The Centre for Cerebral Palsy: Submission To The Senate Standing
Committee On Community Affairs Inquiry Into The National Disability
Insurance Scheme Bill 2012
The legal framework for establishing and operating the National Insurance Scheme (NDIS) and the national Disability Insurance Scheme Launch Transition Agency (the
agency) is set by the National Disability Insurance Scheme (NDIS) Bill that was
introduced into the Australian parliament in November 2012.
The Bill sets out the objects and principles of the scheme, including people with disability having choice and control over supports they receive, the eligibility criteria for the scheme, the processes for enabling obligations articulated in the United Nations conventions on the Rights of People with Disabilities to be achieved, the establishment and functions of the NDIS and the NDIS Launch Transition Agency (the Agency), the
scheme’s implementation from July 2013 and the provision for a review of the
operation of the Act after a two-year period.
The Scheme and Principles
The Centre for Cerebral Palsy (The Centre) strongly supports a National Disability Insurance Scheme (NDIS). It generally supports the principles underpinning of the NDIS that are incorporated in Part 2 of the Bill, such as independence, inclusion, and social and economic participation of people with disability, their right to exercise choice and control over the planning and delivery of their supports and the right to have their privacy and dignity respected.
The Centre also supports the need for cultural and linguistic circumstances of people with disability to be taken into account. However The Centre is concerned the Bill does not describe the support to people with disability as an entitlement. The concern is
exacerbated by the repeated references in Part 2 of the Bill to ‘reasonable and
necessary’ supports. What may appear ‘reasonable and necessary’ in the eyes of one person may be differently perceived by another. Considerable power and authority is vested in the Agency’s Chief Executive Officer (CEO) that will require a delegation of authority to Agency staff to enable the CEO’s role to be implemented. It is likely that staff with delegated authority may interpret ‘reasonable and necessary’ in different ways, despite a broad definition of it in Chapter 3 (34).
Eligibility
The Bill includes four eligibility criteria, namely, age requirements, residence
requirements, disability requirements and early intervention requirements. Since the scheme’s portability is one of the main benefits of the scheme, the purpose of Section 23 (3) (a-c), which requires a person with disability to reside in a prescribed area of Australia, is unclear. Similarly, while acknowledging that a person needs to be under 65 years to access the NDIS, the purpose of Section 22 (1)(b) (which states that on a prescribed date or a date in a prescribed period, a person must be a prescribed age) is also unclear.
The Centre supports recognition in the Bill, under the disability eligibility criteria, that impairments varying in intensity may be permanent and that a lifetime of support may be necessary for that impairment, despite the variation in intensity.
The Centre for Cerebral Palsy: Submission To The Senate Standing Committee 1
The Development of Individual Plans
• While The Centre supports the principles relating to individual plans, it is
apprehensive of the use of ‘reasonably practicable’ in the preface to these
principles.
-
Chapter 3 of the Bill, which deals with the development of individual plans, appears to be too strictly compliance oriented - lacking the flexibility required for people with disability to have real control and choice. The Bill appears to provide a greater share of control to the Agency’s CEO, rather than to individuals with disability.
-
Governments and communities owe a considerable debt to the role of volunteers in all aspects of societal life, but particularly in the disability sector. It is appropriate that their role is recognised and respected. However, Section 34 (e) of the Bill appears to formalise their role as a pre-determinant to the level of supports a ‘participant’ may receive from the NDIS. This is a concern because the level of informal support an individual receives at any one time can rapidly change due to a variety of factors affecting informal carers as demonstrated by research.1 These factors include age, illness (including depression, anxiety and stress), chronic pain and challenging economic circumstances due to their inability or limited ability for employment. The Centre is concerned that these aspects may diminish the spirit and intent of the Scheme as intended by the Productivity Commission and also dampen the expectations and hopes of people with disability and deny them a sense of certainty. The Centre is concerned that rather than people with disability
receiving a level of support that is commensurate with their needs, that the
outcome of the scheme may be for more people receiving a lower level of support than is commensurate with their need.
-
Section 34 (f) refers to supports that may be more appropriately funded or provided through other general systems as part of a universal service obligation. The Centre acknowledges that it is important for all service providers to cater to the needs of diverse service users. However, there is anecdotal evidence to demonstrate that there is a tendency amongst universal service providers to minimise their service obligation to people with disability, preferring to refer them to disability service providers. Therefore while acknowledging the need to make universal service providers more accountable to service users with disability, it is equally important for the Agency to ensure that there are mechanisms in place to pressure universal
service providers to provide an acceptable level of service to people with
disabilities.
- Section 48 relates to a review of a participant’s plan. Having the flexibility for plans to be reviewed is a particularly important strategy for people with disability whose needs change frequently. This gives them the confidence that the supports being provided match their current needs. The Agency’s CEO can decide whether or not to conduct a review requested by a participant within 14 days of the request being made. Where the CEO fails to do so within that period, participants are expected to presume that the CEO has decided not to conduct the review. This is a concern to The Centre because it appreciates that many factors can contribute to decisions not being taken including misplacement by the agency of the request or it being stagnant in a staff members overloaded in-tray. It is very necessary that a default situation not be provided in the Bill, instead for all requests to be responded to
1 Access Economics, The Economic Value of Informal Care, 2010; Deakin University, Carers Australia
and Australian Unity, Well being of Australians; Carers Health and Wellbeing, 2007
The Centre for Cerebral Palsy: Submission To The Senate Standing Committee 2
without exception. Section 50 provides the information the CEO may request for a review.
• While acknowledging the need for accountability it is important that these
processes are not made overly difficult for participants. If processes are made too difficult participants may prefer to forgo opportunities such as having their plan reviewed.
-
The Centre supports the inclusion in the Bill of a timeline of ‘within14 days’ after a person becomes a participant, for commencing the development of the plans. The Centre is concerned that a similar timeline has not been included in the Bill for the CEO’s approval of the statement of supports in a participants plan. A timeline for approval can be included subject to conditions in Section 36 being fulfilled.
-
The Section relating to individual plans is overly prescriptive, with the CEO and Agency having considerable power and authority to obtain information from and about the service user. The prescriptive nature of the Bill suggests that the Rules would make the scheme in its entirety overly prescriptive and possibly making it harder for people with disabilities to navigate through it. The prescriptive nature will also mitigate individual choice and decision making.
• There is no mention in the Bill around how the “cost” of individual’s support
packages will increase to keep up with year to year increases (e.g. supports staff wages).
Registered Providers of Supports
-
Chapter 4(3) provides for a person or entity to be a registered provider in relation to managing the funding for supports under plans or for the provision of supports or both. The Centre notes that a registered provider of supports may manage the funding for supports only in certain circumstances. However, these circumstances may likely be spelt out by the rules. Differentiating fund managers from support providers goes against the current trend where many support providers also
manage funds. Some consideration needs to be given to enabling support
providers to also be the fund manager, if this is the wish of the participant.
• Many disability service organisations have provided services to people with
disabilities/families with distinction over a long period of time. Many have been
categorised as ‘preferred providers’ by State/Territory authorities. While
acknowledging the need to ensure service quality and financial security, the NDIS needs to acknowledge the role of these service providers by giving them automatic registration.
NDIS Launch Transition Agency (The Agency)
• Chapter 6 provides for the establishment of the Agency, its functions, powers,
board and operations. The extent of the Agency’s powers is captured in Section 119(1) that states that ‘the agency has power to do all things necessary or convenient to be done for or in connection with the performance of its functions’
The same Section also gives it power to accept gifts, devises, bequests and
assignments.
The Centre for Cerebral Palsy: Submission To The Senate Standing Committee 3
Enabling the agency to accept gifts etc may compromise its impartiality and bring it into unnecessary competition with disability service providers who rely heavily on gifts etc as an important funding source.
- The Bill appears to be over-zealous in relation to the needs and requirements of the Agency, with less rigour provided in terms of the latter’s accountability to
participants. For example, while participants or their nominees who opt to manage funding either wholly or to a specified extent are required to keep documentation relating to services received, including receipts and records for a prescribed period of time, no such condition is placed on the Agency or other service provider organisation.
This type of measure is likely to discourage participants from opting to manage their
own funds, hence reducing their control. There is also a tone in the Bill of
perceiving participants and their families as untrustworthy, which has prompted critics of the Bill to liken it to a social security model. While this may not have been intended, the current wording, tone and prescriptive nature of the Bill needs to be re-considered to enable participants of the scheme to be treated with dignity and respect.
- Section 12 of the Bill refers to the establishment of a Ministerial Council comprising representatives from all Australian jurisdictions. It is charged with considering
policy matters relating to the NDIS and the Act, advising the Australian Government Minister responsible for the Act on policy matters and making recommendations to COAG. Interestingly, the Australian Government Minister’s obligation towards the Ministerial Council is merely to consult, denying the latter a role as a check and balance against Australian Government authority and the power of the Agency. However, The Centre supports the restriction placed on the Australian Government Minister in Section 121(3) in relation to giving direction to the Agency about the performance of its functions. This Section states that the Minister must not give a direction unless the Australian Government and each host jurisdiction agree to the direction.
-
Chapter 5 focuses on the requirements and processes around compensation. The Centre feels that the requirements, as they stand in the Bill, would force individuals into litigation. Given that this may mean individuals become involved in litigation with family (or significant others), The Centre recommends that the need for this requirement is reassessed.
-
Chapter 6 also establishes the Board and independent Advisory Council, with the latter reporting to the Board for its responsibilities. Both sets of members are appointed by the Australian Government Minister. In the appointment of members the Minister has to seek the support of a majority of the host jurisdictions for the
appointment. However, in the appointment of the Chairs the Minister is only
required to consult with other jurisdictions. The Centre recommends that the Chairs be selected by other members through a secret ballot to ensure that Board and Council are apolitical. If selection by other members is not acceptable, the Minister must be required to have a two thirds majority supporting his nominee rather than a simple majority.
It is unclear whether the chairs are appointed from the members or from outside. The Centre supports the appointment of Chairs from the members. Another major concern for The Centre is that all States/Territories may not have representation on the Board and/or Council. Since the success of the NDIS will depend on the financial contribution of States/Territories and also their knowledge, networks and
The Centre for Cerebral Palsy: Submission To The Senate Standing Committee 4
goodwill, the current provisions relating to membership appears to be a major oversight.
- While supporting the need for overarching consistency of the NDIS nationally, The Centre strongly recommends that a model able to prioritise local conditions and situations should be favoured over the current model. While supporting the scheme’s portability across all States and Territories, The Centre believes that this can be achieved by adopting a national approach to eligibility, assessment tools, individualised frameworks and quality standards, rather than by the entire scheme being managed centrally by an Australian Government agency.
The Centre favours the NDIS being managed as a federated model, to enable local
features, characteristics and factors to be understood. Over many decades
State/Territory Governments have invested in considerable infrastructure and
human capital in the development of the disability sector and the success of the new directions would depend greatly on their support. At the very least the Bill should include mechanisms for greater involvement of State/Territory governments.
-
The National Disability Strategy stated that ‘While having a national focus, the Strategy builds on existing efforts under State and Territory plans and will ensure that each level of government retains the flexibility to respond to the unique characteristics, priorities and challenges of their individual jurisdictions.’ Yet the
current debate/negotiations between the Australian and State/Territory
governments seem to negate these sentiments.
- The Centre is extremely concerned about the power the Bill vests in the Agency generally and the power vested in its CEO more particularly. The Centre is
concerned that the Bill is overly prescriptive and will cause considerable difficulty for persons with disability to navigate. The Centre strongly urges that there be a balance between accountability and enabling people with disability to live their chosen lifestyle without adding to the challenges they confront each day. Currently,
the Bill appears to be skewed in favour of accountability, at the expense of
participants needs.
NDIS Rules
- Since the Bill is only part of the legislative framework, it is difficult to gauge many of its features in its entirety. The Rules will assist in clarifying many of these aspects. The Centre understands that the NDIS Rules are currently being developed and will be released in the near future.
The Centre appreciates the undertaking by the Australian Government that people with disability, their families, carers and other stakeholders will have the opportunity to comment on them prior to the rules receiving legislative approval. However, The Centre would like to see the release of the Rules for comment postponed until comments on the Bill are given due consideration by the Senate and amendments suggested by the Senate are considered by the Legislative Assembly. Releasing them earlier would suggest that the Bill and its provisions are already set in stone, despite these exercises.