NDIA Accountability Project

Concerns regarding 'new NDIS Rules' contradicting the NDIS Act

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Dear Sir/Madam,

7th November 2021

Thankyou for conducting a review into the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021.

I am responding to this consultation as a NDIS Participant, and carer of another NDIS participant who lives in regional NSW and who has spent more time at the AAT demanding the NDIA adhere to the NDIS Act, NDIS Act (Support for Participants) Rules, and the APS Code of Conduct in determining what are reasonable and necessary supports, than plans without appeal. Although the Participant Service Guarantee is a step forward there are numerous factors that need to be addressed, especially as the legacy of NDIA inefficiencies, inaccuracies and dishonesty can be exploited under these proposed changes.

Although the Bill has changed since the Exposure Draft and has addressed most of the issues I raised about the NDIS Act itself, I have grave concerns that they will be undermined by the “new NDIS Rules” and the potential of S47A being beyond what was initially recommended by David Tune. The National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021 Explanatory statement repeatedly states that Reasonable & Necessary Supports must apply the “new NDIS Rules” however the government has failed to produce the corresponding Rules to clarify their interpretation of the Bill in its full context. Given this, scrutiny must be given to how the prosed Bill will be read with the “new NDIS Rules” which contradict the NDIS Act Objects and Principles, and limits participants Choice and Control.

The provisions within the proposed Rules dilute the protections for participants to seek supports under their current Choice and Control protections. As has been identified in the

ANAO report Decision Making Controls for Participants1 the NDIA have low levels of compliance of internal policies and of the current NDIS Act requirements.

This identifies that there is a cultural paradigm within the NDIA to disregard the legislation and legislative Rules in the provision of reasonable and necessary supports and in its functions and how the NDIA interacts with participants. The DSS cannot reasonably state that “new NDIS Rules” will increase participants flexibility or Choice and Control when the proposed Bill continually defers to “new NDIS Rules” that can potentially limit the scope of supports that NDIS Participants can access. Reasonable and Necessary Supports should be explicitly identified in the Bill and not defer to the “new NDIS Rules” that have not been scrutinised by parliament.

I wish to highlight numerous concerns with the proposed NDIS Plan Administration Rules, and Plan Management Rules, and the Proposed Bill that inter alia: overlook the underlying principles in the NDIS Act; overlook NDIS participants’ Human Rights protected under the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) and Optional Protocol ratified by the Australian Government in 2008 and 2009; remove or dilute protections for NDIS participants seeking supports enabled under Australian Contract Law and Australian Consumer Law; and overlook one of the main functions of the National Disability Insurance Agency.

As the Bill’s Explanatory statement refers to the application of the “New NDIS Rules” they must be scrutinised alongside each other.

Proposed Plan Administration Rules

Manner of paying NDIS Amounts

The addition of “in instalments” is open to exploitation as some participants, especially self-managed participants who employ their own support staff require funding available to pay

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wages, tax, superannuation and other business expenses related to their disability supports. If

the NDIA were to force quarterly payments for NDIS participants as a blanket policy those in

the disability workforce, and smaller independent employers would be unable to cover the

costs of services they’ve provided and nor would self-managed participants be able to self- employee their support staff.

As it is currently proposed there are no protections or guarantees of which payments would be paid in instalments. Participants need to know which payments will be paid in instalments and those which won’t be, or the circumstances when payments would be paid by instalments. At the current time there is too little information and insufficient protections for participants who rely on care, and could be left to die if they are placed in a situation where they cannot pay for services. This is too open for exploitation and the DSS must revise this section to ensure the safety and wellbeing of participants and to reduce the ambiguity of the discretionary powers of the CEO. This uncertainty would allow the CEO to determine the risk of a person managing their own funds is unreasonable under S44 of the proposed Bill and force plan or agency management upon them.

Acquittal of NDIS Amounts

The proposed changes also decrease the financial sustainability of the NDIS through removing a participant’s ability to have both choice and control in the delivery of their supports by removing the ability of participants to enter into sales contracts with suppliers of disability supports. This is explicitly where a discounted rate is provided for services that are paid in advance as agreed under a sales contract. These agreements are legally binding sales contracts under Australian Contract law, with protections for consumers afforded through Australian Consumer Law. The omission of this type of sale agreement also breaches the

Page 4: NDIS Act 2013 - Choice and Control; Financial Sustainability Issues

NDIS Act 2013 in enabling participants Choice and Control; and Financial sustainability issues.

NDIS Act 2013 Section 3 (1)(e) states:

        (1) The objects of this Act are to:
         (e) enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and

NDIS Act 2013 Section 118(1)(a)(ii) states:

        (1) The Agency has the following functions:

                (a) to deliver the National Disability Insurance Scheme so as to:

                                (ii) enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports;
                    and;

As an example, in my current NDIS Plan as a self-managed participant I have been able to enter into a legally binding Sales Contract with a provider of disability-related supports. The provider has agreed to provide disability-related supports over the life of my NDIS plan, and that by paying in advance I would receive 35% discount on services. This provider of disability supports is not breaching any laws, as there is an agreement between both parties with an intention to supply services for which they are able to. Given that I have paid in advance I have saved the NDIS approximately $5,000 in my current NDIS plan for reasonable and necessary supports.

If Australian Consumer Law, and Contract Law allows me to enter into sales contracts why do the “new NDIS Rules” not allow for the provision of services agreed under a sales contract – that are intended to be supplied in a specified time. This omission means that if the proposed framework is implemented the NDIA would be in breach of general principles of the NDIS Act and a principal function of the agency under S118 would not be able to occur, nor would I be able to do something that someone without a disability is able to. An example of this type of sales contract that is legally recognised, is a prepaid mobile plan, where the

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  retailer provides services of a specified time at a cheaper rate, than PAYG or post-paid

mobile services.

Should Section 9(3) be implemented there, should be provisions to allow participants provide

 evidence of a sales agreement or sales contract, where there are agreed terms to the provision

 of future supports supplied over a specified time are to be provided, especially if a participant

  is audited during the time specified in the sales contract. This sort of contract is legal in

 Australia and consumers have protections under current Australian Consumer Law to ensure

 businesses provide these services. Therefore, there is no risk to the NDIS or to taxpayers that

 funds are being spent inappropriately. On the contrary it means that support funding is being

used in a more conservative manner increasing the financial sustainability of the scheme by

 increasing the ‘value’ of supports in a participants’ plan.


  If the NDIA does not include a provision for participants to enter into these sorts of contracts

 the NDIA and the Australian Government would be in breach Article 4(b)(c)(d)(e), Article

 5(1), Article 12 (1)(2), Article 16 (1), Artcile 25(e) of the UNCRPD, as I would be prevented

from entering these sorts of legally recognised sales contracts on the basis of my disability. It

would also breach Section 3(1)(e), and S4(4) of the NDIS as it would remove my choice and

 control in the delivery of my supports and with how I would like to engage with the particular

 provider of supports. As stated above the NDIA would also not be able to achieve one of its

main functions: enabling participants to exercise choice and control in the delivery of their

 supports (S118(1)(a)(ii)).


 In addition, Section 9(3) should in relation to GST, should have “(if any)” included in (e) as

 not all supplies of reasonable and necessary supports include GST. A New Tax System

(Goods and Services Tax) Section 38-38 and A New Tax System (Goods and Services Tax)

(GST‑free Supply—National Disability Insurance Scheme Supports) Determination 2021

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state that certain NDIS supports can be GST-free. The categories identified in Schedule 1

tate that reasonable and necessary supports can be both goods and services. Therefore, the

legislative framework should allow provisions for GST-free supplies in the evidence required

for acquittal.

Furthermore, should the proposed framework not include a provision for participants to enter

sales contracts for disability supports paid in advance at a discounted rate the NDIA will also

be in breach of Section 118(b)(ii) as they would not be identifying and managing the risks on

the financial sustainability of the NDIS.

There are numerous other NDIS participants I have met at this non-NDIS-registered

innovative community support provider. Based on the 10 other NDIS participants I have met

there that now pay in advance under this discounted sales contract model enabled under

Australian consumer law, the NDIA would have to increase ten plans by approximately

$50,000 collectively to fund the same amount of services. The NDIA would not be able to

increase participant engagement through innovative supports without allowing NDIS

participants to enter into contracts for the delivery of their supports; especially for non-NDIS

registered providers. In addition, the exclusion of a clause for these sales contracts would

restrict market intervention in underserviced markets, especially in regional and remote

Australia.

Proposed Plan Management Rules

The proposed Plan Management Rules the NDIS will be watering down their requirement for

participants in exercising choice and control. This will prevent participants from exercising

choice and control as the framework is targeting supports specified in participants plans.

However, with this introduction of specifications, the supports participants can choose will

decrease, and so will choice and control.

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The NDIS Act 2013 states supports can be specifically stated or generally described.

However, the proposed changes now include 4 new rules that are open to be exploited:

  • Supports or classes of supports provided under agreement with Agency;
  • Supports or classes of supports provided by particular person or provider;
  • Supports or classes of supports provided in particular manner;
  • Market Intervention.

The first three rules will give an illusion of Choice and Control, but will fundamentally reduce Choice and Control of Participants, particularly without safeguards to confine their use. Although Market Intervention is most likely going to enable those of us in regional Australia to access innovative community supports the three prior rules could restrict this ability depending on the implementation of these initial 3 support class specification rules.

New Rules open to Exploitation

Rule 3 is highly concerning, especially as a participant who lives in regional Australia. At no point should a NDIA delegate be able to determine whether funding of supports should be funded in a certain specified manner. The Delegate is not a trained allied health professional and therefore should not be able to state whether allied health services should be provided face-to-face or as telehealth. This should be a determination made by a disability support provider based on their professional opinion within their scope of practice and based on the participants wishes.

If the NDIA does override an AHPRA registered allied health professionals recommendation of the manner in how supports are delivered I would need to lodge an official complaint with

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APHRA and the National Boards, and the Commonwealth Ombudsman about the conduct of

the APS employee as they would be making a determination that only an APHRA registered professional could make as part of their professional title, and therefore the NDIA employee would be breaching National Laws for Performing a Restricted Act. There should be no

circumstances in which an APS employee can determine the manner in which supports can be

delivered.

Regardless of your choice and control in the delivery of your supports under S3(1)(e), S4(4), & S118(1)(a)(ii) the NDIA will be able to override these provisions if they specify under one of these categories.

Personally, the most concerning new rule is the inclusion of “Supports provided in a particular manner”. This means those in regional Australia could be forced to have telehealth for a specific allied health professional without any say. This provision gives the CEO/NDIA authority to refuse funding for face-to-face services in favour of telehealth and vice versa as there are no measures that restrict how this rule is implemented. This measure could also reduce workplace opportunities in regional Australia if the delegate determines that face-to- facing therapy should not occur due to extensive waitlists or travel requirements

The New Plan Management Rules will now state that:

  1. “that it is desirable for the participant to receive essential supports;” and,
  2. that it is desirable for the participant to be able to exercise choice and control.

But not that choice and control is required or allowed to the full extent of their ability.

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I believe the inclusion of these three rules are dishonest and restrict a participant from accessing the disability-related supports they require. It is an illusion for the DSS to state that the changes will increase Choice and Control and flexibility for participants. These changes could degrade NDIS participants Choice and Control, through the DSS attempting to control what type of supports the participant can access, who they can access the supports from, and the manner in which they are delivered. This is NOT Choice and Control! This is nothing more than an attempt to force participant to have decreased flexibility in their plan. A participant cannot exercise Choice or Control if the CEO is given powers to choose the type of support, the provider and manner in which supports are delivered.

It is unacceptable and in breach of the NDIS Act and the UNCRPD if the CEO has authority to override choice and control within a participants’ plans. It is unconscionable that the DSS has glossed over changes that will restrict NDIS participants self-autonomy and, Choice and Control over their supports and lives.

If a participant is Self- or Plan-managed they should have the right to choose the type of supports, who is the provider, and the manner in which supports are delivered. The NDIA has a duty of care to agency-managed participants and therefore if these rules are implemented should only be for those participants in which they have direct onus for (NDIA-managed participants).

Self-managed and Plan-managed participants will lose Choice and Control, and some will lose supports. These rules need to be specifically identified as who they are for; otherwise they can be exploited and will jeopardise NDIS Participant’s lives, and the disability workforce who may not be registered providers of supports.

Furthermore the application of these rules will enable the CEO to force participants to have a pseudo Independent Assessment by controlling the provider, the assessment and the manner

Part 3 – Unreasonable Risks to Participants-adult participant managing funding

The proposed inclusion of (e) is highly exploitative as written, especially when read in conjunction with the proposed S44 of the Bill. It also dismisses the Tune Review statement 3.782:

“It is essential that the NDIA continue to improve its information products to better equip people with disability to become informed consumers. On this basis, the Participant Service Guarantee should commit the NDIA to ensure all participants and prospective participants have access to information about the NDIS, their plans and supports, that is clear, accurate, consistent, up-to-date, easy to understand and in formats that meet their needs.”

The findings of the Tune Review found that the NDIA provides incorrect information and that NDIS Participants are poorly informed consumers. Submission 843 to the Joint Standing Committee for General Issues Around the Implementation and Performance of the NDIS, reviewed AAT and NDIS data between 2019-2020:

     1. Out of 18 NDIS cases that were decided by the AAT, 13 resulted in a variation to the NDIA’s decision. That is, **72%** of cases were at least partially in favour of the applicant; and

     2. Out of 1,012 cases that were resolved by consent between the parties, 985 resulted in a variation to the NDIA’s decision. That is, in **97%** of cases that were resolved by

consent, the NDIA itself agreed to change its original decision at least partially in

        favour of the applicant.

Even recently AAT determinations such as: TYKL v NDIA (2021), SCHW v NDIA (2021),

Nottle v NDIA (2021) all requested assistance animals and were denied by the NDIA, were

varied by the AAT as the NDIA internal policy and decision makers have incorrect

understanding of the legislation and provide incorrect information to participants about what

their funding can be used on. Cases such as Burchell v NDIA (2019) which prior to this, the

NDIA refused to consider Rule 5.2 of NDIS (Supports for Participants) Rules 2013 and

subsequently has needed to change their operational guidelines and information on their

website. However even now other parts of their website, and workforce continually contradict

that the NDIS is responsible and funds, supports that enable participants with Dysphagia to

swallow more safely.

The inclusion of (e) disregards the Tune Review finding that NDIA participants are ill- informed due to incorrect and confusing information that has been provided to them by the

NDIA. The inclusion of this by default could force all participants into plan management. As

it is written, it is open to exploitation as there are no protections for participants who did not

know they were misapplying funds. The Auditor-General4 and AUSTRAC5 have both

publicly stated that although there is fraud within the NDIS it is not conducted by participants

but third-party providers of supports.

Proposed clause (e):

          (e) whether the participant has misapplied the funding for supports under the

         participant’s plan or a previous plan for the participant;

Given the poor advice of the NDIA, the statements from the AG, and AUSTRAC a

participant should not be punitively punished for an honest mistake, acting on incorrect

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advice or an incorrect determination of the NDIA. As has been seen by the variation rate of

plans before the AAT, there is a significant variation of what is determined reasonable and necessary in 97% of cases settled outside of hearing, and 73% rate when a hearing is held.

Before an NDIS participant has been found to have misapplied funds it should be determined by an independent third-party as the agency currently and historically provides incorrect information and poor decision-making outcomes. The ANAO in the Decision-Making Controls for Participants also stated that the NDIA admitted there was low internal compliance of internal policies; and that the staff and CRM system does not require completion of all required legislative processes in determining reasonable and necessary supports. Therefore, NDIS participants cannot reasonably trust the NDIA, or CEO to be able to determine whether they have misapplied their funding on disability supports. From this it is apparent that, any change of self-managing of funds should only apply to individuals who have knowingly, and intentionally misapplied NDIS funds, and where this has been established by an independent third party.

This new inclusion also raises concerns about the ‘life’ of such a ban from self-management. Will a participant be indefinitely banned? Will they receive support-coordination in their next plan, so they can learn about what is and is not covered under their plan, therefore reducing the risk they will misapply funds in the future. Given that (e) does not have an expiry this Rule is extremely open to exploitation. It also doesn’t take into account any learning curves the participant has had in subsequent plans if they misapplied funds in a prior plan, and therefore would be unfairly restricted for an honest mistake that would not occur in subsequent plans. This is a reasonable assumption given the Tune Review findings and recommendations that the NDIA provide accurate information. It highlights concerns that participants will be held accountable for the NDIA historically or currently providing incorrect information. Given that there have been numerous cases before the AAT that have

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sequentially found decision making for assistance dogs has been incorrect from the NDIA;

the NDIA have either failed to update their information, or policies or honour the Commonwealth’s Model Litigant Obligations6.

Given the poor track record of the NDIA in providing accurate information, and the ambiguity around the definition of “unreasonable risk”, a participant should be able to defend prior decisions or contest what represents an unreasonable risk; especially as the NDIS Act requires individualised planning. Given that the NDIA is only required to give accurate information once the Participant Service Guarantee comes into effect, it seems unfair to punitively punish participants.

Participant Service Guarantee

Variation of Plans – 47A

Giving effect to the NDIA’s obligations to under the Commonwealth’s Model Litigant Obligations to reduce litigation and prevent the exploitation of those with disabilities; and to adhere to the principles central to the Participant Service Guarantee, I question why there is no clarification to variation powers for the CEO for reviewable decision while at the AAT, prior to the Tribunal making a decision. Although the Exposure draft says

During the AAT appeals process when both parties (applicant and the NDIA) have agreed that the disputed participants support/s are reasonable and necessary during the case conferences, the plan should be varied accordingly. Given the NDIA has agreed the supports should be included in a plan, the ‘Statement of Participants Supports’ should be varied to include those supports. It is unfair, coercive and a breach of the Commonwealth’s Model Litigant Obligations for the NDIA to agree that a participant should have a support funded in their plan, but refuse to include it. For example, in my current AAT case, supports that the NDIA agreed I met the reasonable and necessary criteria for, during the first case conference

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In March 2021, have not been varied in my plan. This is despite the NDIA having agreed to the supports in writing, stating that they are reasonable and necessary, and should be included in my plan even when no new evidence was provided and they reviewed what had been submitted initially. If the NDIA has the ability to vary my plan under the current legislation by changing the dates, they have the authority to vary the supports under dispute. This was supported by Holland v NDIA (2021) that the CEO does have authority to vary plans while at the AAT.

Deputy President J W Constance: “53. I am unable to agree with the view put forward by Deputy President Forgie that the Chief Executive Officer does not have the power to consent to an alteration of the decision being reviewed by the Tribunal. While I agree that there is no specific power tto consent to an alteration of the decision as to the supports to be provided, equally there is no specific power given to the CEO to request the matter be remitted to the Agency under section 42D for the same purpose. In fact, the Act is silent on the powers the CEO may exercise in relation to proceedings before the Tribunal.”“

    "54. Section 103 provides for a review process in the Tribunal. Although there are no
    express powers to take part in such proceedings, it must be implied that the CEO will
   have the necessary powers to enable the Agency to advance its interests before the
    Tribunal, including consenting to a variation of the decision under review when
    appropriate.""'

If the NDIA has agreed that supports are reasonable and necessary whilst before the AAT the variation should occur immediately. It should not be on the request of a participant, or in response to the AAT remitting a decision back to the CEO; the NDIA should honour its own

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The obligation to vary the plan as soon as they acknowledge it is a reasonable and necessary support.

This should be explicitly enshrined in the NDIS Act, and not deferred to in the Rules.

Furthermore, another concerning detail in the Bill is that s47A also allows plans to be varied on the CEO’s own initiative, without request, consultation, or consent from the participant.

This is beyond what was recommended by the Tune Review, and raises several concerns. Except in extreme circumstances where the participant cannot be consulted within a reasonable timeframe, the CEO should not have the right to make variations without consent.

Taking note of the Proposed Plan Administration Rules, s47A can exploit participants by changing their level of funding or restricting how their funds are used without consulting participants. This fundamentally undermines the Objects and Principles of the NDIS Act.

Yours sincerely, Mr Bradley

References

  1. Decision-making Controls for NDIS Participant Plans. The Auditor-General. Auditor-General Report no.14 2020-21 – Performance Audit. Retrieved from: https://www.anao.gov.au/sites/default/files/Auditor-General_Report_2020-21_14.pdf
  2. Tune, D. (2019). Review of the National Disability Insurance Scheme Act 2013: Removing red tape and implementing the NDIS Participant Service Guarantee.
  3. Australian Parliament Joint Standing Committee on the National Disability Insurance Scheme: Inquiry into general issues around the implementation and performance of the NDIS. Public Interest Advocacy Centre (August 2021). Retrieved from https://www.aph.gov.au/DocumentStore.ashx?id=00846f80-b458-475d-95ce- ee1f82d5765a&subId=712165&fbclid=IwAR2SobyLDXBmzhtF1tVc4bttyUB95ccou fAr-OcMOnDI6hO7iWPHK9K3B_A
  4. Interim Report on the Key Financial Controls of Major Entities. The Auditor-General. Auditor-General Report no.38 2019-20. Financial Statements Audit. Retrieved from: https://www.anao.gov.au/sites/default/files/Auditor-General-Report_2019- 2020_38a_0.pdf
  5. NDIS funds spent on crypto, gambling, luxury goods, warns AUSTRAC. Australian Financial Review. Published December 8, 2020. Retrieved from: https://www.afr.com/companies/financial-services/ndis-funds-spent-on-crypto- gambling-luxury-goods-warns-austrac-20201208-p56ll7
  6. Australian Government Legal Services Directions 2017 – Appendix B – The Commonwealth’s Obligation to act as a model litigant – Released 27 March 2017. Australian Government. Retrieved from: https://www.legislation.gov.au/Details/F2017L00369
  7. NDIA accused of ‘selectively’ quoting academic to help justify controversial reforms. Canberra Times. Published May 6 2021. Retrieved from: https://www.canberratimes.com.au/story/7239081/ndia-accused-of-selectively- quoting-academic-to-justify-reforms/
  8. ‘Tampering with evidence’: More academics accuse NDIA of misrepresenting their views. The Canberra Times. Published May 14 2021. Retrieved from: https://www.canberratimes.com.au/story/7251989/tampering-with-evidence-more- academics-accuse-ndia-of-misrepresenting-their-views/