NDIA Accountability Project

Northern Territory Government Submission to the Senate Community Affairs Legislation Committee – National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021

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MINISTER FOR DISABILITIES

Parliament House GPO Box 3146

State Square Darwin NT 0801

Darwin NT 0800 Telephone: 08 8936 5553

minister.worden@nt.gov.au

Committee Secretary

Senate Community Affairs Legislation Committee

Via email: community.affairs.sen@aph.gov.au |

Dear Committee Secretary

| refer to the National Disability Insurance Scheme Amendment (Participant Service

Guarantee and Other Measures) Bill 2021 (the Bill) currently before the Senate Community Affairs Legislation Committee (the Committee) for inquiry and report.

As the Northern Territory is a joint shareholder and co-contributor to the National Disability

Insurance Scheme (NDIS), | welcome the opportunity to provide a submission (Attachment

A refers), for consideration by the Committee.

The submission addresses the Northern Territory Government’s concerns regarding the proposed categorisation of NDIS rules in relation to decision making by the National Disability Insurance Agency (NDIA); encourages collaboration with Northern Territory

stakeholders; and seeks ongoing consideration of complexities of service delivery in remote parts of Australia in implementing measures under the Bill. In addition, the Northern

Territory recommends that appointments to the NDIA Board include consideration of appointments of persons who identify as Aboriginal or Torres Strait Islander.

The Northern Territory Government remains committed to the care and protection of the most vulnerable people in our communities and look forward to ongoing consultation and collaboration with the Australian Government in improving the quality of service experienced by NDIS participants in the Northern Territory.

Should you wish to discuss this submission further, please contact Ms Bryony Bree,

Executive Director, Social Inclusion at the Department of Territory Families, Housing and

Communities on

Yours sincerely

KATE WORDEN

Plz Sevens

GOVERNMENT

Attachment A

Northern Territory Government Submission to the Senate Community Affairs

Legislation Committee -— National Disability Insurance Scheme Amendment

(Participant Service Guarantee and Other Measures) Bill 2021

Context

The Northern Territory Government supports the delivery of National Disability Insurance Scheme (NDIS) through the Bilateral Agreement with the Commonwealth Government and an annual funding contribution of $103.8 million indexed at four per cent per annum. The Northern Territory’s contribution includes both cash and in-kind contributions.

The Northern Territory is a unique environment for NDIS delivery due to the nature of remote service provision and the need for culturally safe, secure and competent services. There are a number of demographic and geographical factors which increase the challenges associated with service delivery. 60 per cent of the Northern Territory population resides in the Greater Darwin area, with the remainder of the population dispersed over remote and very remote areas, including 96 communities and over 600 homelands. The Aboriginal and Torres Strait Islander (ATSI) population accounts for one third of the population, which is 10 times higher than the national average. There are up to 104 ATSI languages and dialects spoken across the Northern Territory.

As at 30 September 2021, the Northern Territory had 4,359 active NDIS participants (excluding those in the Early Childhood Approach pathway). Of those NDIS participants, 2,161 identified as ATSI (49.6 per cent), and 283 as cultural and linguistically diverse (6.5 per cent).

Due to the limited service delivery environment (thin to non-existent markets) and a lack of economies of scale, transition to the NDIS has been particularly challenging in parts of the Northern Territory. Although there is some service coverage for Darwin urban areas, there is a substantial decrease in service availability outside of this region, including to areas such as Katherine, Nhulunbuy, Alice Springs and other regional, remote and very remote communities. The absence of local services within communities means that people with disability are often forced to leave their homes to access supports; disconnecting them from their community, family and culture. The ongoing issues around the development of a disability services market continues to pose a significant risk to the effectiveness of the NDIS in the Northern Territory.

The Northern Territory disability market requires significant targeted investment and tailored initiatives to deliver on the promises of the NDIS to produce better outcomes for people with disability, their families and carers, and the broader community. Enhancing technologies and infrastructure, and supporting the workforce and community capacity, will assist in establishing a competitive, robust disability services market to reduce the inequalities in service delivery that are currently being experienced. The Northern Territory Government is committed to ensuring Territorians have access to high quality services, and we will continue working with the National Disability Insurance Agency (NDIA) to develop the disability services market, particularly in regional and remote areas, in a way that maximises ATSI choice and control, social and economic participation and community-based decision-making.

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The Northern Territory’s transport system is vulnerable to extreme weather events due to geographic and climatic factors. Key road corridors, such as the Arnhem Highway and the Daly River Road, can be severely impacted by flooding during the wet season (November to April), limiting land transport access for remote communities. Access to remote and very remote communities during this time is only possible by light aircraft (pending the impact of monsoonal rainfall and electrical storms).

Relying on the use of Telehealth, or similar access technology, will not provide an equitable assessment approach for prospective and existing participants in regional, remote and very remote areas. Further considerations in this regard include the assumption of the availability of Telehealth for assessors to access outside of mainstream health demands, as well as reliable internet services to support this access. The additional pressure put upon the existing service delivery system and professionals, often from within the local health services in communities to facilitate these services, requires appropriate funding.

National Disability Insurance Scheme Amendment (Participant Service Guarantee

and Other Measures) Bill 2021

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

Bill) was introduced into the Commonwealth Lower House on 28 October 2021, following a short period of consultation.

The Northern Territory Government acknowledges the overall objective of the Bill, and its intent to address the need for greater transparency, consistency and equity in the approach to the access, planning and plan review processes, and supports the minimisation of administrative and financial impacts for both prospective and existing NDIS participants. Subject to this however, the Northern Territory Government does have the following comments and concerns:

NDIS Rule Categorisation

The Northern Territory Government does not support the proposed categorisation of NDIS Rules under the Bill relating to the decision making of funding, reassessments and the variation of participant’s plans as Category D Rules.

  1. The explanatory memorandum for the NDIS Bill 2012 (Cth) prescribed how NDIS Rules would be categorised. This is based on criteria agreed with host jurisdictions as set out below:

a. Category A Rules are considered to be those that relate to significant policy matters with financial implications for the Commonwealth and host jurisdictions, or which interact closely with relevant state and territory laws, and so the agreement of all jurisdictions is required for the making of these rules.

b. Category B Rules that relate to an area, law or program of a particular host jurisdiction, or to the commencement of the facilitation of the preparation of plans of participants identified wholly or partly, and directly or indirectly, by reference to that host jurisdiction, cannot be made without that host jurisdiction’s agreement.

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c. Category C Rules relate to policy issues that are not expected to have a financial impact. These rules require the agreement of the Commonwealth and a majority of host jurisdictions.

d. Category D Rules are considered to be more administrative than policy in character, and so the Minister need only consult host jurisdictions before making these rules.

  1. During public consultation on the Exposure Draft of the Bill, concerns were raised about the inappropriate categorisation of certain Rules to be made under heads of power created by the Bill. The Exposure Draft of the Bill categorised proposed new Rules governing the NDIA’s decision making about the provision of funding to assist participants to receive supports, and the variation or re-assessment of participant’s plans as Category D Rules.

  2. Rules made regarding these matters have significant policy and financial implications for the operation of the NDIS and for this reason the Northern Territory are of the view Rules categorised as Category D Rules in the Bill should be categorised as Category A Rules.

  3. By categorising rules relating to plan variations and reassessments as Category D Rules, the Commonwealth is empowered to unilaterally determine the substantive considerations which must be taken into account by the NDIA in making certain decisions that impact the allocation and use of NDIA funding, without the agreement of states and territories as joint shareholders in the NDIS. This reduces transparency, accountability and importantly, and has the potential to reduce the voice of Territorians, particularly those in remote and very remote areas when it comes to changes to their plans, and reassessments. It is the Northern Territory Government’s view, as a joint shareholder, that rule changes relating to these matters should occur with the collaboration of the Commonwealth Government and states and territories.

  4. The Northern Territory Government also has concerns with the movement of some Rules currently categorised as Category A Rules into Category C Rules, as well as the categorisation of Participant Service Guarantee (PSG) Rules as Category C Rules.

  5. While Category C Rules generally do not have a financial impact, the Territory’s demographic and geographic circumstances mean it has factors unique to that of other jurisdictions, and as such, any additional provisions added to Category C reduces the ability of the Northern Territory Government to have a voice to effectively collaborate with the Commonwealth Government to ensure appropriate operation of NDIS rules with respect to ASTI peoples, which make up about 50 per cent of NDIS participants in the Northern Territory, as well as other Territorians living in remote and very remote regions.

Participant Service Guarantee

  1. The Northern Territory Government is supportive of measures to improve the overall participant experience with the NDIS through the PSG. However, there are concerns as to how this will be managed operationally in the Northern Territory.

  2. The Northern Territory Government welcomes discussions with the NDIA and the Commonwealth as to how these parts of the Bill will be operationalised, including how

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the NDIA will ensure timeframes are met with respect to the facilitation of the development of a participant’s plan, internal review processes and longer timeframes for the CEO to make decisions. As previously cited, reliance on telehealth or similar assessment approaches in the Northern Territory are not equitable for current and prospective NDIS participants.

  1. While the Northern Territory Government is supportive of measures to allow participants to request changes to their plan without having to replace an existing plan, or create a new plan, the Territory does not support the CEO of the NDIA having the ability to vary a participant’s plan under Category C Rules. Further clarification is also needed as to how a participant will be involved in this process. This goes towards the fundamental tenants of choice and control.

  2. Extensions of timeframes from 28 to 90 days for the CEO to request information from prospective NDIS participants are welcomed. However it is also suggested that the CEO be given the ability to grant a further extension of time to provide information on request given challenges faced by those in very remote areas of the Northern Territory to access services.

Flexibility Measures

  1. The Northern Territory Government supports measures to develop a diverse and sustainable NDIS market, to ensure that people with disability can exercise their rights to choice and control when obtaining supports. As part of this, the Territory is pleased to see measures to include the central role of participants in co-design, clearer eligibility criteria for psychosocial disability, right to markets where they can exercise choice and control, and the need to recognise and respect the relationship between people with disability, their families and carers.

  2. The Northern Territory Government welcomes measures to improve flexibility and recognition that a nationally consistent, ‘one-size-fits-all’ model does not always work for NDIS participants or providers. Different market solutions, methods of engagement and collaboration with mainstream services may be necessary in certain circumstances.

  3. These measures and measures to simplify operation of the scheme, such as through direct payment and simplification of claiming processes, are needed in the Northern Territory where there is ongoing and significant underutilisation of supports within NDIS plans. NDIS plan utilisation is as low as 46 per cent in the Darwin Remote region (as defined by the Modified Monash Model) and East Arnhem and the failure to provide Early Childhood Early Intervention supports in all areas of the Northern Territory outside of the Greater Darwin area.

  4. The Bill also puts in place additional safeguards to protect participants from risks to their wellbeing and poor outcomes due to unsatisfactory service providers, including conflicts of interest or other misuse of the NDIS. The Northern Territory Government is supportive of measures to protect NDIS participants, however has concerns about how this will be implemented due to service delivery and thin markets in the Northern Territory. More clarity is required on how this will be implemented in a Northern Territory context, particularly in remote and very remote areas.

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  1. Updating of provisions relating to NDIA Board membership is also supported, to ensure that those with lived experience of disability or possessing disability are included as a characteristic to consider. However, the Northern Territory is of the view that an additional characteristic that should be considered for Board appointments is whether a person identifies as being ATSI. In the Territory, up to 50 per cent of NDIS participants identify as ASTI and this cohort experiences significant levels of disadvantage particularly when living in remote and very remote areas. It is strongly recommended the Bill include representation from this group of NDIS participants.

Recommendations

  1. Rules proposed to be categorised as Category D Rules in the Bill instead be prescribed as Category A Rules.

  2. The Bill include a requirement that persons who identify as being ATSI be considered in appointments to the NDIA Board.

  3. The Commonwealth Government and the NDIA actively engage with the Northern Territory Government and service providers to discuss the implementation of the PSG and flexibility measures contained in the Bill. Although these measures are supported in principle, efforts must be undertaken to ensure those who live in remote any very remote parts of Australia have the opportunity to benefit from these reforms.