NDIA Accountability Project

Concerns about NDIS changes for participants with psychosocial disability

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Feedback to the

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

17 May 2024

Consumers of Mental Health WA

Table of Contents

  1. Preliminaries ……………………………………………………………………………………………………………… 1

  2. Introduction ………………………………………………………………………………………………………………. 1

  3. Discussion and Recommendations …………………………………………………………………………………. 2 3.1 Risks inherent to Sections 25 and 27 in relation to psychosocial disability: Why Early Intervention when all plans are to be tailored? …………………………………………………………….. 2 3.2 Exclusion from the NDIS should not be used as a form of extrajudicial punishment ………….. 3 3.3 The term ‘Recovery’ needs to be clearly defined in relation to the NDIS ………………………….. 4 3.4 The reassessment mechanism in section 30/30A presents a host of unnecessary challenges for participants living with a psychosocial disability. ……………………………………………………… 4 3.5 Strategies should be developed to ensure that participants with psychosocial disability are not unduly targeted by cost saving mechanisms due to the episodic nature of their disability. ……………………………………………………………………………………………………………………………….. 5 3.6 The uncertainty that has emerged from the proposed changes to the NDIS have caused significant anxiety for participants, especially those participants living with psychosocial disability …………………………………………………………………………………………………………………… 6

  4. Conclusion …………………………………………………………………………………………………………………. 6

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

Preliminaries

CoMHWA welcomes the opportunity to make a submission to the National Disability Insurance Scheme

Amendment (Getting the NDIS Back on Track No. 1) on behalf of our members, many of whom are NDIS

participants receiving support for psychosocial disability.

We base our submission on:

  • Data recorded from our service provision streams, including our Individual Advocacy and Service Navigation programs.
  • Ongoing consultation with consumers in Western Australia on joint priorities for an improved mental health system.
  • Consumer representation in relevant settings, including but not limited to: Primary Health networks (WAPHA), WA regional equivalents of the Local Health Networks (regional mental health services under the WA Health Board structure), the Mental Health Commission and the health complaints agency, Health and Disability Services Complaints Office (HaDSCO).

Introduction

CoMHWA is pleased to see the explicit inclusion of the United Nations Charter for the Protection of People

with disabilities (CPRD)$^$1 to ground the new definition of supports in the Act, as well as the stated intention

of ensuring that the NDIS places people with disabilities at the centre of the Scheme and efforts to clarify

requirements of the application process.$^$2 However, while the proposed legislative amendments to the Act

currently under consideration are a preliminary step to enable further changes recommended in the NDIS

Review, there are key areas of concern surrounding the changes communicated to CoMHWA by our

members. Of particular concern is a key justification underscoring the changes to the NDIS, namely that of

economic sustainability—prioritising options to help reduce the year-by-year increase of the NDIS budget owards the goal of 8% a year (As of 2023-2024, growth rate is estimated to be around 14.4%).$^$3 While

ensuring that the NDIS has adequate funding into the future is important, CoMHWA members have

expressed grave concerns that amendments to the Act may provide mechanisms for current or future

Discussion and Recommendations

Risks inherent to Sections 25 and 27 in relation to psychosocial disability: Why Early Intervention when all plans are to be tailored?

A key concern for members of CoMHWA who have experience as NDIS participants is the alterations to sections 25 and 27 of the amended Act through these legislative changes, namely the development of the early intervention pathway.

It is not clear why the concerns over the clarity of NDIS eligibility should be best addressed through the creation of a new stream for NDIS access, and consumers have raised concerns that the Early Intervention stream will simply be a way to save money by limiting the supports available to people with psychosocial disability.

Given that the scope of approved supports and budgets are to be tailored for participants in every instance, there is little rationale provided for the early intervention stream beyond operating as a cost saving mechanism. The concerns expressed by consumers have been exacerbated by the example used in Item 25 of the Explanatory Memorandum$“, which uses psychosocial disability in the example of how these changes will work, specifically referencing the episodic nature of psychosocial disability and the ‘ambiguity’ of these cases. The inference drawn from consumers about this legislative change has frequently been that NDIS applicants with Psychosocial Disability will be pushed into early intervention pathways that have delimited budgets and less available supports. There is thus a fear that people living with psychosocial disability will be denied the full range of care and services that could be present if the plans were organized through the standard full NDIS pathway of section 24.

It is also notable that Bill Shorten, the Minister for the NDIS, has expressed concern over the cost associated with accommodating people living with psychosocial disability in the NDIS, stating in June 2023 that if alternative supports were built that:

“…in the area of psychosocial support, maybe not everyone needs to go on the scheme who might have otherwise gone on the scheme…The reality is NDIS can’t look after every disabled person in Australia.”

Exclusion from the NDIS should not be used as a form of extrajudicial punishment

On the 9th of April 2024, Bill Shorten, Minister for the NDIS, made comments indicating he would seek to prevent some people—namely, people who have been found guilty in the criminal justice system—from being eligible for the NDIS. CoMHWA is strongly concerned by this desire to see a particularly vulnerable group of people living with disabilities denied access to the NDIS due to their previous encounters with the justice system.
Minister Shorten cited their record with the justice system, and his aversion to allowing people with a disability in these circumstances to ‘…get anywhere near our NDIS.’ This perspective, we argue, is at odds with the Australian Government’s commitment to the United Nations Convention on the Rights of People with Disabilities (UNCRPD).

In particular, Article 4.1e of the UNCRPD stipulates an obligation ’To take all appropriate measures to eliminate discrimination on the basis of disability by any person, organization or private enterprise.’ While access to the NDIS was in this case being considered in relation to criminal conviction histories, notably the individuals that Minister Shorten objected to receiving NDIS support live with disabilities that severely effect their mental capacity and functioning, and may have heavily influenced the actions that led to criminal conviction.

As outlined above, the amendments to the Act clarify the CRPD as a foundational document undergirding the definitions of supports for the NDIS, and it is CoMHWA’s position that the rights outlined in this document—of which Australia is a signatory—should not be breached for any person living with a disability in society. This proposed decision to exclude people based on criminal criteria would set a dangerous precedent for the NDIS, where fundamental access to support for disability can be revoked for people based on political expediency. Unequivocally, CoMHWA is of the view that people living with disability should

3.3 The term ‘Recovery’ needs to be clearly defined in relation to the

NDIS

The term recovery is used in the NDIS, but there is a persistent ambiguity around the meaning of the term within services and across the broader community, specifically whether it refers to a personal recovery journey or to a perspective of clinical recovery. CoMHWA members are also concerned that applying a recovery orientation as a blanket rule in the NDIS reforms will erode access to lifetime supports for psychosocial disability. While current definitions of disability as ‘permanent’ do not always reflect the nature of psychosocial disability (which can be episodic or cyclical), some Participants with psychosocial disability will absolutely require the stability of lifetime supports. The legislative amendments to the NDIS Act provide a valuable opportunity to be able to provide a clear definition of the term recovery cited in other NDIS policies within the NDIS Act itself, which would serve to dispel ambiguity and ensure that consumers with psychosocial disabilities receive the best kind of tailored care when they require support.

3.4 The reassessment mechanism in section 30/30A presents a host of

unnecessary challenges for participants living with a psychosocial disability.

Another explicit concern CoMHWA heard from our members is the impact that the reassessment pathways introduced in this legislative amendment, outlined in section 30 and 30A, will have for people living with a psyc hosocial disability. The key concerns over reassessment center around the availability of specialists to help with this process, the cost of these appointments, and the potential for re-traumatisation for those people who experienced distress as a part of their initial application to the NDIS.

While the legislative amendments do make provisions for the lack of availability of specialists, our members who are also participants in the NDIS frequently expressed a profound lack of trust in the Scheme based on their previous experiences, which extends to the judgement of the CEO in obtaining an extension to reassessment timeframe because of specialist unavailability. Whether reassessment timeframes would be extended so that, for example, a consumer could arrange to meet with a specialist they personally trust, is not made clear. Forcing participants, especially those with psyc hos ocial disabilities, to engage with a hitherto unknown specialist presents a severe degree of stress and uncertainty that should be guarded against within the Act.

Additionally, the procurement of specialist appointments will place a further financial burden on participants, who will have to outlay the money required for these mandated appointments themselves. For many of

Strategies should be developed to ensure that participants with

   psychosocial disability are not unduly targeted by cost saving
  mechanisms due to the episodic nature of their disability.

The NDIS needs to explicitly acknowledge a commitment that new reassessment requirements, and other

the NDIS has acknowledged the reality of episodic disability, there are ongoing concerns from participants centering around the stress and anxiety that comes from having to explain that their supports will be needed in the future, even if they have not been accessed to the full extent at the time of interview.

There is a deep concern held by our members that the reassessment pathway will be used frequently on those participants living with episodic psychosocial disability, penalising people who may not need as many supports at a particular time by prompting a reassessment that may well mistake a calm cycle at the time of assessment with a full or permanent partial recovery. This fear is compounded by the aforementioned lack of clarity around whether participants will be able to nominate their preferred specialist (with the relevant qualifications) to conduct these reassessments.

9 Badji, S., Kavanagh, A., & Petrie, D. (2023). The impact of Disability Insurance reassessment on healthcare use. Health Economics, 32(7), 1581– 1602. https://doi.org/10.1002/hec.4680

10 See for example: NDIS. (2021) National Disability Insurance Scheme: Psychosocial Disability Recovery-Oriented Framework. p. 12 https://www.ndis.gov.au/understanding/how-ndis-works/psychosocial-disability/psychosocial-disability-recovery-oriented-framework

3.6

The uncertainty that has emerged from the proposed changes to the NDIS have caused significant anxiety for participants, especially those participants living with psychosocial disability

The legislative changes to the NDIS directed towards people with psychosomatic disability are a key source of ongoing anxiety to current and potential participants, reflecting the potential for impacts of new rules to completely reconfigure the choice and control of their lives in way that can be deeply distressing. CoMHWA has received consistent feedback from our members about the difficulty of qualifying for the NDIS, and essentially with regard to providing the required evidence for psychosomatic disability. For those members who are already participants, the reassessment changes outlined above present an ongoing atmosphere of precarity for their supports, and the prospect of facing retraumatisation when they are forced to explain their experiences and circumstances. For those members who hope to become NDIS participants, the early intervention pathway and comments from Minister Shorten regarding psychosomatic disability have created the impression that they will be diverted to as-of-yet unestablished supports or delimited NDIS plans. Without explicit mechanisms to avoid these outcomes within the legislation itself, the predominant lack of trust in the NDIA/NDIS among consumers will, understandably, allow this anxiety to grow and negatively impact thousands of Australians.

4. Conclusion

The National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) is a legislative alternation that is intended to enable the general improvement of the NDIS through facilitating as of yet undetermined recommendations from the NDIS Review, alongside changes that are intended to reign in the projected spending of the Scheme in the future. Our members hold two key lines of concern over these changes. We have heard very real concerns about the range and scope of recommendations that may be adopted by the government, and members feel they have been placed in a situation where they must simply trust the Government and NDIA’s assurances of consultation and co-design to develop better legislation, instruments, and eventually supports. As mentioned above, there is a dearth of existing trust for these bodies within this cohort, and anxiety about the future is high as a result. Furthermore, the emphasis on economic sustainability, especially in relation to the support offered for people living with psychosomatic disability, has raised the spectre of precarity around NDIS plans and a profound uncertainty about the future. CoMHWA strongly urges the Government to include explicit measures in this or future legislation to ensure equitable access and support for Australians living with psychosomatic disability who would benefit from the support of the NDIS. In its current form, we do not support this bill.

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

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