NDIA Accountability Project

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

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VCOSS

VCOSS is t he peak body for Victoria’s social and community sector, and the state’s premier social advocacy body. Please visit vcoss.org.au

We welcome the opportunity to provide this input.

vcossVictorian Council of Social Service

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

July 2024

The Victorian Council of Social Service has long worked to promote and champion t he rights of people with disability, including campaigning for better policy settings to support people with disability.

VCOSS auspices the Disability Advocacy Resource Unit in partnership with Disability Advocacy Victoria. We are in regular contact with disability advocacy organisations and Disabled Peoples Organisations (DPOs).

This submission encapsulates the voices and perspectives of our members and partners, however should not be read as representative of all people with disabilities.

VCOSS encourages t he Community Affairs Legislation Committee (Committee) to consult directly and extensively with Disability Representative Organisations (DROs) and people with experience of accessing t he NDIS.

vcossVictorian Council of Social Service

Introduction

VCOSS acknowledges the Committee’s earlier inquiry into the Bill received a significant number of carefully developed submissions from a range of organisations and individuals. Since then, there have been significant improvements, as outlined in the proposed new amendments.

We are particularly pleased to see that the proposed section 10 of the Bill states that ‘NDIS Supports’ will be defined by NDIS Rules to be developed after the Bill passes. We also welcome the Government’s commitment to engage with the disability community when developing these Rules.

VCOSS supports considered and transparent consultation on the Rules to ensure that they are fit for purpose, and able to be effectively used by people with disability to exercise ‘choice and control’ over the support they need.

Despite these positive developments, there remains a risk that people with disabilities will be subjected to unintentionally restrictive requirements under the new legislation.

Whilst we acknowledge this Bill is designed to facilitate enabling legislation only, VCOSS makes the following recommendations to enhance the Bill and avoid any unforeseen consequences.

Recommendations:

  • Co-design

    1. Embrace co-design more thoroughly by amending the Bill to include a duty to consult with DPOs, DROs and the community.
    2. Conclude public consultation before the legislative instruments come into effect .

  • Needs Assessments 3. Amend the Bill to better explain the reassessment process, including a clear explanation of how a participant can undertake a second needs assessment if they deem it necessary. 4. Amend the Bill to ensure draft copies of a participant’s assessment and plans must be provided before a decision is made.

Constraints on obtaining supports

5.

That the amendments in this Bill do not restrict people with disabilities from accessing the supports they need, particularly before a commitment is made by State/Territory and Commonwealth governments to robust foundational supports.

6.

That the NOIA should only impose conditions where reasonably necessary and that won’t be unduly burdensome for a participant.

7.

Amend the Bill to ensure participants are clearly informed which of their impairments meet the disability or early intervention requirements.

8.

Amend the Bill to ensure:

  • participants can apply to have additional impairments listed as having met the access criteria, in addition to the criteria under which they entered the scheme and make these decisions reviewable with a specified mechanism to appeal.

Co-design

The new amendments reflect that the Minister is required to have regard to the principle of co-design in subsection 4(9A) of the NDIS Act when making legislative instruments establishing:

  • How needs assessments will be conducted; and
  • The method to be used in calculating a participant’s budget.

However, there is concern in the disability community that this does not require the Minister to legally co-design these instruments.

It is positive that the legislation acknowledges the importance of co-design, however to future-proof this legislation against changes in principles of co-design by future governments, VCOSS recommends that this principle is embedded more firmly into the legislation.

It is reassuring that there is the proposed amendment 18, that strengthens the requirement under 15J(2)(d) of the Legislation Act 2003 for the Minister to provide a ‘consultation statement’ accompanying all legislative instruments made under the Act.

People with disability must play a leadership role in the design and implementation of any reform that may have a significant impact on their day-to-day life.

“To future-proof this legislation against changes in principles of co-design by future governments, VCOSS recommends that this principle is embedded more firmly”

Given co-design has been agreed by the Minister for the NDIS as an important approach for NDIS reforms, VCOSS recommends that commitment to transparency on how the Minister has engaged in consultation with people with disabilities and the communities’ organisations is an important step toward ensuring that the Government and public are properly informed on the views of the community.

This will demonstrate the Minister’s commitment to consultation and how the most marginalised voices of the disability community, particularly those of Aboriginal and Torres Strait Islander, LGBTQIA+, Culturally and Linguistically Diverse and regional/remote communities have been captured in the development of the reform.

VCOSS also recommends that the instruments do not come into effect until consultations have concluded. This will demonstrate a genuine commitment by the Government in how it consults with and values the voice of those most impacted by these legislative changes, allowing for the public to respond to legislation before it comes into effect.

Definition of ‘NDIS Supports’

VCOSS was pleased to see that the amendments relating to the proposed section 10, which defined ‘NDIS Supports’, address many of the concerns we have heard from members and disability advocates.

In particular, the potential legal issues that could arise from not including all sections of the United Nations Convention on the Rights of Persons with Disabilities (CRPD).

VCOSS heard concerns from members and disability advocates that if a highly prescriptive, narrow range of NDIS supports were introduced, NDIS participants living in rural/regional areas would face an additional layer of barriers in accessing supports.

We heard that rural/regional participants would face the possibility of being forced to disclose and request local businesses to enrol/register as providers, otherwise their options would be limited or non-existent.

Despite the support of introducing a new framework plan that allows a participant flexibility in funding, participants located in geographically thin markets will still be very restricted in their choice of its use.

Ensuring that ‘NDIS Supports’ will be defined entirely by NDIS Rules after the Bill has passed and will come from Government engagement with the disability community, is welcomed.

This should prevent the definition from being concerningly narrow, with appropriate and robust consultation.

  • Recommendation 1: Embrace co-design more thoroughly by amending the Bill to include a duty to consult with DPOs, DROs and the community.

  • Recommendation 2: Conclude public consultation before the legislative instruments come into effect.

Needs Assessments

Replacement assessments

VCOSS believes that the delegation of the reassessment process to the NDIS Rules does not provide enough reassurance that the rights of people with disabilities are protected under the proposed reforms that may come from the passing of this Bill.

While it has been made clear that this will be a co-designed process and developed with the disability community and health experts, this process needs to be developed closely with people with disabilities and DPOs to ensure that there are legislative protections during the needs assessment process and if they need to undergo a reassessment.

As it stands, the amendments do not provide clarity in relation to whether a replacement needs assessment can be a reviewable decision, in the event that the original needs assessment is incorrect. This is a concern for disability advocates, because this doesn’t provide a way for a participant to challenge an inappropriate needs assessment, which will then lead to an inadequate budget being set.

VCOSS advocates for a “no wrong door” approach for all complaints processes. This cannot be achieved if a system does not allow its participants to challenge an inappropriate needs assessment.

Where possible, the system should reduce the administrative burdens on participants. Often additional administration prevents people with disabilities, particularly those with cognitive impairment, mental illness or brain injury from accessing the supports that they need. By legislating a streamlined approach to ensure draft copies of a participant’s assessment and plans are provided and the parameters around a process for reassessment, then people with disability will have a less complex system to interact with when accessing their support needs.

  • Recommendation 3: Amend the Bill to better explain the reassessment process, including a clear explanation of how a participant can undertake a second needs assessment if they deem it necessary.

  • Recommendation 4: Amend the Bill to ensure draft copies of a participant’s assessment and plans must be provided before a decision is made.

Constraints on obtaining supports

VCOSS wishes to highlight the concerns of members and disability advocates around the lack of guidance around how a participant obtains supports, and how the Bill proposes to allow the NDIA to restrict spending of flexible funding and override a participant’s plan management request.

VCOSS recommends that the NDIA should only provide guidance on how a participant obtains supports where reasonably necessary and where it will not be unduly burdensome for a participant.

“VCOSS recommends that the NDIA should only provide guidance on how a participant obtains supports where reasonably necessary and where it will not be unduly burdensome for a participant.”

As identified earlier, there are thin markets that do not currently provide full access to the supports people with disabilities need, particularly in regional/remote parts of Australia. Without the necessary and agreed approach decided by States and Territories with the Commonwealth government for foundational supports, introducing legislated constraints will only prevent and potentially cause harm to people with disabilities - with or without NDIS packages.

Section 32L of the Bill has always intended that needs assessments will assess a person holistically. Amendments (6) to (11) clarify the scope of needs assessments. The concern raised in these amendments is whether this assessment is a ‘whole of person’ approach that addresses the needs of the participant beyond those met by the NDIS.

Funding for supports under the NDIS can only be provided in relation to impairments that meet the disability or early intervention requirements.

For a participant to truly understand how their needs are assessed and where their support is allocated, the Bill needs to be amended to ensure participants are told which of their impairments meet these requirements.

This will prevent a lack of clarity in addressing the multiple and interrelated disabilities they might have and will prevent them from unintentionally misusing flexible funding allocation under their new framework plans.

There is a need for clarity about the status of impairments, along with a mechanism that allows for a participant to appeal a decision determined for a particular impairment.

Recommendation 5: That the amendments in this Bill do not restrict people with

disabilities from accessing the supports they need, particularly before a commitment made by State/Territory and Commonwealth governments to robust foundational supports

Recommendation

Recommendation 6:

That the NDIA should only impose conditions on how a participant obtains supports where reasonably necessary and that won’t be unduly burdensome for a participant.

Recommendation 7:

Amend the Bill to ensure participants are clearly informed which of their impairments meet the disability or early intervention requirements.

Recommendation 8:

Amend the Bill to ensure:

  • participants can apply to have additional impairments listed as having met the access criteria, in addition to the criteria under which they entered the scheme and make these decisions reviewable with a specified mechanism to appeal.

Conclusion

This submission is designed to assist the Committee (and the Parliament) to develop the best legislation possible.

We believe this will be done by incorporating stronger measures that centre the voice of people with disabilities, DROs and DPOs in the development of NDIS related reforms.

Our recommendations seek to prevent any unintentional consequences the Bill may impose on people with disabilities, by reinforcing the need for a holistic approach to support needs. This approach must not prevent NDIS participants from accessing reassessments, nor burden them with additional administrative barriers.

For this Bill to be successful, transparent consultation and clear rules for how we allocate supports is key to improving the lives of people with disability.

Without an agreed commitment by all relevant governments for investment into foundational supports, people with disabilities risk being prevented from accessing reasonable and necessary supports. In the absence of State and Territories working through and deciding on foundational supports, VCOSS encourages open and timely communication and consultation with the disability community, Community Service Organisations and the general public to prevent reforms from impacting those that require the most support.