Community Affairs Legislation Committee

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

Cat Walker, Uli Cartwright & Kath Madgwick

Supplementary to Submission 80

10th June 2024

Dear Chair and Committee,

When journalist Rick Morton reached out to Cat about including our submission in a story for The Saturday Paper, we were already working on a supplementary piece with draft amendments to Section 10 and essential further amendments creating more targeted review rights as a protection for participants impacted by adverse non-reviewable decisions.

Cat’s previously referenced work identifying NDIS parallels with Robodebt was informed by study of the proceedings, submissions and exhibits of the Robodebt Royal Commission through the lens of the themes and dangers she recognised from her own experiences with the NDIS and stories from the disability community. She has sometimes interacted with key Robodebt witnesses and advocates online, in solidarity with their experiences and the deeper change we are all waiting to see.

One of those advocates is Kathleen Madgwick, whose son Jarrad died by suicide shortly after receiving a provisional debt notice:

“Mr Madgwick’s “provisional debt” does not appear to have been raised through income averaging; it seems to have been based on the payslips that he provided. His case exemplifies a different aspect of the Scheme’s brutality: the bald online statement to someone in dire financial straits of a “provisional debt outcome” of $1795.85, with no indication of how it might be repaid…

Ms Madgwick did not think the events of 30 May 2019 were the only cause of her son’s death. There were other difficulties in his life: the severe financial stress he was under, his homelessness, and the break-up of a relationship. What does seem clear, though, is that finding out about the debt in the way he did was a precipitating factor…”

“What happened to Mr Cauzzo and Mr Madgwick lays bare the question of how government should deal with vulnerable people. The harmful effects of the Scheme were not confined to the raising of inaccurate or non-existent debts. The blunt instrument of automation used to identify and communicate the possibility of overpayment was inept at determining vulnerability.

Empathy could not be programmed into the Scheme.“ 1

We knew the article would highlight some of the many parallels with ‘Robodebt Governance’ referenced in our submission, because numerous legal experts had drawn similar comparisons.

None of us realised the article would be published on the anniversary of Kath finding her son.

1 Royal Commission into the Robodebt Scheme, Chapter 10: Effects of Robodebt on individuals, pp. 339-340, https://robodebt.royalcommission.gov.au/system/files/2023-09/rrc-accessible-full-report.PDF

As Kath commented on Cat’s post:

“I feel like a failure because I have never been heard! I just fit the political agenda…

I fought in my darkest hours, and it seems like they were not listening.“

But as Commissioner Holmes said when senior public servant, Louise Macleod, expressed a similar feeling of failure:

Commissioner Holmes: “Why should you feel like a failure when you clearly raised a lot of important issues that just weren’t taken up?”

Ms. Macleod: “Because I couldn’t convince others.”

Cat and Kath spoke the following day.

After discussing some of the concerns we had raised in Submission 80, and outlining the direction of this supplementary submission, Kath accepted the invitation to speak up with us and insist the Committee – and the Minister – heed the lessons of empathy, fairness and duty of care that became Kath’s purpose in the wake of Jarrad’s death.

It is a massive failure of Government to demonstrate that their main takeaway from the Robodebt Royal Commission is little more than How to Cover Ministerial and APS Backsides.

This is evident in the copying and pasting of so many other strategies echoing Robodebt into the lives of NDIS participants (as explored in Submission 80 and prior submissions referenced), relying on staying in technically lawful but deeply problematic grey areas. Our supplementary submission presents evidence that the NDIA is already engaging in compliance activity which replicates some of the most damning features of the Robodebt playbook, relying on the absence of a reviewable decision to prevent legal appeals of claims deemed non-compliant - in the name of “sustainability” and cracking down on “fraud.” These participants are at risk of debts being raised which will never have the Agency’s fingerprints on them, and therefore will never be reported.

But the supposed savings and successful identification of non-compliance will be, especially because the validity of participant non-compliance determinations cannot be challenged. In fact, we saw it play out in real-time this week.

And we have been here before:

At the level at which decisions about the Scheme were being made, attention was entirely centred on implementing it to ensure it achieved “success,” measured in terms of the numbers of reviews completed and the amount of savings achieved. The focus was on how to do this. There was no critical analysis or reflection on whether it should, or even could, be done. The alarm bells were ringing loud and clear for anyone who cared to listen, but they were falling on deaf ears. 2

In this context, the words ‘Scalable Integrity Responses’ should terrify everybody. We are ringing the alarm bells because we need to have a serious discussion about the dangers of compliance programs being scaled up and protections against the inevitable harm.

If the Committee has a moral conscience, now is the time to show moral leadership.

Report, Royal Commission into the Robodebt Scheme, p. 128

The concerns of advocates are being dismissed as anxiety and fear-mongering despite being echoed by legal experts

Advocates and legal experts are warning about real-life suffering if this Bill passes. The Government is not listening, instead weaponising vulnerability to dismiss our concerns as anxiety – as if we are not capable of following the implications to their perfectly logical conclusions, and making an assessment based on the facts and probabilities in front of us.

But none of the current messaging changes what the Bill actually says, or what it will have the power to do if the Senate allows it to pass without substantial further amendments.

We are being asked to trust that the raising of debts against NDS participants would “only be in extreme circumstances such as where a person has deliberately misused NDIS funding,” but without targeted review rights of whether funding has been misused, before a debt is raised. That is way too much to ask when we have seen the harms of Robodebt.

We are also being asked to trust in the promises of co-design publicised late last week. If we believed this framework sufficed, we would not have bothered making Submission 80.

It’s also way too much to ask when the Minister has refused to engage meaningfully with us.

At the DSS online community catch-up last week, the most popular question – with 55 up votes – was from Cat: “Many advocates have asked you to hit pause & co-design changes to primary legislation WITH us. Why are you still rushing this through before listening to us?”

The Minister’s response was to immediately imply that our concerns are rooted in myth:

This is gaslighting. This is silencing of lived experience. This is the unconscious bias we interrogated at length in Submission 80.

Legal experts of the highest caliber are asking this Committee for more time and closer attention to the inevitable harm and danger of this Bill.

So are we.

3 Statement attributed to DSS spokesperson in Exclusive: Shorten revives the Coalition’s failed NDIS reforms, hhttps://www.thesaturdaypaper.com.au/news/2024/06/01/exclusive-shorten-revives-the-coalitions-failed-ndis- reforms

Cat Walker, Uli Cartwright & Kath Madgwick Page 3

Protecting participants from ‘Robodebt Governance’ in the NDIS

The Agency’s current approach to proactive compliance replicates multiple Robodebt strategies and consequences by lawful stealth.

We refer to Dr. Darren O’Donovan’s Submission 56 to this inquiry:

“We need to watch for the dangers of working out of a particular mental model for a participant: the deliberately non-compliant or evasion one. The Robodebt Royal Commission embodies the danger of a regulatory mental model centred on one particular, limited cohort resulting in imbalance and poor targeting impacting on the broader population. We need to avoid that with more careful design of these powers.

We should never forget that a central conclusion of that Report: the more administrative processes you run into unsupported people’s lives, the worse outcomes you will obtain.“

It is fitting, then, to start with the messages being placed in the public domain.

“Nothing in the legislation changes debt recovery” is a distraction: The issue is how much easier it will be for the Agency to raise a debt.

An important message we’ve heard this week – no doubt in response to the criticisms referenced in The Saturday Paper, ours included – is this one:

“To be very clear, there’s nothing in this bill that changes the debt recovery arrangements. They remain the same. What this piece of legislation does is it aims to prevent changes to plan amounts, which would prevent plans being inflated.”

But this response deflects from the substance of the concerns raised, which were about the numerous ways in which the Bill creates traps potentially resulting in a debt being raised against a participant, in the absence of the most basic safeguard: Targeted review rights.

The strategic narrative around Integrity reforms this week threw participants under the bus along with providers, based on unsubstantiated claims.

Much of this submission, including the case study and commentary, was already drafted when Deputy CEO Integrity Transformation and Fraud Fusion Taskforce, John Dardo, gave evidence at the Community Affairs Estimates session on Monday 3rd June 2024.

Considering that he made some of his most inflammatory claims knowing he either would not or could not substantiate them, Mr. Dardo’s comments were dangerous. The headlines that followed were entirely predictable and reminiscent of those weaponised against Robodebt victims. As the Committee knows, Uli is a member of the Integrity working group, and rather than feeling on the same page, he was left dreading the media firestorm.

Mr. Dardo showed up to Estimates and wrote strategic cheques his “evidence-base” and “exemplars” couldn’t cash, at least not in the same news cycle.

Proof Committee Hansard, Community Affairs Legislation Committee, Senate Estimates, 3 June 2024 (Mr Matthew Swainson, Acting Deputy Chief Executive Officer, Governance, Risk and Legal)

Cat Walker, Uli Cartwright & Kath Madgwick Page 4

What are we being told about current Integrity reforms, and why?

The additional commentary provided by Mr. Dardo at Estimates5 is intriguing in light of the concerns we intended to bring to the Committee’s attention. For example:

“To give you examples, there are the prosecutions, but, even more important than that, in terms of the volume of the response that we’re implementing at the moment, there are the stoppers. There’s the stopping of payments where the providers are problematic or the claims are problematic.
We’re stopping the claims, and we’re saying, ‘We’re not confident that this claim is legitimate; you need to provide evidence that it’s legitimate.’
If we can stop it before it goes out, we then don’t have to try and recover the money or raise a debt to recover the money. We need to get better at stopping it.“
“What I would say is that what we can tell you with certainty is that the minimum error rate is five per cent. That’s the minimum error rate. Those errors don’t include identity fraud, fraudulent invoices, false statements, collusion and all the other stuff…
That is the minimum error rate.“
“There would be thousands of cases where participants are claiming things that are not consistent with a plan…
[In] most cases our integrity work stops at the point where we establish that it wasn’t on a specific NDIS related claim…
We keep categories at a broader level—whether the claim was inconsistent with the plan, or whether it was a duplicate claim or whether it was a claim that was withdrawn; there are other categories that we use. But we certainly have lots of exemplar detail for examples of things that are ticking over our risk typologies—the things that we’re looking for to try to stop.“
“Prosecution is not the answer. It’s too late. We’ve got to get back to prevention…
If we don’t go back and tune the way the system is designed now—I can tell you now there is not sufficient judiciary to process the cases we have in the pipeline in the country. We can keep thinking that prosecution is the endgame. It can’t be prosecution. We’ve got to get to prevention.

5 Proof Committee Hansard, Community Affairs Legislation Committee, Senate Estimates, 3 June 2024 (Mr John Dardo, Deputy Chief Executive Officer, Integrity Transformation and Fraud Fusion Taskforce)

We’ve got to think more about how the money is flowing, what the evidence is that we require for somebody to receive the funds and how we substantiate that it has been used for outcomes…

We are hearing two main things here: That the Agency is actively stopping claims it deems non- compliant, and that they seemingly want to keep as much as possible out of the legal pipeline.

How is this pre-payment compliance review strategy working in practice?

The Request For Information relating to pre-payment review of a claim attached is one of many the parent nominee of an NDIS participant received in March and April 2024.

One of the claims reviewed was subsequently refused based on a single word in the invoice, despite collateral information aligning with a legitimate support anyone can use flexible funding for, but which is also specified in the plan in question.

Of note is the limited information requested to justify the claim and the absence of a direct phone number to the relevant branch or direct email to the integrity officer. The refusal letter explicitly highlights that it is a non-reviewable decision. Whoever determined these details certainly “turned their minds to” this choice.

Relevantly, executive briefing documents prepared for the February 2024 Community Affairs Estimates session refer to a “Robodebt Working Group” with the following brief description:

“The Agency has established and internal working group to consider the recommendations
from the Royal Commission into Robodebt and how they will impact the delivery of legal
services into the future.”

The following statement is attributable specifically to Cat and developed independently of any knowledge obtained by the authors through co-design:

“My greatest fear with the Robodebt Royal Commission was always that the findings would
just teach the powers that be to stick to the letter of the law next time. The fact the NDIA’s
response has been to reject all comparisons to Robodebt in public, while the sole reference to
an internal Robodebt Working Group has a narrow focus on legal implications, is extremely
concerning to me. I urge the NDIA and Minister to engage meaningfully with the broader

human impacts of Robodebt culture, because good intentions aren’t worth much if we see the same harms. That should start with closer scrutiny of participant-directed compliance activities which are currently being scaled up before previous claims to ethics have been substantiated.

When this case and the associated correspondence from the NDIA’s Scalable Integrity Responses Branch were shared with me, my mind went straight to the Robodebt letters when I saw the limited information requested and that the only phone number listed was the National Contact Centre, because everybody knows they are powerless to connect us to a specific person or team when we need to contact them directly.

At the time of our initial joint submission on the NDIS Bill, we suggested an amendment to add targeted review rights for a Section 46 decision that an amount had not been spent in accordance with a plan, rather than just Section 182 decisions relating to debts.

When I saw the outcome of this case, I realised that if we do not also get an urgent amendment to add review rights for supposedly non-compliant claims which are never paid out, we could see the NDIA perpetrate Robodebt by lawful stealth, leaving providers to do the dirty work of debt collection for unpaid invoices bearing the participant’s name.

Cat Walker, Uli Cartwright & Kath Madgwick Page 6

We need to be concerned about more than reversing the onus of proof here. This is also about reversing the onus of proof in the context of claiming flexible funds which have already been approved in a participant’s budget, but without asking for enough information, and being denied any recourse to appeal a claim the Tribunal or Federal Court might find the victim was entitled to receive all along. This is about business rules and behavioural strategies which sound far too much like Robodebt, and that started with a very human draft New Policy Proposal by a senior public servant who then spent the five years preceding the Robodebt Royal Commission in compliance at the NDIA.

If this was genuinely about payment integrity, the NDIA would ask for more information aligned with the self-management checklist and how the claim relates to the goals in our plans and our disability.

If this was fair, it would be reviewable.

In the context of a scalable behavioural compliance program, the fact claims are being cancelled without encouraging a meaningful explanation is also a behavioural strategy and somebody made a choice about this business rule.

So, who is responsible for the New Policy Proposal behind a scalable integrity program which can –only be achieved at scale with human input – to deflect criticisms around any automated features – by limiting the scope of information requested to justify the claims, outside the jurisdiction of the Tribunal it would otherwise overwhelm?”

The claimed “minimum five percent error rate” deserves significant scrutiny here.

It is not possible for an Integrity officer to make a fair, rational and individualised decision about whether a claim is consistent with a plan within the narrow parameters they are working with. This problem will escalate as this program is scaled up, because of the time constraints placed on the degree of human input: There simply will not be enough time to make an informed assessment.

Mr. Dardo made a very serious claim that at least 1 in 20 claims made by participants are not consistent with their plans, when the current proactive strategy relies on not conducting a fair review in the first place and operating in a space outside the jurisdiction of review rights. As such, the claimed five percent error rate cannot be substantiated as correct, because we do not know how many of this five percent would be overturned if open to review.

One must question whether this is the real motivation for restricting the definition of NDIS support. It would certainly be an attractive shortcut to more convenient compliance interventions, but that path is fraught and unlikely to achieve genuine savings if it denies participants access to many cost-effective and practical supports.

What’s the point of the Wedding Tax argument if we are forced into using those charging Wedding Tax just to have some confidence our claims will be paid out in a timely manner?

Why has the Agency’s new approach to Scalable Integrity Responses through pre-payment review for compliance been omitted from Section 45?

It is extremely concerning to realise that the pre-payment review plan rolled out by the Scalable Integrity Responses Branch in recent months – and protections against the scenario highlighted in this case study – has specifically been omitted from the new powers inserted at proposed Section 45(4), let alone from having an associated reviewable decision.

At present, we have a situation which allows the Agency to be judge, jury and executioner, potentially leaving participants without supports they may well be entitled to, no recourse to challenge the decision, and the risk of being pursued by private debt collectors on behalf of unpaid providers.

Page 8

The Agency will report this as the number and value of “non-compliant” claims successfully stopped, without any mechanism for the validity of such claims to be scrutinised, which is exactly what happened at the Monday 3rd June 2024 Community Affairs Estimates session.

Would the Agency be so quick to call this a success if they waited until the payments were made and reported on the number and value of debts raised against participants?

That seems doubtful, and the fact remains that keeping the Agency’s fingerprints off of debts arising from cancelled claims for support already received could have dire consequences such as those we saw in Robodebt.

As the impacted individual put it:

         “In addition this episode has taken a toll on my [partner] who has scrupulously
       accounted for expenditure over 10 years and now feels like [they are] somehow at fault
      and also worries if we can't resolve this we will be saddled with the debt to the Service
        Provider (into several thousand dollars).”

     If the Agency believed in the “integrity” of its Integrity program, it would have recommended it be
  legislated.

     It is essential that the Committee recommends amendments to enable scrutiny and legal challenge of
  this approach, including robust review rights for all decisions that are currently taking advantage of a
 non-reviewable No Man’s Land to avoid scrutiny of compliance activities.

 While we do genuinely appreciate Mr. Dardo’s stated focus on participant safety, particularly in the
more extreme scenarios of exploitation he described at Estimates, we find it deeply concerning that
  this focus on participant safety does not extend to the far-reaching consequences of making decisions
  of claims being inconsistent with plans, at scale, with the narrow and inadequate parameters
 evidenced in this case study, and we cannot accept the claimed error rate on face value when these
  participants are unable to mount a legal challenge to overturn a decision that a claim was not
 consistent with their individual plan.

We should all know better by now, because we know what happened when Robodebt was scaled up without adequate safeguards for those it would impact:

         At the level at which decisions about the Scheme were being made, attention was entirely
         centred on implementing it to ensure it achieved “success,” measured in terms of the
       numbers of reviews completed and the amount of savings achieved.

      The focus was on how to do this. There was no critical analysis or reflection on
       whether it should, or even could, be done.” 6

When all current reforms are being shaped to an arbitrary 8% target, a claimed "error rate" of 5% is a
 very attractive weak spot to squeeze perceived savings from. We therefore must ask the question: Is
  this current program about genuine compliance, or is it going harder as part of an overall push to
 reach this ultimate KPI through any means necessary?

As Kath put it when the three of us spoke:

        “KPIs in compliance is inhumane, because people will do anything to meet their KPIs.”

   6 Report, Royal Commission into the Robodebt Scheme, p. 128

                       Cat Walker, Uli Cartwright & Kath Madgwick               Page 8

Speaking to the overall failure of Government, the APS and the NDIA to heed the bigger lessons of Robodebt, Kath implored all to consider that:

"[The Government] doesn’t have a system that prevents harm in what they’re trying to do. You

don’t go out and take a Mini to tow a caravan. That is a lack of duty of care.

If the system can’t cope and pick up vulnerabilities, don’t do it. If you want to do something,

The system must be able to prevent harm.“

We would argue that this encompasses all the vulnerabilities examined in Robodebt, but also the more complex types of harm the Government and NDIA must consider in NDIS compliance initiatives.

This is because the implications for NDIS participants don’t stop at debts, and bringing compliance upstream creates substantial additional risk for participants which is playing out in an unlegislated, unreviewable and wholly invisible space, reported only as an unchallengeable error rate of claims successfully stopped.

We understand the Fraud Fusion Taskforce has an Ethics and Human Oversight Framework7, but it still has not published this for public scrutiny. Many questions also remain unanswered regarding the ethics of using behavioural insights in NDIS compliance – imported to the NDIA by the same subject matter expert who made this a key feature of Robodebt – in the context of this specific population.

If enough of that work had been done, with full transparency and exploration of the potential impacts on vulnerable cohorts, Mr. Dardo might realise that many in a specific cohort he called out are likely having an involuntary flight or shutdown response as a direct result of their disability in the face of a perceived threat.

In fact, it’s eerily close to a scenario Cat predicted in her own submission to the Robodebt Royal Commission (referenced in our previous submission) when considering the implications for the NDIS:

"We have other participants who haven't understood what they should be claiming and when we approach them they cease contact and refuse to engage.

Then there are the vast majority of participants that are trying to do the right thing, and we have to figure out how we get the balance right so that we help the people who are trying to do the right thing get it right more often.“ 8 (emphasis added)

Yet, Mr. Dardo frames this group as behaving in a deliberately non-compliant way, by immediately comparing them to those “trying to do the right thing.”

Isn’t this exactly the “mental model” Dr. O’Donovan warned us all about in his own submission to this inquiry? Who is to say the former were not trying just as hard? Who is to say they are not in an involuntary spiral and at extremely high risk of becoming a suicide statistic?

Mr. Dardo has no right to imply otherwise without further exploring the implications of the value judgment he is making and enabling the validity of the associated non-compliance determinations to be tested. That might make his work harder, but we have been here before, we have seen the human cost, and we cannot afford to make the same mistakes.

7 Fraud Fusion Taskforce, https://www.ndis.gov.au/about-us/fraud-and-non-compliance/fraud-fusion-taskforce

8 Proof Committee Hansard, Community Affairs Legislation Committee, Senate Estimates, 3 June 2024 (Mr John Dardo, Deputy Chief Executive Officer, Integrity Transformation and Fraud Fusion Taskforce)

Cat Walker, Uli Cartwright & Kath Madgwick Page 9

5th June 2024 note: The Government has just introduced further amendments to Section 45 which capture some of the exploitation concerns raised, but which still only capture payments that would drain a plan or sections of a plan, and not all the other payments to be impacted by this “scalable” program. Why is that?

At the Estimates session on 3rd June, Mr. Dardo also made repeated references to needing to prevent rather than prosecute or audit, insisting:

        "There are weaknesses in the design of the system that need to be addressed. We cannot
        prosecute or audit our way out of this." 9

That is not a good enough reason to deny participants these critical review rights. As NDIA Chief Counsel and Acting Deputy CEO of Governance, Risk and Legal, Matthew Swainson said while sitting on the same table:

       "The right to seek appeal of a government decision is a bedrock of our system of
        administrative review." 10

At this point, it is worth revisiting the Robodebt testimony of whistleblower Colleen Taylor – awarded an Order of Australia Medal just today – of what she observed when the level of human involvement was restricted in favour of scale and savings, while still in the manual phase:

     Ms Taylor became concerned about the inability of the process to identify all of the
         information necessary to properly investigate a discrepancy and calculate any subsequent
          debt, including information from employers and the recipient’s own departmental record. She
        considered that the changes “would result in a large number of debts being issued to people
      when they did not really owe a debt, or any debt they did have was lower,” and that “relying
       on averaging would not produce a result which was even close to right in many cases.”

     Ms Taylor said:

                      "It seemed to me at the time that the purpose of the changes was to massively
               increase the number of debts being issued, to churn out debts on an industrial
                 scale, based on the assumption that there were huge levels of debt which could
             be recovered. It also seemed to me that it was going to proceed despite the fact
                 that many of the claimed debts would not be correct." 

          In early 2016, Ms Taylor raised some of her concerns with departmental officers including her
         supervisor and the “Compliance Help Desk.” …

     Ms Taylor expressed her earnest concern, “…as a Compliance unit, we should not be the
       ones stealing from our customers.” When asked about that comment in oral evidence, she
        responded:

                "Well, if we know there’s no debt, and yet we’re sending a debt notice out to
             someone, isn’t that stealing?" 11

   9 Proof Committee Hansard, Community Affairs Legislation Committee, Senate Estimates, 3 June 2024 (Mr John
 Dardo, Deputy Chief Executive Officer, Integrity Transformation and Fraud Fusion Taskforce)

   10 Proof Committee Hansard, Community Affairs Legislation Committee, Senate Estimates, 3 June 2024 (Mr
 Matthew Swainson, Acting Deputy Chief Executive Officer, Governance, Risk and Legal)

   11 Report, Royal Commission into the Robodebt Scheme, p. 126

                       Cat Walker, Uli Cartwright & Kath Madgwick              Page 10

Even in the context of cancelled claims rather than debts raised, Ms. Taylor’s perspective is an important one when discussing the Agency’s stated 5% error rate, with no scrutiny of the risk that some of these determinations may well be wrong, or the consequences for participants who are left out of pocket, in debt or without support if their claims are cancelled incorrectly.

The Government may have recognised her as Colleen Taylor OAM today, but did they understand what she was trying to teach them?

Critical amendments to create new targeted reviewable decisions

The following amendments to include new reviewable decisions are essential to place checks and balances on Agency overreach and misuse of non-reviewable decisions beyond the reach of the Tribunal and Federal Court. We ask the Committee to engage further with the legal experts at your disposal who can better pinpoint and refine the legal detail of these protections, and any further safeguards required.

Recommendation 1: Amend Section 45 to add a paragraph (5) capturing the full scope of the Agency’s current pre-payment review program, including that the Agency must request all information which allows a participant to demonstrate that a claim is made in accordance with the plan and/or that the support is an NDIS support for that participant.

Recommendation 2: Amend Section 99 to include any decision made under proposed Subsection 45(5) above to not pay an NDIS amount claimed by a participant.

Recommendation 3: Amend Section 99 to include a decision that a person has not complied with Subsection 46(1) in relation to an NDIS amount and an equal amount is a debt due to the Agency, made under Subsection 182(3).

Recommendation 4: Amend Section 99 to include a decision by the Agency to cancel a claim for an NDIS amount on the basis that, if the Agency made the payment to or in respect of the person, the person would be deemed not to have complied with Subsection 46(1) in relation to the NDIS amount and an equal amount would otherwise be a debt due to the Agency under Subsection 182(3), made under Subsection 46(1).

Recommendation 5: Amend Section 99 to include a decision that a support acquired or provided to a participant is not an ‘NDIS support’ for the participant, made under Subsection 46(1A)(b)(i).

Recommendation 6: Amend Section 99 to include a decision that a debt is due to the Agency on the basis a person is not entitled to an NDIS amount received, made under Subsection 182(1).

Recommendation 7: Amend Section 99 to include a decision that a person is taken not to have been entitled to the payment of an NDIS amount … as a result of a contravention of this Act, the regulations or the National Disability Insurance Scheme rules and/or a false or misleading statement or a misrepresentation, made under Subsection 182(2)(b).

Recommendation 8: Amend Section 99 to include a decision that one or more of the participant’s impairment(s) do not meet the disability requirements and/or early intervention requirements, made under Section 24 or Section 25 at the time a person becomes a participant.

Recommendation 9: Amend Section 99 to include a decision that one or more of the participant’s impairment(s) do not meet the disability requirements and/or early intervention requirements, made under any section or subsection of the Act, at any time after the person becomes a participant.

Proposed amendments to Section 10: Definition of NDIS Support

Summary of recommended changes to protect the golden thread to

goals, outcomes and a life worth living

We appreciate the amendments introduced, but strongly object to the detail being left to the Rules. NDIS support should be defined clearly in the primary legislation with clear reference to the following legislative obligations:

Sections 3 & 4
Section 17A
Section 31

Section 10 should limit the definition of NDIS support only to the extent that a support is the responsibility of another service system, or is not related to the participant’s overall disability.

Overall, Section 10 should:

Encapsulate all the features of the current Act and Rules which enable supports to be individualised, to maintain the ‘golden thread’ to goals, aspirations, and a life worth living and capture the spirit and purpose of the NDIS in enabling participants to identify tailored, flexible and innovative responses to their individual support needs
Define the link between support and need by the overall disability, not impairments
Act as a checklist for spending of flexible funds, similarly to current self-management checklists and the “Can I Buy It” capacity-building resources developed by organisations such as The Growing Space

The Support Is Likely to Be Effective And Beneficial For The Participant Or Prospective Participant Having Regard To Current Good Practice Or Other Evidence Of The Likely Benefit Of The Support, Which May Include:

a) The lived experience of the participant, their informal supports, or peer support groups; or

b) The evidence-informed advice of the participant’s treating professionals with regard to the individual needs and lived experience evidence of the participant; or

c) Published and refereed literature and any consensus of opinion; or

d) Anything the Agency has learnt through the delivery of the NDIS, which must be transparently published and available for scrutiny by the public and other experts;

The support is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:

a) As part of foundational supports delivered by State governments, subject to:

i. Co-design of proposed foundational supports and associated NDIS Rules; and

ii. Delivery, successful implementation and practical availability of agreed foundational supports; or

b) As part of a universal service obligation; or

c) In accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability;

The support meets any of the following additional definitions of NDIS support:

a) The support will give effect to one or more of Australia’s interdependent, interrelated obligations under the Convention on the Rights of Persons With Disabilities done at New York on 13 December 2006 ([2008] ATS 12) for that participant or prospective participant without imposing limitations on those rights; or

b) The support is assistive technology, which will include any disability-specific or universal design technology or device that will help the participant or prospective participant:

i. Do things the person cannot do because of their disability; or

ii. Help the person do something more easily, safely, effectively, or independently, by eliminating or minimising a disability-related barrier or risk; or

c) The support is a participant innovation project as defined by the participant in their statement of goals and aspirations and with an agreed flexible budget defined in their statement of participant supports;

d) the support is a tailored, flexible or innovative response to the individual goals and needs of the participant or prospective participant; or

f) the support enables the right of the participant or prospective participant to exercise control over their own life, including where they live and who they live with; or

g) the support is likely to advance the inclusion and participation in the community of the participant or prospective participant with the aim of achieving their individual aspirations; or

h) the support is likely to benefit the participant or prospective participant by:

mitigating or alleviating the impact of the person’s impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self‑care or self‑management; or
preventing the deterioration of such functional capacity; or
improving such functional capacity; or
strengthening the sustainability of informal supports available to the person, including through building the capacity of the person’s carer; or

i) the support is otherwise declared by National Disability Insurance Scheme rules made for the purposes of this subsection to be an NDIS support for:

participants or prospective participants generally; or
early intervention participants or prospective early intervention participants generally.

10A Protections for participants when spending flexible funding on NDIS supports

Before taking any action on the basis that a claim or NDIS amount received for a claim is, or would be, spent in contravention of Section 46, the Agency is to enable a participant the opportunity to defend the claim or NDIS amount received for the claim according to the criteria outlined in Section 10.
In assessing the participant’s justifications under subsection (1), the Agency is required to take an individualised view of the unique circumstances and individual needs of the participant, the broader objectives of the NDIS Act, and the obligations of Section 31, which should be used as a guide when supports are not specifically defined in a plan.