Submission to Senate Committee Inquiry into the National
Disability Insurance Scheme Bill 2012
Committee Secretary Senate Standing Committees on Community Affairs PO Box 6100 Parliament House Canberra ACT 2600 Australia
e-mail: community.affairs.sen@aph.gov.au
Submission to Senate Committee Inquiry into the National
Disability Insurance Scheme Bill 2012
Thank you for the opportunity to make a submission into the inquiry.
The NDIS is a long overdue and extremely important piece of legislation and I commend the Federal Government for bringing it before the Australian people. I have read through the legislation and had discussions with others. Please consider and incorporate the points I have listed below prior to this Act being placed before parliament for the second reading.
Regards
Christina Morris
22nd January 2013
SUMMARY OF MAIN POINTS
- When discussing the provision of information, the Act should always explicitly stipulate the need for this to be available in accessible formats. Information must be available through a variety of entry points (not just the internet) and should be available locally. Language is important, it needs to be accessible and in plain English where possible.
- The phrase ‘social and economic participation’ should be extended to include political participation. If the Act is to truly give effect to the human rights of people with disability as laid out in CRPD then it should refer to economic, social and political participation.
- There is a concern that whenever the Bill makes a provision for notice in the Bill, it does not explicitly refer to the provision of this information in alternative formats. If this requirement remains implicit rather than explicit, consequently this requirement may be invariably overlooked and not fulfilled.
- Use “Shall” to define something that MUST occur and “Should” to define something that MAY occur depending on circumstances. At the moment the Draft does not seem make statements that are of a mandatory manner.
- To address potential problems associated with moving from NDIS to the aged care system, individual transition periods be put in place to ensure the supports needed and provided under the NDIS are also available in the Aged Care sector . There should also be a grace period.
- The “social impact “of a disability is a fairly broad requirement. The wording of the draft needs to be changed to “economic and/or social”.
- In making sure people can choose their supports and exercise control over how their supports are provided, what limits or safeguards if any do you think should be in place for people with disability when they choose their supports?
- Many parts of the legislation refer to ‘the NDIS rules’ and as these have not yet been publicised, properly commenting on these parts is not practicable.
Part 2 - OBJECTS AND PRINCIPLES
S 3 (2)
A whole of government approach is a very positive requirement, but there should be a practical obligation put on ALL government depts. – reporting should be a requirement here. This is not only a practical outcome, but it will also boost awareness and action around disability access and supports in the mainstream.
S 3 (3)
Love the inclusion of the concept of progressive realisation, this will address inherent societal angst about the financial impact of the NDIS. tHere should then be a reference to S4 (15)
S4 (15)
Another sub clause is needed in the General Principles that addresses the need for infrastructure and all mainstream services to become fully accessible thereby enabling the ultimate aim of social and economic participation can be realised.
S 5 (a)
need to add ‘and supported’ ie (a) people with disability should be involved and supported in decision making processes. The reality is that for many people with disability to be able to be fully involved in decision making processes they need to be supported to enable them to make an informed choice. Furthermore, being involved in doesn’t always translated as be included – it reminds me of the concept of parallel segregation.
S 5 (b)
is expanded to say: people with disability should be encouraged to engage in the life of the community which itself adheres to all aspects of CRPD Article 9. This also reflects Objects of the Act (g) and (h)
S 5 (d)
cultural and linguistic circumstances should be acknowledged, respected and taken into consideration. I am concerned that only a reference to ‘taken into account’ might limit this requirement – need to use active language.”
S 5 (e)
eeds to be expanded so that supportive relationships, friendships and connections should be recognised and respected. My concern is that if this clause is not elaborated these fundamental informal relationships may be merely recognised but not respected.
PART 3 – SIMPLIFIED OUTLINE
S6 (2) – what is in place if you dispute the plan you are given
S 8 re agency functions, there should also be a subclause (c) stipulating that the agency will
also will be building facilitating greater community inclusion of people with disability by promoting accessibility to generic services as well as to infrastructure.
PART 4 - DEFINITIONS
There needs to be a definition of ‘reasonable and necessary’ The term ‘Carer’ needs to be rephrased to read informal support. The use of language is particularly important especially as the NDIS is about moving forward and is in line with the CRPD. S 9 specifically highlights that ‘carers’ are informal supports providing care, support and assistance. For many people with disability this term has negative connotations, it positions us as the victim, the passive recipient. This legislation should use language that promotes a positive image of people with disability.
Cognitive development does not adequately cover developmental delay. It should read cognitive, adaptive and social development. A person with disability may develop cognitively but not socially. I note the Bill refers to social interaction, but that is not the same as social development.
References to ‘mental’ should use terminology accepted by the sector ie psychosocial
CHAPTER 2 – ASSISTANCE
S 14 – whilst this is a positive step forward, it also presupposes that barriers to accessing
generic services are only with the person, rather than acknowledging the majority of barriers belong to the wider community eg universities may provide superficial access but they are not welcoming, inclusive environments.
CHAPTER 3 – participants and their plans
S 22 Age requirements
- The age requirement is concerning but I can understand the rationale behind needing to limit access to the NDIS.
- However if we need to limit it, I’d prefer to limit it via bureaucracy and inbuilt costs associated with administration.
The Productivity Commission Report says that if a person with a disability is in the system then when they reach 65 they shall have the option of staying with the NDIS or transferring to the Age Care system. However, in order to address the practical issue of achieving the continuity of support as people with disability get older, NDIS supports must carry across into aged care facilities for some whilst for others the supports already in place may be adequate ie showering, mobility etc. Again it’s the individual needs that are paramount. Moving to a new care system is extremely traumatic, but it creates even more stress and anxiety for many people ie people on the autism spectrum.
To address potential problems associated with moving from NDIS to the aged care system, I recommend the introduction of a ‘cooling off’ period, especially for the first few year of the rll out of the NDIS. But for the first few cohorts, there must be a way to go back to what was working if the changes simply do not work.
Another underlying issue here is how long it will take to cover all people with disability across Australia because the roll out?
S 24(d) states
(1) A person meets the disability requirements if:
- (d) the impairment or impairments affect the person’s capacity for social and economic participation; and It says “economic and social” - whereas it should read “economic and/or social”. As it currently reads, the disability must affect you both economically and socially to be eligible. This discounts anyone not working, as well as anyone who is only struggling at work, and not socially. The “social impact “of a disability is a fairly broad requirement. The wording of the draft needs to be changed to “economic and/or social”.
Also refer to S 34 (f)
S28 Is there any provision for redress if the CEO’s decision is disputed?
S 29 – when a person ceases to become a participant - S 29 (b) … what about when a person is already an NDIS participant and then turns 65, will they be suddenly thrust within the aged care system? Doesn’t this clause conflict with the ‘lifetime care and support’ espoused by the NDIS?
Just because written notice of a decision is sent to a participant, it doesn’t mean that person can access the content unless it is in format which they can access. Unless the Act explicitly requires written notice to be sent in the format of the participant’s choice, the CEO may have technically adhered to the Act but to the detriment of the participant. For some people with a disability they may have nominated a relevant person to receive all their notificationbs too. This needs to be emphasised here.
PRINCIPLES RE PARTICIPANTS PLANS
S 31 (d) this should be extended to strengthen and build capacity of families, friends and informal supports even when participants are not children ie developmentally delayed adults
Needs to include reference to the requirement for independent review
PREPARING PARTICIPANTS PLANS
S 33 - What happens for a “participant” who cannot prepare their own “statement” of “goals, objectives and aspirations” Do guardians or other relevant persons have a role … or can the CEO just exclude/ignore other parties who might have an interest? Can others access the statement and/or plan? How are disagreements about the statement and the plan resolved? Disability Persons Organisations (DPOs) need to be called upon to help address this gap, through the provision of informal supports in areas such as goal setting, the articulation of aspirations and the development of plans. This would also promote empowerment.
S 33 (2) (c) does merely stipulating a date for review limit the review to that timeframe, rather than offer flexibility so that the plan can be reviewed as required. This section must also stipulate the requirement for an independent review
S 35 (1) should stipulate what the NDIS rules ‘must’ prescribe NOT ‘may’ prescribe
S38 must state that copy is to be provided in format acceptable to participant. If this is not explicitly expressed there is a danger that this essential; requirement will be overlooked
S 46 (2) re acquittal of NDIS amounts – why use the word ‘may’, shouldn’t the retention of records be a requirement?
S 48 should also make provision for the requirement of an independent review
S 48 (2) - What are the reasons the CEO can refuse to conduct the review?
S 48 (4) – what are the reasons the CEO can opt to review a plan?
S49 - Review – what about if plan is OK? Is a new plan still required?
If there is a requirement that there is an assessment – can we establish ground rules?
CHAPTER 4 - ADMIN
PT 2 - CONFIDENTIALITY
S 66 –
if the CEO can disclose protected information to other government bodies, there should be safeguards to ensure this information goes no further and that it is clearly stated what the purpose for the exchange ( we do not want to implement or reinforce any legislation like the Intervention)
S 69 (2)
it’s important to explicitly refer to accessible formats whenever applications are required – unless it’s explicitly addressed within the Act, lawyers can interpret that it’s not a requirement
S 67–
If the CEO is certified to disclose protected information in the public interest, then I think the NDIS rules should elaborate what type of situations this covers
PT 3 – REGISTERED PROVIDERS OF SUPPORTS
S 73 (1)
rules for registered providers of supports – use stronger language ‘shall’ not ‘may’, eeds to include provision for independent appeal
S73 (1) (c)
will there be minimum qualifications for all types of supports offered?
S 73 (2) –
agein I strongly disagree with the use ‘may’ - It should be ’shall. When the Bill refers to the NDIS rules it should read shall prescribe NOT may prescribe
PT 4 - CHILDREN
S 74 -
If the CEO is empowered to appoint someone in the event of joint parental responsibility, then this person should be independent. The Family Court appoints an independent children’s lawyer
The NDIS rules should stipulate how the CEO will make a determination whether or not the child is capable of making decisions themselves
S 74 (6)
Does the child have a right of review if there’s an adverse finding?
S 75 (2) –
does this mean that the CEO can override a decision of the Family Court? Is this a reviewable decision?
S 75 (3)
tagain there must be provision for the appointment of an independent person
S 76 (1)
to be consistent with the FLA use the term ‘act in the best interests of the child’
S 76 (2) (b)
tagain to be consistent with the FLA use the term ‘act in the best interests of the child’
PT 5 - NOMINEES
S 88 (5) – what does ‘cause a copy’ mean?
S 78 (5) – Do the NDIS rules prescribe when the CEO can appoint a plan nominee on their own initiative? Also when can the nominee determine that a participant isn’t capable of doing thing themself?
S 79 - Why is there a differentiation between plan nominee and correspondence nominee?
The positions overlap, if there’s a separation of task it’s imperative that they work together and regularly communicate.
S 80 (3) elaborate ‘reasonably’
S 80 (4) – must state rules SHALL not rules ‘may’, clause also stipulate a requirement for nominee to access independent support so the participant can make a supported, informed choice. I also think part of the function of a nominee should empowering participants so that they are fully informed and have an opportunity to participate in every step of the decision making process.
S 81 - should include provision for correspondence nominee to inform and consult with participant of all notices, particularly as s 82 (1) states that notice has been taken to be given to the participant and that the participant is taken to have failed if the nominee fails to comply.
APPONTMENT, CANCELLATION OR SUSPENSION OF APPOIINTMENT
S 86 – Is there a fixed term for this appointment (with a provision for renewal)? Is this reviewable decision? If the CEO the appointment, do the rules address the criteria?
S 87 - Is there a fixed term for this appointment (with a provision for renewal)? Is this reviewable decision? If the CEO the appointment, do the rules address the criteria?
S 88 (5) – rules shall prescribe
S 90 (3) is this a reviewable decision?
S 91 - why only suspend a nominee if they have caused severe physical, mental or financial harm? Shouldn’t they be removed - especially if the NDIS espouses to free people with disability from abuse and neglect. If they are not removed this should be subject to review
S 91 (3) what if there’s abuse and the participant is unable/unwilling to provide a written statement cancelling the appointment
S 93 – NDIS should prescribe NOT ‘may’ prescribe requirements
S 91 (5) – is the CEOs decision not to cancel the appointment after the suspension ends appealable? If so, who to?
S 92 (3) –should be an independent person
S 93 – NDIS should prescribe NOT ‘may’ prescribe requirements, they should also make provisions for the decision to be appealed
OTHER MATTERS RELATING TO NOMINEES
Pt 6 – REVIEW OF DECISIONS
S 100 (1)
- add subclause iii notice must be in an accessible format otherwise there is the concern that the person couldn’t read the notice
S 100 (3)
proof
CHAPTER 6 – NDIS AGENCY
S 118 – Functions of the agency
- add (i) re promoting/advocating that generic services and infrastructure become accessible so that the ultimate aim of economic and social participation can be fully realised.
- Or alternatively elaborate (d) to include the need not only to build community awareness but also facilitating greater community inclusion of people with disability by promoting accessibility to generic services as well as to infrastructure.
Div 2 – BOARD OF THE AGENCY
Will there a board for each agency? Or will there be one board for them all? Governance/operations distinction?
MEMBERS OF THE BOARD
S 127 (2)
- must include a majority of people with disability. Similarly people with disability must be involved in the appointment process
S 127 (6)
Balance of skills and experiences should include gender equity
S 128
should this include an option/s for extra term of 3 years?
MEETINGS OF THE BOARD
This section must also make provisions for people with disability on the board to enable them to fully participate in proceedings
142 (1) (a)
without meeting?
142 (1) (c)
special consult not inform Should the board also (along with the IAC s 152 and s 153) be required to provide written notice of all interests to avoid conflicts of interest?
PT 3 – INDEPENDENT ADVISORY COUNCIL
MEMBERS OF THE IAC
- S 147 - people with disability must be involved in the appointment process.
- S 148 – will there be an option to renew?
PT 4 - CEO AND STAFF
- S 160 – will there be an option to renew?
- S 167 (a) – define misbehaves
CPT 7 – OTHER MATTERS
- S 196 – the act must explicitly make provision for all notifications from the CEO to be in an accessible format appropriate to the participant
PT 4 LEGISLATIVE INSTRUMENTS
- S 209 – use the word ‘shall’ NOT ‘may’