National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track

No. 1) Bill 2024 submission to Community Affairs Legislation Committee for inquiry

Dear Committee,

I am writing to you out of concern for the proposed changes of the NDIS Act through the

National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.

Bill 2024. I have repeatedly brought my concerns to The Hon Bill Shorten MP who has dismissed every concern I have raised as it is “not his intention”.

Although Mr Shorten has stated multiple times it is not his intention, the draft Bill states otherwise in various areas through the introduction of singular clauses on access which will prevent the whole person from being supported to a “list of approved supports” that have no legislative oversight and can be changed on whim by the Minister. A Minister which the Disability Community no longer trust and is recommending legislative

changes that place the scheme at risk. Risk of increased costs and trauma for those with disabilities. This potential for harm will be especially hurtful to those with complex comorbidities with multiple diagnoses or rarer conditions such as orphan diseases Syndromes without a name (SWAN) etc.

Legislative Construct

I take guidance from Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56 where the High Court ruled it is not what parliament intends, but what they actually do when passing legislation. The HCA stated:

  P25. The search for legal meaning involves application of the processes of
   statutory construction. The identification of statutory purpose and
    legislative intention is the product of those processes, not the discovery of some
   subjective purpose or intention.

  P26. A second and not unrelated danger that must be avoided in identifying a
   statute's purpose is the making of some a priori assumption about its

Purpose

The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions.

In that regard, this submission focuses more on the construct of the proposed Bill, rather than the explanatory statement.

Whole Person - Primary and Secondary Disability will persist under proposed Bill.

Although Milburn v NDIA FCA defined ‘Disability’ as the collective impairments, and the NDIS Review recommended the removal of primary and secondary disability as it is unlawful, along with the Federal Court in NDIA v Davis 2022 finding diagnosis irrelevant to establishing the functional “disability” of the individual; this Bill proposes to enable its persistence through the inclusion of s34(1aa). S34(1aa) requires each impairment to meet access in its own right for supports to be granted for it in subsequent plans.

However, due to Legislative Construct everyone, especially those with a progressive disability would need to be assessed each new plan as the legislative mechanisms for Access and Determination of Supports are a two-stage process. Under the current NDIS Act, and the proposed Bill, these two stages satisfy different Parts of Chapter 3. When a Prospective Participant becomes a NDIS Participant they have satisfied the entry requirements under Part 1 of Chapter 3. Once they meet this statutory threshold for determination of participant status then Chapter 3 Part 2 applies, which then details the legal framework to determine which supports they can access.

Therefore, access and supports are a two-staged process. This is confirmed by Justice Mortimer in Mulligan v National Disability Insurance Agency [FCA 2015] in p34 where supports are determined by a separate decision making process and that access is a threshold determination based on the construct of Part 1 and 2 of Chapter 3. This was supported by Senior Member Buxton at paragraph 9 in Bradley and National Disability Insurance Agency [2022].

Given that access is granted through this two-stage legislative mechanism any future plans will only consider impairments that meet access at the time access was granted (Chapter 3 Part 1), not whether the impairment itself meets access later on during a

subsequent plan

5, 10, 15 years later etc (Chapter 3 Part 2). The statutory construction is such that s34(1aa) means that people, such as myself or others with a progressive disability WILL have greater disability support needs but will not be able to access additional supports that we require as we age.

In addition, this inclusion prohibits assessing and supporting the co-morbid impairment arising from the interaction between two or more impairments, especially if one does not meet the access requirement. Despite the’ Needs Assessment’ being ‘amended’ in the explanatory statement with the “intention” to assess the ‘whole person’ the primary legislation has gone unamended and therefore this Parliament is falling victim to the second and unrelated danger highlighted by the High Court.

This bill requires decisions makers to “silo” impairments for consideration of their support needs. This is not evidence based, rather this notion goes against all models in healthcare, which require a full contextual integrated analysis of how symptoms and impairments interact. An example of this is the biopsychosocial model. The biopsychosocial approach systematically considers biological, psychological, and social factors and their complex interactions in understanding health, illness, and health care delivery. This is the cornerstone of modern healthcare.

For simplicity of the committee I provide an example of the effects of siloing the impairments for determination of what is reasonable and necessary through the example of a blind wheelchair user under the proposed model. A blind wheelchair user will be assessed as being both blind and a wheelchair user, but not how that specific integrated combination would affect them. Their support needs will be significantly different to someone who is just blind, compared to someone who is a wheelchair user. However they will be assessed the same. If one of these ‘impairments’ does not meet access if they were for example an ‘ambulatory’ wheelchair user than they would be denied supports that they specifically require because of the co-morbid disability that arises from these impairments. These resulting supports would be ineffective and lead to worse outcomes for that individual. This would be a departure from the intention of the original intent of the scheme.

For simplicity I offer the committee the known philosophical notion that “The whole is greater than the sum of its parts”. I have a genetic condition, with muscle weakness, dysphagia (swallowing impairment), along with congenital malformation of limbs, neurological motor coordination difficulties with a myriad of psychological deficits leading to social exclusion. If Dysphagia in its own right does not meet access, I will

never receive the supports I require to safely swallow. This one impairment impacts and compounds all of these other impairments. If my fine motor difficulties do not meet

“access” but my swallowing does I will not receive the assistive technology I require that I can independently operate to prepare the texture-modified diet I am prescribed. The Federal Court in Mulligan already ruled that Disability was the collective impact of all of these impairments and their interacting effect. Justice Mortimer stated at p51 “The term “disability” is used in the Act, and in s 24, as a descriptive concept for the overall effect of a person’s impairments on that person’s abilities to participate in all aspects of personal and community life.“ This Bill proposes to change that to a siloed concept in

which individual impairments are funded separately in hopes to provide holistic

support.

Although a recent forwarded amendment states that other impairments would be considered in the tool, s34(1aa) contradicts this by refusing funding any supports to the

impairment, even if it compounds an impairment that met access when access was granted. It is a contradiction for the Act to state they will assess the whole person, but will only fund siloed support needs. This will lead to ineffective supports and worse

outcomes for participants.

It also raises questions on the retrospective nature of Access to the scheme. I initially gained access to the NDIS through a s42C of the AAT Act as meeting S25 (Early Intvervention) of the NDIS Act. This meant I met the threshold provision, however the Direction from the AAT signed by the NDIA did not note the beneficial impairment under s25(c) in which access was granted. During my first month of being a NDIS Participant the NDIA “reassessed” my eligibility and found that I met s24 (Disability Requirements)

but again I was not informed for which impairment under s24(c), only that I met s24 threshold. This is consistent with the Federal Courts ruling.

Given that I met the threshold provisions and that no single impairment or benefit was never singularly identified as meeting s24(c) or s25(c) respectively how would s34(1aa) impact me? I was assessed under the overall disability as defined by Justice Mortimer in Mulligan v NDIA 2015.

eFraud – Explanatory Statement Parker Example mythbuster

In the explanatory statement there is a reference to NDIS participant Parker “misspending” their NDIS funds on rent, groceries and multiple food processors. It is inferred in the rationale of the Bills explanatory statement that these changes are to ensure the financial sustainability of the Scheme and therefore this ‘misspending’ places the NDIS financial sustainability in jeopardy.

However, the existing NDIS Act has numerous provisions for the NDIA to recoup the funds that were misspent through existing legal mechanisms. In addition, s118a of the Act requires inter alia; the NDIA to maximise participants independence, allow participants to plan and organise their own supports, achieve a balance between the rights of participants to engage in activities involving risk and an ability to undertake reasonable risk in their lives. The proposed changes to s43 contradict the obligations of the Agency under s118 and numerous articles of the UNCRPD. This removal of self- management without support to make decisions or an arbitrary assessment without due procedure would also violate s31(g) which Justices Flick, Mortimer and Banks- Smith should reasonably be underpinned by the right of the participant to exercise control over his or her own life.

Rather than arbitrarily remove self-management the NDIA could recoup the funding and fund NDIS supports to assist the participant understand their specific needs and what supports they need in their subsequent plan. However, concern should be taken that Parker has not been given an opportunity to describe whether these supports are spent in accordance with their goals or the self-management checklist. We do not know the quality of the food processors and whether they burnt out or maybe they were broken due to their mobility issues and knocking them off a shelf at a shop. Former Chief Risk Officer Melissa Woodburn stated that s34 does not apply to the determination of

whether NDIS Funds are spent in accordance with ones plan, rather the operational guidelines, booklet 3 and the self-management checklist apply as these are the published guidelines that are provided to Self-managed Participants to assist them in understanding how to use their funds.

The current in-force Act already enables the NDIA to ensure financial sustainability by recouping costs through the following procedure.

s46(1): A participant who receives an NDIS amount, or a person who receives an NDIS amount on behalf of a participant, must spend the money in accordance with the participant’s plan.

S53(1) If the CEO has reasonable grounds to believe that a participant or a prospective participant has information, or has custody or control of a document, that may be relevant to one or more of the matters mentioned in subsection (2), the CEO may require the participant or prospective participant to give the information, or produce the document, to the Agency. s53(2)(b) whether NDIS amounts paid to the participant or to another person have been spent in accordance with the participant’s plan; s53(2)(d) whether the participant or other person has complied with section 46;

  Functions of NDIA:

    s118(1)(b)(ii)identifying and managing risks and issues relevant to the financial

   sustainability of the National Disability Insurance Scheme; and

   S118(1)(g) any other functions conferred on the Agency by or under this Act, the

   regulations or an instrument made under this Act;

   s118(h) to do anything incidental or conducive to the performance of the above
   functions.

  The raising of a debt is not a reviewable decision. But the refusal to waive a debt
    is a reviewable decision.

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Justices Flick, Mortimer and Banks-Smith stated in WRMF v NDIA

that s3, 4 & 17A applies to ALL decision making under the NDIS Act. So these sections apply to all decisions, including decisions on whether funds were spent in accordance with plan and whether to raise a debt, and whether to waive a debt, and whether to remove self-management.

s118(1)(v) ensure that a reasonable balance is achieved between safety and the right of people with disability to choose to participate in activities involving risk.

s182(3). Power to raise a debt when funds not spent in accordance with plan.

Finally, S182(3) provides a legislative mechanism for the NDIA to recoup the funds that have been determined to have been misspent. The existing Act enables the NDIA to issue a debt and seek garnishee order if the debt is ignored. Therefore, there is minimal risk to the NDIA in ensuring financial sustainability from misspent funds. However, s118 requires the participant to participate in life with reasonable risk and to “enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports” (s3(1)(e))). These proposed changes do not enable a reasonable risk to the participant to manage their supports, nor do they prevent the NDIA from abusing these powers. The Explanatory Statement provides questionable rationale for removal of self-management, especially noting the Federal court ruled that s3, s4, and s17A apply to all decisions under the NDIS Act. That would include whether funds have been spent in accordance with a person’s plan and whether there is unreasonable risk to the participant from removing their elected self- management.

The proposed changes do absolutely nothing to reduce fraud, or reduce the apparent ‘Financial Sustainability’ issues arising from participants misspending funds. Legal mechanisms already exist for the NDIA to ensure the financial sustainability of the Scheme through recouping and educating participants on how to appropriately spend their funding in accordance with their plans. It is crass to state that the financial sustainability issues from misspent funds can only be ameliorated after the proposed Bill passes.

The proposed approved list of supports stated in the Rules must be rejected

deprive disabled people of the autonomy to plan and deliver their own supports and will segregate us as a community from the rest of the community.

As Justice Mortimer stated the purpose of NDIS supports are to support those with disability to participate in the community commensurate with people who do not live with a disability. The

purpose of s34(1) in the current NDIS Act is to reach a definitive conclusion of the need for individualised support requests for that specific individual. A defining feature is

s34(1)(c) which requires an analysis of value in relation to other supports. If this is not affirmed it cannot be funded. This ensures the lowest possible cost for the highest outcome to participants.

This is what ensures financial sustainability, not a God Power to be relegated to the Legislative Rules without the scrutiny of Parliament. Noting that the current National Disability Insurance Scheme (Supports for Participants) Rules 2013 (version F2013L01063) was scrutinised by Parliament before the passage of the primary

legislation; the National Disability Insurance Scheme Act 2013

Given s31 requires planning, and supports be individualised a ‘list’ of approved supports and banned supports will never achieve financial sustainability as supports will become categorical supports that do not cater for the individual and therefore useless and a waste of money.

Reviewability and replacement of Needs Assessment and protection of

Participants from harm

The Minister for NDIS has told us participants to not worry about the needs assessment because they will be conducted by an allied health professional, however no detail has been provided before parliament to guarantee this. This does not provide me any comfort or protection for when things go wrong. I am deeply concerned that this legislation enables Assessors to have God Powers and to not have any oversight nor protections in place for participants. This is not inexperienced conjecture, as I have endured 4 years of torment from an allied health professional who did not follow legal or professional ethical standards when providing services to me.

I am currently before the NSW Healthcare Complaints Commission (HCCC) as an allied health professional breached scope of practice and erroneously interpreted medical information that subsequently led to denial of healthcare, misdiagnosis and inaccurate health information being disseminated to numerous health practitioners.
Although the explanatory statement states I have an opportunity to provide feedback and correct errors, if the person who conducted the ‘Assessment’ and finalises the report does not agree with the participants feedback or corrections, there is no way to

have this report replaced or prevented from being disseminated to the CEO. Despite

several State and Commonwealth Health laws and Professional Standards requiring referral from health practitioners to another professional more qualified to undertake Assessments in these circumstances, the NDIS Act does not provide any mechanism for this in any circumstances, especially where the participant may believe the assessor to not be adequately competent.

This is a core issue to the complaint I have raised with the NSW HCCC. Although in my

case I have been enabled through State and Commonwealth Laws to engage with other professionals and obtain second, third and fourth opinions that contradicted this other opinion, under the NDIS Act this would be prevented. How can Parliament allow such opinion to be prevented from cross-examination or basic standards of health care.

I am deeply concerned that this Bill protects the creation of a ‘Needs Assessment Report’ that may result in inaccurate health information which the NDIA will use to

determine funding decisions. If the data source is flawed the decision itself will be flawed. There must be provisions to enable participants or their nominees to request a replacement Needs Assessment, and/or referral to more competent professionals when we have concerns. Failure to do this would result in the NDIA holding inaccurate health

information which would violate the Privacy Act 1988 in relation to inaccurate health information provisions. To then use flawed information to arrive at decisions that may have life-threatening consequences which could be seen as corporate negligence.

It is beyond comprehension that the funding decision itself will be reviewable but the information used to determine funding cannot be scrutinised or replaced without a Direction from an external statutory merit review body. This must be amended.

According to the proposed Bill and the explanatory statement the intention of the Needs Assessment is to reduce harm to the participant and ensure they receive the right supports. The process of which is being relegated to distant subordinate rules that do not yet exist. To the contrary an inability to challenge any inaccurate assessment is the biggest danger to a participant and the scheme and will reduce its financial

sustainability as funding will result in ineffective supports for that participant. There must be an amendment in the primary legislation, and not a subordinate intention

statement in the explanatory statement to ensure the Needs Assessments are conducted with the utmost integrity and of high standards to ensure participant safety, with an ability for the Participant and their nominee to request a replacement or referral to a more qualified assessor without the CEO granted the authority to deny this request. This must be amended!

The process for a Needs Assessment must be stated in primary legislation and with actual co-design, or better yet actually co-produced with the disabled community,

rather than tokenistic consultation. The current co-design with forced non-disclosure agreements causes the disability community to not believe the Minister has genuinely engaged in co-design or will after this legislation passes.

Other matters

If the parliament passes this Bill consideration must be given to participants who have previously received compensation payments in relation to injury or disability. Under the

current legislation and line-by-line approach it can be easily defined what would be and NDIS support and what is a compensation support. The change in how supports are assessed and funded will inevitably affect this, especially if participants have both compensation and disability needs that require the same support, just different

quantity from each funding source.

Thank you for your due diligence on this vital legislation. It is important to so many, that it is sound legislation.

Yours Sincerely, Mr R. Bradley