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Second Response to Community Affairs Legislation Committee Inquiry by ARATA

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The Australian Rehabilitation and Assistive

Technology Association (ARATA) Second Response to the Community Affairs Legislation Committee Inquiry into the National Disability Insurance Scheme Amendment (Getting the NDSL Back on Track No. 1) Bill 2024

11th July 2024

Prepared by

arata participation through technology

The Australian Rehabilitation and Assistive Technology Association (ARATA)

ARATA would like to acknowledge and thank the many ARATA members who contributed their knowledge and expertise to inform this submission.

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Table of Contents

  1. About the Australian Rehabilitation and Assistive Technology Association (ARATA) and Our First Submission to the Community Affairs Legislation Committee Inquiry ………………………………………….

  2. ARATA’s Recommendations to the Community Affairs Legislation Committee Inquiry After Bill Amendments ……………………………………………………………………………………………………………………………..……

2 | Page Second submission to the Community Affais Legislation Committee Inquiry by ARATA

About the Australian Rehabilitation and Assistive Technology Association (ARATA)

and Our First Submission the Community Affairs Legislation Committee Inquiry

The Australian Rehabilitation and Assistive Technology Association (ARATA) is the national non- profit peak body representing assistive technology stakeholders. ARATA works to advance access to rehabilitation and assistive technologies, and promote practices that ensure positive outcomes from their use for people of all abilities. ARATA includes a membership of both National Disability Insurance Scheme (NDIS) participants and NDIS providers, as well as other assistive technology (AT) stakeholders across all experiences of individual AT use, the provision of AT advice (e.g. via health professionals), AT supply, product development, and AT research and education in Australia and internationally. ARATA is run by a voluntary Board of Management that includes both NDIS participants and NDIS providers. For details, including our constitution, see https://www.arata.org.au/about-ARATA/mission/

ARATA has made several previous submissions to the Australian Government regarding the NDIS, and invested in strategic projects to inform the Scheme development and enhance an effective AT ecosystem. Most recently, ARATA made a submission to the Community Affairs Legislation Committee Inquiry into the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 in May 2024. This second submission by ARATA is now being made after review of the Bill amendments made in early June 2024, and the Committee report published later that month.

To access ARATA’s first submission made to the Committee, and for a full list of previous submissions, go to http://www.arata.org.au/education-resources/publications/

ARATA’s Recommendations to the Community Affairs Legislation Committee Inquiry After Bill Amendments

Below is a summary of ARATA’s original recommendations relating to the draft Bill and Explanatory Memorandum in May 2024; ARATA’s commentary on changes made via Bill amendments made in June 2024; and identification of perceived issues that remain with the current draft Bill and Revised Explanatory Memorandum.

ARATA’s position in the original submission (May 2024)

ARATA’s respond to Bill amendments(June 2024)

ARATA holds concerns about the transparency of various processes outlined, and proposes further clarity is required, in the Bill.

• ARATA acknowledges that there have been various amendments to the Bill in June 2024 which have addressed some of the original issues identified by both our Association and its members in our first submission to the Committee, and through other submissions made.

• ARATA continues to hold concern about the transparency of some of the processes outlined in the amended Bill, which defer to the future development of rules.

• ARATA believes some further clarification is required within legislation.

• To achieve this, ARATA proposes more time and consultation is required with both the disability community, and States and Territories, prior to a final Bill being passed.

The sector needs more detail about and revision of existing Bill drafting on the assessment process and planning framework.

• ARATA was pleased to see that the Revised Explanatory Memorandum states that NDIS participants will have the ‘opportunity to review the [assessment] report and provide input and feedback before the CEO makes any planning decisions’.

• Beyond this, however, ARATA believes that further detail and amendments are required regarding the assessment process and planning framework proposed.

• Of particular note, ARATA is concerned that the draft Legislation demonstrates an ongoing failure to assess and fund participants at a ‘whole of person’ level.

  • ARATA notes ongoing reference to the proposed “assessment tool”, which will be prescribed in a legislative instrument“ and that “it must assess the participant’s need for supports only in respect of impairments that meet the disability or early intervention requirements”. Specific to the focus of our Association and its members, this ‘whole of person’ approach is particularly important to achieve good assistive technology outcomes within the NDIS.
  • Currently, the needs assessment and budget-setting method is still limited to considering needs that stem from impairments that meet the disability or early intervention requirements for entry to the Scheme. In contrast to this, we know that – for many NDIS participants – multiple and interrelated disabilities can be experienced for which a person will need access to supports – including assistive technology and/or home modifications – to meet these disability-related needs and work towards or achieve their stated goals.
  • Whilst Subsection 32L(8) allows the Minister, by legislative instrument, to determine both the assessment tools to be used in undertaking needs assessments and the requirements for undertaking assessments (such as a requirement for a person undertaking the needs assessment to have certain skills or qualifications), ARATA suggests that the Bill should indicate that the assessment must be undertaken by a suitably qualified and experienced allied health professional operating within their

Scope

  • ARATA also believes that – both specific to our

Association’s focus on assistive technology and home modifications, and beyond those types of

NDIS-funded supports – evidence of a commitment to codesign of this process with both

representatives from the disability community and professional peak bodies to determine the most

suitable assessment tools and the requirements for undertaking assessments is necessary, and ARATA will contribute to this codesign.

  • ARATA believes that these matters require further consideration and revision before the Bill is passed. More detail on NDIS Budget setting, and
  • ARATA acknowledges that some more detail on NDIS Budget setting, and appeal processes, is required.

Regarding budget setting:

  • ARATA is pleased to see that the Bill now includes a list of circumstances that allow a payment to be made above an original plan allocation in the case that a participant’s allocated funds have been expended, including as a result of a significant change their support needs; because the participant has experienced fraud or financial exploitation; to prevent or lessen a threat to the participant’s life, health, or safety (whether current or future); or information is provided after a plan comes into effect (for example the information is a quote for a support such as an item of high-cost assistive technology or home modifications).

**We believe this provides better protection for participants who might be at risk if additional NDIS funding is not provided within a plan period.

  • However, the powers allowing the NDIA to impose conditions on how a participant obtains supports, restrict spending of flexible funding, or override a participant’s plan management request still exist in the Bill, without amendment – even though the Committee acknowledged concerns that exist regarding this. Clarity on the circumstances in which the new powers will be used is required. Regarding appeals processes:
  • ARATA was pleased to see amendments such that if an NDIS participant disagrees with conclusions in their needs assessment report, they can request a replacement needs assessment. We also acknowledge now that if a participant disagrees with the funding provided in their NDIS plan, they can seek review of that funding decision and an internal reviewer or Tribunal member would have the power to order a replacement needs assessment as part of that review process.
  • We note however that a decision as to whether or not to order a replacement needs assessment would not be a reviewable decision, and that the Bill has not been amended to enable a participant’s right to at least one replacement assessment.
  • ARATA believes that these matters require further consideration and revision before the Bill is passed. Evidence gaps exist to inform decision • ARATA continues to hold this position, as outlined making on evidence-based support. in our original submission.

Decision making regarding the

  • Whilst revisions made provide some further definition of terms, the definition ‘classes’ of NDIS participants has still not been provided and

remains unclear given the linking of ‘classes’ to types of supports received – the Explanatory

Memorandum advises “these classes may be determined by reference to any identifiable characteristics such as age, location and types of supports that they receive”. At times, participant

‘cohorts’ are then referred to.

  • Further detail on definitions of participant classes,

and linked decision making regarding streaming, is necessary within legislation.

The reliance in the Bill on use of ‘foundational supports’ as an alternative to NDIS-funded supports is problematic.

  • Section 27 of the Bill is noted to “allow the NDIS to provide clarity about whether the person is eligible and should apply for the NDIS or whether supports should be sought outside of the Scheme” and the

Explanatory Memoranda provides a scenario of a person with psychosocial disability with complex but episodic disability-related support needs.

  • The reliance in the Bill on use of ’foundational

supports’ or other supports funded outside the NDIS relating to a person’s disability - as an

alternative to NDIS-funded supports – remains problematic when there has been a significant disinvestment in foundational supports in Australia.

  • This reliance has not been addressed within Bill amendments, and should be closely considered by the Committee.

People aged over 65 years of age who

  • This has not been addressed, and should be considered.

are NDIS participants need to be in focus.

What constitutes an NDIS support, as • ARATA acknowledges that the Government has listed in the Bill, is too narrow. recognised these concerns and amended the Bill.

                                  The amended section 10 says ‘NDIS supports’ will
                                  be defined entirely by NDIS Rules to be made after

                                       the Bill passes. The Government says it will engage
                                       with the disability community to develop the Rules

                                           defining an ‘NDIS support’."

  • ARATA endorses this engagement and

                                             consultation, with the aim that it safeguards
                                         against the definition of ‘NDIS supports’ being too

                                    narrow.

In conclusion, ARATA appreciates the opportunity to provide this second submission to the

Committee. We acknowledge that some of the amendments made to date have addressed some of the concerns our Association and its members raised in our original submission. Issues do however

still exist in the draft Bill and Revised Explanatory Memorandum. These need to be addressed before the Bill is passed. Importantly, authentic codesign with people with disabilities and providers

is required to develop rules that are fit-for-purpose for an effective NDIS in Australia – this will take 时间 and genuine effort on behalf of Government and our community.

ARATA invites the Committee to contact our Association if further information is required, using the contact details listed below.

Associate Professor Libby Callaway Strategic Executive Advisor The Australian Rehabilitation and Assistive Technology Association (ARATA)

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