The National Disability Insurance Scheme Bill 2012 (Cth)

The National Disability Insurance

Scheme Bill 2012 (Cth)

Towards a Better Scheme:

Certainty. Accountability. Empowerment. Sustainability.

Submission to Senate Standing Committee on Community Affairs Inquiry

into the National Disability Insurance Scheme Bill 2012 (Cth)

January 2013

CONTENTS

Introduction 4

Executive summary 4

Who we are 6

Our standing to comment 6

Our concerns regarding the Inquiry process 7

Certainty 8

1. The NDIS rules 8 2. Requirement to seek compensation 11

   3. Individuals’ rights to seek compensation must not be reduced 11

2. Reimbursement of the cost of care and support 13 5. Surrendering rights to compensation 14

   6. Future care costs 14

   7. ‘Buy-in’ options to the Scheme 15

   8. Interim periods 17

   9. Reasonable and necessary support 18

3. Revocation, suspension and portability of support 20 Accountability 21

4. Scheme decisions must be transparent and accountable 22

5. Advocacy and review rights 23 3. Complaint processes 25

   4. Examination and medical assessment 26

6. Adequate privacy protections 27 6. Protection of existing rights 27

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7. ‘No fault’ should never apply to medical injury 28

Empowerment 30

1. The rights of people with disability 30 2. Decision making, legal capacity and the use of nominees 32

Sustainability 36

1. A ‘one size fits and suits all’ model is inappropriate 37 2. Hollow log provisions 39

2. Our concerns with the NSW Agreement 39 4. Balancing the Scheme 40

Conclusion 40

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INTRODUCTION

The Australian Lawyers Alliance (‘ALA’) welcomes the opportunity to provide a submission to the Senate Standing Committee on Community Affairs in its inquiry into the National Disability Insurance Scheme Bill 2012 (Cth) (‘the Bill’).

We believe that the introduction of a National Disability Insurance Scheme (‘NDIS’) has the capacity to be an enormous first step in providing increased access to the rights stipulated within the Convention on the Rights of Persons with Disabilities (‘CRPD’).

While we support the development of an NDIS, we are cautious about the model for an NDIS that is posed within the current Bill.

We believe that the current model provides inadequate protections on the rights of the individual; inadequacy in clarity regarding access and transparency; that the framework is far more regulatory and paternalist in nature than rights-based, and a large number of major policy components are missing.

EXECUTIVE SUMMARY

We support the development of an NDIS and the increase of fulfilment of the rights of people with disability. However, we are cautious about the model for an NDIS that is proposed within the current Bill.

We believe that the Scheme must be underpinned by certainty, accountability, empowerment and sustainability.

CERTAINTY

 Certainty in access to support for individuals in the long term;

 Access to support, without excessively prescriptive conditions;; and

 Protections on individuals in adverse situations.

ACCOUNTABILITY

 Full access to review rights, and support to access these rights;

 Protections on the rights of children and those without legal capacity;

 Protection against conflicts of interest;

 Protection on an individual’s privacy and entitlement to equal treatment

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before the law;

 Protection against excessive medical assessment;

 Access to legal mechanisms in the event of breach of duty of care or administrative error; and

 Protections on the existing rights of individuals.

EMPOWERMENT

 Empowerment of individuals with disability;

 Empowerment of individuals in decision making;

 Increased fulfilment of the rights stipulated under CRPD;

 An understanding of individual needs, flexibility and an approach that is not a ‘one size fits all’ model; and

  A focus on both support  for the  individual, and community orientated

programs.

SUSTAINABILITY

 Financial sustainability.

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WHO WE ARE

The ALA is a national association of lawyers, academics and other professionals

dedicated  to protecting and promoting  justice, freedom and the  rights  of the

individual.

We estimate that our 1,500 members represent up to 200,000 people each year in

Australia. We promote access  to  justice and  equality before the law  for  all

individuals regardless of their wealth, position, gender, age, race or religious belief.

The ALA started in 1994 as the Australian Plaintiff Lawyers Association, when a

small group  of personal  injury lawyers decided  to pool  their knowledge and

resources to secure better outcomes for their clients – victims of negligence.

The ALA is represented in every state and territory in Australia. We therefore have excellent knowledge regarding legislative change and what impact this will have upon our clients.

More information about us is available on our website.1

OUR STANDING TO COMMENT

The ALA is well placed to provide commentary to the Committee.

Members of the ALA regularly advise clients all over the country that have been caused injury or disability by the wrongdoing of another.

Our members advise clients of their rights under current state based and federal schemes, including motor accident legislation, workers compensation schemes and Comcare. Our members also advise in cases of medical negligence, product liability and other areas of tort.

We therefore have expert knowledge of compensation schemes across the country, and of the specific ways in which individuals’ rights are violated or supported by different Scheme models.

We are well aware of existing methods of compensation reimbursement across the country, in order for individuals to gain access to care, as they deal with intersecting Schemes.

Our members also often contribute to law reform in a range of host jurisdictions in relation to compensation, existing schemes and their practical impact on our clients. Many of our members are also legal specialists in their field. We are happy to provide further comment on a range of topics for the Committee.

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OUR CONCERNS REGARDING THE INQUIRY PROCESS

We are concerned at the length of time in which to provide submissions to the Committee. Given that the Bill was introduced in the last parliamentary sitting week of 2012 and submissions were due by 25 January 2013, we do not believe that all of the necessary facets of the Bill will receive the scrutiny that they deserve.

We believe that the time period provided for this Inquiry is inadequate to effectively assess such a vast overhaul of the current fragmented disability support system. The creation of the NDIS crosses over into so many different areas of law, including privacy law, administrative law, criminal law, contract law, insurance, tort, human rights and discrimination.

We also believe that without a copy of the NDIS rules, it is impossible for this Committee to effectively assess the NDIS.

We believe that there are lessons to be learned from current operating schemes across Australia – and that it is imperative that the failures and weaknesses of State based schemes catering for disability are not replicated in a federal model for disability.

The improvement of delivery in disability care and support is crucial, and it deserves to be paid adequate attention. It is essential to get the details right.

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CERTAINTY

Access to disability care and support has been described as ‘underfunded, unfair, fragmented and inefficient, and gives people with a disability little choice and no certainty of access to appropriate supports.’2

We believe that there must be certainty for individuals seeking support under the NDIS.

This involves:

 Certainty in access to support in the long term;

 Access to support without excessively prescriptive conditions;

 Certainty in protecting of existing legal rights; and

 Protections on individuals in adverse situations.

We believe that the certainty of individuals’ access to the Scheme will be affected by:

 The NDIS Rules;

 The requirement to seek compensation;

 Recovery of lifetime care and support costs;

 Buy-in to the Scheme;

 Reasonable and necessary support; and

 Revocation and suspension of support.

These areas must be examined to ensure that individuals have clarity and certainty under the delivery of the NDIS.

1. THE NDIS RULES We are concerned, as the most significant eligibility criteria of the NDIS Bill are missing – and will instead be determined later, by the Government creating the ‘NDIS Rules’. The Rules will include:

 prescribed circumstances of impairments that may receive support, and/or

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criteria to be used to assess this;3

 the types of early intervention supports likely to be provided, and/or criteria to be used to assess this;4

 eligibility criteria that says who will and will not get support;5

   prescribed  descriptions  of what counts as ‘reasonable and necessary

support’;6 and

 methods and criteria regarding how to treat the compensation someone has received from a person who has wronged them,7 which is in some cases, a person’s only financial support for their future life.

Thus, a large number of the essential policy components of the NDIS will be identified in the Rules.

However, we believe that the Rules should lay down detail and not general policy.

The Rules can be changed at any time, as long as the jurisdictions hosting the NDIS agree.

We are deeply concerned at the lack of scrutiny in the development and in the ongoing implementation of the NDIS Rules.

The Rules are absolutely core to the functioning of the Scheme. We believe that they deserve to be scrutinised by the public. This is currently not going to happen.

We believe that the Senate Standing Committee on Community Affairs’ Inquiry to assess the Bill will be incomplete, without an assessment of the NDIS Rules.

The passing of the Rules will not at any time, need to submit to the human rights parliamentary screening process and can be passed easily without scrutiny.

Failure to reveal the NDIS Rules will mislead and disappoint individuals.

At this stage, people do not have any certainty about whether they will be in or out of the Scheme, or if the type of support they may receive could easily change in the future.

Many individuals have been actively involved in lobbying for the NDIS, through involvement with Every Australian Counts or other organisations. As cited by

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Federal MP Ms Michelle Rowland:

‘People with  disability,  their  families, carers and advocates have been

making phone calls, sending emails and knocking on doors to push the case for the National Disability Insurance Scheme. I’ve heard them loud and clear and I’ve taken their message to Canberra. Today, we can see that all our hard work has paid off.’8

The Australian Government Actuary, in its assessment of the NDIS, stated that it assumed that:

‘the number of assessments carried out in the first launch year will be 2.5 times the number of people receiving support under Tier 3 in that year, with the ratio dropping to 1.5, then 1, then 0.8 in subsequent years.’9

This assumes that 2.5 times the number of people that attempt to access the

Scheme in the  first launch year  will be knocked back from access to funded

supports.

This has not been acknowledged in the public domain.

We believe that a large number of people currently believe that they will gain access to the Scheme, or a certain type of support. Many of these people will be sadly disappointed and also angry at actively lobbying for a Scheme that never intended to cover their needs.

These people deserve clarity now.

Our solutions:

The NDIS rules should be developed as part of the NDIS legislation, and not sit separately.

The NDIS rules should be scrutinised by the Senate Committee.

The detailed eligibility criteria should be made public before the NDIS Bill is passed.

The eligibility criteria should be made public before the NDIS Bill is passed by the Parliament, so that individuals are aware of their eligibility prior to the Bill becoming law, and prior to budgetary estimates.

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2. REQUIREMENT TO SEEK COMPENSATION The ALA welcomes the Bill’s commitment to the common law and its recognition of the importance of individuals taking legal action against those that cause them harm. However, we believe that the policy intent within clauses 104 and 105 is far too strong.

Individuals should have the right to choose.

We believe that individuals should have the right to choose whether or not to pursue a legal claim, and that their access to crucially needed funding support should not be used as a mechanism to force an individual to take legal action.

People should have the right to choose whether to pursue a legal case, and within the time period that they choose or as currently may exist in each jurisdiction. The timeframe since the tort reform of the last decade is reasonably uniform today. The advice that they seek should be adequate and independent of the Scheme.

Individuals should not be short-changed.

In many cases, individuals have to wait years before commencing their legal claim, to see the effects of their injury and the condition must be stable for this to occur so

that compensation  is appropriate. Fast tracking  this process to  fall within the

‘specified period’10 means that individuals could receive less than the amount to which they would otherwise be entitled.

3. INDIVIDUALS’ RIGHTS TO SEEK COMPENSATION

MUST NOT BE REDUCED

While we advocate that the current proposals are too strong, individuals should retain their rights to seek compensation. Such a right is fundamental, and stipulated within Article 2 of the International Covenant of Civil and Political Rights, which states that:

Each State Party to the present Covenant undertakes to ensure that any person whose rights or rights or freedoms as herein recognized are violated shall have an effective remedy…and to ensure that any person claiming such a remedy shall have his right thereto determined by competent

judicial,  administrative  or  legislative  authorities,  or by any  other

competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy.11

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An individual should be able to seek a remedy for the wrongdoing of others that have caused them harm. Those who have caused a wrong need to be held accountable for their actions. The right to bring an action helps regulate behaviour, provides a sense of justice and makes for a safer world.

The  taxpayer  should  not  have  to  support  the  cost  of  another  person’s

irresponsibility or intentional wrongdoing behaviour, where an individual can seek a remedy that holds the wrongdoer liable.

To remove the liability of another through creating a ‘no fault’ system, in reality, creates a ‘no liability’ system.

This leads to reductions in safety, transparency and responsibility.

This was recently reported in New Zealand, where under its no fault system, the country’s rate of workplace fatalities is double that of Australia and four times higher than Britain.12

Our solutions:

We propose some alternative solutions:

‘Seek appropriate legal advice’

Solution 1: Amend clause 104 and 105, so that the ‘required action’, rather than ‘claiming or obtaining compensation within a specific period’13, is instead may be required to repay any appropriate level of damages from a successful claim for the relevant head of damage in respect of which an award or settlement is achieved.

After receiving effective legal advice, an individual can then make a decision about whether or not to make a legal claim. However, their access to support under the NDIS should not be dependent on them commencing a legal claim.

Given that the typical claim involves compensation for not only lifetime care and support, but also economic loss and pain and suffering, the fact that an individual will be able to receive lifetime care and support from the NDIS is not likely to be a disincentive to file a legal claim.

Removing the requirement to ‘take legal action’ in order to gain NDIS support will mean that the duress of immediate short term financial needs or need for care will not significantly impede on one’s decision whether or not to take legal action. This

will  ultimately lead  to a  better,  wiser  decision  for  the  individual.   It  is  also

unprecedented to require an individual to sue at the direction of a Government Agency.

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It also removes the dilemma of who pays for taking legal action. If the individual chooses to take action, funding of it will be a critical issue for them. It also does away with any issues of legal professional privilege being waived as there would be enforceability issues in relation to that if the provision remains in its current form.

The NDIA to act for the individual

Solution 2: If legal action is to be undertaken by the NDIA then consideration should be given for it to claim on behalf of the individual for lifetime care and support.

This type of scheme is available in some jurisdictions such as in South Australia and its Workcover Scheme (see section 54 of the Workcover Compensation and Rehabilitation Act 1986 (SA) as amended).

However, if this were to occur, the time period in which the claim is lodged would need to be in the best interests of the individual, including consideration of timing in the advancement of the injury/disability and any potential other running legal claim for other heads of damages (i.e. economic loss; pain and suffering).

4. REIMBURSEMENT OF THE COST OF CARE AND

SUPPORT

We cautiously welcome the concept of payment of past NDIS amounts from judgments, thus allowing for a repayment system similar to that already adopted with Medicare and Centrelink which have operated for many years.

We raise caution at the lack of legislative guidance provided to judges in clause 106 to ‘specify’14 the portion of the amount of compensation to be a component for supports of a kind funded or provided under the NDIS.

There must be clarity for judges when making orders about past NDIS amounts. This could be done with a notice of charge system such as exists within the Medicare scheme pursuant to the Health (and Other Services) Act 1995.

The ways that lump sum compensation will be dealt with should be made clear in legislation. Fairness would dictate actual past costs as a good starting point together with estimated future costs.

We also concerned that the NDIS Rules may prescribe methods and criteria

relating how  to take  into account lump sum compensation payments.15  It  is

preferable if experiences with Medicare and Centrelink are considered as a better alternative to the current provisions because the current provisions are unclear as to the issue of future payments.

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5. SURRENDERING RIGHTS TO COMPENSATION We are deeply concerned at phrasing within the Bill that suggests that individuals may ‘give up’ their rights to seek compensation.16

There should be no surrender of legal rights in order to receive support under the NDIS.

6. FUTURE CARE COSTS There must be clarity regarding ‘double dipping’, future NDIS costs and certifying that individuals will not be worse off in the future.

We note the core principle that an individual cannot ‘double dip’ in seeking legal redress.

We query as to how this is intended to be avoided in the NDIS, in relation to compensation for lifetime care and support under legal claims and individuals accessing supports under the Scheme.

There  is currently no legislative  clarity about ‘future’ NDIS costs – only those

sustained prior to the judgment.

We are concerned as to the vulnerable position of those individuals who surrender compensation to participate in the Scheme. These individuals would be then totally dependent on the Scheme’s sustainability for their lifetime care.

Of note, we are concerned how this balance will be struck fairly and equitably, when there are currently no guarantees about the Scheme’s long term sustainability and longevity.

If the Scheme were to become financially unsustainable in the future, we are concerned that individuals who have surrendered portions of their compensation to the Scheme would be compromised. In New Zealand, when the ACC became

financially unsustainable, claims  liability was  drastically reduced. As a  result,

individuals’ benefits were significantly decreased.

There is no guarantee on the rights of individuals who surrender them to obtain certainty and security.

As a contrast, the ACC is a no-fault scheme. Individuals therefore have no right to claim apart from the Scheme - on which individuals become entirely dependent for their needs (including economic loss).

In Australia, those individuals who have obtained compensation and surrendered

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future payments into the scheme will depend on the Scheme’s viability for their every care and support need.

Unless there can be a guarantee that the scheme will work and be sustainable (and the ALA doubts such a guarantee can be given) then no requirement to surrender should be required.

There needs to be an estimates service.

We also note that the Centrelink estimates service (which predicted to legal practitioners the amount that would be paid to Centrelink) has ceased to function since early 2011. Its reinstatement is necessary. We also believe that there must be a similar service created for the reimbursement of NDIS amounts, to ensure that individuals do not recover twice. Consideration needs to be given to it being fair, accurate and expedient in its operation, particularly in assessing awards.

7. ‘BUY-IN’ OPTIONS TO THE SCHEME We note that Chapter 5 of the Bill does not make any provision for individuals to ‘buy-in’ to the Scheme that have already received compensation.

While repayment of ‘past NDIS amounts’ is secured via clauses 106 – 116, we note that this is in relation to NDIS amounts that have been paid out prior to judgement.

No mechanism currently exists for those individuals who have already received compensation, to participate in the Scheme, and it is not clear as to whether the Government intends to pursue this option in the future.

This is a crucial factor in Scheme sustainability, as well as for clients to know with certainty their legal rights.

The Motor Accidents (Lifetime Care and Support) Amendment Bill 2009 (NSW) included a “buy-in” provision to allow a person injured in a motor accident before the commencement of the LTCS Scheme to become a participant.17 An injured

person may  “buy-in”   if they meet the  eligibility  criteria and pay an amount

determined by the LTCS Authority to fund the future treatment and care needs of the injured person. Buying into the LTCS Scheme is voluntary.

There are also some individuals that actively seek to opt out of the LTCS, as they experience the Scheme as regulatory and disempowering.

However, one of the major issues associated with ‘buy in’ to the Scheme, is the discount rate.

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There needs to be a review of the efficacy of the discount rate.

Within common law actions for damages, the discount rate varies nationally – with most jurisdictions applying a rate of 5% of higher. This is despite the High Court determining that a reasonable discount rate would perhaps stand at approximately 3 per cent.18

The ALA have often called for a reduction in the discount rate on support from 5% to 3%.

Reducing the discount rate would also assist in ensuring that there are higher amounts available to be paid into the Scheme.

We concur with the Law Council of Australia, who have previously stated:

‘If discount rates are high, they tend to impact most harshly on young, catastrophically injured people, whose damages for future loss of earnings would have been significantly greater because of their age and substantial incapacity for work.

Ironically, one of the stated objectives of tort law changes implemented since 2002, as stated by the State governments which introduced the changes, was to ensure better compensation for those who need it most while keeping smaller claims out of the courts. Clearly, higher discount rates run counter to that objective.’19

However, the discount rate also significantly impacts on an individual’s access to ‘buy-in’ to a Scheme.

For example in NSW:

‘Under the Motor Accidents Compensation Act 1999 (NSW), a discount rate of 5 per cent must be applied to future losses. That assumes that a lump sum can be securely invested to return 5 per cent after tax and inflation. Historical data and actuarial evidence shows that such returns do not exist. The consequence of having a discount rate that is too high is that those with long-term care needs, such as quadriplegics and severe brain-damaged infants, will get between 25 to 30 per cent less than they need to pay for their future care.

A realistic discount rate would be something in the order of 2 to 2 ½ per cent. The Motor Accidents Authority currently assumes a 2 per cent return on its own investments after tax and inflation. The discount rate in the UK for personal injury claims is currently 2 ½ per cent and there is pressure to reduce it.

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Although the [LTCS] Guidelines do not specify what discount rate will be used to calculate the cost of buying into the LTCS, it is understood that a discount rate of 2 per cent will be used.

In real terms, this means that people who have received a lump sum payment for their cost of future treatment and care, calculated with a 5 per cent discount rate, will have significantly less than the amount needed to buy into the scheme. For example, a 20 year old quadriplegic who requires say $6,000 of care and treatment per week would receive a lump sum of approximately $6 million for future treatment and care, using the 5 per cent discount rates. If that person then wished to buy into the LTCS (to receive that same treatment and care) it would cost over $11 million. The shortfall between the two amounts is dramatic.’20

Given the scope for reform in the delivery of compensation, a review of the current discount rate will go some way to assist claimants to more equitable outcomes.

8. INTERIM PERIODS Under the LTCS (and other schemes), interim periods are available for participation in the Scheme.

For an individual to meet the NDIS disability requirements, impairments must ‘be, or likely to be permanent, or vary in intensity but likely to continue for the person’s lifetime.’21

Interim periods should also be considered as an option within the NDIS scheme.

Individuals who have bought into the Scheme should not be compromised in the long term.

Some necessary changes are required.

The ALA says it may be more prudent for this initiative to wait further consideration until there has been a steadying of the Scheme’s operation in its launch sites, particularly given that a large number of people will be seeking to be eligible under the Scheme.

We believe that waiting will ultimately lead to a more financially sustainable Scheme in the long term. It will require however, a rethink regarding discount rates.

Reductions should not apply.

If a claim is pursued successfully, the costs of lifetime care and support can be

reimbursed  to  the NDIS  via a  contractual understanding  of  supports  to be

accessed, providing a contractual option to ‘opt out’ of the NDIS should the claimant

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choose to do so, with consideration to financial cost of support sustained.

Such position would need also to take into account the issue regarding contributory negligence akin to Medicare’s practice of accepting an apportionment in respect of the notice of charge.

Our solutions:

Roll-out ‘buy-in’ provisions later

Solution 1: Roll-out the ‘buy in’ provisions after the NDIS is already up and running nationally in 2018, to ensure that those individuals who do not have compensation for injury, and those that are falling between the gaps, receive funded support first. This will ultimately set up the Scheme more sustainably for the long term, as there will be a more appropriate picture of Scheme scope, eligibility and reasonable supports.

However, the forecasting, budgeting and legislative scrutiny for these provisions, must commence now.

We note that the NSW Lifetime Care and Support Scheme (LTCS) commenced in 2006 for children only, and expanded only to adults that sustained catastrophic injury after 2007. The LCSS has struggled financially since expanding.

Individuals that are wishing to opt into the NDIS, and the NDIS itself, may be better placed to see how the development of the NDIS proceeds, and then incorporate buy-in to the Scheme after 2018.

A contract must be drawn up in each individual case.

Solution 2: We suggest that a contract must be drawn up in each individual case of a person wishing to buy-in to the Scheme. This contract would need to assert the rights of an individual in entering the contract and the responsibilities of the Agency into the long term. This would include: that ‘buy-in’ could not be revoked or suspended, and that the Agency commits to providing the care and support

contractually agreed  to  at the  point  of  ‘buy-in’. Whilst  this concept requires

development, it is consistent with the autonomy and dignity of choice that should be enhanced for those who suffer from a disability rather than rest with.

9. REASONABLE AND NECESSARY SUPPORT Prescriptive criteria may limit what individuals may receive.

We raise concern at the potential for the NDIS Rules to apply prescriptive criteria surrounding what ‘will and will not be provided.’22 We believe this may produce

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‘square peg-round hole’ scenarios for individuals attempting to access a certain

type of support.  If criteria are too prescriptive, the Scheme will  fail to cater for

individual need and will be disempowering to the individual.

The goalposts may shift.

We are concerned that individual’s access to support will change over time.

This has been the experience within the LTCS, where 2012 amendments reduced individual’s access to gratuitous care:

‘The reality is that many families will choose to continue to provide some care on an unpaid basis. For example:

(a) The family may choose not to have a carer in the home for 24 hours to look after a young child but may prefer to cover overnight care needs in exchange for some privacy. (b) A parent may choose to give up or restrict their work hours in order to accompany their brain injured child to school rather than use a paid carer.

A concern is that by volunteering to provide such services the family member, in effect, becomes an unpaid subsidiser of the Lifetime Care and Support scheme.’23

Given that the Productivity Commission report commented on the financial burden borne by carers of people with disability currently, this must be avoided in the

NDIS.24

Amendments to the Compulsory Third Party Motor Vehicle Insurance Scheme

(hereafter CTP) in NSW also meant the insurer has no liability to pay for any

expenses that  fall within the scope of the LTCS, even  if those expenses are

expenses that will never actually be paid for by the LTCS scheme.

‘In  particular,  there  is no  longer any  entitlement  to  claim  Griffiths v

Kerkemeyer care from the CTP insurer. There is also no entitlement to claim for expenses that the LTCS assesses as being not ‘reasonable and necessary’ or which are ‘excluded expenses’ under the LTCS scheme (s141A).’25

There must be clarity and certainty about individuals’ rights to access support.

It  is possible that the NDIS Rules  will assess the ‘reasonable and necessary

supports’ differently across disabilities, and different geographical locations, thus

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creating inequalities in treatment.

There  is also  clarity needed about who has  responsibility  for funding certain

support, such as educational supports, and how far the Scheme will assist people with their needs.

10. REVOCATION, SUSPENSION AND PORTABILITY

OF SUPPORT

The NDIS Bill provides that in some instances, individuals can have their support under the Scheme revoked26 and/or have their support suspended.27

We are concerned that there is a lack of legislative protections on individuals and their ongoing access to support in the following kinds of cases:

 Administrative error;

 What happens to individuals who receive a prison sentence - including their existing rights and access to the NDIS;

    If  individuals are required  to  travel overseas  for long periods due  to

circumstances outside their control beyond the ‘grace period’; and

 What happens to individuals that have elected to be part of the Scheme after paying an amount of their compensation to ‘buy-in’, and their support is

subsequently suspended or revoked. These  individuals may lose  their

entitlement and their livelihood, with no way of getting it back.

 We are also concerned at the unspecific time period for someone to be suspended from the Scheme, with a minimum of 28 days notice.

We also raise concern at the ‘portability’ of NDIS supports. A COAG Progress Report on the NDIS stated that:

‘Under an NDIS, access to care and support would be portable within and across States and Territories. This means that there would be continuity of support for a person who is receiving support if they move to another State or Territory.’28

However, given that residence requirements are to be prescribed by the NDIS Rules,29 it is unclear as to whether individuals will have a right to such portability of support, and when and if this may occur.

This is especially in light of differing commitments by different states and territories to the operation of the NDIS.

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Our solution:

Explicit protections

Explicit protections should be created in the Bill to protect individuals within these categories.

The other considerations referred to above also need to be incorporated.

ACCOUNTABILITY

The NDIS must be accountable to the individuals participating within in it, and to those in wider society. This is essential to the enforceability of the rights of the individual participating within the Scheme, and also to the public continuing to have confidence in the Scheme’s operation.

We believe that this encapsulates:

 Full access to review rights, and support to access these rights;

 Access to legal mechanisms in the event of breach of duty of care or administrative error; the ability to sue for negligent action.

 Protections of the rights of children;

 Protections of the rights of individuals to make decisions;

 Review of current guardianship laws and the assessment of legal capacity;

 Protection against conflicts of interest;

 Protection against excessive medical assessment;

 Protection of an individual’s privacy and entitlement to equal treatment before the law; and

 Protections of the existing rights of individuals.

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1. SCHEME DECISIONS MUST BE TRANSPARENT AND

ACCOUNTABLE

We note that a large portion of powers have been granted to the CEO of the NDIA. Any or all of [these] powers or functions under the [Bill], the regulations or the NDIS Rules’ may be delegated in writing to an officer.30

We do not feel confident that the necessary checks and balances are in place throughout the Scheme’s structural foundation.

Former NZ prime minister Sir Geoffrey Palmer commented that the ACC was not as

accountable for  its actions as  it would  if  it was part of a state department. He

blamed controversies that have beset the corporation as ‘due to poor decision making and slack administration.’31

Without these necessary checks and balances, the NDIS may be prey to the same challenges and constraints.

This is evident, for example, in the process of internal review, which we believe is not sufficient. The process of the reviewable decision being made by an individual ‘reviewer’ we do not see as adequately advanced to establish precedent, and insufficiently resourced. This is particularly given the fact that there is scope for a large number of reviews of decisions as community expectation in the NDIS is high. We believe that a review panel or tribunal may be a consideration– such as the

Social Security Appeals Tribunal or a  direct movement  to the Administrative

Appeals Tribunal.

We support the concept of an Advisory Council providing insight and advice, however emphasise that the recommendations it makes to the Board are not enforceable in any way.

We believe  that the composition  of the Advisory Council may require some

changes. For example, the number of members who have skills, experience or knowledge in the supply of equipment, or the provision of services, to people with disability32 – we believe should be increased to at least 2. The number of carers, we believe should be reduced to at least 1. We also believe that the Advisory Council

should be  chaired  by an  individual  from a  disability  support  organisation

background.

We also wish to advocate that a member of the plaintiff legal profession would be appropriate to sit on the Advisory Council, given the extent of intersection with personal injury law, including workers compensation and motor accident legislation. More broadly, there are also a large number of legal questions, surrounding human

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rights, including the rights of people with disability; discrimination; and

considerations of an administrative, criminal and privacy law nature. Relevant medical, health and business experts should also be considered.

2. ADVOCACY AND REVIEW RIGHTS Application formats may discriminate and necessitate advocacy support.

The paperwork prescribed by the NDIS may necessitate that an individual would

require  disability advocacy support. For example,  if documents are not in the

stipulated form, the CEO is not required to make a decision.33 For individuals with intellectual disability, complying with the condition may be extremely difficult without the assistance of an advocate.

This may also be difficult for families from a non-English speaking background.

Jnana Gumbert, NSW President of the Australian Lawyers Alliance, previously drew attention to this:

‘It is just not realistic to expect the non-English speaking parents of a brain injured child to be able to fully understand, let alone draw up submissions in relation to, any inadequacy in a care plan developed by an assessor.’34

There is still no clarity about the role of advocates in the Scheme.

The availability of review in the AAT is a positive step.

We welcome the fact that individuals will be able to appeal to the Administrative Appeals Tribunal for a number of decisions made by the CEO of the National

Disability Insurance Scheme Launch Transition Agency (the NDIS LTA), including

whether they will or will not gain support under the Scheme.35

However, we question how practically available these rights to appeal will be. No funding will be provided for legal assistance to individuals at any point within the

Scheme.36

The Civil Society Report stated that:

‘people with disability may be unable to obtain equal benefit and protection of the law because they do not receive supports to enable them to take action to protect their interests and no one else may do so on their behalf.’37

A right that an individual cannot access, is no right at all.

Moreover, the process needs to ensure that all significant decisions are reviewable

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by way of full merits review. Again, this is consistent with the purpose of the Bill, the ability for people to decide for themselves and the dignity of choice for those who live with disability. To not have extensive review rights would, in ALA’s view, lead to a continued resentment by those with disabilities who are dissatisfied with the decisions that are made. Whilst the costs would undoubtedly be incurred in this process, it is a necessary cost if it is to be done properly.

People need funded support for advocacy and representation.

Without funded support for advocates, individuals will have to be self represented, be represented by family or friends, represented by community organisations, or pay for a lawyer themselves.

Many individuals are assuming that they will receive support under the NDIS that in reality, will not occur.

In order to contend this, and to challenge any adverse decision made against them, they will need proper assistance.

Appealing a decision without appropriate assistance will be very difficult. Given that these are new and complex laws, there is no precedent to depend on. However, it will also be difficult especially for individuals with an intellectual disability to be self represented, or for those living on the Disability Support Pension to pay for a lawyer.

Within the NSW Lifetime Care and Support Scheme, reasonable costs may be payable to the client’s legal practitioner in certain instances.38

There also may be significant legal errors within the Bill that will become evident at a later stage. For individuals to contest these issues without appropriate legal support, will be incredibly difficult.

The time periods to seek review are not sufficient.

Under the Bill, participants may seek a review of a reviewable decision within 3 months after receiving the notice of the decision.39

This compares to the NSW Lifetime Care and Support Scheme, where dispute applications regarding decisions of eligibility must be brought within 6 months.40 This is more preferable but given we are dealing with persons with physical and intellectual disabilities, 12 months would be a more appropriate period of time and there should also be the right to extend the time, if there is a proper reason for doing so.

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Provision also needs to be made for written reasons for a decision to be supplied and time limits for making the decision should also be imposed no greater than 28 days.

Our solutions:

Costs Orders should be made whether an applicant is successful or not on a Merits Review. To give an example of this, in South Australia the Worker’s Compensation system operates where costs are awarded excepting cases vexacious or frivolous in nature pursuant to a regulated scale of costs. This would then give a substance to the right to access the review processes.

The ALA supports the right of review direct to the AAT.

Legal assistance can be provided by the Disability Advocate Services which exist in each State or alternatively through the private legal profession. There is a question about Disability Advocacy Services being funded properly and that has been an issue in many States of Australia in the past. That is an issue that also needs to be canvassed and considered in the context of review rights. Disability advocates have traditionally done the bulk of the representational work and for that to continue they are going to have to be adequately funded.

3. COMPLAINT PROCESSES People need to know how to complain and that action will be taken internally.

Clarity is needed about how people are to complain, or how action will be taken by

the Agency   if a  registered  service  provider  or  its agents  treats  individuals

negligently, or harasses, mistreats or assaults an individual.

Within the NDIS Bill, there should be processes of complaint and enforcement, and clarity regarding the liability of the NDIA and its agents in instances of maltreatment.

People need redress when the Scheme has failed them.

Within Centrelink, where individuals feel that they have suffered financial loss or disadvantage due to poor administration or negligence by Centrelink, and believe that they should be financially compensated, Centrelink runs the Compensation Scheme for Detriment Caused by Defective Administration.

At this stage, no parallel suggestion has been made for the NDIS. These should be in addition to any common law rights that exist currently.

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4. EXAMINATION AND MEDICAL ASSESSMENT We are concerned about the powers of the CEO to refer an individual for medical assessment or examination.41

   In New Zealand, individuals have been referred for multiple assessments,

purportedly in an attempt to remove them from the Scheme. From 2009, the number of long term claimants was reduced by 25 per cent.42 Individuals that were unable to work were also pressured to return through alternative assessments.

The balance of power does not currently rest with the individual in the request for medical assessments.

An individual requesting access to the Scheme, may be compelled to undergo a medical, psychiatric or psychological examination on the CEO’s request. The report must be provided within 28 days or another period of time specified by the CEO. Failure to provide the report within the time period triggers an assumption that the individual no longer wishes to access the Scheme, unless the CEO is satisfied that the it was reasonable for the participant not to comply with this time period.43

An individual must, in order to access the Scheme, comply with the direction to be assessed by a doctor that they do not know.

If the individual has a nominee, that person may be allowed into the consultation room, but only if the doctor agrees.

Failure of the individual to attend such an assessment means that they have little prospect of accessing the Scheme.

We believe it would be more appropriate for individuals to consent to provide certain reports from their treating doctors/medical professionals. This would also lead to greater efficiency, (both cost and procedurally) and provide individuals with a more accurate assessment from those who are more familiar with the individual.

There should be limits on the amount of assessments the CEO may require.

There are no protections on individuals from being referred to a number of doctors and medical professionals in order for the NDIS to receive the answer it desires.

There should be a limit on the number of assessments required by the CEO within each period of the development or review of a participant’s plan. A right to challenge the decision ultimately made on the evidence must be enhanced as well as a right to complain about the number of assessments required if they are excessive and unreasonable.

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Assessment should not be based on AMA guides of whole person

impairment.

We note that the NDIS rules may prescribe ‘the kinds of assessments that may be conducted for the purposes of deciding whether a person meets the disability requirements or the early intervention requirements.’44

We strongly oppose the use of the AMA guides as an assessment tool, as it does not cater for the true nature of a person’s injury or impairment, including failure to take account of vulnerability and mental health. We are available to provide further commentary on this point.

5. ADEQUATE PRIVACY PROTECTIONS It is imperative that the necessary policies, procedures and training are

implemented to ensure the protection of individual’s privacy within the Scheme.

We acknowledge that the NZ ACC has struggled with significant breaches of privacy, including the publication of 6500 claimants’ personal details, 250 of which were victims of sexual assault. The ACC initially offered payments of $250 to claimants on the provision that they be settled confidentially. Victims are now preparing to sue the agency.45

An independent review of ACC Privacy and Security of Information conducted by the NZ Privacy Commissioner indicated a culture that had an ‘almost cavalier attitude’ towards its clients and to the protection of their private information.’ 46

The ACC’s information stewardship was operating at a low level, and focused on breaches and complaints rather than taking strong leadership that emphasised respect for clients and their information.

The  report also showed  that the ACC lacked a comprehensive strategy  for

protecting and managing client information.47

We are concerned that the haste to develop the NDIS framework, means that the

necessary programs and procedures  to  protect  individuals’  privacy may be

neglected.

6. PROTECTION OF EXISTING RIGHTS The ALA also believes that there must be protection of the existing rights of individuals. This includes the right to choose whether to take legal action to obtain compensation.

To axe rights to access to take legal action sits at stark odds from the object of the

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NDIS, including ‘to support the independence and social and economic participation of people with disability to give effect to certain obligations that Australia has as a party to CRPD.’48

Article 5 of CRPD provides that:

‘States Parties recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law.

States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds.’49

No other group  is required to surrender rights  in order to access support  in

Australia.

We believe that it is discriminatory for an individuals’ right to take legal action and seek redress to be removed in order to gain access to support.

We also see such removal as unnecessary, as there are methods to pay back and reimburse agencies after an individual has completed a common law claim.

The removal of such rights can also lead to reductions in safety, greater feelings of injustice with those with disabilities and lead to cavalier attitudes detrimental to the rights of those whom the Bill seeks to support.

7. ‘NO FAULT’ SHOULD NEVER APPLY TO MEDICAL

INJURY

Medical injury is a unique class of injury in respect of an individual as a result of a breach of duty of care. The medical profession is held in high regard and sets itself very high standards. These high standards exist for a number of reasons and the common law and the right to pursue action for negligent treatment is one of them as well as a highly developed risk management process. In ALA’s view this is the position that needs to maintained.

To apply ‘no  fault’ to cases  of medical  injury would seriously impact on an

individual, their family and the community’s sense of justice and lead to a less accountable medical profession.

We believe that applying ‘no fault’ to cases of medical negligence is unacceptable and amounts to creating a ‘no liability’ scheme for medical professionals.

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This would mean that medical professionals would pay reduced premiums, and that the burden of their breach of duty would rest on the taxpayer. This would also have flow on effects for safety and best practice and procedure in medical events. In New Zealand, many such examples exist.

We note that there has been a push for ‘no liability’ of medical professionals for a number of years. We note also that medical indemnity insurers had a private hearing with the Productivity Commission (‘PC’) during its inquiry into disability care and support. Submissions were made under Chatham House rules at a private workshop on Thursday 19 May 2011. The meeting was not published on the PC website.

Further details about the workshop are available in the last pages of appendices in the PC report.50 No lawyers, legal organisations or disability advocacy organisations were present at this meeting. No similar opportunity for dialogue was provided for legal or disability advocacy organisations – organisations that would be considering the best interests of their clients: people with disability.

Notably, one of the core differences in the recommendations between the PC Draft

(published February 2011) and  Final (published July 2011)  reports, was the

recommendation that there should be unique treatment of cerebral palsy, through the elimination of rights to sue for lifetime care and support, with individuals instead being able to access the support under the NDIS.

For individuals that sustain cerebral palsy as a birth injury through the negligence of medical professionals, the damages for lifetime care and support run into the millions of dollars. The cost of this risk to doctors’ premiums is likely to be high.

We believe that this financial consideration should not weigh over the individual’s need for justice.

While this issue has not been addressed within the Bill, we are still concerned that it may emerge in the NDIS Rules. We note that the Heads of Agreement between the Commonwealth and NSW Governments on the NDIS stated that:

‘The Commonwealth and NSW  will continue  negotiations, through the

Standing Council on Federal Financial Relations, on no fault medical injury coverage.’51

This proposal should be overturned. Instead, there should be clear protections within the Bill on the rights of individuals to maintain their access to legal redress in the event of another’s negligence, despite any clause that is provided within the Rules.

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EMPOWERMENT

Excessive restriction, lack of flexibility and a potential paternalistic decision making process will undermine the goals the Bill attempts to achieve.

One of the purposes of the Bill is to create a very real sense of empowerment to those who suffer a disability. The participant plans which are envisaged by the Bill need to be created to ensure access to the adjustments that they require in order to engage meaningfully in society.

The ALA remains very concerned with the concept of empowerment.  It  is an

intrinsic aim of the scheme so that individuals can control and choose their futures in relation to treatment and other services and other issues.

1. THE RIGHTS OF PEOPLE WITH DISABILITY The NDIS has been praised as empowering:

“For local people with disability, this means more control over their lives,

more  certainty  they’ll get the care and support they need, and more

opportunities for them to be involved in our community.”52

The NDIS Scheme must lead to an increase in the fulfilment of the rights of people with disability.

At the moment, it is difficult to specifically see how people’s rights will concretely be affected, without the release of the NDIS Rules. The lack of transparency in the creation of the NDIS Rules is a specific impediment to the fulfilment of the rights of people with disability.

We are concerned as while the general principles of the Bill53 are aimed at the fulfilment of rights, equality and dignity, a large number of the provisions appear to be at distance from these general objects and principles.

The NDIS should not dictate choice and over- regulate individuals’ lives.

We are concerned that there is a danger that the NDIS may not provide an empowering experience for individuals.

Our members have represented individuals within the NSW Lifetime Care and Support Scheme (LTCS) that have sought to opt out of the Scheme, as they have felt that they have had to battle with the Lifetime Care and Support Authority to receive the most simple of items. Individuals have also felt that their time is taken

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up with reams of unnecessary assessments and that their requests for items are mostly rejected.

Individuals on occasion have been referred and re-referred to doctors by insurers, in an effort to seek to negate the extent of an individual’s claim.

Individuals have reported feeling stressed and that participation in the Scheme places an enormous burden on their physical and mental health.

The recommendations of the Civil Society Shadow Report on Australia’s compliance with CRPD should be considered.

The Civil Society Shadow Report on the Convention of the Rights of Persons with Disabilities outlined the need for an extensive overhaul of State, Territory and Federal laws in order for Australian law to comply with Article 12 of CRPD, which states that:

‘States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law…and that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.

States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.

States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect

the  rights,  will and preferences of the person, are free of conflict of

interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests.

Subject  to the  provisions  of  this  article, States  Parties  shall take  all

appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property.’54

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Many of the elements of the NDIS, upon which we have already provided comment, do not fully comply with Article 12.

The NDIS should be empowering and recognise the decision-making power of individuals.

Inherently, much of the NDIS process is driven by the CEO, rather than the individual. The powers of the CEO are many, and weighted heavily against the individual’s rights in the Scheme.

Throughout the  Bill, the powers  of the CEO  to make decisions  significantly

outweighs the powers available to individuals participating, or hoping to participate, within the Scheme.

2. DECISION MAKING, LEGAL CAPACITY AND THE USE

OF NOMINEES

The process of decision making and assessing legal capacity does not reflect best practice, but instead follows on from current (inadequate) legislative trends.

The Civil Society Report states that:

‘Currently, people with disability cannot expect support to effectively assert and exercise legal capacity and to have safeguards against abuse and

exploitation  in  both  informal and  formal  supported  decision  making

arrangements.’55

The rights of individuals in the appointment of nominees are insufficiently protected.

The Bill allows for nominees to be appointed at the request of the participant, or on the initiative of the CEO.56

There is no protection on individuals from the CEO mandating that they must have a nominee.

This is problematic, as there is still no clarity as to how a CEO will determine an

individual must have a nominee. Even reliance upon the laws  in  that State

regarding decision making and legal capacity may be ineffective.

Laws relating to legal capacity have been previously criticised.

The Civil Society Report identified that:

‘State and  territory laws vary  in the areas  [of legal capacity,  financial

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management and substitute decision-making, however] they all breach, are inconsistent with or fail to fulfil obligations under CRPD.

[Laws] focus on a person’s capacity  to manage  their  affairs or make

decisions, rather than on measures that would enable or support a person to manage their affairs or make decisions.

They provide different and inconsistent tests for assessing a person’s ability

to exercise  legal  capacity, which leads  to  uncertainty, confusion and

inappropriate application of legal principles beyond the specific context in which they were formulated — there is no nationally consistent legislation that outlines the principles and provisions for assessing a person’s ability to exercise their legal capacity.’57

It  is questionable as to how the CEO  will assess how individuals may make

decisions. Certainly, at present, there does appear to be a focus on ‘capability’ – including the assessment of ‘capability’ of children to make decisions.58

There needs to be a movement towards empowering individuals to make decisions, which is a process of increased support – rather than prescribing decisions or decision makers.

The balance of power in cases of suspected abuse, currently rests with the abuser.

The CEO may suspend the appointment of a person as a nominee if the CEO has reasonable grounds to believe that the person has caused, or is likely to cause, severe physical, mental or financial harm to the participant.59

However, no onus is provided on the Agency to report this belief to any authority.

Given the unique vulnerability of participants who have nominees, the Agency in these instances, should have a fiduciary duty to report this belief. This should be made clear in the legislation.

Additionally, the decision whether or not to cancel the nominee’s appointment, rests entirely on the evidence of the nominee to be provided within 28 days to the Agency. Mandatory cancellation of nominee status may take place only after that period ends and the nominee has provided no answer to the CEO’s request.

This fails to take seriously enough the nature of physical, mental or financial harm caused to an individual with a severe disability.

Duties to the child should reflect the Convention on the Rights of the Child.

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The ALA believes that the underlying duty within the NDIS in relation to children should be to ‘act in the best interests of the child’, thus reflecting Article 3 of the Convention of the Rights of the Child, which states that:

‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.’60

The current clause 76 does not indicate this strongly enough in its provision to ‘act in a manner that promotes the personal and social wellbeing of that child.’61

The powers of the CEO

The CEO ultimately has more say over the individual’s support than the individual themselves.

Powers of the CEO that are mandatory include:

 The CEO must approve a person or entity as a registered provider of supports if the CEO decides that the applicant meets the requisite criteria;62

 The CEO must revoke an instrument approving a person or entity as a registered provider of supports in specific instances;63

 The CEO must consider whether a person is able to comply with section 80 when appointing a person as a nominee.64

 The CEO must have regard to whether a person has guardianship of the participant under Commonwealth, State or Territory law.65

 The CEO must give a copy of an appointment of a nominee to the nominee and participant.66

 The CEO must cancel a nominee’s appointment as soon as practicable, if it has been suspended on the grounds of the nominee causing or being likely to cause severe physical, mental or financial harm to the participant, and the nominee has not responded within the 28 day time period.67

 The CEO must, as soon as practicable, cancel appointment of a nominee

upon  the request  of a  participant.68 The CEO must  also cancel the

appointment if the nominee requests to longer be the nominee.69 The CEO must provide copies of the cancellations.70

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 The CEO must not appoint a person as a nominee of a participant except with the written consent of the person to be appointed and ‘after taking into consideration the wishes (if any) of the participant’.71

 The CEO must give a suspended nominee a copy of the instrument of suspension and request the individual provide feedback within 28 days as to why appointment should not be cancelled.72

These powers are likely to be made more concrete by the NDIS Rules.

There does not appear to be any enforceable rights for an individual within the NDIS, other than the right to internal appeal or appeal to the AAT.

Under the proposed legislation, an individual may:

 Give the CEO a changed version of the participant’s statement of goals and

aspirations  at any  time.73  - However  this does not  alter the  existing

participant plan74 and thus appears to be lacking in effect;

 Request that the CEO conduct a review of the participant’s plan at any time;75 - However, the CEO still retains the power to decide whether or not to review the plan.76 This contrasts with the provision that the CEO can, at any time on their own initiative, conduct a review of the participant’s plan.

Under the proposed legislation, an individual must:

 Notify the CEO of any event or change of circumstances, or anything likely to happen, that might affect their access request, status or their plan.77

Failure for an individual’s nominee to respond to a CEO’s request deems the individual to not have complied with the requirement.78 This may lead to harsh and unforeseeable consequences.

There is also a danger that excessive regulation may strangle the individual’s decision making in how to spend their money and to live independently.

The current rights of people with disability should not be removed.

This includes being able to sue for direct and indirect disability discrimination; being able to sue for negligence, including where doctors have breached their duty of care in treatment of a patient.

It is important that individuals have the right to choose whether to seek support under the NDIS. If they have received compensation, they should be able to be

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involved in the Scheme by paying an amount out of what they received from that Court settlement.

However, at no point should people be left worse off as a direct result of financial unsustainability of the Scheme.

SUSTAINABILITY

The sustainability of the Scheme is influenced by a weaving together of all of the issues that we have raised above.

Without certainty in access to supports, the scope of the Scheme’s ambit has potential to contract and expand to accommodate for supports or participants not initially foreseen.

Without accountability, the Scheme has the potential to damage individuals and their rights, thus opening the Scheme to public distrust, miscarriages of justice, increased potential for administrative error, suppression of abuse and at the other end, lawsuits.

Without empowerment, the Scheme cannot be what it has claimed to be, and the extensive problems in the delivery of disability support - that it has claimed to rectify from the outset – will continue, albeit in a different format.

All of these facets influence heavily on the Scheme’s longevity and its ability to deliver to the public.

We note also, that the community expectation surrounding the NDIS is extremely high. The Centre for Independent Studies noted that ‘these expectations, combined with the hundreds of thousands of people with an assessed disability who will not receive NDIS-funded supports… will add to the political pressure to expand the scope (and therefore the cost) of the NDIS.’79

The original conception of the NDIS was to replace a failed welfare model for provision of disability support with one based on an established fund with insurance premium and investment income. That was the basis of the Productivity Commission’s recommendations. Yet the present bill simply adopts a welfare model with a new bureaucratic agency dedicated to disability support. There is no sustainable funding on which disabled persons and their carers can rely for better outcomes then the existing arrangements. This should be a major concern to the Parliament and Government of Australia.

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However, we also turn briefly to financial considerations:

The funding of the Scheme should not depend on political will.

We welcome the commitment of the NSW Government to assist in funding the NDIS in NSW, signed on 6 December 2012.80

However, the funding of the Scheme should not depend on Federal and State based political will.

From the outset, there must be a long term view as to how the Scheme will be funded.

While described as a ‘the biggest social reform since Medicare’ there is no levy legislated to support the ongoing costs of the Scheme.

The funding of the Scheme should not detract from other disability services.

The NDIS will not provide support to all individuals with disability.

Looking at the lifetime care and support scheme in NSW, whilst a beneficial initiative, that scheme has significant issues.

The cost of changes to the NDIS scheme design is likely to increase over time. The ALA is of the view that a Federal Levy akin to a Medicare levy is the preferred method of ensuring that there is adequate funding to fund the scheme. There may be other solutions to funding and it is an area which the Senate Committee should strongly consider as being deficient in detail at the time of this submission.

1. A ‘ONE SIZE FITS AND SUITS ALL’ MODEL IS

INAPPROPRIATE

We  note  that  every  jurisdiction  in  Australia has  different  laws  relating  to

guardianship, legal capacity, and different systems of compensation for injury.

We do not believe that a one size fits and suits all model is appropriate – as it is actually most probable that ‘all’ will not be able to fit into a scheme of an ambit this size.

A scheme that grows exponentially in its liabilities – as this Scheme will do – will have three options: to put more funds in, or to cut benefits or people out.

In the lack of a levy being imposed,  it is likely that benefits or people  will be

excluded.

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We are also concerned at the fact that the NSW model of Lifetime Care and

Support  is  potentially being  rolled out  federally, with the  first steps currently

occurring in South Australia with proposed changes to Compulsory Third Party

Insurance  (CTP).81 Such changes were  initially proposed by the  Productivity

Commission as part of a ‘National Injury Insurance Scheme’ (NIIS) but were not substantially evaluated and assessed in its report Disability Care and Support.

There is still no clarity regarding the intersection between the proposed NDIS and the previously suggested NIIS. No apparent agreement has been established with COAG.

We also raise concern at the fact that the NDIS model appears to be predicated upon similar modal elements of the LTCS, yet which cannot work on a large scale.

The LTCS Scheme began for children under 16 on 1 October 2006, and was extended to include adults from 1 October 2007. People eligible to participate in the Scheme include those with a spinal cord injury, moderate to severe brain injury, multiple amputations, severe burns, or blindness as a result of an accident.

In 2012, the LTCS had accepted 737 people into the Scheme. Of these, 14 people

have  died, and 63 are no  longer  participants  of  the Scheme,  leaving 660

participants in the Scheme. This includes 304 participants who have been in the Scheme for two years or more and will continue to require its services as lifetime participants. Children make up approximately 12 per cent of all participants entering the Scheme.82

In 2012, the total liabilities for a Scheme assisting 660 people was just over $1.79 billion.83

The liabilities have grown exponentially over the past few years.

The 2007 Annual Report of LTCS estimated that ‘when  fully operational,  it  is

estimated that around 120 catastrophically injured people will enter the scheme each year.’84

The model of individuals attempting to access a disability support scheme, appears to parallel the NZ ACC far more.

This is concerning given that the NZ scheme has failed miserably in the ALA’s view and in many respects to adequately compensate those who are injured or even to provide services in a sustainable and viable scheme. Its history shows continual reductions in benefits and services to those for whom it is supposed to support.

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2. HOLLOW LOG PROVISIONS The LTCS has ‘hollow log’ provisions to stop Governments from taking funds from the scheme. This is a protection that should also be built into the NDIS to ensure long term sustainability as it is a long tailed scheme.

3. OUR CONCERNS WITHIN THE NSW AGREEMENT We also raise concern regarding some of the details within the NSW Agreement.

We raise concern at the deviation of funding to the NDIS. This includes ‘existing available funding for specialist and other disability services and supports from 2018/19.’85 We also concerned that ‘following commencement of the full NDIS, the NSW Government will not provide any residual specialist disability services or basic community care services.’86

We are also concerned at the following provisions:

‘Such  arrangements  [no  fault  lifetime  care  and  support  to  those

catastrophically injured in a motor vehicle accident in NSW, and universal no fault Work Cover scheme; dust diseases compensation; NSW Treasury Managed Fund self insurance scheme providing protection for insurable risk for all NSW public hospitals…] can in practice reflect a subsidy to other States or Territories which do not provide equivalent support and insurance cover for their residents or visitors.’87

‘The NSW arrangements for motor vehicles, work cover insurance will be considered to satisfy any minimum standards that would be required for all

States and  Territories  participating  in  the NDIS, unless amended by

agreement through the Standing Council on Federal Financial Relations.’88

‘When the  full scheme commences,  jurisdictions without equivalent

schemes will be responsible for 100% of the costs of their citizens and visitors who enter the NDIS due to disability caused by relevant accidents within their jurisdiction.’89

‘NSW commits to retaining its current arrangements for managing risk for the treatment of medical injury caused by fault in its public hospitals. The Commonwealth and NSW will continue negotiations, through the Standing Council on Federal Financial Relations, on no fault medical injury coverage.’90

We are also concerned at the fact that the Productivity Commission will provide a review of scheme costs in 2017. We believe that a purely economic assessment of

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the Scheme will fail to cater for human rights considerations of the delivery of support.

There are also significant details missing regarding the ‘tiers’ occurring within the NDIS.

While the NSW Agreement details its commitment to funding ‘Tier 3’ and ‘Tier 2’ participants, there is no mention of the tiered structure in the proposed legislation.

4. BALANCING THE SCHEME We are concerned about various opportunities for lack of balance within the

Scheme.

There  is an inherent tension in the Scheme, in that  it requires both financial

sustainability, and to constantly provide reasonable and necessary supports to individuals with disability.

This balance must be struck bearing in mind that the Scheme will be a long tail scheme that will suffer financial pressures on an ongoing basis.

The tension between balancing sustainability and an individual’s needs should be

protected, allowing  participants  to maintain  their current  rights enshrining the

principle in the legislation and enable individuals to be released from the scheme in appropriate circumstances where such schemes co-exist. It is in the best interests of the scheme and the individuals if that flexibility can exist.

CONCLUSION

We welcome the National Disability Insurance Scheme as a significant step forward in Australian policy, in ensuring that the rights of people with disability are met more adequately.

However, we remain cautious about the Bill. Significant major detail is missing. The Bill appears to be a product of undue haste which should be avoided, especially given the mammoth scope and effect that this reform will have on the lives of many in Australia in the future.

We believe that the policy details of the Scheme need to be clarified and assessed more deeply so that the satisfactory aspects of current schemes are not diminished in any way in the haste to legislate with misplaced zeal.

We have proposed solutions to the problems but will be more than happy to elaborate further.

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While the NDIS is a landmark reform, it is imperative to develop the essential foundations and building blocks that then mean the Scheme can be built on successfully in the long term.

Failure to address these core concerns now, means that there will inevitably be a shifting, contracting and expanding of the Scheme and its entitlement access to claimants, over the next fifty years, as has been seen in the NZ ACC. This will ultimately jeopardise the rights of all individuals within the Scheme.

The existing rights of individuals with disability should not be shortchanged for something that will be momentary and illusionary, and pass before their eyes.

While heralded as ‘a dream come true,’91 the NDIS must be structured in a way that enables people to access the kind of reform in disability support that has been represented to them.

Ultimately, people with disability deserve for the details in this Scheme to be assessed and evaluated properly, with full attention paid to their legal rights, both those existing today and those that must exist into the future.

Endnotes

1 Australian Lawyers Alliance (2012) <www.lawyersalliance.com.au> 2 Productivity Commission, Disability Care and Support – Inquiry Report (July 2011), at 2. 3 National Disability Insurance Scheme Bill 2012 (Cth), Clause 27. (Hereafter, all references to Clauses are attributed to the Bill.) 4 Clause 27 5 Clause 17, 22, 23, 27. 6 Clause 35(1)(b) 7 Clause 35(4) 8 Ms Michele Rowland MP, cited in ‘Sydney’s west celebrates NDIS announcement,’ Joint Media Release with Hon. Jenny Macklin MP, 10 December 2012. Accessible at http://jennymacklin.fahcsia.gov.au/node/2191 9 Australian Government Actuary, Document 1, at 17. Released under FOI laws. 10 Clause 105(1) 11 Article 2, International Covenant of Civil and Political Rights 12 Dominique Schwartz, ‘NZ law may be contributing to workplace accidents,’ ABC News, 30 October 2012. Accessible at < http://www.abc.net.au/news/2012-10-30/nz compensation/4340540> 13 Clause 105(1) 14 Clause 106 (c) 15 Clause 35(4)(a)(b)(c) 16 Clause 35(5) 17 Section 7A, Motor Accidents (Lifetime Care and Support) Amendment Bill 2009 (NSW) 18 Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402.

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19 Law Council of Australia, What were the major changes to personal injury laws? (2012) < http://www.lawcouncil.asn.au/programs/national-policy/tort-law-reform/major-changes.cfm> 20 Jnana Gumbert, at 22. 21 Clause 24(1)(b), (2) 22 Clause 34(g)(h) 23 Jnana Gumbert, at 15. 24 Productivity Commission, Disability Care and Support, at 379. 25 Jnana Gumbert at 18. 26 Clause 29, 30 27 Clause 40, 41, 105.

28 Council of Australian Governments, Progress Report: Building a National Disability

Insurance Scheme, at 1. Accessible at < http://www.coag.gov.au/sites/default/files/NDIS_progress_report.pdf> 29 See clause 21(1)(b); 23(1)(c); 23(3). 30 Clause 202(1) 31 Radio New Zealand News, ‘Palmer calls for major ACC change’, 29 october 2012. Accessible at <http://www.radionz.co.nz/news/political/119399/palmer-calls-for-major-acc change> 32 Clause 147(5) 33 Clause 197(1) 34 Jnana Gumbert, at 20. 35 Clause 99 36 Clause 6.

37 Disability Rights Now: Civil Society Report to the United Nations Committee on the Rights

of Persons with Disabilities , compiled by Disability Representative, Advocacy, Legal and Human Rights Organisations, at 71 (August 2012)(‘Civil Society Report’). Accessible at http://doc.afdo.org.au/CRPD_Civil_Society_Report_PDF 38 Jnana Gumbert, at 16. 39 Clause 100(2) 40 Jnana Gumbert, at 15. 41 Clause 26(2)(b), 36(2)(b) 42 See Martin Johnson, ‘ACC threatens to cut victims support’, 29 September 2012. Accessible at http://www.nzherald.co.nz/acc/news/article.cfm?o_id=3&objectid=10837315 43 Clause 26(1)(2)(3) 44 Clause 28(2) 45 David Gadd and Marika Hill, ‘Privacy breach victims to sue ACC’, Fairfax NZ News, 30 September 2012. Accessible at <http://www.stuff.co.nz/national/health/7748139/Privacy breach-victims-to-sue-ACC> 46 Privacy Commissioner, ‘Media release - Privacy Commissioner urges ACC culture change,’ 23 August 2012. Accessible at <http://privacy.org.nz/privacy-commissioner-urges acc-culture-change-media-release/> 47 Privacy Commissioner, ‘Media release - Privacy Commissioner urges ACC culture change,’ 23 August 2012. Accessible at <http://privacy.org.nz/privacy-commissioner-urges acc-culture-change-media-release/> 48 Clause 3(1)(b)(h) 49 Article 5, Convention on the Rights of Persons with Disabilities. 50 Productivity Commission, Disability Care and Support – Inquiry Report, (July 2011), at 984. 51 NSW Agreement, cl 42.

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52 Ms Michele Rowland MP, cited in ‘Sydney’s west celebrates NDIS announcement,’ Joint Media Release with Hon. Jenny Macklin MP, 10 December 2012. Accessible at http://jennymacklin.fahcsia.gov.au/node/2191 53 Clause 4 54 Article 12, Convention on the Rights of Persons with Disabilities. 55 Civil Society Report at 72. 56 Clause 86(2)(a)(b) 57 CSR at 71 – 72. 58 Clause 74(5)(a) 59 Clause 91(1) 60 Article 3, Convention on the Rights of the Child. 61 Clause 76(1) 62 Clause 70 63 Clause 72 64 Clause 88(3) 65 Clause 88(4) 66 Clause 88 67 Clause 91(6) 68 Clause 89 (1) 69 Clause 89 70 Clause 89(4) 71 Clause 88(2) 72 Clause 91(2) 73 Clause 47(1) 74 Clause 47(2)(b) 75 Clause 48(1) 76 Clause 48(2) 77 Clause 51(1) 78 Clause 83(2)

79 Andrew Baker, The New Leviathan: A National Disability Insurance Scheme, (Centre for

Independent Studies, Sydney, 2012) p 4 80 Heads of Agreement between the Commonwealth and NSW Governments on the

National Disability Insurance Scheme, (2012)(‘NSW Agreement’). Accessible at

<http://www.nsw.gov.au/sites/default/files/pdf/Agreement-between-Commonwealth-and NSW-Governments-NDIS.pdf> 81 The proposed changes are encapsulated within the Motor Vehicle Accidents (Lifetime

Support Scheme) Bill 2012 (SA); Civil Liability (Motor Vehicle Accident – Third Party

Insurance) Amendment Bill 2012 (SA); and Motor Vehicles (Third Party Insurance) Amendment Bill 2012 (SA). 82 NSW Lifetime Care and Support Scheme Authority, Annual Report 2011 – 2012, at 13. Accessible at http://www.lifetimecare.nsw.gov.au/annual_reports.aspx 83 NSW Lifetime Care and Support Scheme Authority, Annual Report 2011 – 2012, at 13. Accessible at http://www.lifetimecare.nsw.gov.au/annual_reports.aspx at 21. 84 NSW Lifetime Care and Support Scheme Authority, Annual Report 2011 – 2012, at 13. Accessible at http://www.lifetimecare.nsw.gov.au/annual_reports.aspx at iii. 85 NSW Agreement, at cl 15. 86 NSW Agreement, cl 33. 87 NSW Agreement, cl 39. 88 NSW Agreement, cl 40. 89 NSW Agreement, cl 41. 90 NSW Agreement, cl 42.

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91 Andrew Priestley, ‘Parents praise insurance deal’, The Manly Daily, Thursday December 13, 2012, at 8.

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