Every **1\1.t~~tralian GolAt Supplementary Submission to Community Affairs Legislation Committeee Inquiryy intto thhe Nationaal Disabillity Insurrance Schheme Ammendmeent (Gettinng thee NDIISS Bacck oon Tracck Noo. 1) Billa 2024 Jully 2024

Executive Summary

Building on our previous submission to the Community Affairs Legislation Committee, Every Australian Counts puts forth this supplementary submission to emphasise our ongoing concerns regarding the ‘Getting the NDIS Back on Track No. 1’ Bill 2024.

Although recent amendments have addressed some of the issues raised in our initial submission, significant concerns remain. While we support the intent to realign the NDIS with its foundational goals, the proposed changes risk undermining the core principles of choice and control and threaten the Scheme’s primary purpose of providing individually tailored, quality supports that enable people with disabilities to lead full, self-directed lives.

Embedding co-design in legislation

The Bill requires the Minister to consider co-design principles but stops short of making co- design mandatory, potentially leaving future ministers the option to ignore input from people with disability and their representative organisations. Although the proposed amendment for transparency in consultations is a step forward, a legal commitment to co-design is essential to uphold the disability community’s rights in shaping the NDIS.

Whole-of-person approach

The Bill’s new planning framework, based on needs assessments, does not fully accommodate individuals with multiple and interrelated disabilities. By focusing only on specific impairments, it may lead to insufficient funding for those with complex needs. Amendments are necessary to ensure assessments and budgets consider all impairments and other influencing factors, as recommended by the NDIS Review final report.

Review and appeal rights

The Bill lacks a clear mechanism for participants to appeal or replace needs assessments. While provisions for replacement assessments have been introduced, the criteria and processes remain vague, potentially limiting participants’ ability to challenge assessments. To ensure fairness, the right to request a replacement needs assessment should be legislated, and participants must be able to appeal poor quality needs assessments.

Broad powers to require assessments

The Bill grants the NDIA broad powers to mandate medical assessments. Although constraints are proposed, they do not sufficiently limit the scope or consider the distress and expense of such requests. The Bill also imposes severe consequences for non-compliance, including suspension of the participant’s plan or removal from the Scheme. Despite amendments requiring the NDIA to consider reasons for non-compliance, the risk of adverse consequences remains unacceptably high.

Limits on supports, spending, and plan management

The Bill grants the NDIA significant control over participants’ funding use and the ability to override plan management requests, restricting choice and control. There is high risk of these changes being made where the participant is not at fault, for example where the provider has overcharged, or NDIA has failed to explain the participant’s plan or provide implementation support to the participant. Further amendments are needed to provide guidance on how these powers may be used and introduce participant safeguards to maintain the Scheme’s integrity and effectiveness.

Introduction

Every Australian Counts (EAC) is the grassroots campaign that fought for the introduction of the National Disability Insurance Scheme (NDIS) and won. We are made up of thousands of people with disability, families, carers, and those who work to support them who have come together to fight for a fair go for people with disability in Australia.

This is EAC’s second submission with respect to the proposed National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024. As stated in our previous submission, EAC has grave concerns with the practical implications of this Bill, and the lack of protections for participants therein.

Every Australian Counts is pleased that some improvements have been made to the legislation since the last hearing, but significant concerns still remain, and more amendments are needed. There are a number of outstanding issues that must be addressed before the Bill is passed, including the lack of legislative commitment to co-design, failure to utilise a whole-of-person approach, unclear review and appeal rights, and limits on support and spending, among others.

Our submission has drawn from community forums as well as the advice and feedback of EAC’s various allies and supporters.

EAC Submission #2 on the ‘Getting the NDIS Back on Track’ bill Page | 3

Contents

• Executive Summary
• Introduction
• Embedding co-design in the legislation
• Whole of person approach
• Concerns for People with High Support Needs
• Unclear review and appeal rights
• Broad powers to require assessments
• Limits on supports, spending, and plan management
• Conclusion
• Recommendations
• Contact

Embedding co-design in the legislation

• The Bill includes a provision that requires the Minister to “have regard to” co-design principles when making legislative instruments related to the NDIS, including Rules and determinations. However, it stops short of making co-design a legal requirement.
• The absence of a legal mandate for co-design means that future Ministers could potentially disregard the input of people with disability and their representative organisations. True co-design ensures that those directly affected by policies are given equal decision-making power, leading to more effective and inclusive outcomes.
• The importance of locking in a commitment to genuine consultation and co-design is paramount to upholding the rights and voices of the disability community in shaping the NDIS.
• Following the Committee’s recommendation, the Government proposed a further amendment requiring the Minister to provide a statement on the nature and details of the consultation for all legislative instruments made under the NDIS Act. The Supplementary Explanatory Memorandum notes in particular the important role of Disability Representative Organisations (DROs) in these processes. This amendment would provide greater transparency and increase the likelihood of DROs being involved; however, a legislated commitment to co-design is still required. Consultation with DROs alone is not sufficient. People with disability and families throughout Australia must be included in all co-design and consultation about the NDIS and foundational supports.

Whole of person approach

• The Bill proposes a new planning framework, to be based on a needs assessment conducted under proposed new section 32L. This framework does not fully accommodate people with multiple and interrelated disabilities, risking inadequate support for this group.
• By limiting needs assessments and budget-setting methods to impairments that meet specific disability or early intervention criteria, the Bill imposes artificial distinctions that can result in insufficient funding for those with complex and interrelated needs. People with disability are impacted by all of our disabilities, not merely the ones that NDIA arbitrarily determine to have met access criteria. People with disabilities are whole people - our diagnoses cannot and should not be separated.
• Amendments to ensure that assessments and budgets take a “whole of person” approach to account for all impairments impacting a person’s needs are crucial to provide comprehensive support that reflects the true extent of a participant’s requirements, in line with the recommendations in the NDIS Review’s final report.
• In response to concerns raised by the disability community, the Government has proposed amendments in the Senate that would allow the impact of non-qualifying impairments on the qualifying impairment to be taken into account. Other factors that may have an impact, such as environmental factors, are also to be considered; however the amendment does not ensure that the budget determination considers these factors.

Concerns for People with High Support Needs

• We continue to hold deep concerns that a funding algorithm will discriminate against people with high support needs by limiting funding to 1:3 shared support ratios, undermining their rights to choice and control over living arrangements and supports.
• This is unacceptable and contrary to Australia’s obligations under the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD).

Unclear review and appeal rights

• The Bill lacks a clear mechanism for participants to appeal or replace their needs assessments.
• Although the amended Bill introduces provisions for replacement needs assessments, the criteria and processes for obtaining these replacements remain ambiguous, potentially limiting participants’ ability to challenge inadequate or incorrect assessments.
• The NDIS rules could still shape the circumstances under which a participant may seek a replacement needs assessment. As such, the right of participants to obtain a replacement needs assessment upon request should be legislated into the Bill.
• Clear, accessible, and fair appeal and review processes are essential to uphold the rights of participants to accurate and appropriate needs assessments.

Broad powers to require assessments

• The Bill grants the National Disability Insurance Agency (NDIA) extensive powers to mandate medical assessments, which may be difficult for participants to obtain.
• While some constraints are proposed, these do not sufficiently limit the scope of information that can be requested, nor do they fully consider the potential distress, expense, extensive wait times or invasiveness of such requests.
• Narrowing the scope of mandatory assessments and ensuring they are only used when absolutely necessary would help mitigate undue burden on participants.
• The Bill also imposes consequences on participants who fail to comply, including suspension from the Scheme or removal of participant status entirely. While the latest amendments require the NDIA to consider several factors when deciding whether a participant’s failure to comply was reasonable, there is still an unacceptable risk of adverse consequences to the participant.

Limits on supports, spending, and plan management

• The Bill gives the NDIA significant control over how participants can use their funding, restricting their choice and control over their own supports. It also grants the NDIA new powers to override a participant’s plan management request.
• Such restrictions could undermine the flexibility and individualised nature of the NDIS, which is designed to empower participants to tailor their supports to their unique needs and goals. Ensuring participants maintain choice and control over their funding is vital to the integrity and effectiveness of the NDIS.
• There are insufficient protections for participants in how these powers may be used, or in what circumstances debts may be raised. The lack of protections mean that these powers may be invoked in situations where the participant is not at fault, for example where a provider has overcharged, or where the NDIA has not adequately explained the plan and how it should be used, and the participant has not had sufficient support to implement their NDIS plan.
• Like many in the disability community, Every Australian Counts are deeply concerned about the broad nature of these new powers, calling for amendments to provide further guidance on how these powers may be used and introduce participant safeguards.

Conclusion

Every Australian Counts urges the Senate to consider these concerns seriously and make essential amendments to the ‘Getting the NDIS Back on Track No. 1’ Bill 2024. The Bill, in its current form, risks undermining the core principles of the NDIS and could negatively impact people with disability and their families.

Amendments to the Bill should be made to:

• Legally require co-design with the disability community,
• Ensure a whole-of-person approach in needs assessments and budgeting,
• Establish clear review and appeal rights for participants,
• Limit the NDIA’s powers to mandate medical assessments,
• Improve protections for participant human rights, and
• Preserve participant choice and control over their support.

Recommendations

1) Amend Section 4

to legislate a requirement for meaningful co-design and consultation with people with disability and their representative organisations in designing and implementing NDIS reforms. This must include:

• Leadership by people with disability and their representative organisations.
• Engagement plans and timelines which are publicly available and promoted to people with disability.
• Meaningful codesign with people most impacted by any changes, including people with disability living in regional, rural and remote areas (prioritising geographically isolated people), First Nations people, Culturally and Linguistically Diverse (CaLD), LGBTQIA+, and people with diverse disability types.
• The provision of sufficient funding for these processes to be undertaken.

2) Implement the proposed Amendment 18 requiring the Minister to provide a statement describing the nature and details of the consultation.

3) Implement proposed Amendments 6, 7, 8, 9, 10, and 11 to promote a more holistic approach to needs assessment.

4) Amend Sections 24 and 25 to include more comprehensive criteria that do not disadvantage people with fluctuating or less visible disabilities such as psychosocial disabilities. This amendment should reflect an understanding that disability impacts can vary greatly, and that recovery is not always a linear or achievable outcome for all. No changes to eligibility and access should occur until foundational supports are established and fully functioning.

5) Amend subclause 32L to require that the Needs Assessor be a qualified allied health professional or social worker with experience conducting assessments and in the participant’s disability type(s).

6) Amend subclause 32L(5) to require that the Needs Assessor provide a draft needs assessment report to the participant for review and corrections, before it is given to the NDIA. As recommended in the NDIS Review final report, the Needs Assessment must take a ‘whole of person’ approach to the assessment.

7)

Amend the bill to include a requirement for the needs assessment tool(s) to:

• Be meaningfully co-designed and tested by people with disability from diverse backgrounds, families and carers, disability representative organisations, academics and health professionals, advocates and service providers.
• Be developed using evidence from Australian and international peer-reviewed research about assessing the support needs of people with disability, and considerate of the impact of assessments on people with disability.
• Not disadvantage people with 24/7 support needs and ensure that they have the 1:1 support they need to live independently and not be forced to share support.

8)

Amend Sections 26 and 36 of the Bill to require the NDIA to fully fund the cost of any assessments and reassessments of participants requested by NDIA.

9)

Amend Section 10 of the bill to ensure that ‘Reasonable and Necessary Supports’ continue to be the fundamental core of the NDIS, replacing the introduction of narrowly defined ‘NDIS Supports’.

10)

Remove Section 32H so that a flexible budget can be truly flexible. The provisions outlined in this section can be achieved when necessary by allocating stated supports

11)

Require the NDIA to provide draft budgets to participants for review, before they are finalised.

12)

Introduce a new provision or amend existing sections to make ‘needs assessments’ a reviewable decision, allowing participants to appeal or review these assessments and related plan decisions. This would involve changes to Section 99 to include needs assessments as reviewable decisions.

13)

Address the extensive use of delegated legislation by amending relevant sections, such as those giving rule-making powers to the Minister (e.g., Sections 27, 32J, and 43(2C)(c)). These amendments should require more substantial public scrutiny and include key decisions about NDIS support and access criteria in the primary legislation rather than allowing them to be determined solely by ministerial rules or determinations.

14)

Amend Section 43 to include clear parameters around when and how the NDIA can override a participant’s preferred plan management type.

15)

Amend the bill to fully embrace the comprehensive framework of the UNCRPD.

16)

Amend the bill to improve protections for participants where their eligibility is being reassessed. There must be clear criteria under which eligibility may be reassessed, and constrictions on how often a participant’s eligibility is reassessed.

17)

Amend the bill to improve protections for participants where the NDIA have been unable to contact them. Consideration must be given to the fact that people fear answering phone calls from private numbers, may be homeless or have recently moved residence, and other factors impacting their ability to respond to correspondence from the NDIA.

18)

Incorporate stronger quality and safeguarding measures as recommended by the Disability Royal Commission.

EAC

Submission #2 on the ‘Getting the NDIS Back on Track’ bill

Page | 9

Contact

Independent Chair:

Dr George Taleporos

Email: communications@everyaustraliancounts.com.au Web: www.everyaustraliancounts.com.au