Disability Intermediaries Australia Limited
National Disability Insurance Scheme Amendment (Getting The Nd Back On Track No. 1) Bill 2024
Community Affairs Legislation Committee Submission
July 2024
Acknowledgement of Country
DIA acknowledges the traditional owners of the lands across Australia. We pay our respects to their Elders, past, present and emerging.
DIA acknowledge the ongoing connection that Aboriginal and Torres Strait peoples have to this land and its waters. DIA recognises Aboriginal and Torres Strait peoples as the original custodians of this land.
UN CRPD Acknowledgement
DIA acknowledges the United Nations Convention on the Rights of Persons with Disabilities (CRPD).
On 30 March 2007 Australia became a signatory of the CRPD, stating that:
“Australia recognises persons with disability enjoy legal capacity on an equal basis with others in all aspects of life. Australia declares its understanding that the Convention allows for fully supported or substituted decision- making arrangements, which provide for decisions to be made on behalf of a person, only where such arrangements are necessary, as a last resort and subject to safeguards.
Australia recognises the rights of persons with disability to liberty of movement, to freedom to choose their residence and to a nationality, on an equal basis with others.”
SUBMISSION BY
Disability Intermediaries Australia Limited.
CITATION
If you wish to cite this submission, please use: DIA, 2024, NDIS Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 Submission. Disability Intermediaries Australia Limited, Melbourne, Australia.
ABOUT DISABILITY INTERMEDIARIES AUSTRALIA
Formed in late 2018, DIA is Australia’s peak body for non-government disability intermediary service organisations and practitioners. Collectively, DIA members deliver Support Coordination and Plan Management services for Australians with all types of disability.
DIA members (providers and practitioners) deliver Support Coordination and Plan Management services to more than half of all NDIS Participants.
As the NDIS continues to make intermediary services better suited to the self-determination goals of people with disability, DIA will be an active voice for support and reform to intermediary products so that they are more reputable, resilient and viable.
Disability Intermediaries Australia Limited 4
SCOPE OF SUBMISSION
Disability Intermediaries Australia (DIA) welcomes this opportunity to make a submission Community Affairs Legislation Committee regarding the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Bill 2024 (the Bill).
On 27 June 2024, the Senate referred the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 to the Community Affairs Legislation Committee for inquiry and report by 5 August 2024. This submission provides DIA’s views, specifically in relation to the proposed changes within the Bill.
Our submission is evidence based, drawing on market insights from our extensive member network and market driven research. A well-functioning market of supports and services is one of the foundational pillars of the NDIS.
It is critical to realising the vision of the Scheme, whereby people with disability are living independent yet connected lives and empowered through having choice and control over the supports they engage.
DIA are thought leaders in understanding and building of Intermediaries role and function within the market. At their core, Intermediaries support participants to navigate, guide, capacity build and make self-directed decisions whilst overseeing and monitoring Participant service providers.
DIA acknowledges the considerable work to date undertaken by the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, the NDIS Review, the Department of Social Services (DSS), the NDIS Quality and Safeguards Commission (NDIS Commission) and the National Disability Insurance Agency.
DIA notes that the Commonwealth Government is yet to formally respond to the recommendations by the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability and the NDIS Review.
DIA understands that a package of legislative reforms, beyond those being considered by the Committee, will be required to realise the implementation of recommendations made by the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability and the NDIS Review.
No machine-readable text was extracted from this page.
GOVERNMENT SHOULD RELEASE DRAFT RULES
The Bill requires that Rules and other legislative instrument be developed to operationalise many key amendments. These Rules and determinations will be pivotal in shaping how the NDIS operates, including the allocation of funding responsibilities between the Commonwealth, states and territories.
The absence of these drafts has created uncertainty about their content. Given that the practical implications for participants and providers depend heavily on these Rules and determinations, it is essential that they are developed in close consultation with people with disability and the sector. For example, the government’s power to make Rules specifying the supports the NDIS will fund is a critical aspect of the Bill.
However, without the draft Rules being released, the public remains unaware of how these Rules will define what is funded under the NDIS, what will be funded by states and territories through foundational supports and what is a mainstream service obligation. This lack of clarity makes it challenging for stakeholders, particularly people with disability, to understand how the NDIS will operate and how their needs will be met.
It is essential that draft Rules are developed in close consultation with people with disability and the sector and are released for public consideration before being enacted.
Furthermore, delegated legislation may not be appropriate for all aspects of the changes made under the Bill. Significant matters of policy, such as access provisions, should be included in the primary legislation to ensure greater parliamentary scrutiny and transparency in critical NDIS policy.
More specifically, this recommendation should be applied promptly to the draft Rules that specify what supports should be funded under the NDIS. This will provide much-needed clarity and transparency regarding the division of funding responsibilities between the Commonwealth and the states and territories through foundational supports.
No machine-readable text was extracted from this page.
2. GOVERNMENT SHOULD CLARIFY FOUNDATIONAL SUPPORTS FIRST
The Australian Government should prioritise the implementation of NDIS Review recommendations on foundational supports, including the formalisation of these recommendations through a Foundational Supports Statement of Intent.
Changes proposed to definitions of NDIS supports in the Bill attempt to address concerns raised around the use of “reasonable and necessary” to determine what supports the NDIS will fund. The Bill grants the Government the power to specify the supports funded under the NDIS through Rules. However if these Rules assume that foundational supports will be able to be accessed by people with disability outside the NDIS before these are available, there is a risk that some people with disability will be left without the supports that they need.
The development of foundational supports is crucial before defining these Rules.
The NDIS Review addressed issues with the current ecosystem of supports as their first set of recommendations. It called for:
- Develop Foundational Supports Statement of Intent: NDS recommend that National Cabinet agree to jointly design, fund and commission an expanded and coherent set of foundational disability supports outside individualised NDIS budgets.
This agreement should be formalised in a Foundational Supports Statement of Intent, which defines foundational supports through general and targeted streams of activity, including the new Navigator function as recommended by the NDIS Review.
The Statement should represent a commitment from all governments to all people with disability that foundational supports will be developed and funded as a critical part of an effective and sustainable disability ecosystem.
- Develop Foundational Supports Strategy: This strategy should articulate the vision, desired outcomes and in-principal investment priorities for foundational supports. It should define the vision for foundational supports, outline key outcomes expected, agree in-principle to increased investment, and detail how all governments will work
Together to Ensure Foundational Supports Meet Current and Emerging Needs
of people with disability.
DIA strongly recommends that the Australian Government prioritises the implementation of the NDIS Review recommendations concerning foundational supports.
DIA understands that developing a comprehensive set of co-designed, tried and evaluated foundational supports will take time. However, DIA urges the Department of Social Services, in collaboration with state and territory governments, to commit to a Statement of Intent and expedite a comprehensive Foundational Supports Strategy, as recommended by the NDIS Review.
Disability Intermediaries Australia Limited 10
National Disability Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024
3. PLAN-MANAGEMENT
Section 43 of the NDIS Act currently allows participants to manage their funding through self-management, plan management, or agency management. This flexibility is crucial as it empowers individuals to tailor their supports to their specific needs and circumstances.
However, the proposed amendments introduce provisions that appear to prioritize a specific management model, potentially restricting participants’ ability to choose the most suitable option for themselves. Such a limitation could undermine the core principles of autonomy and self-determination that underpin the NDIS framework.
KEY CONCERNS:
- Reduction in Participant Choice: The amendments infer a preference for a particular management method (agency-managed) as a default, which could limit participants' ability to select the most appropriate model for their individual circumstances.
This reduction in choice could disproportionately impact those who have found self-management or plan-management most effective in meeting their needs.
-
Impact on Autonomy and Control: The NDIS was designed to promote participant autonomy and control over their supports.
Any legislative changes that restrict or influence management options could erode this autonomy, potentially leading to diminished quality of life outcomes for individuals with disabilities.
-
Potential Unintended Consequences: Mandating or significantly favouring a specific management model may result in unintended consequences such as increased administrative burdens, delays in service provision, or reduced service quality.
For example, if these provisions were introduced today, a participant could find themselves with no supports as their services are currently delivered by ‘unregistered providers’. Should the CEO make the decision to require this participant to be Agency-Managed these services would
be required to cease on the spot. This is of significant concern in rural and remote settings.
These outcomes could undermine the overall effectiveness of the NDIS in meeting the diverse and complex needs of its participants.
- Need for Stakeholder Consultation: It is crucial to ensure that any amendments to the NDIS Act are developed in consultation with stakeholders, including people with disabilities, their families, advocacy organizations, and service providers.
Meaningful, genuine and detailed co-design (not just consultation) is essential to understanding the practical implications of proposed changes and ensuring they align with the current operating and service environment along with the principles and objectives of the NDIS.
PROPOSED AMENDMENTS:
In light of these concerns, DIA proposes the following amendments to the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024:
1. Retention of Flexibility:
Amend Section 43 to explicitly preserve the current options for funding
management (self-management, plan-management, agency-
management) without introducing preferential treatment or default for
any particular model.
This ensures that participants can continue to choose the management
method that best suits their individual circumstances and preferences.
2. Enhanced Participant Decision-Making:
Strengthen provisions that support informed decision-making by
participants, including access to clear and unbiased information about
the benefits and implications of each management option.
This empowers individuals to make choices that align with their goals
and preferences.
3. Safeguards Against Coercion or Influence:
Introduce safeguards to prevent coercion or undue influence from any
party (including service providers or government agencies) in the choice
of funding management.
Disability Intermediaries Australia Limited 13
Page 14
This includes robust mechanisms for complaints and appeals to address instances where participants feel pressed to adopt a particular management model against their wishes.
4. Continuous Stakeholder Engagement:
Establish a regular consultation mechanism with stakeholders to review the effectiveness of Section 43 and its impact on participant outcomes.
This ensures that any future amendments are informed by evidence and stakeholder feedback, promoting continuous improvement in the NDIS framework.
Disability Intermediaries Australia Limited 14
No machine-readable text was extracted from this page.
4. NDIS SUPPORTS
The Bill includes a proposed new definition of “NDIS supports” which is intended to provide clarity on what supports will be funded by the NDIS and what will not.
However, the proposed amendments are far too prescriptive and are likely to see the creation of funded and not funded lists being generated that will result in gaps in coverage.
It is crucial that the new definition ensures that supports are necessary for a person’s inclusion in the community, facilitate personal mobility or prevent further impairment.
It is equally important that previsions within the legislation be created to ensure that if a specific support cannot be ruled out of the NDIS if they are otherwise enshrined within the legislation.
For example, if Plan-Management was defined as not an NDIS Support this would see a participant being able to select this as a management option, yet not receiving support to implement such a request.
Foundational supports must clearly and unequivocally be founded and formed within the legislation.
As such defining which supports are the responsibility of the Commonwealth Government through the NDIS and which are the responsibility of state and territory governments (that is, “foundational supports”) should be clearly articulated in the legislation to ensure a clear and unequivocable foundation for the delineation of funding and responsibilities.
No machine-readable text was extracted from this page.
5. CONCLUSION
Achieving the reform agenda will require significant adjustments across all aspects of service delivery. Given this the NDIS Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 should not pass in its current form.
Effective implementation will rely on careful deliberation, collaboration and co-design. The NDIS Review recommended a governance structure to oversee the implementation of the reform agenda.
Whilst, Government has signalled its intent to establish a mechanism such as the NDIS Evidence Advisory Committee, NDIS Review Implementation Advisory Committee and NDIS Review Implementation Working Group, it is crucial for providers to have a seat at the table, alongside other stakeholders, as these committees work to ensure that changes can be safely and practically implemented.
All stakeholders must work together to ensure the delivery of high-quality, equitable, and sustainable supports that offer choice, control and independence to people with disability. The views of people with disability, their representative groups, providers and government must all be considered in the next phase of implementing reforms.
The disability services sector is prepared and eager to adopt recommendations that improve the quality and safety of services. A skilled, capable, diverse and sustainable provider landscape is a desirable outcome for participants. However, it is important to consider how the timing of reforms aligns with the sector’s capacity to respond.
DIA is dedicated to collaborating with the Government and the disability sector to ensure that Australians with disability have access to safe, quality and culturally appropriate services.