Submission to Senate Community Affairs Legislation Committee

The NDIS Amendment (Participant Service Guarantee and Other Measures) Bill 2021

Associate Professor Kylie Burns

Professor Michele Foster

Professor Susan Harris Rimmer

Dr Eloise Hummell

Ms Samantha Borg

Ms Alyssa Venning

9 November 2021

Contact:

Associate Professor Kylie Burns Email: Phone:

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

Prof Michele Foster¹, A/Prof Kylie Burns², A/Prof Susan Harris Rimmer²
Dr Eloise Hummell¹, Ms Samantha Borg¹, Ms Alyssa Venning¹

_{1 The Hopkins Centre, Menzies Health Institute Queensland, Griffith University} _{2 Law Futures Centre, Griffith Law School, Griffith University}

2 | T h e H o p k i n s C e n t r e & L a w F u t u r e s C e n t r e , G r i f f i t h U n i v e r s i t y

About Us

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 Hopkins Centre’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.

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.

As academics and researchers from these two Griffith University centres, in drafting this submission we have drawn upon both our individual expertise and some of our preliminary work on a current research project, Adjudicating Rights for a Sustainable NDIS (2020-2022), which is funded by an Australian Research Council (ARC) Discovery Project (ARCDP2001100742) grant. The project is described more fully in the Appendix to this submission.

Our submission is based on our current research and particularly relates to support decisions. In our view, it is important that any changes to the NDIS legislation and rules are consistent with the principles of administrative justice, enhance the rights of people with disability and are consistent with the CRPD. We note that this proposed suite of legislative reforms does not directly consider the determination of reasonable and necessary supports (eg s 34 NDIS Act). We believe it is very positive that the Government has withdrawn the previous proposed reforms in this area and there is progress towards much deeper consultation with stakeholders and co-design with the disability sector and people with disability.

We have recently made submissions to the Department of Social Services consultation process on the draft legislation which we attach as Annexure 1 to this submission. We reiterate those submissions particularly in relation to matters which have not been changed between the original draft legislation consultation and the referral of the Bill to this Committee. Given a further draft version of the National Disability Insurance Scheme (Participant Service Guarantee) Rules have not been released with the current Bill, we also reiterate our original submissions in relation to the proposed Rules.

Our Recommendations

Variation and Reassessment: Amend s 47A and 48 so that is clear to participants the precise grounds on which the CEO can seek to vary or reassess a plan on the CEO’s own volition. Amend s47A to specify the role that participants play in determining variation of plans as the current amendment is vague and without specific content.
Reasons for Review Decision Amend s 100 (6) to ensure that reasons for internal review decisions in relation to reviewable decisions are provided to participants at the time they are advised of the internal review decision.

Co-design: Amend Schedule 2 new subsection 4(9A): “People with disability are central to the National Disability 10 Insurance Scheme and should be included in a co-design capacity” - ‘should’ be replaced with ‘must’ in recognition of a genuine commitment to co-design.

Our Submission

Implementation of Tune Review Recommendations, Participant Guarantee and Variations

We generally support the legislative reforms which implement the Participant Service Guarantee particularly service standards and time frames.

We support legislative changes to allow easier and quicker plan variations for participants (for example for minor errors or changes of circumstances) and to clarify plan reassessments vs reviews (Schedule 1- insertion of s 47A and new s 48). However, we remain concerned that there is very significant discretion and lack of clarity in the legislation in relation to the circumstances when variation or reassessment may occur at the discretion of the CEO. S 47A (1), (3) and (6) and s 48(5) refer to NDIS Rules as outlining these circumstances. Current versions of the draft Rules have not been provided in this consultation. The original draft National Disability Insurance Scheme (Plan Administration) Rules 2021 s 10 and 11 (as provided during the DSS consultation) provided a very broad discretion for the CEO in relation to when plans can be varied and reassessed and on what grounds. A large number of matters were noted as potentially relevant matters for CEO decision making. Much further clarity and transparency to participants should be provided particularly in relation to the criteria or threshold that triggers the CEO’s initiative to vary a plan under s 47A or decide to reassess a plan under s 48(1) without consultation with participants. It should be very clear to all participants the precise circumstances in which their plan can be varied or reassessed by the NDIA on its own initiative, and this should never come as a surprise. We note the addition in the Bill before this Committee in s 47 A that ‘each variation must be prepared with the participant’ in response to feedback during DSS consultation that variation could occur without participant knowledge. However, we submit that this provision is vague and without content such that it is difficult to know what the legislation means- for example does it mean mere notification, does it require agreement with the participant, does it require a meeting with a participant? Further specificity should be added so participants are aware of the exact role they will play in varying their plan. Ideally, variations should be reached by agreement with participants.

Reasons for Reviewable and Review Decisions

We support the amendment to s 100 (1) in response to feedback during DSS consultation to require the provision to participants of reasons for all reviewable decisions. We believe this an important amendment to ensure transparency of decision-making and to enhance administrative justice in the scheme. However, we suggest that s 100 (6) also be amended to ensure that reasons for internal review decisions in relation to reviewable decisions are also provided to participants at the time they are advised of the internal review decision. Again, this is important for transparency and administrative justice and allows participants to properly consider their rights of appeal to the AAT.

Engaging in Genuine Co-design

We support the Government’s move to deeper engagement and co-design with people with disability and the disability sector. To this end we advise the need for a subtle yet critical change to Schedule 2 new subsection 4(9A): “People with disability are central to the National Disability Insurance Scheme and should be included in a co-design capacity”, whereby ‘should’ be replaced with ‘must’ in recognition of a genuine commitment to co-design, as well as the need to define the

Agency’s understanding of co-design

This is important in building the trust of participants, people with disability and the community more broadly especially given the most recent history of subpar engagement and consultation around Independent Assessments, and the public process for these current legislative reforms. We comment with some concern that the draft legislative reforms were released to the public by DSS on 9 September, with only a four-week time frame for consideration and response. Additionally, we express concern that the legislation has entered Parliament and been referred to this Committee with a very limited time for due consideration and review of submissions.

Co-design with people with disability is not a ‘should’ but a ‘must’, and fulfils Australia’s obligations under the Convention on the Rights of People with Disabilities. It is fundamental to moving further towards a successful and sustainable NDIS for people with disability and the Australian community.

APPENDIX

About the ARC Project Adjudicating Rights for a Sustainable National Disability Insurance Scheme (ARCDP2001100742)

By enhancing the visibility and transparency of decision-making processes and priorities, and promoting informed public discussion, this project will contribute to making the National Disability Insurance Scheme a fair and sustainable scheme, and an international exemplar. The study involves three phases conducted over three years (2020 – 2022) and employs a multidisciplinary, translational design incorporating analysis of social, policy and legal frameworks, qualitative interviews, analysis of administrative data and qualitative case study methods to develop both a broad national understanding of dominant frames surrounding the administrative justice decisions and concepts of justice; and a more nuanced understanding of administrative justice as experienced by participants.

The project will highlight the power and justice effects of the administration of the NDIS, including what principles and values serve as dominant justifications for reasonable and necessary support, areas of contestation with choice and control, and the discrepancies in how administrative justice is viewed. The findings will contribute to a better understanding of which participants the NDIS is failing and contribute to a critical debate about the values guiding funded support decisions and fairness outcomes.

5 | T h e H o p k i n s C e n t r e & L a w F u t u r e s C e n t r e , G r i f f i t h U n i v e r s i t y

Annexure 1: DSS Consultation Submission

6 | The Hopkins Centre & Law Futures Centre, Griffith University

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