NDIA Accountability Project

Concerns regarding NDIS legislative changes

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Submission to Senate Community Affairs

Legislation Committee

Update in response to Submission to inquiry into National

Disability Insurance Scheme Amendment (Getting the NDIS

Back on Track No. 1) Bill 2024

Disability Advocacy NSW | Website: da.org.au | Email: da@da.org.au | Phone 1300 365 085

Summary and Recommendations

DA NSW is grateful that the Senate Committee is providing an opportunity for further consultation on the proposed changes to the NDIS.

The core concerns raised in our original submission remain. This is despite the proposed amendments to the NDIS Bill. Our original submission can be read here.

As an organisation who regularly assists people with disability who are ‘stuck’ in the NDIS appeals system, we are regularly informed of the areas of the Scheme that are not working for NDIS participants and prospective participants.

Our view is that legislative changes to the participant experience are being proposed prematurely. We believe a better approach would be for the Government to first provide a formal response to the NDIS Review and the DRC Final Report. Foundational supports should then be determined and implemented before introducing any legislative changes that could limit access to crucial supports available under the NDIS.

We think it is premature and potentially harmful of the Government to seek to introduce significant changes to the framework of the NDIS when the Rules that will ‘provide clarity and detail about the meaning of key concepts in the Act’ 1 have not been developed and scrutinised. As currently presented, these proposed changes are likely to entrench existing issues and limit participant access to vital supports before any alternative disability supports are available.

The Bill proposes the most significant changes to the framework of the NDIS since its creation. It is crucial that the Government listens to and addresses the genuine concerns raised about the Bill, especially concerns raised by NDIS participants who will be directly impacted by these changes.

Recommendations

  • That the Bill is not supported.
  • That the Government delivers a formal response to the Disability Royal Commission and the NDIS Review.

Essential amendments

Should the Committee recommend that legislative change proceed, we have concerns with the Bill in its current form. We think the following further amendments to the Bill are essential:

  • The requirement introduced by S34(1)(aa) should be removed. Supports should be funded on a ‘whole person’ level, rather than be limited to the impairments that meet the disability requirements (s24) or early intervention requirements (s25).

The NOIS Review recommended that participant budgets be provided on a ‘whole of person’ basis rather than on the basis of individual impairments or diagnosis. The proposed Bill is contrary to the NOIS Review as it would enact the opposite.

It is deeply concerning that the Bill proposes to limit NOIS supports to those linked to ‘NOIS approved’ impairments and yet there is nothing in the Bill that requires NOIA to:

  • Explain to participants which of their impairments they were granted access for.
  • Assess all of a persons impairments at the point of accessing the Scheme.

The current NOIS Act only requires the NOIA to consider s24 and s25 when a persons eligibility to access the NOIS is being assessed. The Bill does not change this, nor does it offer any formal mechanism for a participant to ask the NOIA to consider and recognise additional impairments after a participant is granted access (this includes existing impairments that were not considered at access and new impairments that participants acquire over time).

We think that limiting the supports a participant can access to only those impairments assessed by the NOIA will embed in the legislation an arbitrary and artificial approach to determining support; it would be an approach not dissimilar to the NOIA’s current controversial practice of ascribing ‘primary’ and ‘secondary’ disabilities (these terms are not found in the current legislation).

People with multiple disabilities will continue to be impacted the most.

They will likely need to expend significant personal time, energy and costs seeking acknowledgment of all their impairments to be able to access the supports they need. Their chance of accessing adequate disability supports in a timely manner will be reduced, leading to risk of harm, frustration, increased participant burden and an even more adversarial process and experience engaging with the NOIA. Tremendous resources will be required from participants and from the NOIA to address these issues; we have witnessed this in relation to the current Act.

If s34(1)(aa) is retained,

participants must be provided with a legislated right to seek review of NOIA decisions about which of their impairments satisfy the disability requirements (S24) or early intervention requirements (s25), and a way to be able to correct any errors in how information about their impairment(s) is recorded by the NOIA.

How impairments are recorded by the NOIA will be crucial to determining the participant’s support budget, so the Bill must provide transparency for participants about what decision has been made and how they can challenge this.

There is no mechanism in the proposed Bill for deciding which impairments do and don’t meet the criteria or what a participant can do if they don’t agree.

If the NDIS funding available to a participant will ’depend on the participant’s impairments that meet the requirements of section 24 and/or section 25 at the time of the planning decision,’2 the Bill must include a provision(s) for:

  • Informing participants about which impairments meet the criteria, both at the time of access and at the time of the planning decision.

  • Review rights in relation to decisions about which impairments meet (and don’t meet) the criteria, both at the time of access and at the time of the planning decision.

There must also be a clear mechanism added to the Bill for participants to request that the NOIA update the impairments accepted as meeting the requirements.

If participant budgets are to be determined by ‘needs assessments’,

participants must have reasonable opportunity to correct any mistakes or incorrect assumptions made about them in the needs assessment. Participants must also have clear review rights to challenge a needs assessment if they disagree.

The Bill relies heavily on the concept of a ‘needs assessment’ to determine the funding available to

participants without explaining:

  • The qualifications of those conducting the needs assessments.

  • How the needs assessment will be used by the agency to determine the funding (e.g. will it be given primacy over other sources of information such as assessments and recommendations provided by the participants doctors and allied health professionals?).

  • Whether participants have choice over who conducts their needs assessment if the qualifications of the needs assessor are not appropriate.

  • The availability of a sufficient workforce to conduct needs assessments for 600,000+ NOIS participants.

  • What the appeal rights are if a participant disagrees with the outcome of a needs assessment.

  • If there are delays in the NOIA being able to offer a needs assessment what will be done to ensure participants are not at risk of having no support until a needs assessment can be provided (current delays in Agency processes and decision making have been worsened since the rollout of PACE. This raises concerns about NOIA’s capacity to implement the proposed needs assessments in an effective and efficient manner).

There are key questions that need to be addressed before a requirement for a compulsory needs assessment to determine participant funding is set in legislation.

If the outcome of a needs assessment is given primacy over other sources of information about a participant’s support needs (including evidence from their treating doctors and/or treating health professionals), the person conducting the needs assessment is effectively a decision-maker for the NOIA.

It is to be expected that there will be errors in and disagreements relating to needs assessments. There should be a mechanism for participants to be able to correct incorrect information when errors arise and seek review of needs assessment outcomes, not just ask for a replacement assessment.

There is great need for further information and consultation regarding which decisions and assessments made in relation to needs and budgets are reviewable and the intended and unintended consequences of this.

Proposed Changes to Legislation

  1. The legislation should require the Minister to engage in meaningful co-design about the contents of any proposed legislative instruments made under this Bill (rather than just have regard to the principle of co-design).

For example, the Minister should share drafts/plans and consult in relation to the following before enacting further legislative instruments:

  • supports that are (and are not ‘NDIS supports’), and

  • needs assessment process and methods.

  1. The Bill introduces significant information-gathering powers. There should be protection for participants to limit when and how these powers are used, ensuring they are not applied in an adversarial, invasive, burdensome, or distressing manner for participants. This is in line with the right to have one’s privacy respected, as stated in UNCRPD Article 22.3

Our original submission to the Senate Committee expands on these points further and can be read here.

Concluding remarks

This proposed Bill places people with disability in a position of significant uncertainty and risk, asking them to embark on a journey without knowing the destination or what supports they might lose along the way.

Much of the detail of the changes this Bill introduces will be provided in Rules that have not yet been created. As the Rules are not available, there is no possibility for meaningful review, consultation, or input on their contents and how they might impact until after the Bill is passed.

“Nothing about us without us?” Regrettably, this principle has not been followed in the process leading to the current proposed Bill. The lack of co-design in this Bill contradicts the approach recommended by the NDIS Review for implementing NDIS reform.

[1] United Nations, Convention on the Rights of Persons with Disabilities (UNCRPD), 2006. hhttps://social.desa.un.orq/issues/disability/crpd/convention-on-the-riqhts-of-persons-with-disabilities- crdp

Disability Advocacy NSW | website: da.org.au | Email: da@da.org.au | Phone 1300 365 085 Page5

This Bill does not align with the key recommendations of the NDIS Review.

We think it should not be implemented.

We thank the Senate Committee for their time in further consideration. We hope the Committee closely listens to the genuine concerns of people with disability about the proposed Bill as it is their lives that will be most impacted by the amendments.