Submission to inquiry into National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1)

Bill 2024

Proposed and presented by University of Queensland Union Vice- President Student Rights, Jordy Duffey, and University of Queensland Union Disability Officer, Sophy Barlow

July 2024

Committee Secretary

Senate Standing Committees on Community Affairs

PO Box 6100 Parliament House Canberra ACT 2600

Dear Committee Members of the Senate Community Affairs Legislation Committee,

The UQ Union Disability Collective and the UQ Union Student Rights Collective welcome the opportunity to provide a submission to the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024. We recognise the key support that the National Disability Insurance Scheme provides for many D/disabled students and welcome the opportunity to be part of the discussion towards ensuring that the National Disability Insurance Scheme continues to give reasonable and necessary financial support to Australians with a disability. Furthermore, we welcome this opportunity to provide a submission to continue advocating for the welfare and continued support of D/disabled students.

Introduction:

The UQ Union is an independent organisation that is the peak representative advocacy body for over 55,000 students who attend the University of Queensland run by students, for students. The UQ Union believes that every university student deserves access to the support they need to thrive, not just academically, but also socially and mentally and as part of this, works towards ensuring that student voice is heard on all university and government matters. In ensuring student voice where possible and in recognising the diversity of the student population, the UQ Union have collectives that represent, support and advocate for marginalised communities and other community groups.

The UQ Union Disability Collective is a branch of the University of Queensland Union concerned with the advocacy, support and social connectedness of students at the University of Queensland who experience disability, chronic illness, mental illness, neurodivergency, hearing or visual impairment, or who are d/Deaf or blind. As part of their advocacy and support towards D/disabled students they raise awareness of issues surrounding disability throughout the greater university body, and in the wider community and have been committed towards advocating for D/disabled students rights on and off campus.

The UQ Union Student Rights Collective is a collective that part of the UQ Union and is committed to the advocacy and activism of UQ students centred around education and welfare issues that are important to university students and their experiences to accessing education. In doing so, the UQU Student Rights Collective work with the UQU Disability Collective in recognition of the many issues that many D/disabled students experience in consideration to accessing their education. Furthermore, the UQ Union Student Rights Collective believes that all students deserve to be provided

Support Overview:

The UQ Union Disability Collective and UQ Union Student Rights Collective would like to acknowledge the work that has been done so far to amend the bill to address the many issues and concerns that have been presented since the bill was first introduced earlier this year. In particular we would like to note our support to the following amendments that have thus been made:

1. Proposed section 10 and the CRPD

Like many stakeholders, we were concerned about the original wording and structure of proposed section 10 and how it defined ‘NDIS supports’ when the bill was introduced. Our concerns included the legal problems included with only having selected elements of the United National Convention on the Rights of Persons with Disabilities (‘CRPD’) as well as how this section in particular, could inappropriately restrict supports the NDIS might fund and the burden placed on D/disabled people who access the NDIS to work out what they could and could not spend their NDIS funding on. We would like to acknowledge that these concerns have been recognised and that there have been amendments to address these issues including the fact that ‘NDIS supports’ will be defined by NDIS rules to be made after the bill passes. The commitment to engage with the disability community to develop the rules defining an ‘NDIS support’ once the bill is passed is also welcomed.

Furthermore, we welcome the removal of APTOS as a transitional measure within the proposed amendments for section 10, considering that these guidelines were not designed for legislation and can be unclear and difficult to apply. Thus, potentially leading to participants being provided without support they may need. We recognise this approach as an improvement to the bill as it will avoid the legal and policy problems with APTOS.

2. Right to receive needs assessment report

When the Bill was first proposed, there were many concerns regarding the fact that participants were not given the right to view and comment on their needs assessment report before it is finalised. In particular, we were concerned with Subdivision B, section 37L and how it outlined that the CEO must receive the ‘needs assessment’ report as soon as practicable once the participant has undergone one, leading to potential for an inaccurate report being given to the CEO and the participant losing access to supports that they are eligible for.

We therefore welcome the amendment that has been proposed towards the Bill allowing participants to be provided the opportunity to review assessment reports

Exceptional circumstances for additional funding

When the Bill was first proposed, we were concerned with the fact that it proposed preventing the NDIA from paying any money in relation to a participant’s NDIS plan if the participant has already spent their allocated funds. Given the cost-of-living crisis that we are currently experiencing, and the financial stress and struggles that many students experience we were concerned as there is risk towards the NDIA being legally barred from providing additional funds to a participant who urgently needs the support.

We welcome the amendments to include a list of circumstances that allow a payment to be made above the budgeted amount that participants may receive especially when participants are seeking a plan variation when they’ve experienced fraud or financial exploitation to the need to protect a participant from a threat to their life, health or safety. The NDIS should be there to provide financial support for participants to access the support they need especially when they are experiencing exceptional circumstances and access to this additional funding should not be in question when a participant’s plan may have exhausted.

Review of reforms after 5 years

We welcome the amendment that was proposed that requires a review of the reforms made by the Bill after five years recognising the scale and significance of the reforms that have been proposed for this Bill. It is also appropriate to ensure this review is independent in order to properly consider whether the reforms are working effectively for participants.

Key Concerns:

The UQ Union Disability Collective and UQ Union Student Rights Collective are concerned with the potential this bill may have in negatively impacting D/disabled students, their welfare and the support they can access. Fundamentally, we believe in the self-determination and autonomy of D/disabled people, and we believe that the NDIS needs to be a scheme that is accessible for participants to access. Despite the amendments that have already been proposed towards the Bill, we would like to express our concerns with the following:

• Co-design and consultation for legislative instruments

The UQU Disability Collective and UQU Student Rights Collective believe in the principle ‘nothing about us, without us’, meaning that no policy or decision should be decided or created without the involvement of D/disabled people. Given that the Bill itself, gives the NDIS Minister powers to make rules and determinations

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relating to the NDIS, it is imperative that there continues to be a commitment towards consultation and co-design with the disability community.

We acknowledge that the Government has responded to concerns mentioned about the lack of explicit commitment to co-design in the bill requiring the Minister to have regard to the principle of co-design in subsection 4(9A) of the NDIS Act when making legislative instruments, however, we are concerned with this wording given that these amendments do not legally require the Minister to co-design these instruments, it only requirement them to have regard to the value of co-design. Having this amendment, does not fully address concerns that the disability community could be excluded from the development of these legislative commitments.

Furthermore, we support the Government’s proposed amendment that has been provided through the Revised Supplementary Explanatory Memorandum relating to sheet PA112 addressing the amendments to require the Minister to provide a statement describing the nature of the consultation, the people and organisations consulted, and a summary of the views expressed by those people and organisations, for all legislative instruments made under the NDIS Act. Whilst this amendment is yet to be considered and voted on in the Senate, its recognition noting the importance of Disability Representation Organisations and their role in consultation and co-design activities within the disability community is very much welcomed.

2. Whole of Person Approach

The UQU Disability Collective and UQU Student Rights Collective are concerned with the fact that the bill may not fully account for people with multiple and interrelated disabilities, thus potentially leading to inadequate support being provided. As the Bill currently stands, the proposed needs and budget-setting method would limit considering needs that stem from impairments that meet the disability or early intervention requirements for entry to be able to access the scheme.

We are concerned about this being imposed as it could result in participants receiving inadequate funding for support they need.Whilst we acknowledge that the Government has proposed amendments to further clarify that needs assessments and budget calculations will take into account a participant’s support needs -we believe that the bill needs to be amended to ensure participants are told which of their impairments the NDIA believes meet the disability or early intervention requirements.

3. Constraints on obtaining supports, spending funds and plan management

The UQU Disability Collective and UQU Students Rights Collective are concerned with how the bill proposes new powers allowing the NDIA to impose conditions on how a participant obtains supports, restrict spending of flexible funding, or the fact that it can override a participant’s plan management request. These powers alone

Risk Removing Self-Determination from Participants within the Scheme

risk removing self-determination from participants within the scheme and would create further barriers for participants to access the support they need. We are concerned about the potential impact these new powers could have on the D/disabled community and the lack of safeguards available in consideration to the use of these powers. As such, further clarity needs to be provided and the power being imposed should only be used by the NDIA where it is ‘reasonably necessary’ so it does not become burdensome on the participants.

Information Requests

The UQU Disability Collective and UQU Student Rights collective are concerned with the broad powers that the NDIA will have as part of this bill, to request information and mandate medical assessments and the consequences that are associated when participants are not complying with such requests. Whilst we acknowledge the Bill has now been amended to limit when the NDIA can compel a participant to undergo mandatory medical assessment, and also being able to use these powers where the information could not be reasonably obtained in any other way, we are concerned with how the proposed amendments do not constrain the range and types of requests for information the NDIA can make and only limit the risk of a participant facing adverse consequences for non-compliance.

Furthermore, the NDIA would still be allowed to request a very broad range of information and decision on how to respond to non-compliance may not take into account reasons why a participant might be reluctant to comply with a NDIA request such as the request being invasive, distressing or expensive.

We therefore recommend there to be further clarification on the circumstances under which the NDIA’s new power will be used. We believe that further amendments should be proposed to provide further detail on this matter to ensure that there is better protection for participants of the scheme.

Consultation with First Nations People

The UQ Disability Collective and UQU Student Rights collective support the amendments provided by Senator Lidia Thorpe in relation to ensuring consultation with the First Peoples Disability Network when making legislative instruments and NDIS Rules, enshrining representation of a First Nations member on the NDIA’s Board, and access to supports for people with disability in custodial settings. As highlighted by the Disability Royal Commission, First Nations people with disability are more likely to receive poor health care and have worse outcomes than non-Indigenous people with disability. It is also a key recommendation of the Disability Royal Commission to have a First Nations person on the NDIA board.

Furthermore, more needs to be done to ensure that the NDIS is a culturally responsive scheme.

Conclusion:

We thank you for the opportunity to provide feedback on this bill. We recognise that there is need for reform, however, as demonstrated through this submission, there is more work that needs to be done to best ensure that the NDIS can be a scheme fit for the purpose to put people with disability back at the centre of the NDIS as suggested by the NDIS Review that occurred.

Yours sincerely,

Jordy Duffey Sophy Barlow

UQ Union Vice-President UQ Union Disability Officer

(Student Rights)