yearly after that, with evaluation and impact statements tabled in the Australian Parliament.

1. The Joint Standing Committee on the NDIS reviews the impact of the needs assessment process and budget setting mechanism within 12 months and reports publicly. The NDIA is to make any further changes as needed to ensure fairness, equity and essential support provision.
1. Include a legislative requirement that the assessment process and assessment tool (or choice of tool) is co-designed with people with disability, his family, carers and supporters and representative organisations.
1. Amend subsection 32L (3) to require the assessor to conduct a whole-of- person assessment, that recognises the support provided by family, carers and supporters, and also recognises the needs of families, carers and supporters.
1. Amend section 32L (8) to require that assessors abide by a code of conduct, designed in conjunction with the community, that ensures that they act with integrity and in the interests of obtaining a clear and full picture of the person being assessed.
1. Remove subsection 32L (10) from the Bill.
1. Amend section 32L (5) to require the assessor to provide a copy of the final report to the user and nominated person (if applicable) as well as the NDIA.
1. Amend section 32L to ensure a process for people to identify errors needing correction in any report by a needs assessor by issuing the person, and their ominated family member or support person, a draft copy of the assessment.
1. Amend section 32L to ensure that draft can be assessed for a minimum of 14 days before a finalised version is provided to the Agency.
1. Amend section 32L (7) to allow participants access to a second opinion if they believe the first report does not capture their circumstances accurately. This should be able to be triggered by the person with disability, unlike the current legislation which relies on the discretion of the Agency. Requests for further assessments should have a pathway to be considered by the CEO.
1. Amend section 32L to clarify that assessments are undertaken at no cost to the individual and/or their family, carers and supporters.
1. Amend section 32K and 32L to ensure there is scope for people to introduce reports or information from their family, carers and supporters as part of the needs assessment and budget setting process that will be developed with people with disability.
1. Amend section 32L (4) to ensure that the needs assessments have regard to a person’s self-assessment, and that a person’s family, carer or supporter is able to provide important information and context to the assessor on both the needs of the person with disability and their own needs as a family, carer or supporter.

1. Amend section 36 (2) to ensure the cost associated with any request for information is paid for by the Agency.
1. Section 10 of the Bill be amended to include a requirement that people with disability and their family, carers and supporters must play a leadership role in the design and implementation of the Rules enabling or limiting the use of certain supports under the NDIS.
1. Add a provision to Section 10 clarifying that the Rules cannot be made prohibiting certain supports from the NDIS with the intent that they be provided through state-based systems or ‘Foundational Supports’ unless they are practically available to people.
1. Amend section 10 (1)(a) to preserve the flexibility and breadth of the different types of disability supports that people require. Where the government seeks to implement principles about supports from the CRPD, those should be implemented in full.
1. That the Bill is amended to remove the application of the NDIS support definition in subsection 34 (f) to ‘old framework’ plans, remove the APTOS tables from s124, and ensure that the new definition only applies to new framework plans in sections 32C-32L. This should also extend to the enforcement sections of the Bill in section 46.
1. Ensure that the current framework of existing plans continues until the new Rules are developed and foundational supports are developed, established, and available to people with disability.
1. Remove section 34 (aa) from the current Bill.
1. Amend section 36 (3) (a) to extend the timeframe to respond to requests for information relating to a plan review to 90 days as a minimum, and preserving the flexibility to amend in the event an extension is required.
1. Amend sections 30 and 36 to provide flexibility in timeframes, and where a person must rely on others to request information, or is unable to provide that information for reasons outside of their control.
1. Amend the suspension powers in sections 30 and 36 to stress that these powers should only be used as a measure of last resort (and not as an immediate consequence of non-compliance), and require the Agency to constructively engage with the participant before they are exercised.
1. Include a provision in the participant service guarantee to ensure that decisions relating to the suspension of plans or access requiring a response to internal review requests made in relation to these provisions. If a decision is not made within this time, access to a plan should be immediately restored.
1. Direct referral to an independent disability advocate should take place if the use of these powers is considered.

Response summary

The National Disability Insurance Scheme (NDIS) provides essential support to over 610,000 Australians. Despite this, the NDIS Review in 2023 identified that the scheme is not working well for everyone. A high proportion of people who struggle to access and receive adequate support under the scheme are those who experience psychosocial disabilities.

Through broad consultation, the NDIS Review Final Report (the Final Report) includes many recommendations for improving the NDIS, ensuring people with disability and their families, carers, and supporters have access to the support they need. It is an important blueprint for a way forward, including specific recommendations and actions for improving the experiences of those accessing the NDIS with psychosocial disability.

When the Final Report was released, many organisations noted the imperative for people with disability and their family, carers and supporters to drive the conversation and next steps in implementing change. An extensive and meaningful engagement with people with lived experience is critical to achieving this.

This is emphasised across the Final Report. It mentions the importance of co-design and consultation with people with disability and their family, carers and supporters throughout the implementation of the reform.

Tandem has deep concerns that the potential for collaborative and, therefore, effective reform has been undermined in drafting this Bill and its inclusions. This is particularly concerning given aspects of the Bill may have significant unintentional consequences on how the NDIS will operate, impacting how people with disability and their family, carers and supporters have their rights and needs recognised and met.

Firstly, it is not clear how people with disability and their family, carers and supporters played a role in drafting the Bill. In the Bill’s current form there is also no mechanism to assess the impact of proposed amendments because they are predicated on subsequent rules that will drive implementation and the policy

While we recognise there have been public commitments by the Australian Government and the National Disability Insurance Agency (NOIA) to develop these rules jointly with the community, without enshrining co-design into the development of primary legislation and subsequent legislative instruments, this is not guaranteed. Alongside DANA and the broader disability sector, Tandem is greatly concerned that the Bill gives the Minister and the States and Territories the power to develop crucial new elements of the NDIS in isolation, without appropriate input from those with lived experience.

With the intent of the NDIS Review being centered on rebuilding trust, a failure to enshrine consultation or co-design in the legislation would likely result in further distrust among people with disability, their families, carers and supporters, and other stakeholders.

While we recognise a number of changes enshrined in the Bill are positive, such as:

the move towards more flexible funding packages;
streamlining of processes;
clarity around some decision-making processes; and
provisions to take action against unlawful, unregistered providers.

The Bill also proposes some potentially problematic expanded powers for the NOIA that include:

broad information request powers with disproportionate penalties for non- compliance, and
rigidly linking supports to impairments, undermining the ‘whole of person’ approach and risking creating gaps in support for people with disabilities, especially while ‘Foundational Supports’ are being designed and implemented.

With the announcement of the Federal Budget on the 14th of May, we understand that the Legislation proposed in this Bill will play a key part in driving a reduction of $14.4 billion in growth over the forward estimates. With this Bill preceding a formal response from the Government to the NDIS Review (and the Disability Royal Commission), we are concerned that for the drafters of this Bill, economics, not the

needs and rights of people with disability, is the motivating factor of the suggested reforms.

Needs assessment - Sections 32C-32L

Co-design is critical

One of the most significant changes proposed in the Bill is a new ‘needs assessment’ that will be undertaken for each plan review.

Alongside DANA, Tandem supports the creation of a new approach that is fairer, more consistent and ensures people have access to packages that include the support they need. However, we share concerns within the sector that the Bill does not provide the needed legislative safeguards to ensure that the needs assessment process, including how the budget for a package is determined, is designed and trialled in consultation with people with disability and their families, carers and supports.

Tandem agrees with DANA that the Bill requires significant revisions to provide the needed legislative safeguards to ensure the new needs assessment approach is designed with people with disability and their family, carers and supporters.

Tandem supports DANA’s recommendations related to Sections 32C_32L, and wish to also highlight the importance of including families, carers and supporters as co-design participants, as follows:

    1) Sections 32K and 32L of the Bill be amended to include a requirement that
   people with disability and their family, carers and supporters must play a leadership role in the design and implementation of reforms to the NDIS,
    including related legislation, subordinate legislation and Ministerial determinations, including direct engagement with Disability Representative Organisations, the Independent Advisory Council and a public consultation process.
  2) Trials must be conducted of the proposed needs assessment and budget setting, with full, transparent reviews and evaluations, which are co-designed
   with people with disability and their family, carers and supporters to test the process before wide-scale implementation.
  3) Ensure those instruments and frameworks are reviewed 6, 12 and 18 months after implementation, then yearly after that, with evaluation and impact statements tabled in the Australian Parliament.

The Joint Standing Committee on the NDIS reviews the impact of the needs assessment process and budget setting mechanism within 12 months and reports publicly. The NDIA is to make any further changes as needed to ensure fairness, equity and essential support provision.

Person-centered needs assessment

The Bill is light on details on who will conduct the needs assessment. The NDIS Review indicated it should be an allied health practitioner or social worker with disability expertise, employed or contracted by the NDIA. Alongside DANA, we agree it is vital that the needs assessment and budget setting are conducted by appropriately qualified health professionals who understand each participant’s history and needs.

Tandem emphasises the critical importance of specialised assessors with appropriate knowledge and skill regarding complex psychosocial needs - an area often misunderstood by generalist practitioners. This was supported in the NDIS Review report, which recognised the need for a new approach to adequately meet the support needs of people with psychosocial disability, that focuses on personal recovery.

It is also important that assessors, whenever applicable, have experience in involving families, carers and supporters and recognising their own specific needs. The requirement for trauma-informed practice is also critical.

DANA recommends that representative groups for different types of disabilities should also be involved in the design of assessment processes, and Tandem also recommends that a representative range of mental health carer organisations and peaks are also consulted. These requirements should be enshrined in the legislation, rather than be subject to the Minister’s determination.

A co-designed code of conduct to ensure that people’s rights are protected during assessments is recommended by DANA and supported by Tandem. We highlight the need to include protections for family, carers and supporters within any such code of conduct. Such protections could, in part, be drawn from The Statement for Australia’s Carers within the National Carer Recognition Act (2010).6

The Bill’s version of 32L (3) requires that the assessment is limited to impairments that meet the disability or early intervention requirements. This may fail to achieve a ‘whole of person’ approach by imposing artificial distinctions in the way a person with multiple and interrelated disabilities accesses supports. Tandem agrees with DANA that a more comprehensive whole of person approach is needed that better

aligns with the NDIS Review recommendations to eliminate the primary/secondary

disability focus.

Alongside DANA and others, Tandem is also concerned that Section 32L (10)(b) of the Bill asks assessors to consider the financial sustainability of the NDIS. Assessors should be focused on providing a clear and accurate picture of a person’s support needs and not be required to consider the NDIS’s sustainability. This inclusion raises concerns that the priorities of this Bill are tipped towards cost-saving, over the provision of an accurate package that meets the needs of the person with disability and their family, carer or supporter.

Tandem supports DANA’s recommendations regarding co-design processes, and also highlight the importance of including family, carers and supporters as well as participants, as follows:

Include a legislative requirement that the assessment process and assessment tool (or choice of tool) is co-designed with people with disability, their family, carers and supporters and representative organisations.
Amend subsection 32L (3) to require the assessor to conduct a whole-of- person assessment, that recognises the support provided by family, carers and supporters, and also recognises the needs of families, carers and supporters.
Amend section 32L (8) to require that assessors abide by a code of conduct, designed in conjunction with the community, that ensures that they act with integrity and in the interests of obtaining a clear and full picture of the person being assessed.
Remove subsection 32L (10) from the Bill.

Ensuring a copy of the assessment report is provided to the person on completion

The current Bill only requires that the assessment report be provided to the NDIA when completed.

There are concerns in the sector that there is no equivalent obligation on behalf of the assessor to provide a copy of their report to the person with a disability after their assessment has been completed. We agree with DANA that this is crucial to e nsuring that this process is done appropriately and transparently, and that people have the information needed to consider their review rights.

The Bill should be amended to ensure that a copy of the report is provided to the

person assessed and their nominated family member or support person once finalised.

Tandem supports DANA’s recommendation and recommends the inclusion of nominated persons.

Amend section 32L (5) to require the assessor to provide a copy of the final report to the user and nominated person (if applicable) as well as the NDIA.

Correcting errors in needs assessment reports

The legislation does not provide a mechanism for people to correct any errors made in undertaking the assessment process, and there are no provisions to incorporate additional evidence. While it may be open for the NDIA to incorporate additional information when determining a plan, this is not guaranteed through the drafting of this Bill.

The main remedy that the Bill appears to envision is a replacement assessment. We agree with DANA that this is only likely to be useful in some circumstances, however the effectiveness of the provision is again going to be determined by rules that are not yet part of this proposal. The approach is also problematic as it would require another time-intensive assessment, rather than a review, each time an error is detected.

We support DANA’s recommendation that the legislation be amended to ensure that a draft copy of the assessment is provided to the person being assessed (and their nominated family member or support person, wherever applicable), and that they have adequate time to review and flag any areas that they believe are inaccurate. This will alleviate both administrative burden and the need for submitting and processing formal complaints for the person with a disability, the assessors and the NDIA.

Tandem supports DANA’s following recommendations, and have added considerations regarding family, carers and supporters, as follows:

Amend section 32L to ensure a process for people to identify errors needing correction in any report by a needs assessor by issuing the person, and their nominated family member or support person, a draft copy of the assessment.
Amend section 32L to ensure that draft can be assessed for a minimum of 14 days before a finalised version is provided to the Agency.

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Amend section 32L (7) to allow participants access to a second opinion if they believe the first report does not capture their circumstances accurately. This should be able to be triggered by the person with disability, unlike the current legislation which relies on the discretion of the Agency. Requests for further assessments should have a pathway to be considered by the CEO.
Amend section 32L to clarify that assessments are undertaken at no cost to the individual and/or their family, carers and supporters.

Ensuring external material and the views and needs from chosen family, carers and supporters are considered in the assessment.

For an assessment to be accurate, it must also include contextual information about the person’s current supports, informal supports and other situational factors.

We agree with DANA that it is critical that the assessment process includes the ability to incorporate additional external material, including reports from health professionals, input from family, carers and supporters, as well as self-assessments done by the person with disability. This additional material must be utilised to inform the budget setting process to achieve appropriate outcomes that support the needs of the person with disability and their family, carers and supporters.

Current NDIS assessment processes often fail to recognise the critical support provided by family, carers and supporters, and their needs. This is despite the significance of the support provided and their carer role’s often unsustainable nature. This can be detrimental to the health and well-being of family, carers and supporters and can subsequently impact their ability to provide informal support. Respite and other support for carers through the NDIS or another program such as Carer Gateway are generally limited, even if they are available. Therefore, families, carers and supporters must be able to provide adequate contextual information within NDIS assessments, so that assessments are accurate and also recognise the needs of family, carers and supporters.

With the strengthening of language related to family, carers and supporters, as bolded in the copy, Tandem supports DANA’s recommendations related to Sections 32C_32:

Amend section 32K and 32L to ensure there is scope for people to introduce reports or information from their family, carers and supporters as part of the needs assessment and budget setting process that will be developed with people with disability.

Defining ‘NDIS supports’ - Sections 10

The new Bill proposes to more tightly regulate the ‘type’ of supports a person can access with NDIS funding.

Tandem shares DANA’s concern that this approach moves the NDIS towards lists of supports that are not permissible. This is primarily achieved through the operation of section 10, which requires the Bill to align with definitions drawn from the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). Supports can then formally be ruled in or out of the definition through legislative Rules agreed between the Federal Government and the States and Territories.

For example, in the limited information provided in the explanatory memorandum, ‘holidays’ are given as an example of items that are likely to be ruled out through the operation of this new definition. As mentioned above, family, carers and supporters often consider the ability to access respite as part of the person they support’s plan as essential. Tandem is greatly concerned that this could be in jeopardy if it is deemed a ‘holiday’ rather than respite.

Unilaterally banning certain classes of items carries a large risk of unintended consequences and, as DANA suggests, should only be introduced in very limited circumstances and a highly targeted fashion. This is crucial to preserving choice and control for both the person with disability and their family, carers and supporters.

Again, within this Bill, people with disability and their family, carers and supporters do not have a legislated role in this crucial process of developing the Rules related to defining NDIS support.

With the strengthening of language related to family, carers and supporters, Tandem supports DANA’s recommendations related to Section 10, as follows:

1. Section 10 of the Bill be amended to include a requirement that people with disability and their family, carers and supporters must play a leadership role

Initial principles create uncertainty - Section 10 (1)(a)

The first part of the new definition in section 10 (1)(a) appears to implement a range of criteria drawn from the United Nations Convention on the Rights of Persons with Disabilities (‘CRPD’). In the explanatory memorandum, it is stated that these criteria are included to ensure that the Federal Government has constitutional authority to provide these funds to users of the NDS.

In initial discussions around the Bill, PIAC and others have noted how this section is selective with its implementation of the CRPD principles.

Tandem agrees with PIAC and DANA that full implementation of the Convention is not achieved in this process, and the application of these principles in isolation does not help to clarify the state of what will be or will not be funded by the NDIS.

We also agree with DANA that there is potential for confusion around the inclusion of ‘health services’ and ‘rehabilitation’ in light of the development of ‘Foundational Supports’ and the ongoing relationship between the NDIS and services funded by state health bodies. These new categories will likely narrow the availability of many supports, and this section should be reconsidered to incorporate the full scope of supports that people with disability use.

We support DANA’s recommendation to:

Amend section 10 (1)(a) to preserve the flexibility and breadth of the different types of disability supports that people require. Where the government seeks to implement principles about supports from the CRPD, those should be implemented in full.

In the DANA submission, concerns with the Bill were identified relating to the current framework under section 34.

The new ‘NDIS supports’ definition, for example, would be implemented by replacing subsection (f) with a requirement that all supports that form part of a plan are NDIS Supports under the definition in section 10. Further development of the Rules is required, as flagged above. In the meantime, the Bill proposes to rely on the ‘Applied Principles and Tables of Support’ (APTOS) agreement reached between the Federal Government and States in 2015.

DANA raises concerns with using APTOS because it is a vague and regularly disputed list of what services are appropriately delivered by what level of government and, therefore, risks inserting high-level disputes about federation splits into everyone’s NDIS plan. Their advice is that this is a convoluted approach that will do little to clarify what a person can expect from their NDIS Plan, leading to people with disability being unable to access the support they require.

Tandem supports the following DANA recommendations:

That the Bill is amended to remove the application of the NDIS support definition in subsection 34 (f) to ‘old framework’ plans, remove the APTOS tables from s124, and ensure that the new definition only applies to new framework plans in sections 32C-32L. This should also extend to the enforcement sections of the Bill in section 46.
Ensure that the current framework of existing plans continues until the new Rules are developed and foundational supports are developed, established, and available to people with disability.

Shifting away from ‘whole of person’ approach - section 34 (1) (aa)

The Minister, in his second reading speech, said that this Bill would shift the NDIS to a whole of person approach and would do away with primary and secondary disabilities.8

Yet, the Bill, in its current form, implements a provision for a needs assessment that would be limited to impairments that meet the disability or early intervention requirements. This may fail to achieve a ‘whole of person’ approach by imposing artificial distinctions in the way a person with multiple and interrelated disabilities

8 Commonwealth, Parliamentary Debates, House of Representatives, 27 March 2024, 24 (Bill Shorten, Minister for the NDIS)

Accesses Supports

This is a particular concern for people with psychosocial disability who already face, often multiple and compounding, barriers to accessing the NDS.

We support the following DNA recommendation:

1. Remove section 34 (aa) from the current Bill.

Limits required for expanded NDIA powers - Sections 30,36,46

Punitive powers for non-compliance for request for information

The Bill introduces new powers for the NDIA to request information about people’s access status that include powers for the NDIA to suspend a person’s status as a participant for non-compliance.

We agree with DNA that these are disproportionate and deeply concerning aspects of the current Bill. In the first instance, the powers to suspend access status, or to suspend access to a person’s current plan, should be a measure of absolute last resort and with significant safeguards in place.

We also agree with DNA that the 28-day period for plan-related activities is too short a time to provide or source the information needed to develop an NDIS plan; 90 days is a more appropriate timeframe that is used elsewhere for information requests in the current Act, with scope for offering extensions.

While it may be that the shorter timeframe is intended to reflect the fact that people’s plans are regularly reviewed while on the NDIS, the shift to longer-term plans under the review should mean that there is more time to get these plans right. We agree with DANA that the 90-day period more accurately reflects the significance of the decision being made.

As suggested by DNA, active efforts should also be made by the Agency to reach out to the applicant directly, instead of providing such notices through email, the MyGov portal, or physical mail alone.

There is a range of ways in which people interact with the Agency, and many will not have access to emails or other digital technologies used to notify people of these actions. We agree with DNA that given the significant consequences for non-

compliance there should also be active efforts to connect people with support services, such as advocacy or legal aid support services.

Furthermore, because there is an immediate statutory power in the current form of the Bill to take away support, we agree with DANA that there needs to be an enforceable review timetable to contest these decisions. Should a review not be completed within a short timeframe (7 days), access should be restored to the participant. This is preferred by DANA and Tandem over the current ‘deemed decision’ approach, where a decision is upheld on the expiry of a review period, because of the significant consequences that could occur when you remove support.

Without changes to these provisions within the legislation, there is a significant risk that participants who are already disadvantaged could lose access to their NDIS funding, simply by failing to be able to respond to requests within 28 days.

We support the following DANA recommendations:

Amend section 36 (3) (a) to extend the timeframe to respond to requests for information relating to a plan review to 90 days as a minimum, and preserving the flexibility to amend in the event an extension is required.
Amend sections 30 and 36 to provide flexibility in timeframes, and where a person must rely on others to request information, or is unable to provide that information for reasons outside of their control.
Amend the suspension powers in sections 30 and 36 to stress that these powers should only be used as a measure of last resort (and not as an immediate consequence of non-compliance), and require the Agency to constructively engage with the participant before they are exercised.
Include a provision in the participant service guarantee to ensure that decisions relating to the suspension of plans or access requiring a response to internal review requests made in relation to these provisions. If a decision is not made within this time, access to a plan should be immediately restored.
Direct referral to an independent disability advocate should take place if the use of these powers is considered.

Rules for plan management

The new law also expands the NDIA’s powers to regulate plan management. Under section 43, the Agency can dictate the method for Plan Management used in a person’s plan if they are satisfied that there is likelihood of mental or physical harm to the participant, or the participant has not complied with acquittal provisions in section 46.

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According to DANA, this section appears to codify an emerging practice from the Agency at the Administrative Appeals Tribunal, where NOIA-management of a plan is made conditional of any offer to resolve.

We agree with DANA that placing these decisions in a more detailed framework about what risks materially exist as opposed to punishment for prior acts would be vastly more effective and less disruptive to users. We also agree with DANA that there should be a focus on education, capacity building, support for decision making, and independent advocacy support to help address errors that have taken place in the past, not just a method to take away control.