@@Attn. Legislative Affairs Committee- National Disability Insurance Scheme (NDIS) Amendment Bill 2024 (*hereafter called ‘the Bill’)

Occupational Therapy Community of Practice Submission

PROPOSING CRITICAL ASSESSMENT-FOCUSED AMENDMENTS

12 July 2024

The NDIS Occupational Therapy Community of Practice (NDIS OT CoP) is comprised of over 10,000 occupational therapist and was created to establish best practice and optimal outcomes for, and with, NDIS participants. We welcome the Inquiry by the Senate Standing Committee on Social Affairs, Legislative Committee into the Bill. This supplementary submission follows our original submission, dated April 26th 2024 and supplementary submission made on 14th May 2024. We reiterate all feedback provided in both earlier submissions and express our concern that issues raised in these submissions have either not been addressed, or have only partly been addressed, by recent amendments.

Here, we raise 4 key critical issues with the current iteration of the Bill:

 1. The policy vision for NDIS 2.0 has not been shared, despite the current Bill moving through parliament and a stated intention to attempt additional legislation changes. Clearly there is a policy vision underpinning this and future intentions to change legislation. The vision, including any departure from commitment to a social model of disability, and alternative ideology underpinning policy change, must be shared transparently as a priority to enable reasonable debate, discussion and engagement with this democratic process of legislation change. Further, economic modelling underpinning the policy vision is required to enable comprehensive evaluation of the proposals, to enable scrutiny of their impact on the lives of people living with disability and those who support them, including access to occupational therapy.

 2. Amendments to the primary legislation are required to ensure that NDIS assessments of support need are valid, fair, comprehensive. While we acknowledge that details of assessments will be further co-designed through the legislative instrument and rules, there are fundamental principles of assessment that must be enshrined in primary legislation so that the rules can be built upon solid scaffolding. Please refer to Fig 1 for detailed recommendations on assessment. We draw on an international comparison, the legislated Assessment of Need contained within Ireland’s Disability Act 2005, to compile our recommendations. We further note the ANAO submission to this Senate Inquiry highlighting existing issues with the current ‘method’ of translating assessment scores to budget amounts; and again draw the Committee's attention to the CoP Supplementary Submission to the Bill Inquiry where we provide detailed assessment-focused risk-analysis from both human, and Scheme Sustainability, perspectives.

3. The NDIS OT Community of Practice commends the work of the Parliamentary Joint Committee on Human Rights in Report 5 of 2024 and supports their position “The committee considers that introducing a definition of NDIS support, with most of the detail to be set out in future NDIS rules, and requiring the minister to have regard to the financial sustainability of the NDIS in determining certain matters, risks being incompatible with multiple rights and suggests various amendments that may assist with the proportionality of these measures.” (See Fig 2).

4. The NDIS OT Community of Practice highlights the significant implementation risks that this Bill will bring, and recommends delaying passing this Bill to enable development of foundational supports with State and Territories; NDIS Rules AND a clear, risk-assessed implementation plan. This will safeguard participant well-being and access to supports during major policy transition periods.

FIG 1. RECOMMENDED ASSESSMENT-FOCUSED NDIS BILL AMENDMENTS

NDIS Bill Amendments are needed to ensure fair NDIS Assessments. At a minimum, the primary legislation should be updated to include:

1. 💥 A definition of ‘assessment of support need’ & a statement of key determinations to include in the ‘assessment report’.
2. 💎 Clarify that assessors will be qualified allied health professionals working within scope of practice. Section 147 of the Bill to be amended to include an allied health professional role on the NDIS Independent Advisory Council to provide expert input to NDIS assessments on an ongoing basis.
3. 🧠 The assessors will be independent in the performance of their functions
4. 🌻 That assessment of need will be carried out in good faith, irrespective of the cost of identified support needs.
5. 🌱 Where the assessment finds identified supports to be the responsibility of another system (health, education), this is clearly stated in the assessment report and that these systems must have capacity to meet the identified need.
6. 🏆 The assessment will include ‘whole of person’ support needs, focused on broader functional capacity, not limited to a single impairment (s)
7. 📃 Both a draft copy, & finalised version of the full assessment report will be provided to the participant.
8. 🛎 The right to at least one replacement assessment; and additional assessments if priors were found to be genuinely flawed.
9. ⌛ The assessment report will include a review date.
10. 📃 📃 The Support Needs Assessment will consider existing assessments and information provide by the participants current support team.

International disability legislation examples signpost how to ensure primary legislation can provide the basic scaffolding needed for assessment of support need. In Ireland, there is a legislated Assessment of Need contained in the Disability Act (2005). The Disability Act 2005 sets out the details of the Independent Assessment of Need. See extract below and please consider amending the existing NDIS Bill accordingly.

Disability Act 2005, Section 8: Independent Assessment of Need (extract)

(4) An assessment officer shall be independent in the performance of his or her functions.

(5) An assessment under this section shall be carried out without regard to the cost of, or the capacity to provide, any service identified in the assessment as being appropriate to meet the needs of the applicant concerned.

(6) Where an assessment officer carries out or arranges for the carrying out of an assessment under this Part, he or she shall prepare a report in writing of the results of the assessment and shall furnish a copy of the report to the applicant, the Executive, and, if appropriate, a person referred to in section 9 (2) and the chief executive officer of the Council.

(7) A report under subsection (6) (referred to in this Act as “an assessment report”) shall set out the findings of the assessment officer concerned together with determinations in relation to the following— a) whether the applicant has a disability, b) in case the determination is that the applicant has a disability— i) a statement of the nature and extent of the disability, ii) a statement of the health and education needs (if any) occasioned to the person by the disability, iv) a statement of the period within which a review of the assessment should be carried out.

REFERENCE Disability Act 2005, Section 8 (irishstatutebook.ie).

FIG 2: Extract from the Parliamentary Joint Committee on Human Rights tabled its Report 5 of 2024

On 26 June 2024 the Parliamentary Joint Committee on Human Rights tabled its Report 5 of 2024, which provides an analysis of the human rights compatibility of recently introduced bills and legislative instruments.

• The committee considers that introducing a definition of NDIS support, with most of the detail to be set out in future NDIS rules, and requiring the minister to have regard to the financial sustainability of the NDIS in determining certain matters, risks being incompatible with multiple rights and suggests various amendments that may assist with the proportionality of these measures.