National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021
Submission from Aged and Disability Advocacy Australia (ADA)
Date: 8 November 2021
Committee Secretary Senate Standing Committees on Community Affairs PO Box 6100 CANBERRA ACT 2600 By email: community.affairs.sen@aph.gov.au Dear Secretariat
Background Information
National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Amendments) Bill 2021 Thank you for the opportunity to provide feedback on the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021 (the Bill). Aged and Disability Advocacy Australia (ADA) appreciates being consulted on the introduction of this framework.
About ADA Australia
ADA is a not-for-profit, independent, community-based advocacy and education service with nearly 30 years’ experience in informing, supporting, representing and advocating in the interests of older people, and persons with disability in Queensland. ADA receives funding from both the Commonwealth and Queensland Governments to deliver disability advocacy support across the state.
ADA also provides legal advocacy through ADA Law, a community legal centre and a division of ADA. ADA Law provides specialized legal advice to older people and people with disability, including those living with cognitive impairments or questioned capacity, on issues associated with human rights, elder abuse, and health and disability legal issues related to decision-making.
Length and Scope of Consultation
ADA is disappointed with the short length of the consultation period to provide feedback on the Bill, which was referred to this Committee on 21 October 2021 with a closing submission date of 8 November 2021. This is an insufficient period to allow for adequate public consideration of the Bill, consequently reducing accessibility for persons with disability who wish to provide feedback. The National Disability Insurance Scheme Act 2013 (the NDIS Act) is a complex piece of legislation supported by the NDIS Rules – a suite of equally complex legislative instruments.
Australia is an original signatory to the Convention on the Rights of Persons with Disabilities (the CRPD) which came into force on 16 August 2008. Article 4 of the CRPD requires the Federal government to ‘closely consult with and actively involve persons with disabilities, including children with disabilities, through their representative organisations’, in the ‘development and’
implementation of legislation and policies’, including those which seek to implement the principles
and obligations of the Convention.
Limiting the means of consultation to written feedback reduces opportunity for some persons with disability to contribute, effecting a breach of Article 21, freedom of expression and opinion, and access to information. This Article requires the Australian government and its agencies to take all appropriate measures to ensure that ‘persons with disabilities can exercise the right to freedom of expression and opinion, including the freedom to seek, receive and impart information and ideas on an equal basis with others and through all forms of communication of their choice.’
The brief consultation time frame does not allow for thorough consideration about whether the recommendations of the 2019 independent review undertaken by Mr David Tune AO PSM (the Tune Review) have been adequately incorporated by the proposed amendments set out in the Bill.
The explanatory memorandum states that the amendments proposed in the Bill will address 14 recommendations resulting from the Tune Review. Though we appreciate the need for some of the positive recommendations to be implemented as soon as possible, it is difficult to provide wholehearted support for the Bill without the benefit of a comprehensive consultation which would permit a more thorough assessment.
Schedule 1 – Participant service guarantee
ADA supports the stated intention in progressing the Bill: to address many of the issues raised in the Tune Review with a strong focus on improving the experience and outcomes of people with disability engaging with the National Disability Insurance Scheme (the NDIS).
This support extends to the introduction of the Participant Service Guarantee, however, we note that the guarantee is not intended to increase the number of persons with disability who are granted access to the NDIS.
We welcome the amendments which seek to clarify the powers of the Commonwealth Ombudsman to carry out monitoring of the NDIA’s performance against the obligations upon it by the Participant Service Guarantee, as recommended by the Tune Review.
From a governance perspective, we note that several amendments set out in the Bill will affect amendments to the scheme through the NDIS Rules. Any changes of significance, or which seek to expand or restrict access to the NDIS should be included in the primary legislation. Reliance upon the Rules to implement critical changes or significant policy reform is rarely appropriate.
This concern is compounded because the amended Rules which are to accompany the changes set out in the Bill have not been made publicly available. As set out below, many of the changes in the Bill seek to rely on the Rules to facilitate important changes to the NDIS Act. Without having sighted the affected Rules, it is impossible to assess if the operation, functionality, and scope of powers regarding the proposed changes are appropriate. It is also difficult to identify any unintended consequences which may result.
New variation power
The Tune Review correctly recognised the need for a variation power to facilitate plan amendments. Currently, the only power which exists to make a change to an existing plan (excluding a merits review) is under existing section 48 of the NDIS Act, which has the effect of replacing a plan.
ADA supports the proposal to introduce a variation power which will allow for smaller changes being made to a plan without triggering a plan review or full revision. The Bill seeks to insert the proposed variation power under a new section 47A.
However, the drafting to facilitate variation in the Bill is significantly broader than the model recommended by the Tune Review, which provided specific circumstances for the appropriate use of this new power. The model proposed in the Bill will permit an near unrestrained exercise of this power to the CEO. The requirement for the variation to be prepared ‘with’ the participant is not sufficiently clear: for example, does this mean that consent of the participant to commence variation is required? Without reasonable framing of the power and its scope, it will have the unintended consequence of injecting greater uncertainty for scheme participants, rather than the flexibility that is intended.
It is our recommendation that the legislation should clarify the purpose for which the power is intended to be used. This is particularly important given that the Rules which will operationalise this function have not been made available for review.
Reassessment power
ADA supports the change made from the exposure draft of the Bill to the effect that the participant may make a request for reassessment under section 48(2).
However, we are concerned that the current drafting of section 47A will allow the CEO to decide not to accept a participant’s request for plan variation, and instead to undertake a reassessment upon the CEO’s initiative. This may result in a person who seeks a relatively small variation to their plan being subjected to a full assessment without their agreement.
Schedule 2 – flexibility measures
ADA supports amendments to strengthen the general principles guiding actions under Part 2 of NDIS Act, to enhance recognition and embed the rights of people with disability. The amendments set out in clauses 1 - 6 appropriately reflect this objective. This includes those changes which seek to more appropriately recognise psychosocial disability, and will amend sections 24 and 25 of the NDIS Act.
However, further clarification to aid interpretation of these provisions is required. We note that under rule 8 of the Becoming a Participant Rules, a person must be undergoing or have undergone ‘appropriate treatment’ for the purposes of ‘managing’ their condition. The person must demonstrate that the treatment has not led to a ‘substantial improvement’ to their functional capacity having continued the treatment for a reasonable period, or that no ‘appropriately treatment’ is reasonably available.
The legislation does not provide definitions for these terms.
Clarity around the intended meaning of these terms and the criteria by which they will be measured by the NDIA is required. This will ensure that the drafting is suitably certain and sufficiently transparent to support community confidence about the agency’s operation of this function.
New plan management rules
ADA acknowledges the government’s intention to minimise risk for participants by introducing a risk management process for plan-managed participants. This has prompted the proposed amendments to sections 43 and 44 of the NDIS Act and corresponding changes to the Plan Management Rules and is in alignment with the recommendation of the Tune Review.
However, if the agency considers that the form of plan management presents an ‘unreasonable risk’ (see clause 33), the amendments will allow the agency to alter the plan. The criteria set out for an ‘unreasonable risk’ at section 10 of the Plan Management Rules will enable the agency to exercise a broad discretion in determining what constitutes ‘unreasonable risk’.
Whilst this is conceptually helpful, the potential impact upon a participant’s individual choices must be considered and a process included to assist in resolving disputes between the participant and agency, should the agency ‘step in’. This function will deliver the NDIA a new power to direct participants towards where the agency considers that support can be most effectively delivered; however, there may be several other factors influencing upon a participant’s choice to receive services from an alternative provider. For example, Aboriginal and Torres Strait Islander participants may prefer to access culturally safe service options, and persons who have personal safety concerns or who have had poor experiences with certain providers must be considered prior to actioning any intervention.
The proposal should be clarified by setting out the factors which will influence the agency and CEO to consider the use of the power in the context of an individual’s circumstances, and how the agency will communicate with the individual to discuss any proposed changes before implementation. The use of illustrative examples in the drafting would assist.
Payment of supports
The drafting at clause 36 seeks to repeal and replace section 45 of the NDIS Act, and directs that payment is to be made to ‘the person determined by the CEO’. We understand that it is not the government’s intention to remove the ability for participants who self-manage to continue using their existing payment method. As such, the re-drafting of section 45 should be amended to clarify this. As currently read, the drafting would appear to suggest otherwise and may lead to unintended outcomes for self-managed participants.
Provision of reasons
ADA supports the inclusion of clause 40 of the Bill relating to section 100 (1) of the NDIS Act, which will require the provision of reasons in association with a reviewable decision made by the agency.
This will bring the amendment into alignment with the Tune Review recommendation about this procedural issue.
Providing reasons around decision-making to participants and applicants should be routine and will increase community confidence in the scheme. For persons with disability, the information must be provided in a way that is accessible to the individual.
This process should be replicated to require the agency to routinely provide reasons in relation to a review of the reviewable decision, under section 100(6) of the NDIS Act.
Thank you again for the opportunity to comment on the Bill. ADA would be pleased to further assist the Committee with its inquiry. Should you wish to discuss this submission, please do not hesitate to contact Vanessa Krulin, Solicitor and Senior Policy and Research Officer on or via v
Yours faithfully
Chief Executive Officer