~~ Griffith UNIVERSITY The Hopkins Centre Research for Rehabilitation and Resilience Queensland, Australia Law Futures Centre

Supplementary Submission to the Community Affairs Legislation Committee Inquiry on the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024

Professor Kylie Burns

Professor Susan Harris Rimmer

dr Eloise Hummel

ARC Discovery Project (ARCDP2001100742) Adjudicating Rights for a Sustainable National Disability Insurance Scheme Research Investigators:

Professor Susan Harris-Rimmer1, Professor Kylie Burns,1,2,

Dr Eloise Hummell2

2 Law Futures Centre, Griffith Law School, Griffith University

3 The Hopkins Centre, Menzies Health Institute, Griffith University

About Us

The Law Futures Centre was established in 2015 to produce outstanding scholarship that anticipates, innovates, and meets pressing emerging challenges for law and legal institutions in Australia and internationally. Bringing together researchers from law, environmental sciences, international relations, business, health, criminology and humanities, Law Futures Centre members are committed to outstanding collaborative research that harnesses law as a key melioristic tool for shaping a better, more just future.

The Hopkins Centre, established in 2017 and co-located at Griffith University and Metro South Hospital and Health Service, is Queensland’s premier research agency examining rehabilitation and resilience for people with disability. With over 200 research affiliates, including both academics and clinicians, The Hopkins Centre’s approach to research involves a distinctive coupling of the voice of lived experience with systems and policy analysis. The HopkinsCentre’s work transcends traditional disciplinary boundaries to investigate how to drive improved outcomes for people with severe disability through translating research into effective policies and practice.

As academics and researchers from these two Griffith University centres, in drafting this submission we have drawn upon both our individual expertise and our work on a research project, Adjudicating Rights for a Sustainable NDIS (2020–2024), which is funded by an Australian Research Council (ARC) Discovery Project (ARCDP2001100742) grant. The project is described more fully at https://www.hopkinscentre.edu.au/project/arc-adjudicating-rights-for-a-sustainable-112.

Supplement to Our Submissions on NDIS Back on Track Bill (Submission No 31) on ‘NDIS Supports’

We are grateful for the opportunity to provide a brief supplementary submission to this Committee on the NDIS Back on Track Bill (as amended). In particular, we support the submissions of the Justice and Equity Centre (formerly Public Interest Advocacy Centre ‘PIAC’) of 10 July in relation to the amendments concerning consultation on legislative instruments and funding participants at a whole of person level. Like PIAC we had significant concerns about the initial definition of NDIS Supports in the original bill. We support the Public Interest Advocacy Centre’s submission of 14 June 2024 to the previous inquiry concerning the amended definition of NDIS Supports, which is significantly improved in our view.

NDIS Support Rules

We support the proposed strengthened provisions in the NDIS Bill about co-design of rules and legislative instruments concerning the definition of ‘NDIS Supports’. It is essential that the rules which provide boundaries on the concept of NDIS Supports are the subject of deep co-design and do not unduly limit the provision of supports currently available to NDIS Participants. Design of these rules should balance both the individualized needs and rights of participants with a transparent consideration of financial sustainability of the scheme as a whole. They should also much more clearly specify what supports are to be provided by the NDIS and which are provided by other governmental services including foundational supports by the States.

Submission on Rules Around ‘NDIS Supports’

In our submission to the original inquiry (submission 32) we set out in detail how our research supports the need for clearer rules around what supports are considered ‘NDIS Supports’/reasonable and necessary supports. We understand that there is significant concern by some who have submitted to this inquiry and the previous inquiry that any new rules which specify what may/may not be considered NDIS supports could unduly limit supports compared to what supports are assumed to be available as individualized supports under the current s 34 reasonable and necessary funding criteria. This concern is entirely understandable in the absence of draft rules/legislative instruments which provide an indication of what will and will not be considered an allowable NDIS support or category of support. Much will of course depend on the content of any new rules introduced by Government and the extent to which they reflect co-design.

However, it is important to note that what may be funded and expended by a participant as a reasonable and necessary support pursuant to s 34 of the NDIS legislation is already significantly yet unclearly constrained by both the criteria of s 34 itself, and by already existing discretionary rules (eg National Disability Insurance Scheme (Supports for Participants) Rules 2013) in addition to NDIA golicy as represented in the Operational Guidelines. For example, there is already a rule which generally prohibits funding of day to day living expenses (Rule 5.1) which has been interpreted as applying to a whole range of potential supports including recreational activities. Supports are also constrained through the use of non-transparent automated planning, for example the use of typical support packages. This complex legislative and policy regime has not in our view (and based on our research) worked effectively in clearly defining with clarity, consistency and transparency what might properly be funded as reasonable and necessary supports for either decision-makers or participants. it had led to significant inconsistencies, a lack of clarity and conflicting decisions in AAT reviews and appeals. It has also meant that the issue of financial sustainability of a particular type or category of support has been determined on a case-by-case basis (at the cost of individual participants), rather than there being a transparent, evidence based, co-designed process to determine at a scheme level what supports can be funded as a support for all eligible participants in a sustainable NDIS. We provide further detail in our original submission. We also note the NDIS Review’s findings on the difficulties of the current legislative provisions around what might be considered reasonable and necessary supports and it suggested reforms which are reflected in the NDIS Back on Track Bill.

We stand willing to provide further information to the Committee at a hearing if that would assist.

Kind regards,

Kylie Burns, Susan Harris Rimmer and Eloise Hummell