NDIA Accountability Project

Amendments to review rights for NDIS access decisions

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Standing Committee on Community Affairs – Legislation Committee

PO Box 6100 Parliament House Canberra ACT 2600

Via email: community.affairs.sen@aph.gov.au

12 July 2024

To the Committee,

We thank you for the invitation to make a submission to the inquiry into the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 (the Bill).

National Legal Aid (NLA) makes this submission (Attachment A) with and on behalf of the eight Australian State and Territory Legal Aid Commissions (LACs) – Legal Aid Queensland, Tasmania Legal Aid, Legal Aid WA, Legal Aid NSW, Victoria Legal Aid, Legal Aid ACT, the NT Legal Aid Commission and the Legal Services Commission of South Australia.

Legal Aid Commissions have been funded since the NDIS was introduced to provide advice, advocacy and representation to applicants reviewing decisions of the National Disability Insurance Agency (NDIA) in the Administrative Appeals Tribunal (AAT) and are the largest providers of specialist legal services to NDIS participants and potential participants in the country. We have also funded and run multiple appeals of AAT decisions in the Federal Court of Australia that have provided guidance and precedent as to how the NDIS operates.

Our experience assisting clients to run appeals across Australia makes us well-placed to comment on the Bill and to make evidence-based suggestions about how it can be improved. We would welcome the opportunity to appear before the Committee to provide further information about our submission including case studies illustrating the potential impacts of the changes.

Please contact Katherine McKernan, Executive Director, National Legal Aid to arrange this or should you require further information.

Yours sincerely,

Louise Glanville Chair, National Legal Aid CEO, Victoria Legal Aid

Attachment A

Overall position

We reiterate our view, outlined in our previous submission (Attachment B) that such significant law and policy change related to the NDIS must be developed in partnership with people with disability, as well as in line with the recommendations stemming from the NDIS review and the Disability Royal Commission, and our related concerns regarding the timeframes and process for the development and consultation of the draft legislation.

We also reiterate our overall concerns that, even with the proposed amendments, the draft legislation presents a significant and concerning shift away from being person centered to linking entitlement to NDIS supports to particular impairments and fails to provide crucial and effective review rights.

Priority recommendations

We are generally supportive of the proposed amendments to the Bill, however, we consider further amendments are essential to provide sufficient protections and to ensure the legislation can work fairly and as intended for participants:

  1. Co-design of the Rules, including definition of NDIS supports: We acknowledge the changes proposed to the definition of NDIS supports, which address concerns raised in our submission regarding the wording of some of the defined supports, and also the use of the APTOS principles. We remain concerned however about the way in which NDIS supports will be defined, given the fundamental role this will play. We support recommendations by the disability community that section 10 require the Minister define “NDIS Supports” in partnership with people with disability.

  2. New decisions must be reviewable: there are a number of new decisions included in the Bill which lack review rights, while significantly impacting participants’ rights and entitlements under the NDIS. It is essential to the fair operation of the Act that these decisions be reviewable.

Section 99 of the Act must be amended to make the following decisions reviewable:

  • A decision that a person meets the access requirements because they meet only the early intervention requirements or only the disability requirements: s 21 (see our submission at 2.3 and 2.4). It is important that the Bill makes clear that a person granted access under only the early intervention pathway can seek a review about whether they also meet the disability requirements. We consider this will be particularly critical for people accessing the NDIS on the basis of a psychosocial disability.
  • A decision that a person meets the access requirements based on a particular impairment: s 21 (see our submission at 2.4) We do not support the shift to link NDIS supports to a particular impairment; this is not responsive to a person’s whole circumstances. If the Bill is passed with this change included, it is crucial that there are rights to seek a new decision as to the “participant’s impairment”, as well as review rights in relation to this decision. These rights should not be temporally confined.
  • A decision that a person has failed to comply with s 46(1) (see our submission at 2.9 and 2.8.3.1).
  • A decision not to pay an amount: s 45 (see our submission at 2.9), and
  • e. A decision to raise a debt: s 182(1) and (3) (see our submission at 2.9). There are no direct provisions for a person to seek a review of an overpayment and/or debt decision and we consider there should be a clear pathway for review of this type.

For decisions about whether a person has failed to comply with s 46(1) (and consequent decisions to raise debts, vary plans, change the management of funding or restrict the flexibility of flexible supports) considerations should include:

  - Whether the person was notified that certain supports were not included in the
   statement of participant supports, or were not intended to be purchased using a
     flexible support budget,
  - Whether the person sought clarification from the NDIA, plan manager or support
   coordinator about whether a certain support was included, and the advice they
   received, and
  - Where it is intended that a debt be raised against a participant, whether recovery
   against another person is possible.
  - Where it is intended that a debt be raised against a participant and they used the
   services of a support coordinator and/or plan manager:
    o Whether the provider offered guidance and assistance to the participant in
            relation to the use of the NDIS amounts, and
    o The conduct of the service providers, including adherence with the NDIS
      Code of Conduct, relevant Practice Standards and NDIS Guidelines.

 See our submission at 2.9.

3. Participants’ status should not be revoked, and their plans should not be suspended, for failure to provide information: sections 30(5)-(6), 30A(7) and 36(4)(b) should be removed (see our submission at 2.7 and 2.8.8).

As outlined in our submission, these proposed changes have the potential to disproportionately impact those who may struggle to comply due to their personal circumstances at the time, due to the impact of their disabilities or due to a lack of the supports they would need to meet the requirements. We also note our further recommendations in section 2.7 regarding the amount of notice required and provision of supports for a grace period following revocation.

Additionally, the Bill should specify that participants will be given notice of an intention to revoke their status and a 90-day period to respond, during which access to supports should continue.

  1. Amendments are required to ensure that reviewers properly consider a participant’s circumstances and make decisions about their support needs

We note the proposed amendments that expressly require the NDIA to provide a participant with a copy of their needs assessment report and to specify circumstances in which payments above what is specified in a statement of participant supports are an improvement, however we still have fundamental concerns about the role of needs assessments.

Under the Bill, needs assessment reports are the sole basis for determining what supports will be funded in a plan (s 32E(2) and (3) and s 32K). If a participant considers that the needs assessment report does not reflect their needs and circumstances, they must seek review of the decision to approve the statement of participant supports and ask that a reviewer arranges a replacement assessment. If that assessment is done, and still does not reflect their needs and circumstances, they would seek review in the AAT, and again

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the decision-maker can arrange a reassessment. The decision-maker is required to take into account any other information as requested by the CEO or held by the Agency, hhowever the decision-maker does not have the power to request and take into account other information provided by the participant or prospective participant, and is required to implement the needs assessment report’s findings, assumptions and conclusions. There is also no way for the decision-maker to direct the assessor to conduct the assessment in a particular way.

This is a significant departure from the current review which allows a reviewer to determine what supports a participant requires, taking into account a range of information and evidence, and with regard to statutory criteria.

An analogy can be made to job capacity assessments used by Centrelink to assess claims for the Disability Support Pension (DSP). Similar to the proposed needs assessment reports, job capacity assessments are tools used to determine how a person’s disability affects them, taking into account medical information provided by the person. If a person seeks review of the decision that they do not qualify for the DSP, an authorised review officer and a Tribunal Member can consider the assessment alongside any other information to determine for themselves whether the person meets the relevant statutory criteria. They are not bound to the job capacity assessor’s conclusions, or limited to asking the job capacity assessor to perform their assessment again and again.

It is necessary for an effective, efficient and fair review process that a decision-maker be able to take into account other information and to apply their own judgement to determine what supports ought to be funded for a participant. This is particularly so in circumstances where there is no one tool that can measure the impact of disability on all participants (see our submission at 2.8.4). A review process based only on assessment and reassessment through needs assessments is likely to be time consuming, inflexible, repetitive and costly.

In our submission we have recommended amendments that would facilitate effective and responsive review, including:

  • That the word “applying” in section 32K(1) be substituted with the word considering,
  • By amending section 32D(6) to include that a decision maker must: ab) be satisfied that the needs assessment report reflects the participant’s need for supports under the NDIS, and ac) be satisfied considering the needs assessment report and any other information of the reasonable and necessary budget provided under the plan.

The purpose of these recommendations is to facilitate reference to the needs assessment as a key element in the decision-making process, but to also enable decision makers to make decisions about the supports that a person needs by reference to all of the materials, rather than engaging in a cycle of assessment and reassessment constrained by the needs assessment.

Given the importance of the needs assessment to decisions about the supports under the Bill, we have also recommended that it is possible for a participant to request:

  • That a needs assessment is done by a practitioner of the participant’s choice, including a treating practitioner or allied health professional,
  • That, considering other available information about their support needs, the NDIA determines a needs assessment is not required,
  • That a needs assessment be varied or corrected,
  • That a reassessment takes place (where currently only the NDIA can initiate a reassessment).

Several small amendments would substantially clarify provisions or provide crucial protections including:

  • Sections 3(1)(d), 4(5) and 4(11) should be amended to include “reasonable and necessary budgets” which should be contextually grounded in the principles of the legislation in the same way that “reasonable and necessary supports” are in the current Act (see our submission at 2.8.7).

  • The words “](other than financial hardship or the disability of the debtor)” should be removed from s 195(b) (see our submission at 2.9.3).

  • Current s 24(1)(e), (2) and (3) should be retained as they are, so that it is not necessary for a participant to demonstrate as part of a request for access their entitlement to particular supports. We consider the reference to “NDIS supports” as part of the access criteria will add a substantial additional practical and legal barrier to accessing the NDIS (see our submission at 2.5).

  • Section 99 of the Act Table Item 3 should be amended to refer to s 30A(1) rather than s 30A(1)(c) (see our submission at 2.7). This clarifies a potential ambiguity around whether a revocation decision on the basis of early intervention supports is technically reviewable.

  • In section 21(1)(b) and (c) “at the time of considering the request” should be amended to “at the time the decision maker is considering the request” (see our submission at 2.6).

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