NDIA Accountability Project

Concerns about NDIS eligibility for people with episodic mental illness

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29.01.2013

Senate Community Affairs Committee

Mental Health Coordinating Council NDIS Bill comments

Please accept the following comments considering the Nationality Disability Insurance Scheme 2012 (NDIS) draft legislation. MHCC supports the NDIS in principle however as the Bill in its current form remains so vague with regards to eligibility and necessary criteria and suggests that all these matters will be resolved once the ‘Rules’ are determined, we suggest a number of issues need to be emphasised and questions raised prior to enactment.

MHCC has previously provided the Senate Community Affairs Committee with earlier comment on the NDIS in two documents available at:

http://www.mhcc.org.au/documents/Submissions/NDIS-SUB-ERNS-F28.09.12.pdf

http://www.mhcc.org.au/documents/Research%20and%20Position%20Papers/Self%20Direc ted%20Funding%20and%20the%20Community%20Managed%20Mental%20Health%20Sec tor%20Opportunities%20and%20Challenges%20 %20Discussion%20Paper%20FINAL%2014%2011%2011.pdf

MHCC make the following additional points:

  1. A stronger statement that rules regarding eligibility and necessary criteria must be presented together before enactment of the bill so that the bill can fairly represent the interests of those to whom the NDIS is directed. As it stands, the Bill focuses primarily on the role of the ‘Agency’ and establishment of the Board and Advisory Committee. Chapter 3 states that it provides a guiding framework for participants and development of individualised packages of support (plan). It is a very vague attempt to provide a framework, almost impossible without development of the Rules.

  2. Clause 13 – states that the Agency will be able to help people with disability access mainstream services and non-government organisations. However, it is unclear which services already provided by CMOs (NGOs) that a consumer is already accessing will sit outside of the services ‘ more appropriately provided through general systems of support services etc.’ and be available in addition to NDIS services under the scheme. If a consumer wishes to continue accessing a service and does not wish to engage with the NDIS (not wishing to be assessed for eligibility and access via the NDIS) will their right to these services now be forfeited? This is very unclear at the moment and may constitute discrimination if access were to become a NDIS eligibility requirement.

  3. How will the NDIS target people not currently accessing services and falling through the gaps?

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  1. The bill does not make clear whether there is any asset based criteria to be considered? One supposes that this aspect will appear in the ‘Rules,’ however on the basis of alignment with this CRPD it would suggest that all people are equal in terms of access to the NDIS. (See paragraph 1, p. 9, Statement of Compatibility with

Human Rights)

  1. Clause 24 sets out the disability requirements a person must satisfy in order to become a participant in the NDIS launch. The disability requirements are designed to assess whether a prospective participant has a current need for support under the scheme, based on one or more permanent impairments that have consequences for the person’s daily living and social and economic participation on an ongoing basis. Under subclause 24(1) the impairment/s are, or are likely to be, permanent (this includes impairments that are chronic or episodic in nature, and where the person’s support needs may be likely to continue for the person’s lifetime (subclause 24(2)). We deduce from this that people with ongoing mental illness that may continue throughout their lifetime but are high functioning in -between episodic periods of illness are therefore excluded from the NDIS. A person may be engaged in work when well but in need of services when experiencing an episode of illness. How will these people’s access be prioritised in the NDIS environment so as to not be discriminated against?

  2. Subclause 26(3) provides that, if the information or report requested under subclause 26(1) is not received within the relevant timeframe, the participant is taken to have withdrawn the access request, unless the CEO is satisfied that it was reasonable for the prospective participant not to have complied with the request within the timeframe. For example, the prospective participant may not have been able to make the necessary medical appointment, attend, and have the report provided to the CEO, because of availability of relevant medical professionals. This clause does not provide for the possibility that a consumer may be hospitalised for lengthy periods and may lead an itinerant lifestyle with no fixed abode. How will such consumers not be disadvantaged?

  3. Clause 127 sets out the process for the appointment of Board members, including the Chair. This provision implements the Productivity Commission’s recommendation that members of the Board should be chosen for their commercial and strategic skills and expertise in insurance, finance and management. Under subclause 127(2) a person is eligible for appointment to the Board only if they have skills, experience or knowledge in at least one of the following fields: (a) the provision or use of disability services; (b) the operation of insurance schemes, compensation schemes or schemes with long-term liabilities; (c) financial management; (d) corporate governance.

MHCC propose that more emphasis be provided under field (a) i.e., two appointments must be made from people with the lived experience of disability and the provision of disability services.

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  1. Subclause 129(5) provides that a person is not eligible for an acting appointment if they are a member of a Commonwealth, state or territory parliament, or local government authority, or they are a full-time office holder under Commonwealth, state or territory law. This means that it is possible that an acting Board member could be a Commonwealth, state or territory employee, which will allow acting appointments to be made from appropriately skilled government employees in the event of urgency or other short term need. It would seem that Subclause 129(5) contradicts itself in that the spirit of the Act is that the Board be independent and yet in the event of emergency this principle is put aside. We deem this inappropriate. There is no impediment to an independent appointments being made as quickly as a government appointment.

  2. Subclause 144(2) provides that in providing advice, the Advisory Council must have regard to the role of families, carers and other significant persons in the lives of people with disability. MHCC propose that it is important to state here that the Advisory Council must give foremost priority to the express wishes of the individual when they have capacity ( and/or are supported) to state their desire to remain completely independent of a family/carer who may wish to be involved.

  3. Subclause 144(3) specifies that matters on which the Advisory Council cannot provide advice on. It is important to refer at this point to the body that will have the powers to review individual matters.

  4. To ensure independence from Government, subclause 147(4) provides that a person is not eligible to be appointed as a member of the Advisory Council if they are a member of a Commonwealth, state or territory parliament, or local government authority. However, given the role of states, territories and local authorities in the provision of services to people with disability, employees of the Commonwealth, state or territory, or of local government, authorities are not excluded from being appointed as members. We suggest that appointees should not be government employees whether at a state or federal level. The Advisory Council should be an independent body, completely transparent but free to invite government employees to provide information and advice as and when required for the Council to conduct their work.

  5. Clause 160 provides the appointment process for the CEO. Reflecting the independence of the Agency, the CEO is appointed by the Board, by written instrument. The CEO will be appointed on a full-time basis for a period that does not exceed three years and cannot be a Board member. Subclause 160(6) further provides that the first CEO will be appointed by the Minister so that the CEO can be appointed and necessary work can be done by the Agency to be ready for the implementation of the launch of the NDIS in July 2013. This is because it is possible that there will not be a sufficient time for the first Board to select the first CEO. This we suggest is totally against the spirit of independence. It sets a precedent. There is plenty of time for a CEO to be found. This is achieved in business all the time. Three board members are appointed as soon as possible who have the authority to appoint the CEO.

  6. Clause 167 provides for the termination of the CEO, listing the circumstances in which the appointment of the CEO may be terminated by the Board. These circumstances include situations where: (a) the CEO misbehaves. We propose that the word

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‘misbehaves’ is amended. If this is about illegal/criminal activity then that should be stated clearly.

  1. Part 6 – Finance - Clause 178 provides for payments to the Agency by the Commonwealth. The Commonwealth can pay the Agency such money as is appropriated by the Parliament for the purposes of the Agency. The effect of this is that the money will be appropriated annually by the Commonwealth through the budget process. The Finance Minister may give directions about the amounts in which, and the times at which, money is to be paid to the Agency. We are concerned that there are no safeguards in place to protect the scheme from government cutbacks. Overseas experience has shown that disability insurance schemes are vulnerable to changes in government and policy directives, and that safety mechanisms need to be put in place to minimise future risk to the scheme. This may relate to changes in eligibility criteria, cut backs in services and reductions to packages.

  2. We are unclear how the following debt may arise in Clause 182. A debt will also arise if a person does not comply with clause 46, which requires a person who receives a NDIS amount to spend it in accordance with the participant’s plan, and also to retain records if provided for in the NDIS rules. If a person fails to spend the NDIS amount in accordance with the participant’s plan the debt will be an equal amount. In relation to the keeping of records, the NDIS rules may specify that the debt will be an equal or lesser amount than the amount for which the records is to be retained (subclauses 182(3) and (4)).Our understanding is that participants will not be provided with money as such but with a plan specifying their entitlement to a particular service. This needs to be clarified.

  3. In the STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS: Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 NATIONAL DISABILITY INSURANCE SCHEME BILL 2012 (p. 2) it states: Progressive implementation consistent with the recommendations of the Productivity Commission. The NDIS will be implemented progressively. Five launch sites are planned for 2013-14, in five different host jurisdictions. Launch sites and the services to be offered in each have been selected to enable evaluation of operations and subsequent fine tuning, if necessary, to ensure the robustness and integrity of the full NDIS when it is rolled out. The launch sites, and proposed coverage, are: We are unclear whether these launch sites will include people with disability as a consequence of mental illness and coexisting conditions. Earlier on in the process we were given to understand that the operation of the NDIS for people with mental illness and psychosocial disability would require a process of further development that would delay access to the scheme until a second stage roll-out. It should be made clear in this section whether these launch sites include all aspects of disability and complex need.

  4. The Disability requirement (section 24) – the legislation specifies the following disability requirements: the impairment or impairments are permanent. This language is contrary to Recovery-Orientated principles. This aspect needs to be reviewed in the context of people with lived experience of mental illness.

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  1. We need to better understand how the proposed review of Commonwealth anti- discrimination legislation will impact on the NDIS and its interface with state law. There has been criticism in the press that under the new legislation, some state regulations will be in breach.

  2. There is nowhere in the Bill that refers to protection of consumers in terms of abuse and coercion. It is important that somewhere in the Act refers to complaints mechanisms and legislation under which consumers will be protected.

Yours sincerely

Jenna Bateman

Chief Executive Officer

Mental Health Coordinating Council

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