NDIS Review – Advocacy WA Submission

Summary

“Needs assessors” appear to be able to overrule clinical advice without clinical oversight and there is little information about who these needs assessors are, their qualifications, who they will work for or how their performance will be measured. There is little information about the assessment tools being used and the needs assessment decision does not appear to be reviewable except by the CEO (who we assume will review if support budgets are high). All decisions should be externally reviewable so we do not end up with groupthink or subjective decisions (which is what we have now).

The legislative changes assume that participants and applicants are not to be trusted.

The NDIA and minister have too much power. This enables future governments and CEOs to make fundamental cuts and changes to the scheme as they see fit, with no regard to people living with disability. The codesign process spoken about within the instrument fails to include co-decision making which is necessary to ensure the voices of people living with disability are heard, understood and part of implementation.

It appears that eligibility reassessments can occur whenever the CEO chooses, in conflict with CRPD principles and the explanatory memorandum.

A huge flaw in the legislation is a failure to consider regional, rural and remote people with disability and the difficulties they face in finding supports.

Below, section of the explanatory memorandum are in italics and our comments are in regular font.

Comments about specific sections as per the “NATIONAL DISABILITY INSURANCE SCHEME AMENDMENT (GETTING THE NDIS BACK ON TRACK NO. 1) BILL 2024 EXPLANATORY MEMORANDUM”

The needs assessment process and the method for calculating the total amount of a participant’s flexible funding and stated supports funding for new framework plans to be specified in legislative instruments and NDIS rules. These will be developed in consultation with people with disability, the disability community, health and allied health technical professionals, and with all States and Territories.

This is a big shift particularly if rules are written by any CEO under direction from a government minister. Gives them carte blanche power to change the system whenever they like. Needs assessment seems like a way of reducing supports and AAT cases by removing “reasonable and necessary” supports.

What people with disability? How are they chosen? How many are from diverse backgrounds including rural and remote? It is important that people with disability are also part of the decision-making process. Codesign does not mean that the group’s recommendations will be followed. What real say will people with disability have in determining needs assessment processes, the method for calculating funding, and rules?

A new definition of ‘NDIS supports’

A new deﬁnition of ‘NDIS supports’ which will provide a clear deﬁnition for all participants of the authorised supports that will be funded by the NDIS. Section 8 paragraph (c) inserts a reference to NDIS supports (rather than reasonable and necessary supports), which reﬂects the creation of new framework plans.

Again, is this so the NDIS can get around the reasonable and necessary, and choice and control criteria? This appears to be a way of reducing funding and changing the criteria for AAT cases. it is vital that people with disability are involved in both codesign and decision making regarding the deﬁnition.

NDIS participant who receives an amount or amounts for NDIS supports may only spend that money in accordance with the participant’s plan.

Has this not always been the case, with participants responsible for keeping receipts and the NDIS responsible for checking and auditing? Again, it appears that the NDIS has not been doing its job and participants are being blamed. a simple payment system where receipts were photographed into it (like many businesses have been using for years) and use of AI for checking expenditure against plan supports should have been put in place years ago.

NDIS amounts must only be spent on supports that have been defined in the rules as NDIS supports for the participant, aligned with their plan. Where this is not met it could lead to changes to how a participant manages their plan or might incur a debt to the NDIA.

People with disability need to be part of decision making around the supports in the rules (not just codesign). Again, the NDIS has created a rod for their own back! This was supposed to be the way the system was managed from day one.

Enabling the Agency to change the plan management type as well as imposing shorter funding periods to safeguard participants where others may seek to exploit or coerce the participant to use their package in a way that is not consistent with their best interests.

How will this stop exploitation? The NDIS is incredibly slow in responding to plan changes and incredible slow in dealing with complaints against providers. How will the agency ensure it keeps up with participant requirements in future?

Who makes this decision? More needs to be done on compliance of plan managers and support coordinators as often this is where the exploitation is occurring. This is particularly a problem in regional, rural and remote communities where thin markets have meant there is little choice of provider. The market system was an NDIA decision and has led to regional people with disability being worse oƯ than their city counterparts.

Section 10

Section 10 provides a deﬁnition for NDIS support that engages with Australia’s obligations under the Convention on the Rights of Persons with Disabilities (CRPD). Paragraphs (b) and (c) will allow NDIS rules to be made that narrow the scope of these constitutionally valid supports to those that are appropriately funded by the NDIS. This includes supports that facilitate personal mobility of the person (in the manner and at the time of the person’s choice); mobility aids or device, assistive technology, live assistance or intermediaries that facilitate mobility; health services needed because of the person’s impairment or its interaction with various barriers; habilitation or rehabilitation services; minimise the prospects of the person acquiring a further impairment. An NDIS support will only be an NDIS support, and therefore constitutionally supported, if the participant has a need for that support as a result of their impairment.

This is very concerning. Will the new NDIS rules enable successive governments to reduce supports, continually narrowing what is provided?

This appears to be about restricting the number of people who can receive support rather than meeting CRPD obligations.

Rules are supposed to be codesigned with PWD (according to NDIS presentations). The rules will provide further information about access criteria and this could be concerning if future governments decide on radical reductions. People with disability must also be decision makers regarding which rules are implemented and what is in them. It will also be concerning if the rules speciﬁy which manufacturers and wholesalers can be used for items such as mobility aids. People with disability, who use aids on a daily basis know which are quality and which are not. Any restriction on where these can be purchased may put people at a health and safety risk – e.g. being required to purchase a cheap Chinese made wheelchair over an Australian made one. Cheap mobility aids often last less than 12 months.

Paragraph 19(2)(b) to clarify that a person who has had their status as a participant revoked cannot make another access request until a decision has been made on review.

There is conﬂicting information about right to review and particularly right to external (AAT) review. Will this still be possible? How long will a person with disability have to wait for an NDIS decision?

Subsection 26(3) provides that if requested information is not received within relevant time periods the prospective participant is taken to have withdrawn the access request unless the CEO is satisﬁed that it was reasonable for the prospective participant not to have complied.

In regional, rural and remote settings, people with disability have to wait months for access to medical personnel and specialists (occasionally up to a year). A person with an intellectual disability may not understand time periods when waiting many months for an appointment and will not be aware that their request has been unfairly withdrawn. Again, there is little understanding demonstrated regarding the additional pressures and diƯiculties regional people with disability face every day.

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Section 27 will allow NDIS rules to prescribe methods and criteria to be applied. This allows the NDIS to provide clarity about whether the person is eligible and should apply for the NDIS or whether supports should be sought outside of the Scheme.

Rules are supposed to be codesigned with PWD (according to NDIS presentations). The rules will provide further information about access criteria. More information needs to be provided prior to passing legislation. It will also be a concern if people living in regaional, rural and remote areas are expected to seek foundational supports available in cities and not in their area. How will this affect access particularly if the support is available in one city but nowhere else?

New subsections 30(2) to 30(8). The CEO can request and receive information from participants to ensure that decisions are based on up-to-date information and to determine the state of their functional capacity (which can change over time). This will not result in people having to repeatedly prove their disability. The CEO may make a request for information or request the participant undergo an assessment or examination and provide a report in the approved form. The participant is able to choose the person from whom they obtain information and reports, as long as that information is provided in the form requested by the CEO.

Functional assessments (whole of person approach) will replace medical assessments however it appears that medical professionals will be used as a source of information. Is this section going to be used to force all current participants to essentially reapply for access?

This statement appears to be contradictory as the CEO can request up-to date information (over time) meaning the person will have to repeatedly prove their disability.

How will this affect regional, rural and remote people with disability when it is already very difficult to get appointments (with the NDIS local partner which can be several months of waiting, let alone a medical professional)?

32B All participants will eventually transition to a new framework plan. The transition to new framework plans will be gradual and occur by class of participants. It is envisaged that the timeframe for transition of NDIS participants from old framework plans to new framework plans will take up to 5 years. This timeframe has been identified to allow for co-design and consultation on the tools and NDIS rules.

Does this mean that over 5 years all participants will have to undergo a functional assessment – i.e., reapply (see 30(2) and 30(8))? Codesign must include co-decision making.

Section 32D. A participant’s plan must include a statement that specifies the participant’s goals, objectives, aspirations, and the environmental and personal context of their living. Their plan must include a statement of participant supports that is prepared with the participant and approved by the CEO. The statement of participant supports must specify the management of funding for supports under the plan, the general supports (if any) that will be provided, and the circumstances in which the CEO must reassess the plan. The statement of participant supports

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will specify the reasonable and necessary budget, that the participant meets the disability or early intervention requirements or both. The CEO must allow a participant to manage their plan if they wish to do so.

32C states all participants will move to the new framework plans. 32D, 30(2) and 30(8) intimates that all participants will undergo a reassessment which will include ensuring that the participant’s disability meets the criteria. Furthermore, presentations from the NDIS have said that both new and old plans will be linked to funding for impairments that meet access requirements.

It is important that self management of stated supports is allowed to continue as some participants have had issues with registered providers sending a diƯerent support worker every week. They prefer to employ their own support workers so they can train them properly and have the same people assisting them over the long term.

32E - Reasonable and necessary budget. Flexible funding will be provided up to a certain amount. People with disability know their own support needs and are best placed to determine how to meet these needs. This gives participants a much higher level of choice and control. Flexible funding can be spent on any NDIS supports, taking into account any restrictions under subsection 32F(6). Stated supports are provided under a reasonable and necessary budget for speciﬁc high-cost items. Category A NDIS rules will prescribe stated supports.

It appears that the NDIA is able to make decisions about the most appropriate way for ﬂexible budgets or parts of budgets to be managed — that is, agency, plan or self-managed. This is evident in the agency’s risk proportionate model. It is important that self management of stated supports is allowed to continue as some participants have had issues with registered providers sending a diƯerent support worker every week. They prefer to employ their own support workers so they can train them properly and have the same people assisting them over the long term.

Subsection 32F(3) provides that a funding period must be no more than 12 months. If the ﬂexible funding amount for a funding period is not spent within that period, then subsection 32F(5) provides the next funding period will be increased by the excess amount that was not spent in the preceding period. Funding does not roll-over from the end of a plan into a new plan.

Consider that many regional, rural and remote participants do not get to spend their budget as supports are not available. This increases carer stress for friends and family and is not sustainable.

Subsection 32G(2) provides that if a participant’s reasonable and necessary budget includes funding for stated supports, then the budget must state that funding will only be provided for the support or class of supports up to a speciﬁed amount, and/or specify requirements under subsection 32H(1) in relation to the acquisition or provision of the support or class of supports (such as a requirement to obtain a quote, that supports are provided by a speciﬁed person, that specified conditions be satisﬁed in relation to the participant before the supports are acquired, and to comply with any requirements speciﬁed in new Category A NDIS rules).

How will regional, rural and remote participants be affected when the provider may be 3 hours away and needs to charge extra time for travel? Any restriction on travel time will just be shifted to time spent on support. A support available in the city will be at a much lower cost than in the regions.

32K – Reasonable and necessary budget specifies that total funding amounts in a participant’s reasonable and necessary budget must be determined by applying information contained in the needs assessment report in accordance with the method set out by a legislative instrument. The method may consider other factual information such as informal supports available to a participant and the area in which they live. When making a determination, the Minister must have regard to the financial stability of the NDIS. The budget should support people with a disability to pursue their goals and maximise their independence, live independently and be included in the community as fully participating citizens, undertake activities that enable them to participate in the community and in employment.

“Have regard for the financial stability of the NDIS” sounds like a way of reducing funding for regional, rural and remote people with disability. We hope that going back to group homes in cities is not the outcome being sought, i.e., moving regional, rural and remote people with disability away from the towns they have lived their whole lives and away from family and friends.

Subsection 32L(7) allows the CEO, to decide that a replacement assessment of the participant’s needs should be undertaken. The assessment will be undertaken again (in whole or in part) and the resulting needs assessment report will replace the existing assessment report. The Minister, by legislative instrument, can determine the assessment tools to be used in undertaking needs assessments, the skills or qualifications of the person doing the assessment, The information that must be included in a needs assessment report, and the requirements that the needs assessment report must satisfy. The needs assessment tool will be highly technical and developed in consultation with the disability sector and medical and professional experts, as well as relying on international learning and best practice.

No information about who these assessors are, what their qualifications will be, who will employ them, who will train them to be an assessor. How will they determine what is considered necessary and how does this fit with choice and control as it seems not to? This appears to be another section of the Bill striving to ensure all participants currently in the scheme are reassessed for access.

Subsection 33(2E) provides that the Minister may, by legislative instrument, determine how to work out the total funding amount for reasonable and necessary supports, and the kinds of supports or classes of supports and funding component amounts.

Again, this appears to be a way of reducing funding and reducing AAT cases, to the detriment of regional, rural and remote people with disability.

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46B(2)(b) omits ‘reasonable and necessary supports speciﬁed in’ and substitutes ‘supports (other than general supports) funded under’. The new framework plans do not have ‘reasonable and necessary supports’ but has supports funded under a participant’s reasonable and necessary budget. Subsection 47A (1AB) sets out certain elements of the reasonable and necessary budget that may be varied.

This appears to be all about reducing AAT cases and funding by removing the word “reasonable”. The CEO and minister will be able to change NDIS rules and listed supports to ensure the tribunal cannot make ﬁndings against the NDIS.

Paragraph 144(1)© to omit the reference to ‘provides reasonable and necessary’ and substitute it with ‘funds or provides’.

Ditto above.

Subsection 71B(3) prescribes that a support is taken to not be an NDIS Support for the purposes of the Bill if the support is within a class of supports that are mentioned in the Applied Principles and Tables of Support under the heading “Other parties”.

Who can make changes to the Applied Principles and Tables of Support?

The Bill engages the right to equality and non-discrimination. Article 4 of the CRDP outlines the need to ensure and promote the full realisation of all human rights and fundamental freedoms for all persons with disability without discrimination of any kind on the basis of disability. It seeks to ensure necessary consultation with, and active involvement of, persons with disabilities in the development and implementation of legislation and policies. The new NDIS rules will be designed and implemented with extensive consultation and co-design with the disability community.

This statement in no way appears to be true after reading through the amount of power given to the minister and CEO to make ad hoc changes to NDIS rules, access and supports. We are not sure how a clause such as “have regard for the ﬁnancial stability of the NDIS” can be anything put an anathema to this statement.