D21/1652437
7 October 2021
NDIS Act Review Consultations GPO Box 9820 CANBERRA ACT 2610
Dear Department of Social Services
Thank you for the opportunity to provide feedback on the proposed NDIS legislative improvements and the Participant Service Guarantee.
The Disability Council NSW (the ‘Council’) is a statutory body that provides independent advice to the Minister for Families, Communities and Disability Services on matters that affect people with disability in NSW and their families and carers.
The Council broadly supports the proposed changes to the legislation to make processes easier and better for NDIS participants. We have provided some comments below. An extended consultation period would, however, have been beneficial to fully consider the implications of the proposed changes and consult more widely.
National Disability Insurance Agency Board
The Council supports the inclusion of a lived experience of disability as a standalone criteria for eligibility for appointment as a Board Member. We propose that at least 51 per cent of Board members are people with a lived experience of disability with representation from different disability types including people with intellectual disability and people with high support needs.
This will help to reduce the risk that the voices and decision-making capability of people with disability are not minimised which is critically important given the potential impact of policy decisions on their quality of life. People with disability are best placed to play a leadership role and provide governance in this space.
Participant Service Guarantee Rules
The Council welcomes the inclusion of engagement principles which will promote relationship building and accountability. One element that is missing from ‘Respect’ and ‘Empowerment’ is the commitment to open disclosure as part of a robust complaint’s procedure.
While the Service Standard identifies a commitment to seeking feedback, it needs to be acknowledged that feedback and complaints are two separate processes. The former, arguably, minimises the voice of the participant as there is no expectation that the NDIA is required to respond to the feedback or complaint.
According to the Ombudsman (2018): ‘Feedback is a compliment, criticism, comment or suggestion where a response is not sought, or not reasonable to expect.’ While a complaint is defined as: ‘An implied or express statement of dissatisfaction where a response is sought, reasonable to expect or legally required.’
For the participant experience to be truly empowered, there must be a commitment by the NDIA to the inclusion of a complaints process in the Participant Service Guarantee which consists of a process of open disclosure.
Becoming a Participant Rule
The Council supports changes to the rule that will ensure people with psychosocial disabilities are supported to access and test their eligibility for individually funded supports under the NDIS, by recognising that some psychosocial conditions may be episodic and fluctuating in nature.
The Council is concerned, however, that the proposed changes do not go far enough. The National Disability Insurance Scheme Act (2013) (the Act) in its current form systemically discriminates against people within the psychosocial demographic from accessing the scheme. This is despite a person being able to demonstrate that they require fulltime support in one or more of the six functional life domains: mobility, communication, social interactions, learning, self-management and/or self-care. Access is negated and support categorically denied, if the person demonstrates capacity for social or economic participation as per the direction provided to those who are responsible for completing the documentary evidence that is submitted to the NDIA.
“The NDIA requires confirmation that the person’s permanent impairment affects his or her capacity to find and retain paid work or participate in social activities. If a social or economic impact is listed in the evidence then this criterion is met.” (Masters & Shelby-James, 2017)
Again, according to the National Disability Insurance Agency (2017) sections within the Act, the applicant must meet both:
Section 24(1)(c): The impairment/s result in substantially reduced functional capacity to
undertake, or psychosocial functioning in undertaking, one or more of the following activities: communication, social interaction, learning, mobility, self-care, self-management.
and, Section 24(1)(d): The impairment/s affect the person’s capacity for social or economic participation.
This may be considered systemic discrimination specifically affecting individuals with psychosocial disability who demonstrate high functioning in the desirable work skills categories, for instance communication and learning, with the ableist overtones reminiscent of the historical or perhaps not so historical binary between the ‘deserving’ and ‘undeserving’ poor of the welfare model.
It is important that the rule reflects the fact that even in the recovery state it may be both possible for a person to work in a fulltime capacity, given the right supports, but not have the capacity to support their own basic hygiene, nutrition, physical well-being without additional fulltime supports.
The definition of ‘reasonable and necessary’ needs to be considered. Is it reasonable and necessary that a person with psychosocial disability, who has capacity for social and economic participation, pay for their own supports in the six functional domains? If so, is this in keeping with the expectations of people who have other impairment types, physical or sensory impairments for example, who also have capacity for social and economic participation. In other words, is the legislation promoting equity and the motivation for some who bear the daily psychosocial toll of their disability to maintain engagement and contribute to society despites the systemic disincentive to do so?
The Council recommends that, at a minimum modifying Section 24(1)(d) of the Act to be made an optional requirement rather than a mandated requirement acknowledging that a person with psychosocial disability has a functional limitation requiring supports available through the scheme. The Council believes that everyone who requires support should have access to support.
National Disability Insurance Scheme (Plan Management) Rules 2013
The Council notes the revised rule will clarify when plan management might present an unreasonable risk to a participant.
It is important to acknowledge the variability in the skill and knowledge of plan managers, specifically between metropolitan and rural areas. While it is beyond the scope of this review, The Council would strongly encourage minimum educational standards be set as well as ongoing mandatory training be provided to ensure equitable access to high quality information and support.
In addition to the specific comments above, the Council is concerned that the current legislation and proposed changes do not adequately address the issue of acquired disability.
Equitable Access to Services and Supports
The Council is also concerned that the additional challenges faced by people in rural and remote areas to access appropriate services and supports are not acknowledged and addressed adequately.
Linked to this issue, the Council is also concerned people in higher socioeconomic areas obtain more funding within their plan even though Specialists’ fees are set by the NDIA and so there should not be a geographic variability in cost.
The NDIS is premised on the belief that individuals, or their families have the capacity to contribute financially to services and supports. Again, this may disadvantage people in lower socioeconomic areas.
Transitioning from the NDIS
The Council acknowledges that capacity building is a critical part of a person’s NDIS plan. We would, however, strongly encourage that if a person is to be transitioned off the NDIS that appropriate supports are provided. It is also essential that an appeal process exists, and a participant advocate be provided.
Accessible Information and Transparent Reporting
The Council strongly encourages that the legislation be more accessible and easier to read. This is essential for transparency and reporting.
It is essential that all people with disability have access to key information influencing their lives including those people with complex and profound disability. Currently disability service providers and representatives do not adequately consult with this population. The NDIA at a minimum should hold responsibility for doing so as a central figurehead who is ultimately holding the funds.
To promote transparency, the Council strongly encourages the NDIA to release data about key metrics. This would ensure the NDIS is being delivered as intended. For example, currently, it is unclear how many people have received less funding in their current plan than in their previous plan following a review or because the NDIA says they are no longer eligible? This is a question that has been posed under the ‘Right to know’ freedom of information request to the NDIA but is yet to be answered.
In addition to the recommendations in our submission, the Council wishes to endorse the recommendations in the attached People with Disability Australia submission.
Thank you once again for the opportunity to contribute to this consultation.
Yours sincerely
Dr Jill Duncan Deputy Chair, Disability Council NSW
References
Commonwealth Ombudsman. (2018). Better practice complaint handling guide. https://www.ombudsman.gov.au/__data/assets/pdf_file/0019/112276/Better-Practice- Complaint-Handling-Guide.pdf
Masters, S., & Shelby-James, T. (2017). Assisting people with psychosocial disability to access the NDIS:A guide for Commonwealth-funded community mental health service providers. https://www.dss.gov.au/sites/default/files/documents/09_2017/access_guide_-_ accessible_word_version.docx
National Disability Insurance Agency. (2017). Accessing the NDIS: A guide for mental health professionals. https://www.ndis.gov.au/understanding/how-ndis-works/mental-health-and- dis#new-evidence-of-psychosocial-disability-form
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