NDIA Accountability Project

Concerns about restrictive definitions impacting choice and control for people with psychosocial disability

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National Disability Insurance Scheme Amendment

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

[Provisions]

Community Affairs Legislation Committee Submission

July 2024

Acknowledgement: VMIAC proudly acknowledges Aboriginal and Torres Strait Islander people as Australia’s First Peoples and the Traditional Owners and custodians of the land and water on which we live and work. We acknowledge Victoria’s First Nations’ communities and culture and pay respect

Acknowledgement

to Aboriginal Elders past, present and emerging.

We recognise that sovereignty was never ceded and the significant and negative consequences of colonisation and dispossession on Aboriginal communities.

Despite the far-reaching and long-lasting impacts of colonisation on First Nations communities, Aboriginal people remain resilient and continue to retain a strong connection to culture. We acknowledge the strong connection of First Nations Peoples to Country, culture and community, and the centrality of this to positive mental health and wellbeing.

VMIAC acknowledges the long legacy and advocacy of First Nations people with disability. We recognise the importance of raising and amplifying the voices of Aboriginal and Torres Strait Islander People with disability; and acknowledge the work that First Nations organisations have contributed to this space, including:

  • First Peoples Disability Network Australia – Support for Decision Making Consultation, National Disability Insurance Scheme; August 2021
  • Victorian Aboriginal Legal Service – Collation of Relevant Recommendations for the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability; December 2022
  • Victorian Aboriginal Legal Service – Submission on the Disability Inclusion Bill Exposure Draft; October 2022
  • The National Aboriginal Community Controlled Health Organisation – Developing a Guide to the Guiding Principles – Australia’s Disability Strategy; December 2022

About VMIAC

The Victorian Mental Illness Awareness Council (VMIAC) is the peak body run by and for Victorian mental health consumers1. VMIAC’s vision is a world where all consumers stand proud, live a life with their choices honoured and their rights upheld, and where these principles are embedded in all aspects of society. VMIAC pursues this vision across all its work providing advocacy, sector leadership and information and training to consumers across Victoria. Our advocacy programs provide individual and systemic support to consumers with psychosocial disabilities, using a rights-based approach, to ensure their rights and freedoms are exercised.

Introduction

The recommendations published in June by the Community Affairs Legislation Committee: National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 [Provisions] (the Report) and subsequent amendments made to the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 (the Bill) do not consider the depth of feedback provided by the disability community, and fail to meaningfully address the concerns we have raised throughout the NDIS Bill development process2,3,4. If the Bill goes ahead as currently drafted, the NDIS will move further away from the whole-of-person approach needed to improve and support health and wellbeing for people with disability5,6.

In VMIAC’s first submission to the first draft of the Bill, we presented the concerns people with psychosocial disability have with the proposed reforms over four key themes. While the Committee acknowledged our concerns in the Report7,8; ultimately none of the recommendations act on the advice provided by VMIAC to improve the proposed NDIS reforms for people with psychosocial disability:

1. Early intervention pathway for people with psychosocial disability

The Report acknowledges the concerns raised by VMIAC and other consumer groups that if participants with psychosocial disability are predominantly channelled through this pathway, they may be unable to access much needed supports; and face discrimination when attempting to access the

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The Report quotes Mr James MacIsaac, Group Manager, NDIS Participants and Performance Group at the Department:

‘…the bill does not make any changes in relation to the provision of psychosocial supports. The bill establishes new rule-making powers that could enable the introduction of an early intervention pathway. The Australian government will work with the disability community to consider the recommendation in the NDIS review about the new early intervention pathways.’ 9

This means that the legislation will retain this early intervention pathway and continues to risk discrimination against people with psychosocial disabilities, with no protections introduced to minimise or reduce the risks going forward. The decision to retain the early intervention pathway for people with psychosocial disability is deeply disappointing in many ways; particularly in the context of the current landscape of foundational supports.

The Report acknowledges the inadequacy of foundational supports as they are currently defined and funded10; but states that it relies on future collaboration and co-design in developing the Rules to mitigate this risk. The Report does not outline how that collaboration and co-design should be approached to ensure foundational supports are centred in the development of the Rules; nor does it consider where responsibility of implementation of supports will lie given the complexity of funding these supports in the immediate-and-long-term.

Given the Bill enables immediate removal of participants from the NDIS, and adequate foundational supports will take years to be established; the Committee needs to immediately rectify this by legislating that no participants will be removed from the scheme until foundational supports are funded and developed.

Collaboration with NDIS participants will mitigate the risks that arise with the

proposed NDIS reforms.

The Report acknowledges that the Bill was not developed transparently, and that attempts at code-sign were inadequate and rushed11. The Report recommends deeper collaboration and co-design in the development of the Rules, with an understanding that the Department does intend to engage comprehensively with the disability community on the future approach to defining a NDIS Support.

A commitment to the ‘intention’ of co-design and collaboration by the Department in drafting the Rules is not a sufficient protection for people with disability. The Government, the Department and the NDIA do not have a clear and unified definition of co-design and collaboration. This indicates that there is also no policy approach towards codesign and collaboration. Without a clear understanding of

Co-design and Collaboration

There is a strong risk that the same inadequacies seen in the Bill development will be repeated here.

The Committee should direct the Government and the Department to define co-design and collaboration in the context of the NDIS reforms; and direct the Government and the Department to develop a policy approach (itself drafted through collaboration) that can be used to guide the Department and Governments engagement with disability advocates and communities in the development of the Rules.

Adopting a Whole Of Person Approach Will Improve Participants’ Experience And ‘Recovery’ Within The NDIS

Despite the NDIS Review and a Federal Court decision supporting a whole of person approach to disability[ref], this approach has not been adopted by the legislation, which continues to restrict support for a person to specific parts of their disability that are recognised by the NDIS.

Once a person is granted access to the NDIS, the NDIA should apply a ‘whole of person’ approach to their funded disability support needs. There have been long-standing calls for the Government to legislate against the NDIA’s current practice of applying a ‘primary disability’ approach. The Bill, in its current form, continues to do the opposite. The legislation restricts the funded supports a person can access to assist them to achieve their goals and support themselves and their disabilities by referring to “impairments for the which the participant meets the disability or early intervention requirements”

A particular concern is the legislation’s approach to the needs assessment, which has a designated focus on single impairments as opposed to implementing the whole of person approach to their goals, needs, ambitions and lives. The lack of detail in how assessors will consider and make decisions is also of concern, given the need for specialised understanding of psychosocial disability to adequately provide support for NDIS participants[ref].

VMIAC shares the concerns raised by other advocates around the difficulty participants will face in reviewing the decisions made by needs assessors. VMIAC supports the advice presented by other advocates for a simple and accessible review pathway as one way to achieve a holistic whole-of-person approach within the NDIS[ref].

Broader Reforms Of The NDIS And Their Impact On People With Psychosocial Disability – Definition Of NDIS Support.

The Bill makes significant changes to the supports which can be funded under the Scheme with the introduction of the new ‘Definition of NDIS support’. As VMIAC outlined in our initial submission,

Concluding Comments

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

1) Bill 2024 [Provisions]

fails to consider the feedback provided by the disability community; and so, the legislation remains flawed and deeply biased against people with psychosocial disability.

As it stands the Bill will increase experiences of distress and ill-health and leave people with psychosocial disability without necessary supports. VMIAC cannot support the passing of the Bill in its current form. We will continue to advocate for consumers throughout the NDIS reform process.