Submission to the Inquiry into the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021

ABN 24 603 467 024 ARBN 100 042 822 Brotherhood of St Laurence 67 Brunswick Street Fitzroy 3065 Victoria Australia

8 November 2021

Committee Secretary Senate Standing Committees on Community Affairs PO Box 6100 Parliament House Canberra ACT 2600 community.affairs.sen@aph.gov.au

deeply concerned about this issue. Dear Committee members,

Submission to the Inquiry into the National Disability Insurance Scheme Amendment ( Participant Service Guarantee and Other Measures ) Bill 2021 The Brotherhood of St. Laurence (BSL) welcomes the opportunity to contribute to this inquiry, drawing on our work with people with disability as well our experience in being a NDIS Partner in the Community delivering Local Area Coordination and Early Childhood Early Intervention services since 2016.

BSL made a submission to the DSS consultation on the Exposure Draft of the NDIS Amendment (Participant Service Guarantee and Other Measures) Bill 2021. That submission is attached for your information.

BSL supports the intent of the Draft Bill to improve participant experience and simplify processes, and we note that amendments have been made in the Draft Bill tabled on 28 October in the House of Representatives in response to issues raised during the consultation. However, we still hold concerns that the current Bill, if allowed to proceed as drafted, along with anticipated future developments, could result in continued erosion of the Scheme principles and design, and undermine choice and control for people with disability, and their families and carers over time.

In relation to the tabled Draft Bill, we raise the following concerns:

The short time allowed for consultation is unfortunate, particularly as the Independent Advisory Council had recommended a period of 8 weeks to enable people with disabilities to participate as fully as possible.
The Draft Bill does not include the Rules that will accompany the NDIS Act, preventing them being scrutinised by the Parliament, and identification of any changes that may, or may not, have been made to them.

The Department of Social Services clarified during Senate Estimates that it is not the intention of the Bill to exclude people with fluctuating physical impairments, and the explanatory memorandum also clarifies that non-psychosocial conditions which ‘vary in intensity from time to time’ can still be assessed as permanent. However, we hold concerns that failure to stipulate this in the Act may lead to unintended consequences.
The Draft Bill has provided some limits on the CEO’s ability to vary plans, and includes a requirement for the variation to be prepared ‘with’ the participant. However, it is not clear how the participant will be involved in the variation, and we don’t believe the limits are sufficient to address the concerns raised in our submission.

We also note that amendments made to the Principles that guide the Act (s 4) have removed moderating language: ‘to the extent of their ability’ in subsection 4(2); ‘to the full extent of their capacity’ in subsection 4(8). We are concerned that this may have the effect of reducing the requirements of level of support provided.

We welcome the amendment to the provision of information to participants about decisions made by the Agency, from ‘on request’ to automatic provision of information.

Our overarching concerns with Draft National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021 are unchanged:

Expansion of the power of the NDIA CEO and the Minister The NDIA CEO and the Minister will have expanded powers in administering the Act and implementing the NDIS through 1) the two new rules, the Participant Service Guarantee Rule and the Plan Administration Rule, and 2) the amendments to other existing Rules. These changes in effect empower the CEO and the Minister to change significant parts of the NDIS without the direct oversight of the Parliament. In addition, the draft Bill introduces Category D rules (for new subsections 47A(6) and 48(2)) that require consultation with, but not agreement by, state and territory ministers.
Lack of definitions for key terms Clarity about the meaning and practical implications of key terms used is critical to deliver on the intent of legislation and avoid unintended consequences. BSL is concerned that many of the key terms in the Exposure Draft remain vague, especially as they apply to criteria for access. This creates uncertainty and compounds powerlessness for participants and families and carers and could impact on decision-making processes.
Increased complexity Despite the intention of the proposed amendments to address unnecessary and time-consuming processes, and resolve confusion, the suite of legislation, rules and operational guidelines that make up the NDIS framework remains overly complex.
The cumulative and uncertain impact of proposed amendments While the changes in the Act are seemingly minor, they have potential far-reaching consequences. We are particularly concerned that the emphasis on people with disability who are eligible for direct support from the NDIS (Tier 1) carries the risk of reducing the attention paid to the very real needs of other people with disability who also require community services and supports (Tier 2).

We ask the Committee to consider these issues and recommend further amendments to the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021 to ensure the integrity of the Scheme is safeguarded.

We welcome the opportunity to discuss this submission with the committee.

Yours sincerely

Professor Shelley Mallett Ms Susan Hall Director, Research and Policy Centre A/Director, NDIS Services Brotherhood of St. Laurence Brotherhood of St. Laurence Professorial Fellow, Social Policy, University of Melbourne

Attachment to submission to Senate Committee re Draft Bill

Response to the exposure draft of the NDIS Amendment (Participant Service Guarantee and Other Measures) Bill 2021

The Brotherhood of St. Laurence (BSL) is a social justice organisation working to prevent and alleviate poverty across Australia. Our mission is to pursue lasting change, to create a more compassionate and just society where everyone can thrive. Our approach is informed directly by the people experiencing disadvantage and uses evidence drawn from our research, together with insights from our programs and services.

BSL is an NDIS Partner in the Community. We have been delivering LAC in five regions across Victoria since July 2016 as part of the first phase of NDIS implementation. We commenced as an ECEI provider in November 2016, and now work with around 40,000 people with a disability in LAC and ECEI.

We welcome the opportunity to provide a response to the Exposure Draft of the NDIS Amendment (Participant Service Guarantee and Other Measures) Bill 2021.

Our support for proposed changes BSL supports the intent of the draft Bill to improve participant experience and simplify processes through:

the inclusion of the Participant Service Guarantee and Participant Engagement Principles into the Act
recognition of people with disability as central to the Scheme and the need to engage them in co- design of the Scheme and its processes
capacity building and choice and control for people with disability
acknowledgement of the important relationships between people with disability, their families and carers
scope to vary plans
clarification of the role of the Quality and Safety Commission, and
expanding the Commonwealth Ombudsman’s powers to report on the performance of the NDIA.

On the other hand, we identify several critical concerns in the proposed changes in the Exposure Draft, which we detail in our submission.

Recommendations for changes to the draft Bill BSL recommends changes to the draft Bill to increase clarity and choice and control for people with disability, their families and carers

1 Redraft the changes in Section 47A to ensure that variations to NDIS participant plans without consultation or consent are limited to prescribed circumstances, and that the section aligns with the Tune Review’s recommendations 20 and 21.

2 Amend proposed sections 100(1B) and (1C) of the Act to require every decision made by an NDIA reviewer to be accompanied by a statement of reasons.

Other priorities for action

BSL also identifies the following action priorities for the NDIA to support improvements to the participant experience, as outlined in the PSG and other recommendations of the Tune Review:

Identify how people with disability and families and carers will be supported to understand how the amendments will affect their engagement with the Scheme and navigation of the participant pathway.
Resource NDIS partners and staff working directly with people with disability and their families and carers to understand the changes and navigate the participant pathway.
Explain how and when a framework for co-designing processes and objectives with people with disability will be developed and implemented.
Provide information on how IT systems will be improved to enable online access and allow people with disability to track the status of NDIA processes relating to them, in line with Tune recommendation 5.
Outline the process for addressing the remaining Tune Review recommendations (4d and e; 7; 15;16a, 28) that will require changes to the Act and Rules.

BSL’s concerns with the draft Bill

We identify several critical concerns in the proposed changes in the Exposure Draft including:

a shift in focus and authority from the Act to the new and amended Rules, thereby expanding the accountability and power of the NDIA and the Minister.
the focus on Tier 1 participants rather than all participants in the NDIS (inclusive of Tier 2)

We believe the shift in focus risks undermining the principles of choice and control for people with disability, their families and carers, and adds to the complexity of the NDIS framework. We expand on our concerns below.

Expansion of the power of the NDIA CEO and the Minister

The NDIA CEO and the Minister will have expanded powers in administering the Act and implementing the NDIS through the 1) the two new rules, the Participant Service Guarantee Rule and the Plan Administration Rule, and 2) the amendments to other existing Rules. These changes in effect empower the CEO and the Minister to change significant parts of the NDIS without the direct oversight of the Parliament.

In addition, the draft Bill introduces Category D rules (for new subsections 47A(6) and 48(2)) that require consultation with, but not agreement by, state and territory ministers.

Section 47A

The proposed section 47A allows participant plans to be varied without a ‘reassessment’. One benefit of this change is that it allows plans to be amended where the amendments are not significant and when requested by the participant. However, we are greatly concerned that s 47A also allows plans to be varied on the CEO’s initiative, without request, consultation or consent from the participant.

We believe this change is broader than what is recommended in the Tune Review’s final report under recommendations 20 and 21. These recommendations specify that the new rules should ‘set out the matters the NDIA must consider when deciding whether to undertake an unscheduled plan review’ and give ‘the NDIA the ability to amend a plan in appropriate circumstances’.

Rule 10 of the new Plan Administration Rules sets out a non-exhaustive list of matters the CEO must consider when deciding to vary a plan on their own initiative, but this does not limit the CEO’s power, and leaves it open for variations such as changes to funding amounts or restrictions on how funding can be used.

We recognise that the Explanatory Notes indicate that this change would enable flexibility and efficiency to address minor issues; however, there are no measures embedded in the legislation preventing the CEO from making more substantial and consequential decisions for which the participant effectively has no redress.

In addition, we note that the timelines identified in the PSG specify that the NDIA ‘provide an explanation of their decision, if requested by a participant.’ However, we believe that in the interest of transparency and maximising the opportunities for the participant to exercise control and seek redress, explanation of decisions should be provided as a matter of routine.

Page 7

Recommendation 1

Redraft the changes in Section 47A to ensure that variations to NDIS participant plans without consultation or consent are limited to prescribed circumstances, and that the section aligns with the Tune Review’s recommendations 20 and 21.

Recommendation 2

Amend proposed sections 100(1B) and (1C) of the Act to require every decision made by an NDIA reviewer to be accompanied by a statement of reasons.

2. Lack of definitions for key terms

Clarity about the meaning and practical implications of key terms used is critical to deliver on the intent of legislation and avoid unintended consequences. BSL is concerned that many of the key terms in the Exposure Draft remain vague. This creates uncertainty and compounds powerlessness for participants and families and carers and could impact on decision-making processes.

Complexity in the criteria for access

On the one hand BSL welcomes the clarification of requirements for accessing the NDIS as they apply to people with psychosocial disability in the new Section 8 of the Becoming a Participant Rules. This change addresses a long-standing concern for people with psychosocial disability and advocates.

However, more broadly, BSL is concerned that separating out one or more conditions based on diagnosis fails to recognise a range of other conditions that are fluctuating and episodic. We suggest that one set of requirements for access that is based on functional impairment, and takes into account fluctuations and episodic conditions, should be developed.

While the explanatory notes on the Becoming a Participant Rules indicate that these terms place ‘attention on the person’s subjective experience of receiving treatment’1, BSL is concerned that, in practice, it will be the CEO and delegate interpreting in each instance what ‘appropriate treatment’, ‘managing’ a condition, ‘substantial improvement’ and ‘reasonably available’ means.

In relation to psychosocial disability, Recommendation 8 of the Tune Review is that

The Act and Rules are amended to:

a. provide clearer guidance for the NDIA in considering whether a psychosocial impairment is permanent, recognising that some conditions may be episodic or fluctuating.

However, the current amendments to the Act and the Rules fail to provide adequate guidance, with no definition of the terms provided in the Rules to enable people with disability, families and carers to understand how they will be applied.

Recommendation 3

Define the critical terms, including ‘appropriate treatment’, ‘managing’ a condition, ‘substantial improvement’ and ‘reasonably available’ in the Becoming a Participant Rules (Rule 8). This should be done in consultation with people with lived experience, mental health clinicians and other experts, to

Increased Complexity

BSL acknowledges that the proposed amendments are intended to address unnecessary and time-consuming processes, and resolve confusion, for example the use of ‘review’ for multiple processes. However, despite this intention, and the key finding in the Tune Review that ‘some people find the NDIS is too complex and difficult to navigate’$^ (p.28), the suite of legislation, rules and operational guidelines that make up the NDIS framework remains overly complex.

For example, under the proposed changes a decision about Specialist Disability Accommodation (SDA) Supports will require consideration of multiple Rules and sections of the Act.$^ The duplication and inconsistencies across these documents make the process unwieldy and more difficult for participants, and families and carers, to navigate.

BSL is concerned that the cumulative effect of proposed amendments to the Act and Rules is to add to the complexity of the NDIS framework. With further amendments already signalled by DSS in the information it provides on legislative changes$^, there is the risk that the Scheme will become more confusing to people with disability, their families and carers, thereby compromising their choice and control.

While beyond the scope of the amendments in this draft Bill, Recommendation 6 of the Tune Review is that

     The Commonwealth publishes accessible versions of the NDIS Act and NDIS Rules, to help people with disability understand the legislative basis of the NDIS.

BSL suggests that the intent of Tune Review Recommendation 6 should be taken into account when drafting the Act and the Rules, to ensure that people with disability, their families and carers can understand them and navigate the scheme.

Recommendation 6

Provide accessible versions of the NDIS Act and NDIS Rules, to enable people with disability, their families and carers to better understand the intent and design of the NDIS.

The cumulative and uncertain impact of proposed amendments BSL identifies the proposed amendments as a fundamental shift for future Scheme design and implementation. While the changes in themselves are seemingly minor, they have potential far-reaching consequences, many of which remain uncertain.

We also note with some concern that the emphasis on people with disability who are eligible for direct support from the NDS (Tier 1) carries the risk of reducing the attention paid to the very real needs of other people with disability who also require community services and supports (Tier 2).

We are concerned these changes could signal a move away from a commitment to a National Disability Insurance Scheme that delivers choice and control and person-centred supports to people with disability, an that is premised on a recognition that all people with a disability, regardless of the background, are titled to self-determination, full inclusion in their community and having their (reasonable and necessary) eeds met.

BSL holds concerns that these current amendments, if allowed to proceed as drafted, along with anticipated future developments, could result in continued erosion of the Scheme principles and design, and potentially undermine choice and control for people with disability, and their families and carers over time.

BSL looks forward to continuing to work with the NDIA and the Department of Social Services to improve the experience of people with a disability and simplify Scheme processes, and to support people with disability to live a good life.

October 2021

Brotherhood of St. Laurencen67 Brunswick StreetnFitzroy Vic. 3065nwww.bsl.org.au