Office of the Public Advocate
South Australia
Submission to the Senate Standing Committee on
Community Affairs Legislation Committee
Inquiry into the National Disability Insurance Scheme
Amendment (Participant Service Guarantee and Other Measures) Bill 2021
Anne Gale Public Advocate
5 November 2021
Contact Person for this report:
Office of the Public Advocate for South Australia
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Contents
1. Introduction ……………………………………………………………………………………………….. 3
2. Feedback ……………………………………………………………………………………………………. 3
2.1 Short consultation time ………………………………………………………………………….. 3
2.2 Lack of clear interpretation …………………………………………………………………….. 4
2.3 Plan administration variation, reassessment, review ……………………………….. 4
2.4 Preventing a provider delivering a support ……………………………………………… 4
2.5 Co-design ……………………………………………………………………………………………… 5
2.6 Eligibility and inclusivity- amendments to the Becoming a Participant Rules
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2.7 Holding the NDIA to account – the Participant Service Guarantee ……………… 6
3. Summary ……………………………………………………………………………………………………. 6
Introduction
1.1 The Public Advocate
The South Australian Public Advocate is a statutory official appointed by the Governor to implement the provisions of Section 21 of the Guardianship and Administration Act 1993, (the GAA). The Public Advocate is supported by the Office of the Public Advocate (OPA) to assume guardianship, and provide advocacy, support, and education to people with mental incapacity and the systems and services around them. This includes speaking for and on behalf of people and their families, carers, and supporters, educating the sector and identifying areas of unmet need for reporting to the Minister.
The Public Advocate acts as guardian of last resort for people with impaired decision-making capacity, when appointed by the South Australian Civil and Administrative Tribunal (SACAT) under the GAA. The SACAT will only appoint the Public Advocate as a person’s guardian if it is satisfied that no other order would be appropriate. What this means in practice is that the Public Advocate will only be appointed if there is no one else in a person’s life able or willing to make necessary decisions, or if there is family conflict meaning that agreement on decisions is difficult or not possible. Consequently, the Public Advocate often must make decisions for people who have complex needs or experience complex situations and who may be without support networks.
The Public Advocate’s role as guardian is to make decisions, including giving the relevant consent about a person’s health, accommodation, and lifestyle, where there is the requisite authority to do so under the guardianship order from SACAT. However, the Public Advocate as guardian is not responsible for arranging and coordinating a protected person’s package of care and services.
The Public Advocate appreciates the opportunity to make a submission to the Senate Standing Committee on Community Affairs (Legislation Committee) for its inquiry into the National Disability Insurance Scheme Amendment (Participant Service Guarantee) and Other Measures) Bill 2021.
2.2 Lack of clear interpretation
The content of the Bill and exposure drafts for the NDIS Rules amendments is complex. Although the associated explanatory documents provide some clarity, there are some provisions which remain confusing.
Additionally, without an understanding of how the proposed changes will be practically implemented, it is difficult, if not impossible, to accurately assess their impact.
2.3 Plan administration variation, reassessment, review
A key amendment to the NDIS Act found in Schedule 1 of the Bill is the introduction of the concepts of plan variation and plan reassessment.
These concepts have been introduced to address the confusion caused by the multiple uses of the term ‘review’ within the existing NDIS Act.
As noted at page 11 of the Explanatory Document (Explanation of proposed amendments to the National Disability Insurance Scheme Act 2013 (Cth)): ‘Currently, participants can seek two types of review under the Act: a review of their plan (in accordance with section 48) and an internal review of a reviewable decision (in accordance with section 100). A third type of review is created when the participant appeals an internal review decision to the Administrative Appeals Tribunal’.
The Bill inserts new section 47A, which empowers the CEO of the NDIA to vary a participant’s plan (except the participant’s statement of goals and aspirations), without requiring the plan to be reassessed, or requiring a new plan to be created.
The Bill also inserts new section 48, which empowers the CEO to reassess a participant’s plan. As a result of the reassessment, the CEO must either vary the plan or prepare a new plan with the participant (Section 48(3)).
Although this effort to reduce confusion over the term ‘review’ is commendable, the lack of criteria establishing circumstances when a plan will be varied, reassessed, or reviewed, or when no action will be taken, in effect creates additional confusion.
The proposed Plan Administration Rules set out matters which the CEO must have regard to when deciding whether to vary or reassess a participant’s plan (Rules 10-12). However, we note that the matters which must be considered are the same for both plan variation and plan reassessment.
More information is needed to understand how the new concepts of ‘plan variation’ and ‘plan’ reassessment’ will be practically used.
2.4 Preventing a provider delivering a support
Rule 8 of the proposed amended Plan Management Rules empowers the CEO of the NDIA to prevent particular persons or providers from delivering a support to a participant. Sub-rule 8(1) prescribes circumstances in which it would be appropriate for the CEO to specify in a participant’s plan that a particular person or provider must not provide a support to the participant. The overarching prescription in sub-rule 8(1) is when there is a risk to the participant’s wellbeing, particularly in circumstances where the provider will adversely affect the participant’s inclusion in the community or their ability to exercise choice and control.
This power is intended to address recommendation 16(b) of the Tune Review, which recommended amending the NDIS Rules to ‘outline circumstances in which it is not appropriate for the providers of support coordination to be the provider of any other funded supports in a participant’s plan, to protect participants from provider’s conflicts of interest.’
However, the circumstances prescribed in sub-rule 8(1) appear to go beyond cases of clear conflict of interest.
Additionally, as noted in the brief analysis of the Bill by Disability Services Consulting, it is not clear what will happen when the CEO’s judgement of risk contradicts the wishes of the participant.
The extent of the CEO’s power to prevent persons or providers from delivering a support to a participant needs to be clarified so that it is clear how this rule will be implemented in practice.
2.5 Co-design
Item 3 of Schedule 2 of the Bill amends the NDIS general principles (section 4) to include ‘co-design’ as a guiding idea:
‘People with disability are central to the National Disability Insurance Scheme and should be included in a co-design capacity.’
However, co-design is not defined in the Bill. Thus, it is unclear how the concept of co- design will be practically implemented.
2.6 Eligibility and inclusivity- amendments to the Becoming a Participant Rules
The proposed amendments to the Becoming a Participant Rules provide separate requirements to establish permanency of an impairment, and substantially reduced functional capacity as a result of an impairment, for people with psychosocial disabilities and for disabilities other than psychosocial disabilities.
For persons with psychosocial disabilities, an impairment may be considered permanent, or likely to be permanent, if:
- the person is undergoing, or has undergone treatment for management of their condition, but the treatment has not led to substantial improvement in their functional capacity (rule 8(2)(a) of the amended Becoming a Participant Rules); or
- no appropriate treatment is reasonably available (rule 8(2)(b) of the amended Becoming a Participant Rules).
In contrast, for persons with disabilities other than psychosocial disabilities, an impairment may be considered permanent, or likely to be permanent, if there are no known, available, and appropriate treatments that would be likely to remedy the impairment (rule 7(2) of the amended Becoming a Participant Rules).
Rule 8 broadens the eligibility criteria for permanency of impairments attributable to psychosocial disabilities so that the focus is on the functional capacity experience of the individual.
Rule 10
Rule 10 establishes a number of factors to be considered to determine whether a person with a psychosocial disability’s functional capacity has been substantially reduced by an impairment. These factors must be considered holistically, with regard to the overall effect of the impairment over a period of time that is reasonable, considering the nature of the impairment – in particular, considering whether an impairment is episodic or fluctuates (Sub-rule 10(3) of the amended Becoming a Participant Rules).
Rule 10 is a welcome change, as it recognises that, with psychosocial disabilities, ‘functional capacity can be cumulative and variable, even with symptoms that do not appear to be ongoing or permanent’ – page 11 of the Explanatory Document (Becoming a Participant Rules Amendment). This rule is a step towards a more inclusive NDIS, as it allows prospective participants greater opportunity to explain and demonstrate the broader impact on their functional capacity.
However, as noted in the brief analysis of the Bill by Disability Services Consulting it is unclear why the applicability of these changes is limited to individuals with psychosocial disabilities and does not extend to individuals ‘who experience other fluctuating disabilities and disabilities with complex treatment pathways.’
Holding the NDIA to account - the Participant Service Guarantee
The proposed Participant Service Guarantee Rules establish a number of engagement principles (and associated service standards) which apply to how the NDIA and other responsible persons are to engage with participants and prospective participants. These engagement principles are transparency, responsiveness, respect, empowerment and connectedness (rule 5 of the Participant Service Guarantee Rules).
Although the Rules provide service standards detailing how the engagement principles shall be upheld, these standards appear to be subjective, and thus it is unclear how the engagement principles will be upheld in practice, and how the NDIA (and other responsible persons) will be held to account to these principles.
Summary
The intention of the National Disability Insurance Scheme Amendment (Participant Service Guarantee) and Other Measures) Bill 2021 is to address the issues raised in reviews of the NDIS Act 2013. The proposed amendments broadly intend to legislate how the NDIA undertakes its internal process and timeframes for this through the Participant Service Guarantee. Changes also intend to reduce administrative burden, make payment processes simpler and clarify eligibility for people with psychosocial disability.
Although the bill covers key points identified in reviews it does not define how some of these changes will be practically implemented. More information is also required on the impact of these changes for participants.
The Public Advocate recognises the challenges of undertaking legislative changes and additionally, the issues Covid-19 has presented in undertaking comprehensive consultation. Despite this, the short consultation timeframe along with what seems to be a lack of accessible resources does not appear to align with principles of co-design. I hope that consideration is given to this for future policy and legislative changes.
Thank you, once again for the opportunity to provide input into these proposed legislative amendments to the NDIS Act 2013 along with new and amended NDIS Rules. We look
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forward to future opportunities to collaborate to improve outcomes and the experience of South Australians with the NDIS.