National Disability Insurance Scheme

Amendment (Getting the NDS Back on Track No. 1) Bill 2024

Submission to the Senate Community Affairs Legislation Committee

Date: 17 May 2024

National Legal Aid Secretariat

• Email: nla@legalaid.tas.gov.au
• Phone: 03 6236 3813
• Address: GPO Box 1422 Hobart TAS 700 I

Contents

Introduction ……………………………………………………… 4

Previous submissions on the operation of the NDIS ……………………. 7

Response to the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 ……………………… 8

Recommendations……………………………………………… 8

General comments …………………………………………. 14

A complete response to the NDIA Review recommendations is needed before legislation is introduced ……………………………………………………………………. 14

Rules Instruments must be made available …………………………. 15

Supported decision making and assistance from the NDIA to meet obligations under the NDIS Act need reform ……………………………………………. 19

Response to specific changes proposed by the Bill …………… 24

Changes to the access requirements …………………………. 24

Psychosocial disability ………………………………………….. 25

Decisions specifying the basis on which a person meets the access criteria ……………………………………………………………….. 27

Supports referable to a particular impairment ………………… 27

Prospective participants must show they require “NDIS supports” ………………………………………………………………………… 31

The time at which the matter falls to be determined ………. 32

Changes to revocation and reconsideration of the status of participants ………………………………………………………………………… 33

Changes to NDIS Supports …………………………………….. 37

Old and new framework plans ………………………………… 38

Old framework plans: supports referable to impairment ……. 39

Definition of NDIS Support ………………………………….. 39

2.8 New framework plans

2.8.4 New framework plans: needs assessment reports …………. 4 6

2.8.5 New framework plans: review of the decision to approve the statement of participant supports in a new framework plan ……. 5 0

2.8.6 New framework plans: Stated and flexible supports ………. 5 1

2.8.7 New framework plans: reasonable and necessary budgets .. 5 2

2.8.8 New framework plans: Suspension of plans when information is not provided ……………………………………………………… 5 3

2.9 Use of funding in accordance with plan and consequent debts5 4

2.9.1 Participants should not be liable for debts for payments to third parties………………………….. ……………………………. 5 5

2.9.2 Improve processes for seeking review of decisions that debts are owed ………………………….. ……………………………….. 5 6

2.9.3 Special circumstances should include financial hardship and disability ………………………….. ……………………………….. 5 6

Conclusion ………………………………………………………….. 5 7

Introduction

National Legal Aid (NLA), representing the Directors of the eight Australian State and Territory Legal Aid Commission (LACs), welcomes the opportunity to make a submission to the Senate Community Affairs Legislation Committee in response to the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024.

NLA brings together the practice experience of Australia’s eight state and territory LACs.

NLA and LACs strongly support the NDIS. Over the years since its introduction, LACs have assisted thousands of participants and prospective participants to obtain lifechanging outcomes, from accessing disability supports for the first time, to living independently in appropriate and accessible homes, to engaging in the community and in social life on an equal basis with others.

In submissions to previous reviews (see below), we have used our experience and have shared the stories of LAC clients to recommend changes to improve the NDIS for the benefit of people with disability. 1 We have recommended ways that the NDIS could be made fairer, more consistent and more efficient without removing access to it or capping supports.2 In order to safeguard the NDIS we must recognise that the value of the NDIS, for people with disability and for all Australians, far exceeds its cost.

The Independent Review of the NDIS (the NDIS Review) was a comprehensive evaluation of the NDIS that made 26 recommendations and proposed 139 actions for change to be implemented over a five-year transition period.3 The NDIS Review’s final report said that all its recommendations must be considered as a whole, and that the experience of people with disability must be put at the centre of their implementation.4

Alongside the NDIS Review sit the findings from the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (the Royal Commission). The Royal Commission made 222

Submission: Recommendations for Reforming the NDIS

We are concerned that many of the recommendations of the NDIS Review and of the Royal Commission are not contemplated or achieved by the draft legislation, and recommend the Government provide its response to the NDIS Review and Disability Royal Commission report in full before any legislative changes are made.

Through this submission, we outline the need to partner with people with disability to design and implement proposed reforms, together with a number of amendments that would strengthen the proposed legislation.

Our recommendations will improve consistency, clarity and fairness, ensure access to effective review, facilitate decisions being made in a way that are responsive to people’s circumstances, and strengthen rights and access for people with disability, including through supported decision-making.

About NLA and LACs

LACs are independent, statutory bodies established under state or territory legislation and funded by governments to provide legal assistance services to people who cannot afford a lawyer.

LACs together are the largest provider of legal services to people with disability across Australia. In the financial year 2022-2023 LACs provided more than 1.7 million legal services to people across the country.

Each LAC provides a wide range of services to people with disabilities, including:

• Legal advice
• Legal task assistance
• Duty lawyer
• Ongoing legal representation
• Non-legal advocacy

LACs receive funding from the Department of Social Services to provide legal representation in National Disability Insurance Scheme (NDIS) matters on appeal before the Administrative Appeals Tribunal (AAT).

Since the NDIS began, we have been providing advice, assistance and legal representation to applicants in the AAT in reviews of decisions including access to the NDIS, revocation, and supports, with a focus on representing in matters where the law requires clarification, where outcomes have the potential to achieve a benefit for a large number of participants or where applicants are experiencing substantial disadvantage.

Through this work we see firsthand how the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) operates and are able to identify areas for reform and improvement.

LACs also provide services to people with disability through Your Story Disability Legal Support which was established to help people share their stories with the Disability Royal Commission.

LAC services are delivered at courts and tribunals, from their head and branch offices across the nation, and by outreach including at correctional facilities, health facilities, community-based organisations and through

NLA Submission on the NDIS Amendment (Getting the NDIS Back on Track No. 1) Bill 2024

Page 6 of 57

health justice partnerships. Services to people with disability include through Your Story Disability Legal

Support, services to assist people in relation to the NDIS, mental health advocacy and guardianship, disability

discrimination, accessible community legal education, and services in the criminal, family, family violence

and child protection systems.

Previous submissions on the operation of the NDIS

Our previous submissions about the NDS include:

• NDIS Participant Experience in Rural, Regional and Remote Australia, NLA Submission to Joint Standing Committee on the NDIS, 8 March 2024.

• The Disability Royal Commission Recommendations: Have your say – NLA submission to the Department of Social Services 12 January 2024.

• Disability Services and Inclusion Bill 2023 – NLA submission to the Department of Social Services, 18 August 2023.

• NDIS General Issues Inquiry – NLA submission to the Joint Standing Committee on the NDIS, June 2023.

• The NDIS Review: Building a Strong, Effective NDIS - Legal Aid NSW submission to the Independent Review of the NDIS, January 2023.

• Submission to the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability - NLA submission to the Royal Commission, November 2022.

• Putting people first - Removing barriers for people with disability to access NDIS supports - NLA submission to the Review of the NDIS Act and the new NDIS Participant Service Guarantee, November

• Exposure Draft - National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021 - NLA submission to the Department of Social Services, October 2021.

• Realising choice and control through supported decision-making - Victoria Legal Aid submission on the NDIS Support for Decision Making Consultation, September 2021.

• Protecting people with disability in the forensic and criminal justice systems - Victoria Legal Aid submission to the Inquiry into the National Disability Insurance Scheme Quality and Safeguards Commission, June 2021.

• NDIS Consultation Paper: Planning Policy for Personalised Budgets and Plan Flexibility - NLA submission to the National Disability Insurance Scheme, February 2021.

• NDIS Consultation Paper: Access and Eligibility Policy with independent assessments – NLA submission to the National Disability Insurance Scheme, February 2021.

• NDIS planning - NLA submission to Joint Standing Committee on the National Disability Insurance Scheme, September 2019.

• Inquiry into market readiness for provision of services under the NDS - Legal Aid NSW submission to the Joint Standing Committee on the National Disability Insurance Scheme, March 2018.

• NDIS Thin Markets Project - Victoria Legal Aid submission to Department of Social Services and the National Disability Insurance Agency’s NDIS Thin Markets Project, June 2019.

Response to the National Disability Insurance Scheme Amendment

( Getting the NDIS Back on Track No. 1 ) Bill 2024

Recommendations

1. General recommendations for the reform process

The Government should:

• Provide its response to the NDIS Review in full before any legislative changes are made.

• Ensure that before any changes are made to legislation:

  o proposed foundational supports,

  o inclusive mainstream supports, and

  o other proposed supports outside the NDIS

are in place.

• Ensure that before any changes are made to legislation, the:

  o Foundational Support Strategy,

  o revised Principles for Determining the Responsibilities of the NDIS and other systems,

   and
  

  o the Disability Intergovernmental Agreement

are co-designed with people with disabilities and made available for consultation with stakeholders, including relevant legal assistance providers.

• Develop its package of legislative change as a whole, including all proposed rules instruments and legislative instruments, for a broader consultation. There must be co-design with people with disability for all changes and all instruments.

• Re-evaluate the expanded use of rule-making powers in the Bill.

• Prioritise changes that will assist participants to comply with obligations under the NDIS Act, in- cluding providing financial and logistical assistance to obtain reports and reforming supported decision-making under the NDIS Act.

Review rights for access

The NDIS Act should be amended to include a right for affected persons to seek review of the decision that they meet only the disability or only the early intervention requirements, and for a particular impairment only (see recommendation 4 below for further detail).

Supports should not be based on particular impairments

Supports under the NDIS should retain their focus on a person’s disability and support needs and should not be restricted to particular impairments.

Further review rights if supports are referable to particular impairments

If the requirement that supports relate to an impairment that meets the disability and/or early intervention requirements is retained, then:

• Access decisions must specify all the impairments for which the access criteria are met and the NDIA must be required to consider, assess and make a decision in relation to all impairments that a participant/prospective participant experiences.

• It must be possible for participants to request that additional impairments are assessed to determine whether the participant meets the access criteria in relation to those impairments.

• It must be possible to seek review of any decision that the access requirements are not met in relation to an impairment. This must be included as a reviewable decision under s 99 NDIS Act.

Support of the NDIS for a participant’s lifetime

The proposed change to s 24(1)(e) to require participants to show that supports they require are “NDIS supports” not be made, and the section as it is currently to be retained.

Clarify the time at which access decisions are to be made

The NDIS Act should be amended to clarify that there is no temporal element in the review of decisions about whether a prospective participant meets the disability and/or early intervention criteria.

Remove the ability to revoke the status of a participant when they cannot supply requested information

Subsections 30(5)-(6) and 30A(5)-(7) should be removed from the Bill. Revocation of a person’s status as a participant should only be permissible when the National Disability Insurance Agency (NDIA) has information that establishes that the access criteria are no longer satisfied.

Notice Before Revocation

The Bill should specify that participants will always be given notice of an intention to revoke their status as a participant and a 90-day time period to respond.

Access To Supports While Challenging Revocation

The NDIS Act should be amended to include a provision under which payment for supports would continue pending a review of a revocation decision, similar to section 131 of the Social Security (Administration) Act 1999 (Cth).

Clarify Review Rights About Revocation

Section 99 of the Act should be amended to refer to s 30A(1) rather than 30A(1)(c).

Simpler Definition Of Ndis Supports

A revised and simplified definition of NDIS support should be included in the Bill, with reference to the objects and principles of the NDIS Act.

Amendment To NdIs Supports Definition If Retained

If the definition is retained, 10(a)(i) be amended to read “will assist to support the person to live and be included in the community, or to prevent isolation or segregation of the person from the community”.

Seeking Clarification About Whether A Support Meets The Definition

That the legislation provide a mechanism for participants (or their nominees) to seek clarification about whether a support they intend to acquire is an “NDIS support”.

Protection Where Clarification Sought

That the legislation provide that participants (or their nominees) are protected from a debt being raised against them, or the management of their plan being changed to plan managed or agency managed, if they take reasonable steps to ensure that a support they need meets the definition before they proceed to purchase that support.

The Aptos Principles Should Not Be Used As An Interim Measure

That the APTOS Principles not be used as an interim measure, and that any definition of NDIS supports not be introduced until it is wholly available in its final form.

16. More information about needs assessment reports is needed

That the Government provide more information about needs assessment reports, including:

• The tools that will be used,
• How they will be performed,
• Who will perform them,
• That the NDIA will cover the cost of the reports, and
• What they will contain

For co-design with people with disabilities and consultation with stakeholders before changes are introduced.

17. Opportunity to provide information to inform the needs assessment

That section 32L (4) of the Act be amended to require that the needs assessment report have regard to any information provided by the person.

18. Needs assessments should not be compulsory

That there be a wide discretion not to require a needs assessment in a broad range of circumstances, including where there are barriers for the participant in engaging in an assessment, and where there is sufficient information already available about the participant’s needs.

19. Right to choose assessor

That needs assessments be done by an assessor of a participant’s choice, including a treating practitioner or allied health practitioner they are engaged with.

20. Policy for participants in restricted environments

That there be specific policies for how needs assessments will be conducted for participants in restricted environments, including custodial settings and mental health facilities.

21. Assessors to receive appropriate training

That assessors have access to comprehensive training in assessing disability support needs and in engaging with Aboriginal and Torres Strait Islander participants, participants from CALD backgrounds and participants with cognitive disability.

22. Information additional to the needs assessment report should be taken into account

That the correlation between the reasonable and necessary budget amounts and the needs assessment reports be altered from “applying” the information in the needs assessment report to “considering” that

information through amendment of section 32K(1). This would facilitate the consideration of other

23. Decisions about needs assessment reports

That there be additional decisions under the Act that a participant can request, including:

• That a needs assessment is not required,
• That a needs assessment be varied or corrected,
• That a reassessment take place, and that there be review rights in relation to those decisions. This must be included as a reviewable

decision under s 99 NDIS Act.

24. Power on review to vary or amend a needs assessment report, or request reassessment

That the Act make clear that a decision-maker on review of a statement of participant supports may exercise the CEO’s power to request a reassessment, and may vary or amend a needs assessment report.

25. Review rights for the decision to approve a statement of participant supports clarified

The Act should be explicit that the findings and recommendations of a needs assessment report form part of the decision to approve a statement of participant supports in a new framework plan.

This could be achieved by an amendment to s 32D(6) to say that a decision maker must: ab) be satisfied that the needs assessment report reflects the participant’s need for supports under the NDIS, and ac) be satisfied considering the needs assessment report and any other information of the reasonable and necessary budget provided under the plan.

26. More clarity about stated supports

A list of intended stated supports should be provided for consultation, co-design and comment.

27. Mechanism for stated supports

Stated support budgets should include a mechanism to account for price increases in fixed price items or small changes in specifications for assistive technology items.

28. Description of supports within a flexible budget

Flexible support budgets should always come with a description of the general types of supports the budget is intended to cover.

Reasons for refusing support given

If specific supports are not included within either the flexible or stated support budgets a participant should be notified and given reasons for the decision.

The phrase “reasonable and necessary budget” to be incorporated into the Objects and General Principles of the Act

Section 3(1)(d), s 4(5) and 4(11) should be amended to include “reasonable and necessary budgets”.

Ensuring participants have access to supports during the transition to new framework plans

That the proposed power to suspend an existing statement of participant supports (s 36(4)(b)) when information requested for a needs assessment report is not provided within time, be removed.

Participants not to be liable for amounts paid to another person

The Act be amended to prohibit participants being deemed to have received “NDIS amounts” that have been paid to another person, and to provide clarity around how “NDIS amounts” are attributed.

Decisions that a participant has not complied with their plan to be reviewable

Decisions made under s 182(1) and (3) should be reviewable under s 99.

Special circumstances

The Act be amended to allow for consideration of disability and financial hardship for special circumstances waiver in section 195.

General comments

The Independent Review of the NDIS (the NDIS Review) was a comprehensive evaluation of the NDIS that

made 26 recommendations and proposed 139 actions for change to be implemented over a five-year ransition period.5 The NDIS Review’s final report said that all its recommendations must be considered as a whole, and that the experience of people with disability must be put at the centre of their implementation.6

Much of the reform project proposed by the NDIS Review involves the creation and bolstering of supports and services outside of the NDIS, including a system of accessible and affordable foundational supports for all people with disability. Those changes require joint investment and redesign of the NDIS and the systems around it by all Australian Governments. The NDIS Review contemplates an expanded and strengthened ecosystem of supports for people with disability, with joint stewardship of that system by all governments.7

Alongside the NDIS Review sit the findings from the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (the Royal Commission). The Royal Commission made 222 recommendations, including recommendations for changes to the NDIS and how it interacts with other systems.

A complete response to the NDIS Review recommendations is needed before legislation is introduced

The Government’s response to the NDIS Review has not been published, and is expected to be released in

2024.8 The response to the Royal Commission report is also due in the coming months.9

The National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 (the Bill) is a partial response to the findings and recommendations of the NDIS Review. 10

Many of the recommendations of the NDIS Review and of the Royal Commission are not contemplated or achieved by the Bill. Significantly, the Bill does not come with the proposed Foundational Supports Strategy,

5 Working Together to Deliver the NDIS: NDIS Review: Final Report, October 2023, page 50. 6 Working Together to Deliver the NDIS: NDIS Review: Final Report, October 2023, page 18. 7 Working Together to Deliver the NDIS: NDIS Review: Final Report, October 2023, page 242. 8 Landmark independent NDIS Review report released | NDIS 9 Australian Government Progress Update on the Disability Royal Commission | Department of Social Services, Australian Government (dss.gov.au) 10 Explanatory Memorandum to the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024.

which would allow people with disability to understand how they will be supported beyond individual

support packages.11 It does not come with revised Principles for Determining the Responsibilities of the NDIS

and other systems, which both the NDIS Review and the Royal Commission said were fundamental to

ensuring that NDIS participants’ needs are not lost between systems. 12 It does not come with the Disability

Intergovernmental Agreement intended to bring together all aspects of disability support across all

systems.13

The Bill leaves a great deal of uncertainty for participants about:

    -   The participants or classes of participants whose status as a participant will be reviewed,

    -  What support those whose status as a participant is revoked would receive outside the NDIS,

    -  What help participants will get to comply with requirements to provide further information about

      their disability needs,

    -  What will and won’t be an NDIS support, and

    -  How participants’ needs will be assessed and reassessed.

One of the guiding principles of the NDIS Act is that people with disability and their families and carers should

have certainty that they will receive the care and support they need over their lifetime: NDIS Act s 4(3).

That can only be achieved if the Government provides a full response to the NDIS Review, outlining what

recommendations it intends to follow and what actions it intends to take. It can only be achieved if the

proposed ecosystem of supports for people outside the NDIS is established prior to any changes to the

legislation. As the NDIS Review intended, all recommendations must be considered holistically, and with the

needs and views of people with disability at the centre. There should be ongoing consultation and co-design

with people with disability of all policy and legislative changes.

1.2 Rules Instruments must be made available

In total the Bill makes provision for twenty-nine rules instruments and six legislative instruments which will

provide detail, considerations and criteria to be applied in relation to many of the proposed changes. All but

• five of the proposed rules instruments are Category A instruments which require the approval of all the

• It is proposed that rules and legislative instruments:

    - Can make provision for any matter to be taken into account in determining whether the disability or
  
      early intervention requirements are met by a prospective participant (s 27),
  
    - Can direct the NDIA to consider the status of certain participants and whether their status should
  
    be revoked, and set out the considerations for that redetermination (s 30A),
  
    - Will declare particularised supports that are and are not most appropriately funded by the Scheme
  
        (s 10),
  
    - Can provide for requirements, methods and considerations for approving statements of participant
  
     supports and for setting NDIS budgets under new framework plans (s 32D(6)(b)(ii); s 32D(6)(f), s
  
     32D(8), s 32E(4), s 32F(7), s 32G(4), (s 32J), (s 32K)), and
  
    - Will set out the assessment tools for, information to be included in and requirements for proposed
  
    needs assessment reports (s 32L(8)).
  

The Bill significantly expands the scope of rulemaking power under the Act. For example, the new section 27 of the Act as amended would allow rules to make provision for any matter for the purposes of section 24 or 25 of the NDIS Act. This is in contrast with the existing rule power, which sets out specific subsections of ss 24 and 25 about which rules can be made.

There are four issues with the use of rule-making powers in this way:

  1. Many of the key aspects of the reforms won’t be known until the rules are published.

  2. The more rules instruments there are and the more expansive the rule-making powers are, the more

        likely it is that there will be confusion or contradiction between the NDIS Act and the rules.

  3. Because most of the rules instruments require agreement of the States, it’s possible that key details

      of the reforms could be delayed, leaving a framework without detail.

  4. It reduces parliamentary oversight by delegating fundamental settings around how the scheme op-

      erates.

In a number of cases before the AAT and the Federal Court, decision makers have grappled with the legality

of NDIS Rules instruments, their compatibility with the NDIS Act, and how to interpret them when they

express criteria differently from the NDIS Act. Increasing the number of rules instruments and their scope

is likely to increase these challenges and add further complexity to review processes under the NDIS Act.

In the past, proposed rules instruments intended to provide detail and support for changes in the NDIS Act

have not been enacted, leaving gaps and uncertainty. For example, in 2022 the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 (Amendment Act) amended sections 24 and 25 of the Act to recognise expressly that impairments could be episodic or fluctuating and still be permanent. These changes, made following the 2019 Tune Review, were made to address a lack of clarity around permanency of psychosocial disabilities and were designed to be complemented by changes to the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (the Participant Rules).

Similarly, the Amendment Act amended sections 42, 43 and 44 of the NDIS Act to enable the NDIA to refuse a request by a participant to have their funding managed by a plan manager, on the basis that management of funds by a plan manager poses an unreasonable risk. These changes were made to “increase clarity in relation to decisions about plan management requests and extend the risk assessment process for self- management of funding to those using plan management providers.” They were intended to be complemented by changes to the National Disability Insurance Scheme (Plan Management) Rules 2013 (the Plan Management Rules), to clarify when plan management might present an unreasonable risk to a participant, as an extension of the risk assessment provisions in relation to self-management already provided for in those Rules.

Changes to the Participant Rules and the Plan Management Rules

Changes to the Participant Rules and the Plan Management Rules were never enacted, which means the full

intention of the changes was never realised, and the terminology used in the NDIS Act and the Participant

and Plan Management Rules is therefore inconsistent.

We understand that part of the reason for the expanded rule-making powers is to incorporate aspects of the

NDIA’s Operational Guidelines into the legislative scheme. We are supportive of the tools and frameworks

that guide decision-making being transparent and subject to public consultation and review, and agree with

the findings of the NDIS Review that an overreliance on Operational Guidelines is causing inconsistent

decision-making. We have made previous submissions about the need for Operational Guidelines and policy

documents to be consistently updated and reviewed in line with decisions of the AAT to improve consistency

of decision-making and to avoid unnecessary reviews.

In our experience, NDIA decision-making relies heavily on Operational Guidelines even when the Tribunal has

found that the guidelines are inconsistent with the NDIS Act or Rules. See for example the decision of

McGarrigle v National Disability Insurance Agency [2017] FCA 308 (28 March 2017) where the Federal Court

found that the NDIA’s “staged” levels of transport funding were contrary to the Act, and the case of Syddall

and National Disability Insurance Agency [2022] AATA 3738 (8 November 2022), where the Tribunal found

that the NDIA’s operational guideline excluded the funding of the purchase of motor vehicles, inconsistently

with the Act. Neither Operational Guideline has been amended or updated to reflect these decisions, and

the NDIA continues to rely on them.

In a context where many principles and considerations are intended to move from Operational Guidelines to

the Rules, it is even more important that rules instruments are made available for consultation alongside the

Bill.

NLA recommends that all proposed rules instruments and ministerial determinations are made available for

consultation. NLA recommends that the Government re-evaluate the use of Rules instruments, and, as much

as possible, rule-making powers are confined and definitions and criteria are not split across the Act and

Rules to ensure consistency in this regard.

Supported decision making and assistance from the NDIA

Need for reform in supported decision-making practices under the NDIS Act

The NDIS Review found that current practices and rules around supporting participants under the NDIS to make decisions need reform. It said that the majority of participants require support for decision-making, and that the NDIS had increased the complexity of decisions. It recommended significant changes to substitute and supported decision-making under the NDIS Act and Rules. It said that the NDIA needed to adopt a best practice, rights-based approach to supported decision-making, which would involve:

• Accessible information and tailored advice for participants and their families, nominees and other decision-supporters,
• Decision-making supports to be assessed when determining a budget, and
• Ensuring people with cognitive disabilities are connected with capacity building and lifelong support to build decision-making skills and experience.

These recommendations are not reflected in the Bill. The Bill puts new and greater responsibilities on participants to supply information and to participate in medical and needs assessments. It imposes greater consequences for failure to properly use and acquit NDIS funds and to provide requested information.

These changes increase the complexity and consequences of decisions without introducing recommended measures to support decision-making or to assist participants to comply with their obligations under the NDIS Act.

In our experience, the current practice around the appointment of nominees is inconsistent. Through our NDIS appeals representation work, we see many participants who have insufficient support to make decisions, and many family members who are not sure if they have been formally appointed as a participant’s nominee and who have limited or no information about their role and responsibilities. NLA has observed that in the community, and even within the NDIA, there is confusion between the role of a plan nominee and a decision supporter. For example, we have encountered reluctance from the NDIA to appoint plan nominees or appropriately involve decision supporters (even in circumstances where a participant has always had a plan nominee or a decision supporter present when interacting with the NDIA). This can have the unintended consequence of forcing decision supporters and/or plan nominees to obtain formal orders in State Tribunals.

This results in participants having less choice and control over their lives, not only in relation to NDIS funding but also in relation to other aspects of their life such as financial and health decisions. State guardianship Tribunals have reported substantial increases in guardianship applications being made for NDIS participants, including by NDIS providers.

Case study: NDIA does not appropriately support a participant with her reassessment

Amanda (not her real name) is an adult participant with intellectual impairment. Her mother had been involved in the development of her first two NDIS plans, but she had never had a formal plan nominee appointed. Amanda’s mother wanted to ensure that she was involved as fulsomely as possible in the development of her plan without any formal arrangements, and wanted to ensure that she was as autonomous as possible in decision-making affecting her plan. When it was time for the development of her third plan, the NDIA did not inform the mother that a reassessment date had been set, nor did they invite the mother to attend as a decision supporter. Amanda had been the victim of scams in the past, and refused to answer any calls from anyone who she did not know because she was worried that they would make her agree to something that was not in her best interests. Additionally, she had asked for a face-to-face meeting with the planner. This request was declined. Ultimately Amanda did not attend the meeting and a new plan was issued without proper review of her circumstances.

Support for participants to understand their obligations under the Act can also be limited. The NDIA does not, early on in the decision-making or application process, make it sufficiently clear to participants what evidence would be required to enable access to the Scheme or supports they are seeking. Initial decisions from the NDIA are not supported by reasons with enough detail for participants to understand what further material they would need to access the supports they are seeking. We have assisted participants who had insufficient support to understand their obligations and limitations regarding the funding in their plan, how to avoid misspending or overspending on their plans, how to achieve waivers of debts that have arisen because they are insufficiently supported, and to restore appropriate forms of plan management with support. It has also been observed that Local Area Coordinators, Support Coordinators and disability support providers can find it difficult to understand all aspects of the funding included in a participant’s plan and provide inaccurate information to participants or their nominees as to how funding can be utilised.

26 See the Joint Standing Committee on the National Disability Insurance Scheme report into the Culture and Capability of the NDIA, November 2023, Chapter 3.

Case study: Participant insufficiently supported to make decisions

Sally (not her real name) is a participant in the NDIS with a severe psychosocial disability. Sally’s disability impacts her capacity to understand information and manage finances. Sally’s plan was self-managed. She contacted her Local Area Coordinator (LAC) frequently for help to manage the funds.

The NDIA sent Sally a letter requesting over $70,000 be repaid on the basis that she could not produce evidence to substantiate the claims. This letter provided no information on review rights and only stated that the debt was payable under s 182(2) of the NDIS Act.

Sally sought help from Legal Aid NSW. We helped her to get a copy of her records, which showed she’d made multiple attempts to seek support to manage her funds. The NDIA had actioned claims involving large sums of money by transferring them to her bank account. Legal Aid NSW was successful in negotiating with the NDIA and Sally’s debt was waived considering her special circumstances under s 195 of the NDIS Act.

Under the proposed changes, the responsibility to understand and comply with complex obligations for obtaining NDIS supports and acquitting NDIS funds is increased. As it is now, it is often difficult for participants and their families to understand exactly how funding has been calculated, what funding is allocated to different supports, and whether individual supports they seek to access fall within the often generic description in the plan. The Bill proposes that new framework plans have a flexible budget, with a total amount of funding for supports, which can only be spent on NDIS supports as defined in the Act and Rules. 27

To know whether a support is an NDIS support, a participant must consult a definition appearing in the NDIS Act and Rules, and evaluate whether the support they are acquiring meets that definition. If funding is not spent on NDIS supports, the amount can be recovered against the participant as a debt.28 The changes to allow whole of budget support decisions were intended to simplify the process for participants, but if they are not accompanied by reform to decision making support, it is likely they will not achieve their aims.

We consider that the changes to supported decision making recommended in the NDIS Review must be made as a matter of priority, and particularly if obligations on participants are to increase. This includes improving information, advice and training to participants, providers and those who support them, reforming NDIS nominee rules to include clearer guidance for plan nominees about their role and responsibilities, and coordination with State and Territory governments to coordinate other substituted decision-making schemes

27 National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 s 10. 28 National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 ss 46 and 182.

NLA submission on the NDIS Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 Page 21 of 57

and the NDI$.29 Consistent with previous submissions,30 we also consider express identification and adoption of strength based terminology around types of supported decision-making be integrated into guidelines and processes. In particular we recommend the use of the terms “substitute decision-making”, “shared decision- making” and “supported decision-making” as key references, with agreed definitions. Finally, it is critical that people with disabilities are provided with the tools and resources, including human resources, to support them to make decisions, and that all tools and resources to support decision making are codesigned and coproduced with people disabilities.31

We also have concerns that the Bill requests participants provide information to support their continued status as a participant, but without detail about how participants will be supported to provide that information. In previous submissions, we’ve written about the practical barriers that participants and prospective participants face in obtaining information and reports to evidence their need to access the Scheme and evidence their support needs.32 The barriers are felt most acutely in rural, regional and remote areas, where there can be waitlists of up to two years for certain types of assessment.33 In our experience the level of detail required means they are not capable of being funded under the Medicare system. These concerns are shared by medical professionals, particularly in relation to the difficulties faced by people living in regional areas.34 This is also an issue for culturally and linguistically diverse communities where English is not their first language, and they cannot understand how to access what is needed. We have recommended that participants are provided with more support, including financial support, to obtain requested reports.

The Bill proposes that participants respond to requests for information about their status as a participant, including providing reports, within 90 days of a request.35 While the Bill does provide a power for the NDIA to determine that it was reasonable for a participant not to have complied with a request within that time, it does not include any detail about how the NDIA will assist participants to obtain and pay for the requested information. Again, we recommend that if changes to increase participants’ obligations to supply information

29 Working Together to Deliver the NDIS: NDI$ Review: Final Report, October 2023, page 115. 30 Victoria Legal Aid, Realising choice and control through supported decision-making, September 2021, page 9. 31 See for example codesigned and coproduced resources from Victoria Legal Aid’s Independent Mental Health Advocacy program including NDI$ self-help toolkit and self-help tool: NDI$ mental health toolkit | Independent Mental Health Advocacy (imha.vic.gov.au) 32 National Legal Aid, Putting people first: Removing barriers for people with disability to access NDI$ supports, Submission to the Review of the NDI$ Act and the new NDI$ Participant Service Guarantee, 4 November 2019 page 29; The NDI$ Review: Building a Strong, Effective NDI$: Legal Aid NSW submission to the Independent Review of the NDI$, January 2023, page 11; NDI$ Participant Experience in Rural, Regional and Remote Australia, NLA Submission to Joint Standing Committee on the NDI$, 8 March 2024, page 6-7. 33 NDI$ Participant Experience in Rural, Regional and Remote Australia, NLA Submission to Joint Standing Committee on the NDI$, 8 March 2024, page 5. 34 RACGP Position Statement – Care and Support for People with Disability, 8 January 2024, page 4-5 : RACGP Care and support for people with disability 2023. 35 National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 s 30 and 30A.

are enacted, the Government must also address longstanding issues, particularly in rural, regional and

remote areas, of access to and also payment for specialist reports. Otherwise, these changes have the

potential to disproportionately affect groups experiencing disadvantage, including Aboriginal and Torres

Strait Islander participants and socio-economically disadvantaged participants.

Recommendation 1: General recommendations for the reform process

The Government should:

    -   Provide its response to the NDIS Review in full before any legislative changes are made.

    -   Ensure that before any changes are made to legislation:

    o   proposed foundational supports,

    o   inclusive mainstream supports, and

    o  other proposed supports outside the NDIS

    are in place.

    -   Ensure that before any changes are made to legislation, the:

    o  Foundational Support Strategy,

    o  revised Principles for Determining the Responsibilities of the NDIS and other systems, and

    o  the Disability Intergovernmental Agreement

    are co-designed with people with  disabilities and made available  for  consultation with
     stakeholders.

    -   Develop its package of legislative change as a whole, including all proposed rules instruments and
      legislative instruments, for a broader consultation. There must be co-design with people with dis-
       ability for all changes and all instruments.

    -   Re-evaluate the expanded use of rule-making powers in the Bill.

    -    Prioritise changes that will assist participants to comply with obligations under the NDIS Act, in-
        cluding providing financial and logistical assistance to obtain reports and reforming supported de-
        cision-making under the NDIS Act.

2. Response to specific changes proposed by the Bill

2.1 Changes to the access requirements

The changes to access requirements proposed in the Bill include:

• Specifying that the NDIA must separately determine whether a person meets the early intervention or disability requirements,
• The addition of a note to specify the time at which access requirements must be met, and
• A broadened rule making power for access.

The Explanatory Memorandum makes clear that these changes are to lay the foundation for the separate eary intervention pathway in the future.36 The NDIS Review recommended the establishment of the pathway and that it provide supports for “the majority of new participants with psychosocial disability”37 and for children under the age of 9.38 It recommended a process of reforming the participant pathway to access using an “iterative, inclusive approach to design and testing, and ensure participants experience a smooth transition to the new arrangements”.39

It is difficult to comment about the proposal to create a new early intervention pathway without further details. In general, LACs consider that early intervention supports are an important part of the NDIS. We have assisted participants to obtain early intervention supports that have transformed their lives and have reduced their need for disability supports in the long term. We support the continuation of early intervention supports, with consideration about best practice in their delivery and with better integration with mainstream supports so that people with disability can continue to access interventions that will reduce the impacts of their impairments on their functional capacity.

The NDIS Review found that the original vision for early intervention supports for the NDIS had not been realised, and that there are few mechanisms available to support participants to understand the purpose of early intervention, especially for adults.40 In our experience, there is confusion for both decision makers and medical professionals about the meaning of “early intervention supports”. Neither the legislation nor the

Rules specify that early intervention supports can only be provided in relation to an impairment that has

been newly acquired (the Participant Rules instead consider the “likely trajectory and impact of the person’s

impairment over time)”,41 but in our experience that is often how the concept is interpreted. “Early

intervention supports” is not a term that is always understood by medical practitioners, which can affect the

information that they give when assisting someone to apply for access. The Bill, or the associated Rules,

should clearly specify that “early intervention” refers to the trajectory of a person’s impairment, rather than

imposing a requirement that they can only be provided soon after an impairment is acquired. This is

particularly important if it is intended that the early intervention pathway be expanded.

2.2 Psychosocial disability

We agree with the findings of the NDIS Review that there have been significant problems for people with

psychosocial disability accessing the NDIS and getting the supports they need.42 In our experience, r 5.4 of

the Participant Rules, which specifies that there must be “no known, available and appropriate treatments

to remedy an impairment”43 for an impairment to be permanent, is consistently incorrectly interpreted to mean that prospective participants cannot be engaging in any ongoing treatment likely to improve their

functioning or assist their recovery if they are to gain access. In the 2022/2023 financial year, 45% of

applicants with psychosocial disabilities were granted access to the NDIS, compared to 76% of all applicants.44

There are fewer people currently accessing the NDIS on the primary basis of psychosocial disability than were

forecast to in 2017.45

Changes to the NDIS Act to recognise the episodic and fluctuating nature of some permanent impairments

have not addressed the difficulties for people with psychosocial disabilities in accessing the NDIS. In previous

submissions, we, along with many other organisations including peak mental health organisations, have recommended changes to the access requirements to incorporate the principles of the recovery model of

mental health.46

41 National Disability Insurance Scheme (Becoming a Participant) Rules 2016 r 6.9. 42 Working Together to Deliver the NDIS: NDIS Review: Final Report, October 2023, page 128 – 137. 43 National Disability Insurance Scheme (Becoming a Participant) Rules 2016 r 5.4. 44 NDIS Psychosocial Dashboard, Psychosocial | NDIS, 30 June 2023. 45 NDIS Psychosocial Dashboard, Psychosocial | NDIS, 30 June 2023 and Productivity Commission 2017, National Disability Insurance Scheme (NDIS) Costs, Study Report, Canberra, at page 31. 46 For example, The NDIS Review: Building a Strong, Effective NDIS - Legal Aid NSW submission to the Independent Review of the NDIS, January 2023, page 12; NDIS General Issues Inquiry page 9, Exposure Draft - National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021 - NLA submission to the Department of Social Services, October 2021, page 8.

Case study: Psychosocial disability and access to the NDIS

Anna (not her real name) is 59 years old. She has had a psychosocial disability arising from severe depression and PTSD for nearly 20 years. She has a history of traumatic events, including family violence, and struggles with feelings of self-harm. Over her years of treatment she has taken medication, engaged in cognitive behaviour therapy, has had extensive treatment from a psychologist and a psychiatrist and multiple admissions to mental health inpatient units.

Her form to request access to the NDIS was completed by a social worker during a hospital admission. It included several standardised tests for assessing psychosocial functioning, explained her substantial reductions in functional capacity across social interaction, learning, self-care and self-management. It was accompanied by a statement from Anna, letters from her psychologist, psychiatrist, GP, community mental health team and a local charity.

The review decision of the NDIA found that Anna’s impairments were not permanent, despite “longstanding symptoms and difficulties”, because she was still seeing a psychologist regularly. In the AAT, The NDIA maintained its position that Anna did not meet the requirements up to hearing, accepting that her psychosocial impairment was permanent, but arguing that her needs could be met by the NSW Housing and Accommodation Support Initiative, a program that she was using but without it meeting her needs.

Legal Aid NSW assisted Anna to successfully settle her matter and become a participant in the NDIS. In total, from application to orders of the AAT, Anna’s matter took close to two years to resolve. The process exacerbated Anna’s mental health symptoms and she found it debilitating.

We support the recommendations of the NDIS Review in relation to:

• More focus on recovery and optimising independence,
• Greater integration between the public health systems and the NDIS,
• Improved access to mental health services for people with severe mental health issues. 47

If it is the intention of the amendments to facilitate different requirements for people with psychosocial disability, including that prospective participants or existing participants with psychosocial disability must first engage in the early intervention pathway before it is considered whether they meet the disability requirements, we do not support that change. In our experience, there are a significant number of people with severe, permanent and debilitating psychosocial disabilities who have demonstrated they meet the disability requirements. There is no basis to treat psychosocial disability differently from disabilities arising

47 Working Together to Deliver the NDIS: NDIS Review: Final Report, October 2023, p 135-137.

NLA submission on the NDIS Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 Page 26 of 57

Decisions specifying the basis on which a person meets the access criteria

We support changes to the NDIS Act that will make it necessary for the NDIA to specify whether a participant has met the early intervention requirements or the disability requirements, or both.

We consider that participants will benefit from having clearer decisions about the basis on which access is granted. In our experience, there are some participants who have been found to meet the early intervention requirements, and seek to show they meet the disability requirements, with no clear mechanism to do so.

We recommend that the changes also include an amendment to section 99 to include “a decision that a person does not meet the disability requirements” and “a decision that a person does not meet the early intervention requirements”. Currently, the only reviewable decision is a decision that a person does not meet the access criteria. If these additional decisions are not added, a person would have no recourse to challenge the NDIA’s decision in relation to which requirements they meet.

Recommendation 2: The NDIS Act should be amended to include a right for affected persons to seek review of the decision that they meet only the disability or only the early intervention requirements, and for a particular impairment or impairments only.

determine which are the impairments to which a person’s disability is attributable.

As a Scheme designed to support people with disabilities for their lifetimes, it must be possible for existing participants to receive support in relation to impairments they acquire or develop after they become participants, or impairments that exacerbate or are exacerbated by other impairments. Under the law as it stands, the AAT has repeatedly found, in contrast to the NDIA’s operational guidance, that supports under the NDIS are not restricted to the impairment for which the person initially met the access requirements.

As the AAT noted in HRZI and National Disability Insurance Agency [2023] AATA 481, the entire exercise of determining supports is referable to a person’s disability (that is impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others) and related support needs, ot to particular impairments. That supports are referable to a person’s disability rather than a particular impairment or impairments is entirely compatible with the social model of disability upon which the NDIS is based. It also recognises the reality that an access decision is a point in time assessment of a person’s impairments, whereas the NDIS is intended to provide supports for participants over their lifetimes. The comments of Senior Member J Collins in Spires and National Disability Insurance Agency [2023] AATA 1230 at [23] to [26] are apposite:

Therefore, once a person has been granted access to the scheme there is no statutory power available to the Agency to subsequently and unilaterally attach a condition or conditions to a grant of access, particularly a condition or conditions which seek to limit or modify the nature and extent of the grant of access to the scheme. This construction of the mechanism under Part 1 is reflected in section 4(3) of the Act which provides;

“People with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime.”

In my view, Part 1 provides a statutory mechanism for entry to the scheme. It is then Part 2 which follows and provides the ‘mechanism’ for the subsequent review, re-assessment and variation of the

50 HRZI and National Disability Insurance Agency [2023] AATA 481 at [145] and [149]. 51 HRZI and National Disability Insurance Agency [2023] AATA 481; Goodliff and National Disability Insurance Agency [2021] AATA 5022; McLaughlin and National Disability Insurance Agency [2021] AATA 496; Sharp and National Disability Insurance Agency [2023] AATA 1323; ZJSG and National Disability Insurance Agency [2023] AATA 2784; Spires and National Disability Insurance Agency [2023] AATA 1230. 52 Convention on the Rights of Persons with Disabilities, Adopted 12 December 2006, Article 1. 53 HRZI and National Disability Insurance Agency [2023] AATA 481 at [139]. 54 World Health Organisation, International Classification of Functioning, Disability and Health, International Classification of Functioning, Disability and Health (ICF) (who.int); Disability Care and Support, Productivity Commission Inquiry Report Volume 1, No 54, 31 July 2011, p 98-100, Convention on the Rights of Persons with Disabilities, Adopted 12 December 2006, Article 1, National Disability Insurance Scheme Act 2013, ss 3(1)(a), (c), (i) and 4(1), (2), (11), (16).

supports that will be provided to a participant.

This ‘mechanism’ has regard to the nature and circumstances of a participant’s needs throughout their lifetime. It occurs at statutory intervals and is also available at other relevant points in time, including at the request of the participant and also at the initiative of the Agency.[27]

[25] The mechanism in Part 2 is logical. A participant’s diagnosis, diagnoses, impairments and needs may, and often do, change with the advancement of age and the passage of time generally.

Relevantly, this is reflected in section 31 of the Act which deals with the principles relating to plans and provides:

“The preparation, variation, reassessment and replacement of a participant’s plan, and the management of the funding for supports under a participant’s plan, should so far as reasonably practicable:

(a) be individualised; and (b) be directed by the participant; and ……………………………………………… (j) facilitate tailored and flexible responses to the individual goals and needs of the participant“

………………………………………………….

[26] I do not consider that the intention of this legislation was to require Ms Spires to satisfy the disability requirements under section 24 in respect of additional impairments which may co-exist or subsequently develop in the course of her lifetime. Such a requirement would create a regime requiring multiple applications to the Agency over her lifetime. This would generate enormous cost and, in my view, does not accord with the prudent commercial practice of the Agency as an insurer with obligations also to ensure the financial sustainability of the NDIS Act.

Case study: Disability caused by multiple impairments

Lucy (not her real name) is in her fifties and applied to become a participant in the NDIS. She had experienced chronic migraines and pain in her hands and back since she was in her twenties. As her pain increased, she found going out into the community, being with her family and doing things around her home very difficult. As Lucy’s pain gradually stopped her from going out to shops, family events, or church her mental health deteriorated, and she was diagnosed with chronic depression and panic disorder with agoraphobia.

Lucy was unable to do most of her self-care independently when she has a migraines or high levels of pain.

This was very distressing to her and exacerbated her depression. She withdrew from all but essential

activities for days at a time, either because of pain or her panic disorder, or both. Lucy finds it very difficult

and painful to leave to the home.

The NDIA found on review that Lucy did not meet the requirements to access the NDIS. In the AAT, she

was assessed by a rehabilitation physician, who said the interaction between Lucy’s pain and psychosocial

impairments was “unhelpful”, compounding each other and inextricably contributing to her disability and

reduced functioning.

Legal Aid NSW assisted Lucy to become a participant in the NDIS, arguing that her impairments both

separately and together met the requirements. She now receives support to help with the things she

physically cannot do, and support to manage her depression and panic disorder. One without the other

would not provide Lucy the opportunity to fully participate in her social, cultural and domestic life.

If the legislation is to specify that supports can only be for an impairment for which a participant meets the

disability or early intervention requirements, then other aspects of the legislation must be correspondingly amended to ensure the fair, efficient and transparent operation of the Scheme. This is necessary to ensure procedural fairness of review rights for access related decisions. These amendments should include the following:

    1.  Access decisions should specify for which impairment(s) a person meets the access criteria. Cur-
        rently the Bill specifies that supports must be necessary to address the needs of a participant aris-
        ing from an impairment in relation to which the participant meets the access requirements (s 
         34(aa)), but does not require the NDIA to specify the impairment(s) that have met the require-
      ments in the decision.

  We recognise that the Bill proposes that support decisions, informed by needs assessment
          reports, will have regard to whether a person meets the disability and/or early intervention
         requirements,55 but again, this consideration does not extend to particular impairments.

     2.  Where a decision maker forms the view that a particular impairment does not satisfy the disability
        or early intervention requirements, they must make a decision to this effect. A decision that an

55 National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 s 32D.

NLA submission on the NDIS Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 Page 30 of 57

Recommendation 3: Supports under the NDIS should retain their focus on a person’s disability and

support needs and should not be restricted to particular impairments.

Recommendation 4: If the requirement that supports relate to an impairment that meets the

disability and/or early intervention requirements is retained, then:

a. Access decisions must specify all the impairments for which the access criteria are met and the NDIA must be required to consider, assess and make a decision in relation to all impairments that relate to a participant/prospective participant experience.

b. It must be possible for participants to request that additional impairments are assessed to determine whether the participant meets the access criteria in relation to those impairments.

c. It must be possible to seek review of any decision that the access requirements are not met in relation to an impairment. This must be included as a reviewable decision under s 99 NDIS Act.

2.5 Prospective participants must show they require “NDIS supports”

Under current NDIS Act s 24(1)(e), a prospective participant is required to show that they are “likely to require support under the National Disability Insurance Scheme for the person’s lifetime”. This is in contrast to the early intervention requirements, where s 25(3) specifies that a person will not meet the early intervention requirements if the early intervention support required is not most appropriately funded by the NDIS, and is more appropriately funded by another system.

The Act contemplates a staged decision-making process with two separate decisions: whether the person

meets the access criteria, and then subsequently the approval of a statement of participant supports. 56 A

prospective participant cannot know whether supports they hope to access under the NDIS will be available to them until a supports decision is made. In our NDIS appeals work we see decision makers interpreting s 24(1)(e) as imposing an onus on a prospective participant to show that their needs cannot be met under other systems, despite the clear contrast in wording between s24(1)(e) and s 25(3).

The Bill proposes that s 24(1)(e) be amended to say that the person must be “likely to require NDIS supports under the National Disability Insurance Scheme for the person’s lifetime” (as defined by s 10A). This change would reinforce an approach that requires a participant to demonstrate that the supports they need are likely to be provided to them under the NDIS. We consider this proposed change is contrary to the staged decision-making process in the Act, and particularly difficult in light of other proposed changes, where support needs would be determined by needs assessment reports. We consider this change has the potential to increase the burden on NDS participants seeking review of access decisions and to complicate the task of the AAT on review. We recommend that this change is not made.

Recommendation 5: The proposed change to s 24(1)(e) to require participants to show that supports they require are “NDIS supports” not be made, and the section as it is currently to be retained.

2.6 The time at which the matter falls to be determined

Under the NDIS Act, access begins with an access request from a participant under s 18. Under s 20, the NDIA must consider whether the prospective participant meets the access requirements within 21 days of receiving a request or must request further information. The NDIA must be satisfied, “at the time of considering the request” that the person meets the disability and/or early intervention requirements.

When the AAT reviews decisions, the general principle is that it may take into account matters and material that have arisen after the original decision is made,57 unless the enabling legislation contains a temporal element limiting its consideration to a particular time.58

56 Mulligan v National Disability Insurance Agency [2015] FCA 544 at [34]. 57 Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250; [2019] HCA 16; Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31. 58 Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [143].

In Johnson and National Disability Insurance Agency [2023] AATA 1989

the AAT considered whether the requirement to be satisfied “at the time of considering the request” created a temporal element, so that the AAT was limited to considering whether the prospective participant met the criteria at the time the NDIA was considering the request.

It is in the interests of efficient and fair decision-making that the AAT determines whether a person meets the disability and/or early intervention requirements at the time the AAT makes its decision. Otherwise, for example, a prospective participant who met the access criteria when they applied, but not when their matter reached the AAT, would become a participant in the Scheme. Access decisions have been found to require a “high degree of precision” by decision makers about what a person can or cannot do, and that is best achieved through allowing the AAT to take into account up-to-date evidence and circumstances.

The Bill inserts new notes to subsection 24(4) (the disability requirements) and s 25 (the early intervention requirements) to say that the time at which a requirement in each section needs to be met is “the time the matter falls to be determined”. Amending the NDIS Act provides the opportunity to clarify the meaning of “at the time of considering the access request” and to specify that the AAT is not temporally limited in its consideration of access requests to the time the request was initially considered. If this was the intention of the proposed note, we do not consider it achieves that purpose, because it is ambiguous. Neither the Bill, nor the Explanatory Memorandum, indicate otherwise why this change would be needed.

• Recommendation 6: The NDIS Act should be amended to clarify that there is no temporal element in the review of decisions about whether a prospective participant meets the disability and/or early intervention criteria.

Changes to revocation and reconsideration of the status of participants

Under the NDIS Act, the NDIA can review the status of a participant at any time and revoke a person’s status as a participant if they no longer meet the disability or early intervention requirements (s 30). Proposed amendments in the Bill would:

    -   Expand the powers of the NDIA to request that participants supply information and participate in assessments, and to revoke participants' status if they do not supply information within 90 days (s 30 and 30A), and

Mulligan v National Disability Insurance Agency [2015] FCA 544 at [55].

• Permit the NDIS Rules to prescribe circumstances in which the NDIA must consider a participant’s

status and the criteria that are to apply to that consideration (s 30A).

The Bill does not specify participants to whom s 30A is intended to apply, but the Explanatory Memorandum

indicates that the changes are intended to apply to participants who have met the early intervention

criteria.60 There is limited detail about how these changes are intended to work. Reconsideration of a

participant’s status under s 30 already involves consideration of both the disability and early intervention

requirements, and therefore whether early intervention supports are likely to benefit a person, reduce their

future need for disability supports, and are most appropriately funded by the NDIS. 61 As recommended above

(Part 1.2), we consider it is necessary for the proposed rules instruments to be made available so that people

with disability and the organisations that support them can properly comment on the proposed changes.

Along with our general comments about the need for support, both financially and logistically, to comply

with the requirements to provide information (see Part 1.3 above), we are also concerned that the proposed amendments would allow the NDIA to revoke the status of a participant without any information that

establishes the participant no longer meets the access criteria.

Most participants have supplied extensive information to show that they meet the access criteria at the time of their application and have supplied information about their disability support needs at each of their plan reassessments. A decision to revoke a participant’s status should only be made on the basis of evidence or information that demonstrates they no longer meet the requirements. People without sufficient support and/or with cognitive difficulties making decisions are most likely to be unable to comply with these requirements. When a person’s status as a participant is revoked, they are left without NDIS supports as they seek review of the decision, further compounding the difficulties they experience.

Case study: Participant with significant disabilities and capacity issues has status as a participant revoked

Malcolm (not his real name) is a 54-year-old man living alone in a social housing property. He is subject to

guardian and financial management orders. He had been diagnosed with schizophrenia, traumatic brain injury and PTSD.

60 Explanatory Memorandum to the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 page 10. 61 National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 s 30 and s 25.

NLA submission on the NDIS Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 Page 34 of 57

The Public Guardian made complaints to the NDIS about service providers that they were concerned were

taking advantage of Malcolm and not providing services but claiming payment.

In late 2022, the NDIA wrote to Malcolm and his then support coordinator notifying him that his status as

a participant was under review and provided an opportunity to provide information to assist with the

review. They did not contact the public guardian until 3 months later, and revoked Malcolm’s status as a

participant with immediate effect 6 weeks after notifying the guardian.

Legal Aid NSW assisted Malcolm to lodge a review of the decision to revoke his status as a participant in

the AAT. Assisting Malcolm with his AAT review was very difficult because he had no one supporting him,

formally or informally, after his revocation, other than the public guardian. It was very apparent that

Malcolm was extremely vulnerable and susceptible to exploitation. The AAT raised concerns around

Malcolm’s vulnerability and the lack of supports and chose to expedite the matter.

Ultimately, the NDIA conceded that Malcolm met the disability requirements and reinstated his status as

a participant of the NDIS.

Recommendation 7: Subsections 30(5)-(6) and 30A(5)-(7) should be removed from the Bill. Revocation of

a person’s status as a participant should only be permissible when the NDIA has information that

establishes that the access criteria are no longer satisfied.

The Bill does not propose any changes to the date of effect of a revocation, and the Act still specifies that a

revocation can take effect at any time. We consider that participants should be given notice of an intention

to revoke their status as a participant and a chance to respond while they still have access to supports.

Though changes in the Bill permit the NDIA to notify a participant that their status is under review by

requesting they supply further information, this is discretionary and does not prevent a revocation from

taking effect immediately. In addition to the risks to their person, safety and health from the sudden

withdrawal of supports, participants whose status is revoked can also incur significant debts as a result of

being unable to comply with contractual obligations to service providers. People with disabilities and their

families need to be able to enter into contractual agreements to secure the provision of supports over the

duration of their plans without risking incurring debts if the funds they rely on are unexpectedly withdrawn

mid plan period.

NLA submission on the NDIS Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 Page 35 of 57

We recommend, as we have previously, that the NDIS Act be amended to include a provision under which payment for supports would continue pending a review, similar to section 131 of the Social Security (Administration) Act 1999 (Cth). If a person’s status is revoked and they seek an internal review or review in the AAT, they have no access to supports throughout that review process. This places significant pressure on applicants to pursue their appeal rights without support. If the decision is later reversed, there is no mechanism for reimbursement.

Participant denied supports for two years while seeking review of her revocation

Martha (not her real name) is a 62-year-old living in regional NSW who has complex trauma and multiple physical disabilities.

She was a participant on the NDIS for two years before her status was revoked. With the assistance of Legal Aid NSW, she appealed the decision to the AAT. After close to two years, the NDIA accepted that its decision about Martha’s access to the NDIS was incorrect and reinstated her to the NDIS.

For two years while the review process went on, she had no access to funding for personal care, transport or therapies.

Recommendation 8: The Bill should specify that participants will always be given notice of an intention to revoke their status as a participant and a 90 day time period to respond.

Recommendation 9: The NDIS Act should be amended to include a provision under which payment for supports would continue pending a review, similar to section 131 of the Social Security (Administration) Act 1999 (Cth).

Section 99 includes a new review right under which participants can seek review of the decision to revoke their status as a participant under s 30A. Section 99 identifies the decision as one made under s 30A(1)(c), which says:

63 Putting people first - Removing barriers for people with disability to access NDIS supports - NLA submission to the Review of the NDIS Act and the new NDIS Participant Service Guarantee, November 2019, page 52. 64 This case study also appeared in Putting people first - Removing barriers for people with disability to access NDIS supplies - NLA submission to the Review of the NDIS Act and the new NDIS Participant Service Guarantee, November 2019, page 52.

(c) if the CEO decides under paragraph (b) that the participant does not meet the disability requirements—revoke the participant’s status as a participant in the National Disability Insurance Scheme.

This gives the impression that a participant can only seek review in relation to a decision that they do not meet the disability requirements. We recommend that section 99 of the NDIS Act is amended to refer to s 30A(1) in its entirety, rather than s 30A(1)(c), for clarity.

Recommendation 10: section 99 of the Act should be amended to refer to s 30A(1) rather than 30A(1)(c).

2.8 Changes to NDIS Supports

The Bill proposes to make significant changes to the way that NDIS supports are defined and specified in plans. It proposes to enact a transition towards plans that are set at a whole of budget level and are based on needs assessment reports. Such fundamental changes should be part of a codesign process with people with disability.

In general, LACs are supportive of changes that will simplify the planning process for participants, allow for longer plans, reduce the need for review and allow greater flexibility in use of plan funds.

We have, however, a number of recommendations about the proposed changes including about the ransition, the definition of NDIS support, the development of new framework plans and additional review rights that are required, as outlined below.

In general, we consider that the Bill does not have sufficient detail about: - The way NDIS supports will be ultimately defined, - How budgets will be set, and - How needs assessment reports will be conducted.

For people with disability and the organisations that support them to comment about whether the reforms would improve the NDIS or achieve the aims of the NDIS Review, sufficient detail about the proposed changes must be provided.

2.8.1 Old and new framework plans

The Bill proposes two methods of preparing plans:

• Plans prepared under Subdivision B, called “new framework plans”, and
• Plans prepared under Subdivison C, called “old framework plans”.

Sections 32B to 32L describe how new framework plans will be prepared. New framework plans must include:

1. A statement of goals and aspirations, and
2. A statement of participant supports, which specifies: i. A reasonable and necessary budget, with funding determined by a needs assessment report in two categories: a) Stated supports – supports declared by the rules to be stated supports (which the Explanatory Memorandum says will be specific high-cost items, including high-cost assistive technology, home modifications and supported independent living),65 b) Flexible funding – a total funding amount for all other NDIS supports that are not stated supports.
3. Whether the participant meets the disability or early intervention requirements or both,
4. A maximum period of effect for the plan, to be split into funding periods of not more than 12 months, and between which unspent funds can be rolled over, and
5. The circumstances in which the plan must be reassessed and how the funding and other aspects of the plan are to be managed.

Flexible funding must be spent on NDIS supports, a term the Bill defines. The NDIA can restrict its use in circumstances including likely risk to the participant of physical, mental or financial harm, or where requirements to acquit funds have not been complied with: s 32G(7). The NDIA can also impose requirements on participants as to how supports are acquired and provided (s 32H).

redacted: s47F — Personal privacy: Disclosure would involve the unreasonable disclosure of personal information about any person (the most common reason for redacted names in these documents)

Old framework plans are plans prepared mostly as they are now, with some changes. The Bill specifies that

plans may include a total funding amount (which they do in practice now) and can also be made up of funding

periods for all, or some, supports. The criteria for determining reasonable and necessary supports remains

the same, except that supports must be reference to an impairment that meets the requirements and must

be NDIS supports.

2.8.2 Old framework plans: supports referable to impairment

As outlined above in Part 2.3 and Recommendation 3, LACs recommend that the determination of support needs under the NDIS Act retain its focus on disability rather than an individual impairment or impairments.

2.8.3 Definition of NDIS Support

The Bill proposes a definition of NDIS support as follows:

10 Definition of NDIS support

A support is an NDIS support for a person who is a participant or prospective participant if:

    (a) the support:

                     (i) is necessary to support the person to live and be included in the community, and to
         prevent isolation or segregation of the person from the community; or

                       (ii) will facilitate personal mobility of the person in the manner and at the time of the
           person’s choice; or

                       (iii) is a mobility aid or device, or assistive technology, live assistance or intermediaries
          that will facilitate personal mobility of the person; or

                    (iv) is a health service that the person needs because of the person’s impairment or
          because of the interaction of the person’s impairment with various barriers; or

                 (v) is a habilitation or rehabilitation service; or

                   (vi) is a service that will assist the person to access a support covered by subparagraph
                   (iv) or (v); or

                     (vii) will minimise the prospects of the person acquiring a further impairment or prevent
             the person from acquiring a further impairment; or

                      (viii) is provided by way of sickness benefits; and

    (b) the support is declared by National Disability Insurance Scheme rules made for the purposes
   of this paragraph to be a support that is appropriately funded or provided through the National
     Disability Insurance Scheme:

(i) for participants or prospective participants generally; or

(ii) for a class of participants or prospective participants that includes the person; and

(c) the support is not a support declared by National Disability Insurance Scheme rules made for the purposes of this paragraph to be a support that is not appropriately funded or provided through the National Disability Insurance Scheme:

(i) for participants or prospective participants generally; or

(ii) for a class of participants or prospective participants that includes the person.

Note 1: For subparagraphs (a)(i) to (vii), see the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006.

Note 2: The Convention is in Australian Treaty Series 2008 No. 12 ([2008] 4 ATS 12) and could in 2024 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).

Note 3: For subparagraph (a)(viii), see paragraph 51(xxiiiA) of the Constitution.

In the future, rules will be made for the purposes of s 10(b) and 10(c). Until the rules are made, transitional provisions set out in section 71B rely on the Applied Principles and Tables of Support (APTOS Principles) so that those supports described under the heading ‘Other Parties’ will be taken not to be NDIS supports, and those under the heading ’Reasonable and necessary supports for eligible people’ will be NDIS supports.

The definition will apply to new framework plans and old framework plans made after the commencement of the amended Act.

2.8.3.1 Proposed NDIS support definition is too complex

NLA considers the proposed definition of NDIS support to be complex and technical. It is possible that aspects of the definition will be contained in the NDIS Act and in two separate rules instruments. It is also possible that subcategories of the definition in the NDIS Act will be wholly excluded by the rules, rendering those parts of the definition potentially redundant.

The notes to the section make clear that the basis of the definition is the Convention on the Rights of Persons with Disabilities (the CRPD) and the Constitution. Aspects of the definition relate to Articles 19, 20, 25 and 26 of the CRPD. Defining supports only in this way means that some additional context and rights from the CRPD are lost. The definition does not capture an important purpose of supports under the NDIS, which is to support the independence and social and economic participation of people with disability.66

66 NDIS Act s 3(c).

NLA submission on the NDIS Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 Page 40 of 57

• It does not specifically refer to key aspects of the CRPD, and key services State Parties are to have and promote, including:

• The promotion and protection of all human rights and fundamental freedoms by persons with disa- bilities (Article 1),

• Access to supports that allow a person to choose their place of residence and to live on an equal basis with others (Article 19(a)),

• Access to in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community (Article 19(b)),

• Access to guides, readers and sign language interpreters (Article 9(2)(e)),

• Individualised support measures to maximise academic and social inclusion in education (Article 25(2)(e))

• The full context of the terms “habilitation or rehabilitation service” in Article 26, which says those services could arise in “the areas of health, employment, education and social services”,

• Access to general technical and vocational guidance programmes, placement services and vocational and continuing training (Article 27(1)(d)),

• Measures to enable persons with disabilities to have the opportunity to develop and utilise their creative, artistic and intellectual potential (Article 30(2)).

The definition’s express references to certain aspects of functional incapacity (such as mobility, health, and rehabilitation) and not others (such as communication, social interaction, and self-management) appear to put a focus on physical impairments, making it less clear what supports for people with disabilities from cognitive, neurological, and/or sensory impairments would receive. By expressly listing a number of forms a support could take in section 10(a), the definition has the potential to unintentionally exclude other important areas of support by implication.

We recommend that a simpler definition of supports is adopted in section 10(a), similar to the way supports were described in McGarrigle v National Disability Insurance Agency [2017] FCA 308:

Services or activities or any other matter that assists a person with disability in a way that is consistent with the general principles set out in s 4.67

Reference to s 3, which includes an object to give effect to the CRPD, could be included.

We understand that there may be constitutional limitations to the definition of NDIS support, which have

underpinned the drafting of s 10(a), and we would welcome the opportunity to provide further submissions

about an appropriate definition in light of those limitations. We also note s 206 of the NDIS which already

sets out alternative constitutional bases for the scheme.

Having a clear, comprehensible explanation of what is and is not an NDIS support is central to the success of

reforms where NDIS supports will be determined at a whole of budget level. As identified by the NDIS Review

“a lack of clarity about what supports should be considered reasonable and necessary is at the heart of many

of the scheme’s issues”.68 Definitive statements as to what is and is not an NDIS support as envisaged by

section 10(b) and (c) are therefore warranted. However, it is essential that draft Rules made for the purposes

of proposed new paragraphs section 10(b) and (c) are made available for consultation and co-design with

people with disabilities.

Further, even with an improved definition of an NDIS Support, the burden of determining whether a support

meets the definition will still fall to participants. For a participant under a new framework plan to ensure they

were using their supports in accordance with the Act and their plan would have to:

    -   Consult the definition in s 10 and satisfy themselves that the support is of a character described,
    -   Consult the Rules and find whether the support was described as a support appropriately funded by
     the NDIS, including considering whether they are in a class of persons for whom the support is most
      appropriately funded by the NDIS,
    -   Consult the Rules to determine whether the support has been declared to not be appropriately
     funded or provided by the NDIS.

The following examples illustrate some of the issues with the definition as it stands:

Example 1: Rehabilitation service

A participant with a disability attributable to a physical impairment undergoes surgery. She regularly uses physiotherapy services under the NDIS and physiotherapy will help her recover after her surgery. Support to assist with rehabilitation would fit within 10(a)(v), but the APTOS Principles say the NDIS is not responsible for “rehabilitative health services where the purpose is to restore or increase functioning through time limited, recovery-oriented episodes of care.”69

68 Working Together to Deliver the NDIS: NDIS Review: Final Report, October 2023, page 26.

69 The Applied Principles and Tables of Support to Determine the Responsibilities of the NDIS and other Service Systems, 27 November 2015, page 4.

Example 2: Health service

A participant seeks a hearing device. The device appears to meet 10(a)(iv). The APTOS Principles say that

the health system is responsible for “general hearing and vision services” and the NDIS is responsible for

“specialist hearing or vision supports”. The participant has no indication about whether the service is

“general” or “specialist”. The participant purchases the device, and the NDIA determines it was not a

specialist support, raising a debt against the participant for its cost.

A simpler definition, contained in one instrument as much as possible, would allow NDIS participants more

certainty and confidence in the use of their NDIS support.

If the definition is to remain, we recommend some changes are made to it:

• Section 10(a)(i) specifies that a support will be an NDIS support “if the support is necessary to support the person to live and be included in the community”. We consider this sets a very high and subjective bar for determining whether a support is an NDIS support. We recommend this be amended to state “will assist to support the person to live and be included in the community”.

• Section 10(a)(i) specifies that the support must be necessary to support the person to live in the community and to prevent isolation. Again, we consider this sets a very high bar, and recommend that “and” be amended to “or”

Recommendation 11: A revised and simplified definition of NDIS support is provided, with reference to the objects and general principles of the NDIS Act.

Recommendation 12: If the definition is retained, 10(a)(i) be amended to read “will assist to support the

person to live and be included in the community, or to prevent isolation or segregation of the person from the community“.

**2.8.3.2 Mechanism to seek clarification about whether a support is an “NDIS support”

A failure to understand all aspects of the definition, or a different interpretation of the definition by the NDIA,

can leave a participant with a debt or changes to the way their funding in the plan is managed (i.e. plan managed or agency managed). There is no mechanism for a participant to seek clarification about whether a support they need meets the definition or not. They can run the risk, or choose not to acquire a support they need.

Reliance on the APTOS Principles as an interim measure

The APTOS Principles, last revised in 2015, outline the agreed respective responsibilities of the NDIS and other systems. There are eleven systems listed in the APTOS Principles, including housing, health, justice, education and mental health. Rules codifying aspects of the APTOS Principles are contained in the National Disability Insurance Scheme (Supports for Participants) Rules 2013 Schedule 1.

NLA does not support the use of the APTOS Principles as an interim measure for determining NDIS supports.

In previous submissions we have recommended that that APTOS Principles be urgently reviewed to ensure

Working Together to Deliver the NDIS: NDIS Review: Final Report, October 2023, page 89 – 90, 94.

that the support needs of people with disability are not falling into the cracks between systems.

We have assisted participants to overturn decisions to exclude supports essential to their health, wellbeing and safety on the basis that they are more appropriately funded by other systems.

The NDIS Review was critical of the APTOS Principles. It said:

    The principles, roles and responsibilities outlined in APTOS have not translated into consistent collaboration on the ground. The underlying structure of APTOS may be part of the problem — it assumes people with disability will be supported by the NDIS or another system. In reality, they need support from both. This leaves people with disability confused about how and where to find and use supports, and in some cases with no access to support at all.

Of the eleven areas in the APTOS principles, the NDIS Review noted “significant issues” with eight: transport, child protection, early childhood, school education, justice, hospitals, aged care and mental health.

Similarly, the Disability Royal Commission found that the APTOS principles had created confusion around the respective responsibilities of the NDIS and the criminal justice system. It recommended review of the APTOS principles to resolve issues on the interface between the NDIS and the criminal justice system.

The issue with relying on the APTOS Principles is that in many areas the division between systems is unclear. Using the Tables involves an evaluative judgement about whether a particular support better fits one description or another. Because they have not been reviewed since 2015, they don’t reflect more recent policy changes and developments.

Repealing current s 34(1)(f) and replacing it with the APTOS Principles as an interim measure removes the ability of decision-makers to consider more generally what is the most appropriate system to fund a support, with reference to what is actually offered by those systems. It increases the risk that participants will not have their most fundamental needs met by the Scheme until the rules are developed.

Recommendation 15

That the APTOS Principles not be used as an interim measure, and that any definition of NDIS supports not be introduced until it is wholly available in its final form.

New framework plans: needs assessment reports

The Bill proposes that a participant’s support needs for the purposes of NDIS planning be determined by a needs assessment report. As yet, there are no details about the reports, who will do them, what tools they will use, what they will assess or what they will include.

In 2021, it was proposed that access to the Scheme be determined by independent assessments. The recommendation originally came from the 2019 Tune Review, which proposed discretionary functional assessments to assist prospective participants to provide information about their functioning. The recommendations about independent assessments from the Tune Review were:

• That participants could choose who would do an assessment,
• That participants would have the right to challenge the results of a functional capacity assessment,
• That accreditation requirements be designed and implemented jointly by the NDIA and disability representative organisations.75

The review noted one of the risks of implementing such assessments was the risk of disengagement from the system, particularly for prospective participants of Aboriginal and Torres Strait Islander backgrounds and CALD backgrounds.76

When the proposal that independent assessments be mandatory was introduced, we submitted that they should be made available, but not compulsory.77 We raised concerns about assessments being conducted by assessors without sufficient time, training or access to essential information about the participant, and the potential for the changes to disproportionately affect disadvantaged groups.

75 David Tune AO PSM, Review of the National Disability Insurance Scheme Act 2013: Removing Red Tape and Implementing the NDIS Participant Service Guarantee, December 2019 (The Tune Review), page 62.

76 David Tune AO PSM, Review of the National Disability Insurance Scheme Act 2013: Removing Red Tape and Implementing the NDIS Participant Service Guarantee, December 2019 (The Tune Review), page 67.

77 National Disability Insurance Scheme Consultation Paper: Access and Eligibility Policy with independent assessments. Submission to National Disability Insurance Scheme, 23 February 2021.

The evaluation of assessment tools

The NDIA engaged in an evaluation of the assessment tools that might be included in independent assessments, and found there was no one assessment tool appropriate to assess disability and functioning for all participants.

The evaluation recommended 3 tools for children and 4 tools for adults, and that given the absence of a perfect assessment tool, further evaluation of assessment tools was needed, as was governance over their use.

At the same time, a new approach to planning was proposed, in which independent assessments would provide the basis to set a whole of plan budget. Plan budgets would be determined for periods of up to 5 years, and would consist of a flexible budget and a fixed budget (including employment support, disability related health supports, home and living supports and behaviour support).

To the consultation around these proposed changes, we submitted that:

• We did not support a planning process in which a support level is determined without involvement of the participant, and that support levels for a particular participant ought not to be determined by comparison to other participants’ functioning, needs and circumstances,
• Assessments should be voluntary, and used in circumstances where a participant needs assistance to evidence their support needs.

Ultimately, the proposal that independent assessments be the basis for determining access was not pursued, neither was a process of setting participants’ budgets prior to planning.

We consider the proposal for needs assessment reports goes further than what we understand was proposed in relation to independent assessments. This is because the needs assessment report appears to be the only determinant of the supports a person will receive under the Scheme, and there is little scope for review of the needs assessment report.

In addition, we recognise that there are differences between the 2021 proposals and the proposed needs assessment reports, but there are some important principles from the earlier consultation that apply:

It is essential to the effective operation of the NDIS that plans are prepared with participants, not about them.

An effective planning process takes into account information from a variety of different sources, in- ccluding the person, their treating practitioners, their formal and informal supports.

If needs assessments are required, they should be completed by a practitioner or allied health pro- fessional of a participant’s choice. There is significant value in assessments done by people who un- derstand a participant’s circumstances, history and needs.

The NDIA should assist participants and prospective participants who do not have the information they need to get that information, including through financial assistance provided by the NDIA and which cover the cost of the assessment. Where there is already sufficient information to make plan- ing decisions, it should not be necessary for participants to engage in additional assessment pro- esses.

There is no assessment tool that can measure the impact of disability on all participants. Disability is multifactorial and affects different people differently. A needs assessment that involves administer- ingen a single tool to determine disability needs is unlikely to be effective.

Given the diversity of experience of disability and the variety of tools available to assess disability, asessors need comprehensive and progressive training, including training on engaging with Aborig- al and Torres Strait Islander participants, participants from CALD backgrounds and participants with cognitive disability.

Needs assessment reports should not be an additional barrier to participants getting the support they need. Policies must give particular attention to participants for whom it would be difficult to engage in needs assessment, including people in closed environments such as custodial settings and mental health facilities.

We consider it is critical that a participant have the opportunity to present their own information about what their needs are, and that in approving a statement of participant supports a decision-maker is not constrained by what is set out in the needs assessment report and can have regard to this additional information. This information could include statements of their lived experience, allied health and medical evidence, and statements from carers.

Further provisions under s32L(7)

Further, under s 32L(7) of the Bill, only the NDIA may determine that an existing report should be replaced.

There should be mechanisms for participants to:

• Request reassessment,
• Request correction of errors in an assessment, and
• Seek review of decisions that they have an assessment/reassessment or not have a reas- sessment.

It must be clear that the decision-maker on review can require a replacement assessment under section 32L(7) as part of the determination of whether to approve a statement of participant supports.

Recommendation 16:

That the Government provide more information about needs assessment reports, and engage in co-design with people with disability including around:

• The tools that will be used,
• How they will be performed,
• Who will perform them,
• That the NDIA will cover the cost of the reports, and
• What they will contain

They should be provided for consultation to key stakeholders, before changes are introduced.

Recommendation 17:

That section 32L (4) of the legislation be amended to require that the needs assessment report have regard to any information provided by the person.

Recommendation 18:

That there be a wide discretion not to require a needs assessment in a broad range of circumstances, including where there are barriers for the participant in engaging in an assessment, and where there is sufficient information already available about the participant’s needs.

Recommendation 19:

That needs assessments be done by an assessor of a participant’s choice, including a treating practitioner or allied health practitioner they are engaged with.

Recommendation 20:

That there be specific policies for how needs assessments will be conducted for participants in restricted environments, including custodial settings and mental health facilities.

Recommendation 21:

That assessors have access to comprehensive training in assessing disability support needs and in engaging with Aboriginal and Torres Strait Islander participants, participants from CALD backgrounds and participants with cognitive disability.

Recommendation 22

That the correlation between the reasonable and necessary budget amounts and the needs assessment reports be altered from “applying” the information in the needs assessment report to “considering” that information through amendment of section 32K(1). This would facilitate the consideration of other information in determining the budget amounts.

Recommendation 23

That there be additional decisions under the Act that a participant can request, including:

• That a needs assessment is not required,
• That a needs assessment be varied or corrected,
• That a reassessment take place, And that there be review rights in relation to those decisions.

Recommendation 24

That the legislation make clear that a decision-maker on review of a statement of participant supports may exercise the CEO’s power to request a reassessment, and may vary or amend a needs assessment.

2.8.5 New framework plans: review of the decision to approve the statement of

participant supports in a new framework plan

Under the Bill, participants have review rights in relation to the decision to approve a statement of participant supports whether the statement is in a new framework or old framework plan: s 99.

In old framework plans, it is clear that the determination of the reasonable and necessary supports that will be funded in the statement of participant supports is part of the decision: s 33(2)(b) NDIS Act.

In new framework plans, needs assessment reports are the basis for determining the budgets within a statement of participant supports, but they are not directly a part of the decision (other than for the purposes of determining which of the access criteria are met): s 32D(2). Nor is a decision maker required to be satisfied that they make appropriate and accurate support recommendations or accurately reflect a participant’s circumstances. In our view, this makes it unclear whether the review of a decision to approve a statement of participant supports would allow a participant to challenge the contents of a needs assessment report.

The ability to correct, clarify and challenge findings about a participant’s support needs in a needs assessment

New framework plans: Stated and flexible supports

New framework plans are intended to include flexible budgets and stated supports.

Stated supports must be used for a specified purpose. There are some examples given of stated supports in the Explanatory Memorandum - high-cost assistive technology, home modifications and supported independent living. In order for people with disability and other stakeholders to comment on the implications of supports being structured this way, the Government should provide further details about what supports are intended to be stated.

The Bill contemplates that both stated and flexible supports would be provided in the plan across periods. In our experience, fixed price items including assistive technology items and home modifications can increase in cost between when they are approved and when they are acquired, even in shorter-length plans. We recommend that there be a mechanism in stated support budgets to accommodate small changes in the price of fixed price items or small adjustments to specifications of an item.83 This would avoid unnecessary requests for variation, reassessment and review.

83 See also National Legal Aid, National Disability Insurance Scheme Consultation Paper: Planning Policy for Personalised Budgets and Plan Flexibility Submission to National Disability Insurance Scheme, 23 February 2021, page 12.

We generally support the move towards more flexibility in how participants can use their budgets.

We recommend that statements of participant supports still include a description of the sorts of supports the NDIA considers are funded within the flexible budget. We also recommend that if any supports are specifically excluded from the statement of participant supports that the participant is notified of this in writing and given reasons for the decision.

This would allow participants to understand their reasonable and necessary support budgets and use them correctly and effectively.

Recommendation 26: A list of intended stated supports should be provided for consultation and comment.

Recommendation 27: Stated support budgets should include a mechanism to account for price increases in fixed price items or small changes in specifications for assistive technology items.

Recommendation 28: Flexible support budgets should always come with a description of the general types of supports the budget is intended to cover.

Recommendation 29: If specific supports are not included within either the flexible or stated support budgets a participant should be notified and given reasons for the decision.

2.8.7 New framework plans: reasonable and necessary budgets

New framework plans will contain “reasonable and necessary budgets” which will include flexible and stated supports for participants. The phrase comes from the concept in the NDIS Act of “reasonable and necessary supports”: s 4(11) and 34 NDIS Act.

The phrase “reasonable and necessary supports” is not defined in the NDIS Act. The Full Court of the Federal Court has said that it is a composite phrase, to which it is not appropriate to give an exhaustive definition, and which can be understood by considering the general principles and objects of the Act. 84

In the NDIS Act s 4 there are principles guiding actions under the Act. Section 4(11) says:

84 National Disability Insurance Agency v WRMF [2020] FCAFC 79 at [144]-[151].

NLA submission on the NDIS Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 Page 52 of 57

(11) Reasonable and necessary supports for people with disability should:

(a) support people with disability to pursue their goals and maximise their independence;

and

(b) support people with disability to live independently and to be included in the community as fully participating citizens; and

(c) develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment.

The phrase “reasonable and necessary budgets” is to be defined in the Act, but only in terms of how it is to be calculated, not how it is to be understood.85 It does not appear in the objects or general principles of the NDIS Act, and so although it is similar to the phrase “reasonable and necessary supports”, it does not have the same contextual grounding. For the avoidance of doubt, we recommend that the NDIS Act objects and principles are amended so that the same objects that apply to reasonable and necessary supports also apply to reasonable and necessary budgets.

Recommendation 30: s 3(1)(d), s 4(5) and 4(11) should be amended to include “reasonable and necessary budgets”.

2.8.8 New framework plans: Suspension of plans when information is not provided

The Bill sets out how participants are to transfer between old framework and new framework plans. The steps are:

• By legislative instrument, the Minister may determine classes of participants who will have new framework plans and the period within which they must be notified: s 32B.

• Within a timeframe specified in an instrument, the NDIA will prepare a new framework plan.

• The NDIA may make requests of participants to participate in needs assessments or to supply infor- mation required for a new framework plan: s 36(1).

85 National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 section 9 and section 32D.

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4.

If the participant does not participate in a requested assessment or supply requested information,

the preparation of the new framework plan can be suspended, as can the statement of participant

supports in any other plan in effect for the participant: s 36(3) and (4).

5.

While a statement of participant supports is suspended because of failure to provide information

or reports for a needs assessment report, a participant is not entitled to be paid NDIS amounts: s

6.

The decision to suspend the preparation of a new framework plan is reviewable: s 99.

LACs do not support the inclusion of a power to suspend an existing statement of participant supports

pending the receipt of information for a new framework plan. It is likely that this would leave participants

without support (that the NDIA has previously determined is reasonable and necessary for that person) due

to circumstances outside their control (see Part 1.3). While there is a discretion for the NDIA to decide that

not providing the information is reasonable in the circumstances, and there is a right to review a suspension,

suspending a statement of participant supports in a plan means restricting a person’s access to the supports

that the NDIA has previously determined is reasonable and necessary and they need to live safely and

healthily. This is a penalty that disadvantages the participant and could put them at risk.

Recommendation 31: That the proposed power to suspend an existing statement of participant supports

(s 36(4)(b)) when information requested for a needs assessment report is not provided within time, be

removed.

2.9 Use of funding in accordance with plan and consequent debts

The Bill includes a number of changes to reinforce a participant’s obligation to use their funding in

accordance with their plan.

These include:

• Changes to s 46 to deem participants liable for payments made to a third party that are not made

  in accordance with a plan, or are not for NDIS supports (s 46(1A)) and to be pursued for debts for
  

  those amounts,

• Consideration of whether funds have been acquitted properly or will be acquitted properly in mak-

  ing plan management decisions and supports decisions (see ss 32D(6), 32F(7), 33(5)(g), 43(2C), 44)
  

• A restriction on the Agency paying amounts to any person if the payment would exceed the total

  amount of funding in the plan, other than in exceptional circumstances (s 45(4)).

In our experience, overspending of a plan can occur when:

• The process of seeking a review of a decision to approve a statement of participant supports takes

  a long time, and the support level is not changed promptly on receipt of new information, or
  

• Where there are significant risks to the health or safety of the participant or others, and supports

  are urgently needed to address that risk, or
  

• Where without additional support, the participant is at risk of homelessness, incarceration or hos-

      pitalisation.
  

Providers in these situations are often faced with difficult decisions about whether to charge participants at

a level that will keep them safe, or whether to cease providing supports, often also putting the participant at

risk. Sometimes participants or their nominees are not aware that these decisions have been made.

As above, we are concerned that these changes are proposed without concurrent changes to supported

decision-making (see 1.3 above). These amendments have the potential to push participants who do not

have support to understand their obligations into financial hardship or to leave them without essential

supports.

2.9.1 Participants should not be liable for debts for payments to third parties

The proposed amendments, including the introduction of flexible budgets, make it significantly more likely

that debts will be raised against participants, including for actions taken by third parties. In particular, section

46(1A) has the effect of deeming a support payment made to a third party as an “NDIS amount” that can be

pursued from the participant under section 182. Section 46(1B) sets out circumstances when others might

be liable for an “NDIS amount” but if an amount meets both definitions the process for attribution is not

clear. We consider that it should not be possible for the NDIA to pursue a participant for payments made to

a third party. This has the potential to unfairly penalise a participant and to force them to pay amounts that

they do not have, and have never had. We recommend that the Act be amended to prohibit participants

being deemed to have received “NDIS amounts” that have been paid to another person. We also recommend

that the Act be amended to provide clarity around how “NDIS amounts” are attributed in circumstances

where both s 46(1A) and (1B) are satisfied.

2.9.2 Improve processes for seeking review of decisions that debts are owed

There is currently no process under the NDIS Act for a participant to request a review of a decision that they have not used their funding in accordance with their plan (and therefore a debt exists), nor to request as an original decision that a debt be waived or written off (s 99 specifies that only the decisions not to waive or write off debts are reviewable). Clear pathways to challenge and seek review of debt decisions are critical, as we saw in Robodebt. To ensure that participants have a way to seek review of decisions that they have not used their funding in accordance with their plan, we recommend that decisions under s 182(1) and (3) are included as reviewable decisions under s 99 of the NDIS Act.

As we submitted above, there should be a mechanism incorporated in the legislation for participants (or their nominees) to seek clarification about whether supports they intend to acquire meet the definition of NDIS supports. NDIS participants should be able to rely on information or advice provided to them by the NDIA, LACs, Support Coordinators, disability support providers and navigators (once those positions are established). The legislation should provide that participants (or their nominees) are protected from a debt being raised against them or the management of their plan being changed if they take reasonable steps to clarify how funding can be used. The participant should also be able to be able to rely on the information provided to them by the NDIA, LACs, Support Coordinators, disability support providers and navigators to support a debt waiver.

2.9.3 Special circumstances should include financial hardship and disability

Further, in relation to waiver of debts, we have previously raised concerns86 that s 195 expressly precludes consideration of financial hardship or the impact of a person’s disability when considering whether to waive a debt based on special circumstances. We see no reason why these two factors should not be relevant to determining whether it is desirable to waive a debt. A person’s disability would be a crucial consideration in understanding how a debt came about and the appropriateness of waiving it, and there should also be capacity to consider the financial hardship that pursuit of the debt would cause. We recommend this section be amended to make it similar to s 1237AAD(b) of the Social Security Act 1991 (Cth), which allows for a broad range of factors to be considered for special circumstances waiver, and does not preclude consideration of financial hardship.87 We consider this is particularly important given other proposed changes being made in

relation to flexible plans and raising of debts, including that debts are more likely to be attributed to

participants in relation to NDIS amounts they did not receive.

Recommendation 32: The Act be amended to prohibit participants being deemed to have received “NDIS amounts” that have been paid to another person, and to provide clarity around how “NDIS amounts” are attributed.

Recommendation 33: Decisions made under s 182(1) and (3) should be reviewable under s 99.

Recommendation 34: The Act be amended to allow for consideration of disability and financial hardship for special circumstances waiver in section 195.

Conclusion

We thank the Senate Community Affairs Legislation Committee for the opportunity to provide a submission.

Should you require any further information from us please be in touch with the NLA Secretariat on or nla@legalaid.tas.gov.au

Yours sincerely,

LOUISE GLANVILLE Chair, National Legal Aid

NLA submission on the NDIS Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 Page 57 of 57