Submission to the Senate Inquiry

National Disability Insurance Scheme Amendment

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

Prepared by: Peter Gregory Date: 12.07.2024

Please read this Submission as an addendum to the two previous Submissions I have made to the Inquiry dated:

e 16th May 2024

e 28th May 2024

I am writing this submission with a view to answering a key question:

“Does this Bill ensure that people with complex disabilities have access to the full range of citizenship opportunities outlined in the United Nations Convention on the Rights of Persons with Disabilities?”

Introduction:

The changes to the NDIS being proposed through the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 are extremely concerning because, through these changes developed in secret, our current Government has demonstrated it will alter the intent and focus of the scheme in whatever way they and their marketing agency deems palatable, regardless of the consequences and risks for Participants. This includes the odious proposition that Participants requiring 24/7 support should have their funding clipped to 1:3 shared support, the robo planning suggested in the Bill, the ambiguous and foreboding independent assessments Mark 2.0 strategy floating on the horizon. fra1hlt11 fOyean of Plsablllty lights All bad, but we are told “Don’t worry. We’ll co-design the heck out of these pesky little proposals. Just trust us, we pinky promise to do the right thing.”

While we’ve got those harbingers of doom looming on the horizon to deal with, there are some very concerning things that will come into effect as soon as this Bill becomes law, with no opportunity for any form of co-design… and they are really dangerous.

Information Request Powers:

For example, as the Bill currently stands, the NDIA can ask for whatever information they want, and if the participant doesn’t adequately respond in 90 days, they can be removed from the scheme. This will become law and has the potential to significantly disadvantage the most vulnerable Participants. Those who are not able to read, don’t check their mail regularly, are in hospital, are in prison, are homeless, are living chaotic lives juggling the competing demands of everyday existence: These are the people likely to be impacted by this law. We are told the use of laws such as this are a last resort, yet there are very few people with experience of dealing with the NDIA who have not experienced just how bureaucratically officious they can be when they insist on doing things their way and without any flexibility. Nor can we ignore the countless examples of the NDIA losing files that have been sent, failing to meet their reporting deadlines and internal system incompatibilities that mean critical information is lost or misdirected. Under a law such as this the blame for the consequences of these inefficiencies could very well transfer to the Participant.

Disability Requirements and Impairments:

Section 24: Disability Requirements, outlines what would be considered an impairment for the purposes of meeting the Disability requirements.

Further on Section 27 states:

(1) The National Disability Insurance Scheme rules may make provision for determining any matter for the purposes of section 24 (disability requirements) or 25 (early intervention requirements).

These two sections read together continues a theme prevalent throughout the rest of the Bill: That is, it gives a definition of a provision and then legislates that the NDIA, in this case, can change that provision. In this case, Section 24 outlines what would be considered an impairment to meet the Disability Requirement and Section 27 gives the NDIA the ability to change the definition of what is considered an impairment without:

   a.  Any requirement to justify or seek authorisation for the change.
   b.  Subjecting the change to a "co-design" process.
    c.  This being subject to review.

Potentially, this could then mean that:

   a.  The NDIA is determining the impairment(s) used for a Participant’s Needs Assessment.
   b.  The NDIA could control who can access the scheme by manipulating the impairment definition.
    c.  A Participant could be removed from the scheme if their assessed impairment no longer meets the
       Disability Requirement.
   d. A Participant’s Needs Assessment and Budget could be automatically changed because, with the
     change of impairment definition, they are now funded as a different class of participant.

Anybody who has been through the AAT process knows that these adjustments to the interpretation of impairments is occurring regularly, however this provision will make that practice law, making it far more difficult to challenge in the AAT. It is no longer an interpretation that can be challenged. It is the law.

The appeals smoke and mirrors trick: The rhetoric surrounding the ability for Participants to appeal decisions is deceptive smoke and mirrors. This my analysis of the proposed legislation and it’s amended amendments that forms the basis of why I believe this is an accurate assertion.

• The current amendments to the NDIS Legislation retain the Subsection 48 provisions for a reassessment of a participant’s plan on request of the participant or CEO’s own initiative.
• Section 49B says that despite section 48, the CEO must not conduct a reassessment of an old framework plan if the participant has been given notice under subsection 32B(2) that the participant is to have a new framework plan.
• Section 32B refers to Participants that are to have new framework plans. Specifically, section 32B says: o (1) The Minister may, by legislative instrument, determine:  (a) classes of participants that are to have new framework plans; and  (b) for each class so determined—the period within which the CEO must give notice under subsection (2) to participants in the class. Note: Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 does not apply to the instrument (see regulations made for the purposes of paragraph 54(2)(b) of that Act). o (2) The CEO must, within the period determined under paragraph (1)(b) for a class, give a participant in the class written notice that the participant is to have new framework plans. o (3) The notice must include the details (if any) specified in the National Disability Insurance Scheme rules for the purposes of this subsection.
• Therefore, it could be decided that those Participants seeking a reassessment of their plan under subsection 48 of the Act could be determined to be a class of participant to have a new framework plan.
• Therefore, under Section 49B of the amended legislation the CEO would be prohibited from making a decision to reassess these participant plans where it has been decided that the Participant is to have a new framework plan.
• Having classed these participants as requiring new format plans, they would then be subjected to the Needs Assessment and Budget setting mechanisms of new format plans.
• The Needs Assessment and Budget setting mechanisms will be fixed by legislation.
• The Section 100 reviewable decisions items remain unchanged. However, with the Needs Assessment and Budget setting mechanisms enshrined in law in the majority of cases the Needs Assessment and the Budget will be upheld. The only exception to this would be if there was a procedural error when the CEO approved the Participant Statement of supports.
• The right to appeal a decision at the AAT remains in the legislation. However, the AAT’s role is to decide if the NDIA made a decision in line with the law. If the law prescribes the Needs Assessment and Budget setting mechanisms, then this significantly limits the AATs power to set aside a Participant plan decision.

To summarise, these amendments conspire together to severely limit a participant’s ability to challenge decisions related to their needs assessment and budget. For those thousands of Participants who have submitted Change of Circumstances requests, these amendments create a means by which those requests can be denied without any right of appeal, new plans generated under the new legislation with the appeal rights under the current legislation eliminated.

Debt Recovery:

The debt recovery provisions are concerning and require much closer scrutiny.

The current provisions in the proposed amendments mean that if a participant spends funding on supports that are not NDIS Supports (Defined in Section 10), or not in accordance with the plan, a debt may arise. In addition, there are restrictions on how flexible funding is spent. In certain circumstances, the CEO may place restrictions on the spending of some or all of the flexible funding provided for in a reasonable and necessary budget.

If there is so called “non-compliance” with the financial requirements set out in the NDIS plans, particularly with the acquittal of funds, the Agency can declare these funds as debts. These debts would then be recoverable by the Agency. This debt recovery mechanism requires significant scrutiny, redrafting, and protections against a RoboDebt style vendetta being waged against participants. Here, as in RoboDebt, onus will be placed on Participants to prove that they did not owe the debt, reversing the usual burden of proof. With the power given to the Minister, CEO and the NDIA to vary the definition of an NDIS Support and an impairment plus the control exercised by these parties over the Needs Assessment and budget setting mechanism, the risks of a Participant and/or people acting on their behalf inadvertently purchasing supports that are out of scope are inordinately high. This is a draconian and immoral provision that places Participants at high risk of losing their supports and incurring debts they have little or no hope of defending.

A Bill that lays the tracks to institutionalisation:

“Disability doesn’t make you exceptional, but questioning what you think you know about it does.”

Quote: Stella Young

I can’t get the RedBridge report out of my head. I can’t reconcile the fact that a group of researchers are so morally bankrupt that they facilitated focus groups where they explored wording for a public narrative that would make shared support for people with complex disabilities palatable. When the content of this report runs through my head, I see the image of my friend lying curled and rocking in a corner because of the paralysing fear that a bureaucrat, with the power to decide his fate, is coming to take him back to the abusive hell hole he escaped from.

I can’t comprehend the self-absorbed entitlement and arrogance that motivates the people who commissioned such research. When I ponder the detached neatly dressed individuals who possibly commissioned this research, the image of my friend carrying all his worldly possessions with him constantly in a plastic bag for fear someone would come and take him back to the place where he was shockingly abused comes to mind: A fear that was only dispelled when I showed him that this place of horror had been bulldozed and no longer existed.

Submission to the Senate Inquiry NDIS Amendment Bill 2024

When I listen to these recommended phrases that have filtered into the public NDIS Review narrative to justify a recommendation that a 1:3 shared support funding benchmark is reasonable and necessary and does not mean that people will be forced into group homes, I know that this is a lie.

I think of many friends who have received decisions from a NDIS Planners who have told them that the reason their funding is being cut to shared support is that it would be better for them if they shared their home with other people with disabilities.

I have a large intake of breath when I read these words printed on the paper making a judgement the planner has no right to make and marvel at the irony that this is written within the context of an NDIS that claims the United Nations Convention on the Rights of Persons with Disabilities as foundational to the legislation it operates under.

I shake my head at the large registered service provider representatives sitting before the Disability Royal Commission extolling the virtues of their service delivery as images flood my mind of my friend who has had 5 teeth removed, 7 fillings, gum disease and muscle wastage because of the substandard support and supervision of support workers they will never be held accountable for.

It is with a rising tide of anger and frustration that I read the Department of Social Services “Public Consultation on the Disability Royal Commission – Summary Report” released on 12th June 2024. In the section related to the phasing out of group homes, after an extremely flawed and limited process that cannot adequately be described as a consultation, there are a series of comments so poorly constructed in their content and lack of understanding of the nuances and decades of discussion around this topic that I am left with the overwhelming impression that we are being primed for a push to legitimise group homes as the dominant and preferred funded support model for people requiring 24/7 support.

The glaring contrast between the reported support, in this report, for enshrining the UNCRPD and the lack of understanding of the incompatibility of that position with endorsing group homes as the primary and preferred model of support for people requiring 24/7 support is truly mind boggling. As I read those words in this report, providing tacit approval to encourage the funding and growth of group homes without question, I am reminded that these simplistic justifications to continue this discredited support model are almost identical to those presented in the 70’s and 80’s to defend congregate care as the only viable option for this group of people.

As I read those words, I see the images of friends of mine stuck in group homes where choice and control is a phrase thrown around at audit time and restrictions on basic human rights abound. Where their lives are dictated by the policies of the service provider and the needs of those they have not chosen to live with.

If we were in any doubt about the fact that, through this NDIS Review and NDIS Amendments Bill debate, we are hurtling at breakneck speed back to service thinking of the 70’s, then the intent of the references cited above should serve as a salutary warning that disability rights in Australia are being sacrificed in the pursuit of a leaner, meaner, cheaper, benevolent and paternal NDIS.

SCORECARD

NDIS Scheme Amendment Bill

This is the question: “Does this Bill make sure that people with complex disability can have all the rights and opportunities that the United Nations says they should have?”

These are the answers:

	Yes	No
Funded Supports:
Does the Bill give people with complex disability enough money
for the help they need?
Shared Support Ratios:	X
Does the Bill stop the NDIA from making people who need help
all the time share their funding with others?
Group Setting:	X
Does the Bill stop the NDIA from making people who need help
all the time share their support in a group?
Independent Planner:	X
Does the Bill make sure people with complex disability get their
needs checked by meeting face-to-face with a trained,
independent planner?	X
Evidence-Based Funding:
Does the Bill make sure people’s budgets are set using proven
methods?
Appeals:	X
Can people challenge the Needs Assessment and Budget
calculation method if they think it is wrong?
Co-Design:	X
Does the Bill let all people with disability, including those with
complex needs, help decide how the Bill is made?	X
UNCRPD Principles:	X
Does the Bill make sure all NDIS supports follow the UN rules
and protect the rights of people with disability?	X
Anxiety and Abuse:	✓
Is the Bill making people with disability worry about being forced
back into abusive group homes?

Let’s review the scorecard for the NDIS Amendment Bill. Does it ensure that people with complex disabilities have access to the full range of citizenship opportunities outlined in the United Nations Convention on the

Rights of Persons with Disabilities

The resounding answer is definitely “No”. The reasons for this conclusion are:

• The government has not yet officially responded to the Disability Royal Commission and NDIS Review recommendations. This means they have not ruled out accepting the NDIS Review recommendation that funding for people requiring 24/7 support should be based on 1:3 shared support ratio. It also means that they have not accepted the Disability Royal Commission recommendation that group homes should be progressively phased out.

• The NDIA currently adopts a practice of funding participants with complex needs based on shared support ratios. When asked what evidence they have to support this decision, they refuse to provide any substantiating documentation. This contrasts with the evidence from the Disability Royal Commission that clearly shows congregating unrelated people with complex needs together is a pathway to domestic violence and abuse.

• The NDIA has adopted a practice of telling participants requiring 24/7 support that they are better off living with other people with disabilities. When asked what evidence they have to support this decision, they refuse to provide any substantiating documentation.

• If the culture within the NDIA is one that sponsors the growth and development of group homes as the “go to” solution for people with complex needs, then it is reasonable to believe that this is the option that they will continue to push. The Proposed Legislation creates a means to enshrine, as law, 1:3 shared support as the approved NDIS Support for the class of Participants requiring 24/7 support.

• The assurances that the Needs Assessment, the Budget setting mechanism and NDIS Supports will be “co-designed” is a hollow promise. The NDIA’s own description of their Participant Engagement Strategy clearly shows that it does not follow the principles of co-design. The continued use of the term “co-design” to describe these prescriptive consultations is misleading.

• The proposed amendment stating that NDIS Supports will align with the UNCRPD is not consistent with the current practice of the NDIS, even though the existing Bill states that its foundations lie in the UNCRPD. This would indicate that the NDIA has their own private interpretation of what supports are consistent with the Convention and that this interpretation is inconsistent with the generally held understanding that Article 19, for example, does not support the congregation of people as a default form of service delivery.

In summary, this Amendments Bill does not protect people with disabilities from laws, operating guidelines, services and practices that are incompatible with the UNCRPD. In many ways it can be argued that it legitimises and encourages these forms of service delivery.

Conclusion:

If the purpose of the current train wreck of the NDIS Amendments Bill is to “Get the NDIS back on track”, than we need to be asking what is this track and where is it taking us? Beyond all the hype and bluster attempting to create a smoke screen to conceal the true intentions of the Bill, close examination reveals that the engine dragging this train is a single-minded drive to limit access to the scheme and cut plan funding…. And the tracks we are “getting back on” are taking us towards institutional supports we have spent so long trying to steer away from. We might hear people protesting and saying “That is not the case” yet we have a consultant’s report that says the exact opposite. It points to where this Government, NDIA and DSS wants to take this train. The direction the tracks will take us has already been declared and they have been laid down.

Submission to the Senate Inquiry NDIS Amendment Bill 2024

The itinerary has been written and printed…. Whether you like it or not these tracks are taking us back to group homes, to limited options and a prescriptive menu of what will be permitted if you want to ride the train. This is a journey towards reinstitutionalisation, however, this is only made possible through that age old enemy of disability rights, benevolent paternalism, which is now being manifested in decisions about where these tracks will lead, who will drive the train, who gets to come on board, who gets left at the station, the rules that you must follow if you want to ride the train and, of course, what the destination will be. On this train, you don’t get to choose who you sit next to. The seats are already assigned because you can’t be trusted with that decision…. Oh no no no.

The brochures and the advertising for this trip of your lifetime say that all the passengers will get to choose their destination but the tracks have already been laid, the rules have already been set, and the best we can expect from this train ride is to choose what colour box you are put in when the train pulls up at “Statement of Supports” Station. The colour choices will be beige or not so beige.

We have fought hard and long for NDIS Participants to be able to choose their destination: Not to have this dictated by politicians, public servants or service providers.

Getting the NDIS back on track means disabled people deciding their own itinerary, where they want to go, who they want to go with and the amount of assistance they need to get there.

This NDIS Amendments Bill does not get the NDIS back on track. It derails it.

Withdraw this Bill: Co-design its replacement.