NDIA Accountability Project

Victorian Government recommendations for NDIS rule categorization

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BAC-BR-8621

Senator Wendy Askew Chair Senate Standing Committee on Community Affairs Legislation community.affairs.sen@aph.gov.au

deeply regretted. Dear Senator Askew and Committee Members

Thank you for the opportunity to provide a submission to the Community Affairs Legislation Committee Inquiry into the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021. Please find enclosed the Victorian Government’s submission for consideration by the Committee.

I note the Amendment Bill implements a number of the recommendations of the review of the National Disability Insurance Scheme (NDIS) Act 2013 (NDIS Act) by Mr David Tune and makes other amendments to remove obsolete and transitional provisions from the NDIS Act to reflect full scheme commencement from 1 July 2020.

The Victorian Government supports amendments to the NDIS Act to introduce a Participant Service Guarantee as a significant step to improving people’s experience with the National Disability Insurance Agency (NDIA) and the increased accountability offered through the public reporting obligations. Victoria also welcomes legislative recognition that people with disability have a central role in the co-design of the NDIS.

The Victorian Government is committed to ensuring the NDIS has the needs of people with disability at its centre. States and territories, as co-funders and joint stewards of the NDIS have a shared interest in the scheme’s success and improving participant experience.

In line with this, it is the Victorian Government’s strong view that the current draft bill does not reflect the original intention or rationale for the assessment of level of agreement with states and territories required before a Rule can be made. It is very clear that these rules deal with significant policy and financial matters related to the scheme, and do not represent the limitations expressed in the Tune review.

Therefore, this submission makes clear recommendations regarding the categorisation of a number of the new Rules proposed under the Amendment Bill, specifically that the following matters be classified as Category A rules:

  • matters the CEO of the NDIA must have regard to when considering whether to vary or reassess a participant’s plan; and
  • matters to which the NDIA must have regard when deciding on whether to provide funding to a person or entity to assist a person to receive supports.

If you require any further information please contact James MacIsaac, Executive Director Disability at the Department of Families, Fairness and Housing on or by email at .

Thank you for the opportunity to provide this submission.

Yours sincerely

The Hon James Merlino MP Deputy Premier Minister for Education Minister for Mental Health Minister for Disability, Ageing and Carers

18/11/ 2021

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

The Victorian Government welcomes the opportunity to contribute to the Senate Community Affairs Legislation Committee (the Committee) Inquiry into the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021 (the Amendment Bill).

The Committee has invited submissions addressing issues that may be of relevance to respondents.

The Victorian Government supports measures that seek to improve the experience of National Disability Insurance Scheme (NDIS) participants with the scheme by increasing transparency, consistency and timeliness of decision making by the National Disability Insurance Agency (NDIA) and its partners. The Victorian Government supports the implementation, through the Amendment Bill, of recommendations made by Mr David Tune AO PSM in his 2019 review of the NDIS Act (the Tune Review), including for legislative amendments to implement a Participant Service Guarantee (PSG).

The introduction of a Participant Service Guarantee, which legislates timeframes for many of the NDIA’s decision making processes and includes principles and service standards for how the NDIA will work with participants, is a significant step to improving people’s experience with the NDIA. The increased accountability offered through the public reporting obligations is also welcome.

The Victorian Government amendments that give effect to the recommendation of the Tune Review to give the NDIA the power to amend participant plans in appropriate circumstances, rather than requiring new plans to be created via a full plan review.

In addition, inclusion of amendments to provide more defined powers for the NDIA to engage in market intervention are also supported.

However, the Victorian Government is concerned with respect to the categorisation of NDIS Rules associated with the last two items.

The Victorian Government is committed to ensuring the NDIS has the needs of people with disability at its centre, and as co-funders and joint stewards of the NDIS along with the other states and territories and the Commonwealth, have a shared interest in the scheme’s success and improving participant experience.

The Victorian Government submits that the categorisation of a number of new Rules as proposed in the Amendment Bill does not follow the original intention or rational for the assessment of the level of agreement with states and territories required before a Rule can be made.

Background

Specifically, the Amendment Bill provides for the establishment of Rules prescribing the matters to which the Chief Executive Officer (CEO) of the NDIA must have regard when varying or reassessing a participant’s plan, and when intervening in the market to contracting directly with organisations for services to be delivered for participants. The Victorian Government submits that these Rules deal with significant policy and financial matters and therefore makes the following recommendations:

  • Recommendation 1: That the Amendment Bill provides that NDIS Rules made under paragraphs 47A(1)(a) and (c) will be Category A NDIS Rules.
  • Recommendation 2: That the Amendment Bill provides that NDIS Rules made under subsections 47A(6) and 48(5) will be Category A NDIS Rules.
  • Recommendation 3: That the Amendment Bill provides that NDIS Rules made under subsection 14(3) will be Category A NDIS Rules.

The Victorian Government reaffirms its commitment to the original objectives and vision of the NDIS, in which people with disability are at the heart of the scheme and participants are empowered to exercise choice and control.

The Tune Review found that for many participants, the NDIS was delivering improvements on social and economic outcomes, however people with disability reported frustrations with aspects of administration of the NDIS by the NDIA. The recommendations of the Tune Review focus on improving the participant experience and maximising the benefits of the NDIS.

The inability to amend a plan was identified as a key frustration of participants and “one of the biggest weaknesses of the NDIS Act.” As well as the obvious reduction in administrative burden, the ability to make small changes quickly to a plan enables a fast response in a crisis - a critical factor currently missing from the NDIA operational response to people at imminent risk of losing their disability supports.

The other key area of interest where the Victorian Government has long been advocating for greater intervention by the NDIA, is in the area of alternative commissioning and market development and intervention. Whilst it is a key tenet of the NDIS that participants exercise choice and control through the purchase of supports from an open market, there are circumstances where participants are unable to do this by individually approaching the market. Issues associated with ‘thin markets’ arising from geography (rural and remote locations) or capacity to meet specialised or complex needs are a particular case in point. The inclusion of amendments in line with the recommendation of the Tune Review to give the NDIA more defined powers to undertake market intervention on behalf of participants is also supported by the Victorian Government.

All jurisdictions have a role to play as co-funders and joint stewards of the NDIS. The design of the legislation that underpins the scheme ensures that all jurisdictions are able to exercise these responsibilities through the making of NDIS Rules which are legislative instruments.

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The explanatory memorandum for the National Disability Insurance Scheme Bill 2012 (Cth) outlined that the categorisation of NDIS Rules is to be based on the following criteria agreed with host jurisdictions:

  • Category A Rules relate to significant policy matters with financial implications for the Commonwealth, states and territories, and so require the unanimous agreement of jurisdictions to make or amend.
  • Category B Rules relate to a particular jurisdiction, and so only require the agreement of that jurisdiction.
  • Category C Rules relate to policy issues that are not expected to have a financial impact, and require agreement of the Commonwealth and a majority of states and territories.
  • Category D Rules are administrative in nature, requiring only that the Commonwealth consult states and territories before making or amending the Rules.

During public consultation on the draft Bill, stakeholders raised concerns about the proposed categorisation of certain rules, which has direct impact on the ability of states and territories to have input into their making. These concerns were primarily regarding the categorisation of proposed new Rules governing the matters to which the CEO must have regard when varying or reassessing a participant’s plan and when the NDIA may intervene in the market on behalf of a participant to help them access their NDIS supports, as Category D.

Under the NDIS Act, Rules pertaining to matters of access, planning and what is considered reasonable and necessary are all Category A. Rules made for the purposes of the new and amended plan variation powers and ability to intervene in the market should similarly be classed as Category A, ensuring consistency across the Act.

Participant plans and access to funding and suitable service responses are central to the NDIS. The new and amended Rules clearly relate to significant policy matters with financial implications and as such should be Category A rules requiring the unanimous agreement of the states and territories. This requirement is considered by Victoria to offer the level of oversight and joint governance required for matters such as these. Discussion The Tune Review found that: 1. Reviewing and amending a participant’s plan

  • the legislative requirements for varying and reviewing plans are overly prescriptive
  • additional guidance should be provided regarding when an unscheduled plan review can be conducted
  • the triple use of the term “review” was confusing
  • plans should be able to be amended, under certain circumstances, without needing a full plan review.

In response Tune made three recommendations:

  • Recommendation 20: The NDIS Act is amended to introduce a new Category D rule-making power that sets out the matters the NDIA must consider when deciding whether to undertake an unscheduled plan review.
  • Recommendation 21: The NDIS Act is amended to introduce a new Category D rule-making power giving the NDIA the ability to amend a plan in appropriate circumstances.
  • Recommendation 22: The NDIS Act is amended to remove the duplicate use of the word ‘review’.

The Victorian Government strongly supports any changes which simplify the administrative processes in relation to making changes to a participant’s plan. However, this power should be exercised within the limitations anticipated by Tune.

Sections 47 and 48 of the Amendment Bill are designed to give effect to these recommendations. Importantly, the new section 47A enables the CEO to vary a participant’s plan (except the participant’s statements of goals and aspirations), without requiring a plan reassessment to be undertaken, or a new plan to be created. The Amendment Bill proposes NDIS Rules for the purposes of paragraphs 47A(1)(a) and (c) subsections 47A(6) and 48(5) as Category D NDIS Rules.

The new Rules relate to the matters to which the CEO must have regard when varying or reassessing a participant’s plan. By way of contrast, Rules made under section 35(1)(a), which prescribe matters to which the CEO must have regard in determining reasonable and necessary supports in a participant’s plan, are classified as Category A Rules. Victoria submits that the new Rules under section 47A and 48 should also be classified as Category A to promote consistency across the NDIS Act. This would also provide the states and territories a greater level of input into the matters to which the CEO must have regard in exercising the variation power.

The Tune review clearly stated that the intention was for these powers to be exercised under “certain limited circumstances.” There is concern that as a Category D Rule, the prescribed circumstances are able to be set, and at any time changed, unilaterally by the Minister for the NDIS and with only ‘consultation’ with states and territories.

The Victorian Government submits that these Rules deal with significant policy matters and therefore makes the following recommendations for the Committee’s consideration:

  • Recommendation 1: That the Amendment Bill provides that NDIS Rules made under paragraphs 47A(1)(a) and (c) will be Category A NDIS Rules.

  • Recommendation 2: That the Amendment Bill provides that NDIS Rules made under subsections 47A(6) and 48(5) will be Category A NDIS Rules.

The Tune Review states that rigid adherence to individualisation can have a negative effect on
2. Supporting participants to access supports / alternative commissioning participant outcomes where the market is not sufficiently robust, and where market navigation and decision making supports are inadequate. By expanding the market, people’s ability to exercise choice is increased over time.

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The Tune Review recommended that “the NDIS Rules be amended to give the NDIA more defined powers to undertake market intervention on behalf of participants.”

The Victorian Government supports the inclusion of amendments to provide more defined powers for the NDIA to engage in market intervention noting that these will be particularly useful in addressing provider shortages in rural areas of Victoria and other thin markets.

The Amendment Bill proposes amendments and new NDIS Rules around the matters to which the NDIA must have regard when deciding on whether to provide funding to a person or entity to assist a person to receive supports. The proposed amendments and new Rules aim to clarify and define how the NDIA may intervene in the market through contracting directly with organisations for services to be delivered for participants in areas where supports or services are otherwise not readily available. The Amendment Bill proposes that these Rules be classified as Category D.

Whilst this inclusion is positive, it will be important to ensure that the provision is exercised appropriately and is not unduly limited by any factors listed in the relevant Rules. The Victorian Government submits that these Rules deal with significant policy matters and therefore makes the following recommendation for the Committee’s consideration:

  • Recommendation 3: That the Amendment Bill provides that NDIS Rules made under subsection 14(3) will be Category A NDIS Rules.