Senate Standing Committees on Community Affairs

Address: PO Box 6100 Parliament House Canberra ACT 2600 Email: community.affairs.sen@aph.gov.au

Feedback in response to the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021. Thank you for the opportunity to provide feedback on the NDIS Amendment (Participant Service Guarantee and other measures) Bill 2021.

I have previously provided feedback to the NDIS in response to the proposed legislative amendments and the participant service guarantee, dated 01 October 2021. I note changes have been made to the Bill that address some of the issues raised in my submission; however, I would like to highlight areas that have not yet been addressed.

As the Public Advocate for Queensland, I undertake systemic advocacy to promote and protect the rights and interests of Queensland adults with impaired decision-making ability.

There are several positive changes outlined in the amendment legislation which I support, including:

Transparent timeframes for NDIA responses around a participant’s access to the NDIS, the development of plans and responses to internal reviews;
Annual reporting by the Commonwealth Ombudsman on the NDIA’s performance against the participant service guarantee, as well as in relation to participants’ experiences;
Greater clarity around eligibility provisions for participants with psychosocial disability when fluctuating in nature;
Clarification of the Administrative Appeals Tribunal’s (AAT) jurisdiction enabling a participant’s plan to be amended (relating to a statement of participant supports in the plan) by the NDIA while a matter is before the AAT; and
The inclusion of people with a disability in a co-design capacity (noting, however, that the criteria for such involvement are not yet clear).

I do, however, have some concerns regarding the following, and the potential impact these matters will have on adults with impaired decision-making ability.

Reasonable and necessary supports

There is no provision in the amendments to define reasonable and necessary supports. The review by David Tune of the NDIS Act, December 2019, referred to the lack of a clear definition regarding what “reasonable” and “necessary” supports means, including what is in scope for NDIS to fund, as opposed to supports that are more appropriately funded by another service system or through a participant’s ordinary income. Given the term “reasonable” and “necessary” supports is a fundamental one used regularly in participants’ plans to determine the provision of appropriate support, I would consider it timely and necessary to clearly define this term in the legislation.

Safeguarding measures – Plan management

I support in principle the amendment to the legislation requiring participants who request to be plan managed, to be subject to the same safeguards and risk assessment processes as those applying to people who self-manage their NDIS plan.

Plan management participants can choose providers that are not NDS registered, apart from services that are delivered in accordance with restrictive practices, Supported Disability Accommodation, and behaviour support.

In February 2021 legislative changes enacted in Queensland now require NDIS registered providers in a risk assessed role, or a state funded provider delivering disability supports or services, to apply for Disability Worker Screening through the Queensland government. Unregistered providers, however, are not required to undergo a worker screening clearance. The only obligations placed on unregistered providers by the NDIA are to comply with the NDIS code of conduct, and to be able to effectively manage complaints, and it is unclear the extent to which these obligations are monitored.

There are several key benefits to plan management, including providing participants with increased choice and control over the providers they choose to deliver their services. This provides for a wider range of potential service providers, including those that are not registered with the NDIS. While I see this as a positive approach for participants, including those with impaired decision-making ability, I hold concerns relating to safeguarding measures for those participants with impaired decision-making ability who engage unregistered providers for the provision of, in particular, personal care services. I would recommend consideration be given to making it compulsory for unregistered providers who deliver personal care services to NDIS participants to apply for a Disability Worker Screening clearance or its equivalent in other States and Territories. This would provide an appropriate and necessary safeguard for NDIS participants using unregistered providers for more intrusive or personal care activities, as opposed to undertaking services like mowing the lawn or weeding the garden, for which screening would not ordinarily be required.

Nominees and guardians

I support the proposed changes associated with the cancellation of the appointment of plan nominees, however I note that the role of nominees, guardians and supported decision making under the NDIS, and the interaction between the NDIS and state guardianship legislation, has not been meaningfully addressed in the amendments.

The current nominee rules state that people with disability are presumed to have capacity to make decisions that affect their own lives, and that the appointment of nominees will be justified only when it is not possible for participants to be assisted to make decisions for themselves.

By comparison, in Queensland, the Queensland Civil and Administrative Tribunal (QCAT) has the sole power to appoint guardians only if the tribunal is satisfied: that the adult in question has impaired capacity for a particular matter (often singular, like, for example, accommodation); that there is a need for a decision in relation to the matter, and that without the appointment of a guardian the adult’s needs would not be adequately met or the adults interests would not be adequately protected.

If a guardian is appointed to make decisions concerning one particular matter and the same guardian is appointed as an NDS plan nominee, their powers as a substitute decision maker for that person are significantly increased.

As there is no assessment guide or principles that are applied by the NDIA when making a decision to appoint a plan nominee, and a guardian is often the “default” nominee under Agency policy, the tensions between NDIA policy and the Guardianship and Administration Act 2000 in Queensland are apparent.

Residency requirements to be eligible for the NDIS

Given that amendments to the NDIS Act are currently being considered, I would also like to take this opportunity to raise my concerns about the barriers experienced by adults with impaired decision-making ability who do not meet the residency requirements under section 23 of the Act.

New Zealand nationals living in Australia under protection visas, who can include long-term residents of Australia who have significant disabilities that profoundly affect their ability to live independently, do not have access to NDIS funding to enable access to supported accommodation, ongoing social and community supports or capacity building supports. This places them at a significant disadvantage. Likewise, adults with impaired decision-making ability who have incomplete or inconsistent identification papers, including those who have acquired a brain injury during their stay and are now on temporary protection visas, are also not able to access NDIS funding.

Given their ineligibility for NDIS funding and the deficit in funding for basic support and accommodation for these people, often the only available accommodation is a mental health facility, public hospital or, in some limited cases, an aged care facility. Further to this, due to their inability to access effective therapeutic and social supports, some behaviours displayed by these adults may be inappropriate or violent, which subsequently results in police intervention, criminal charges and time spent in either custodial or acute mental health facilities. Legal support and advocacy in this context can usually only be provided by specialist migration agents and migration lawyers, which again can be difficult to access given the limited funding options. I am aware that there has been a rising number of such people being involved in adult guardianship applications as a result of the limited availability of social and other supports to them.

From a human rights perspective, these people are being denied access to support and services to meet basic human needs such as housing, social support, health, and access to justice.

In the context of the current review of the NDIS legislation, I would recommend consideration be given to reviewing the current eligibility requirements for participants with impaired decision-making ability who are long-term residents of Australia but who are unable to access the NDIS due to their immigration status.

Thank you for the opportunity to provide feedback regarding the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021. If you require clarification of any of the issues raised in this submission, please contact my office on 07 3738 9513.

Yours sincerely

John Chesterman (Dr) Public Advocate