Submission 112 — Recovery In Mind Occupational Therapy — NDIS Future Generations Bill

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 112

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Submission to the Senate Community Affairs Legislation Committee Inquiry into the National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 22 May 2026 Committee Secretary Senate Standing Committees on Community Affairs PO Box 6100, Parliament House, Canberra ACT 2600 community.affairs.sen@aph.gov.au Dear Committee Secretary, Recovery in Mind Occupational Therapy provides assessment, capacity building, skills development, maintenance support and intervention for people aged over 16, nationwide, through both face-to-face and telehealth services. We work with people living with neurodivergence, psychosocial disability and other complex, often hidden, conditions. We welcome the opportunity to comment on this Bill. We write as clinicians whose daily work is translating disability into function, understanding how a person manages their day, what gets in the way, and which supports make participation possible. We will be among the first to see, in real lives, what this Bill does. Having read the Bill and its Explanatory Memorandum in full, our considered position is that the Bill should not proceed as currently drafted. We do not dispute that the Scheme must be sustainable. But sustainability achieved by narrowing who is recognised as disabled, measuring their needs in artificial conditions, and then funding less than those needs cost is not reform; it is cost-shifting onto disabled people, their families, and the health and mental health systems that will ultimately absorb the unmet need. Our specific concerns follow.

1. “Financial sustainability” becomes an overriding test Schedule 1 rewrites a core object of the Act so that supports need only be provided to the extent “consistent with the financial sustainability of the scheme”.1 A new sustainability principle then requires the CEO to have regard to that sustainability when exercising planning powers, and states that participants should be responsible for their own day-to-day living costs.2 The Explanatory Memorandum is candid about the consequence. It states that this “means funding for some NDIS supports may be less than the actual cost of providing or acquiring the support”.3 In other words, a support a clinician has assessed as reasonable and necessary can lawfully be funded below what it costs to deliver. The familiar words “reasonable and necessary” remain, but a budget ceiling is placed above the participant’s assessed need. This reverses the founding logic of the Scheme, in which need drives funding rather than the other way around.
2. Functional capacity redefined to exclude real life The Bill inserts a new statutory definition of functional capacity. A person’s functional capacity is to be assessed as their ability to undertake an activity:

1am, amended s 3(1)(d). 2am, proposed s 17B, in particulars 17B(3). 3ExpJanatory Memorandum, p. 13. Recovery in Mind Occupational Therapy • NDIS Bill 2026 submission I Page 1

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“without assistance from other people, assistive technology or modifications; and … in a context that excludes, as far as possible, the impact of the person’s environmental and personal circumstances”.4

From an occupational therapy standpoint, this inverts how the discipline works. How well a person functions depends on the interplay between them and their environment, their supports and their everyday circumstances. It is not something that sits in the person alone. Measuring what someone can do with all assistance, equipment, environment and personal context removed may not reflect how they actually manage day to day, and tells us little about the support they genuinely need. The approach also departs from the World Health Organisation’s International Classification of Functioning, Disability and Health5, which treats functioning as the product of the interaction between a person and their environment. It is also difficult to reconcile with the social-model principles Australia committed to in ratifying the Convention on the Rights of Persons with Disabilities.6 For psychosocial disability this matters. Presentation commonly varies from day to day, depends heavily on context, and is often under-presented in brief assessment encounters.7 An assessment done out of context, at a single point in time, will tend to understate need for exactly the people this submission is concerned with.

3. A harsher permanence test that penalises barriers beyond the person’s control The Bill provides that an impairment is not permanent unless the person has undertaken “all appropriate treatment”, no other treatment is likely to materially improve or reverse it, and it is likely to persist for life.8 Appropriate treatment is defined as treatment that is evidence-based, can reliably be expected to improve or alleviate the impairment, and is regularly performed in Australia.9 Critically, treatment can count as appropriate “regardless of whether the person’s individual circumstances restrict the person from accessing the treatment”, and a note to that provision confirms those circumstances include the person’s financial circumstances and geographical location.10 The only exemption is for treatment that cannot be undertaken for medical reasons.11 This is of significant concern and, in our view, discriminatory in effect. A person can be assessed against treatment they have no realistic means of obtaining, for example where no affordable or local provider exists, where workforce shortages put it out of reach, or where transport, communication or past trauma prevent it. The effect is that support is withheld not because the disability is temporary, but because the person’s circumstances stopped them completing the treatment. The narrow medical-reasons exemption is also clinically troubling. It makes eligibility turn on a person submitting to interventions they may have well-founded clinical or personal grounds to decline, which sits uneasily with the consent principles that underpin ordinary health care. For psychosocial disability this is especially fraught, because what amounts to appropriate treatment is contested, recovery is rarely linear, and a person’s ability to engage shifts with the condition itself. A further risk concerns capacity-building supports. Because the permanence test requires a person to have undertaken “all appropriate treatment”, and appropriate treatment is defined broadly as anything evidence-based that can be expected to improve or alleviate an impairment,12 there is a foreseeable risk

4Bill, proposed s 9B(1). 5World Health Organization, International Classification of Functioning, Disability and Health (Geneva: WHO, 2001). https://www.who.int/standards/classifications/international-classification-of-functioning-disability-and-health 6Convention on the Rights of Persons with Disabilities, adopted 13 December 2006; ratified by Australia 17 July 2008. https://humanrights.gov.au/our-work/disability-rights/united-nations-convention-rights-persons-disabilities-uncrpd 7On the episodic and fluctuating nature of psychosocial disability, see Productivity Commission, Disability Care and Support, Inquiry Report No. 54 (2011). https://www.pc.gov.au/inquiries/completed/disability-support/report 8Bill, proposed ss 24(5) and 25(1B). 9Bill, proposed s 25A(1). 10Bill, proposed s 25A(2), including the note to that subsection. 11Bill, proposed s 25A(3). 12Bill, proposed ss 24(5) and 25A(1).

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that capacity-building interventions could be treated as “treatment” a person must complete before they can access the Scheme at all. That would contradict their intended purpose: capacity-building is meant to be part of the NDIS’s response to disability, not a barrier to entry. It would also place responsibility for functional improvement on the individual before any support is provided, and could, perversely, narrow access to the very capacity-building supports that help participants maintain function and participation over time.

4. Devaluing clinical judgement and the participant’s own outcomes When deciding whether a support is effective and beneficial, the CEO must now weigh the evidence in a set order of importance, placing first “research and evidence … that is published, peer reviewed and generalisable”, ahead of evidence of effectiveness for the individual and, last, the participant’s own demonstrated outcomes.13 The CEO may find a support not effective or beneficial where there is limited or no such generalisable research, even where there is clear evidence it has worked for that participant.14 This ranks the treating clinician’s reasoning, and the person’s real-world progress, below population- level research that, for much of allied health and almost all individualised, recovery oriented and psychosocial practice, does not exist in randomised, generalisable form. Occupational therapy is, by its nature, tailored to the individual and their occupations. Ranking generalisable trials above demonstrated benefit to the actual person will defund supports that are visibly working. This also sits awkwardly with the Scheme’s stated commitment to evidence-based decision-making, because it gives the least weight to what is often the most direct evidence in an individual case, that the person is functioning better with the support than without it.

5. Blanket funding cuts decoupled from individual need: section 34A New section 34A empowers the Minister, by legislative instrument, to reduce the funding for a specified group of supports by “a percentage (lower than 100%)” across the plans to which it applies, for the stated purpose of the Scheme’s financial sustainability. The Bill expressly provides that the cut applies even where the result is that funding for a reasonable and necessary support is “less than the total cost of the support”.15 The only safeguard on the face of this power is a duty to have regard to participant safety.16 The Explanatory Memorandum concedes what is at stake, noting this includes whether a reduction “could place participants at risk of neglect, crisis, or loss of essential functioning”.17 A single, broad, discretionary regard to safety is not an adequate check on a power to cut funding across whole cohorts: it requires no individual reassessment, no functional analysis, and no safeguarding step. The Explanatory Memorandum’s own list of the support groups that may be reduced is telling. It includes supports such as social and community participation, behaviour support, improved daily-living skills, support coordination and psychosocial recovery coaching. These are capacity-building and recovery- oriented supports that are central to how people with psychosocial disability maintain function and participation.18 A related provision lets determinations cap the amount, the intensity, or even the worker-to-participant ratio of a support.19 Cohort-level cuts and caps are the opposite of needs-based funding, and they fall hardest on the people whose needs are least visible in a standardised assessment.

13Bill, proposed s 34(1E). 14Bill, proposed s 34(1F). 15Bill, proposed s 34A(5). 16Bill, proposed s 34A(3). 17Explanatory Memorandum, p. 32. 18Explanatory Memorandum, p. 30. 19Bill, proposed s 33(2EA).

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6. Cost-shifting onto unpaid carers and participants The Bill directs the CEO to favour informal supports and community networks over funded supports wherever possible,20 alongside the new principle that participants should meet their own day-to-day living costs.21 In practice this assumes that families and communities can absorb whatever the Scheme withdraws. For people with psychosocial disability, informal supports are frequently strained, intermittent, geographically distant, or themselves a source of risk. Shifting reliance onto unpaid carers (disproportionately women) and onto participants’ own pockets, for a cohort largely reliant on the Disability Support Pension, does not make need disappear. It re-routes it into relapse, carer breakdown, crisis presentations and hospital admissions, at greater human and fiscal cost.

7. Weaker reassessment rights and new pathways to lose access The Bill extends the time the CEO has to act on a participant’s reassessment request from 21 days to 90 days,22 and only requires a reassessment where strict new conditions are met, including, for a change in circumstances, an “unanticipated, significant and ongoing” change in living, education, work or informal- support arrangements.23 A new provision allows the CEO to suspend a plan where reasonable attempts to contact the participant have failed and the participant is “not contactable”,24 and a related amendment allows the CEO to revoke a person’s participant status where they are not contactable, or where their plan has been suspended for 90 days.25 We acknowledge a suspension decision is reviewable; but review does not undo the harm of supports stopping in the interim. The word “unanticipated” will exclude deterioration that was foreseeable yet still catastrophic, such as the death of an ageing parent-carer, or fleeing family violence. And being out of contact is, for many people with psychosocial disability, a symptom of the disability:periods of disengagement, hospitalisation, paranoia, homelessness, or simply a changed phone number. The people most likely to be caught by these provisions are precisely those least able to survive a suspension or removal without serious risk to their safety.

8. Automated decision-making over clinical judgement The Bill authorises the use of computer programs to take administrative action, expressly including action that involves discretion, evaluative judgement, or the forming of a state of mind.26 The Bill includes some oversight provisions, but it also provides that a failure to meet those safeguards, or to tell a person their decision was automated, “does not affect the validity” of the decision.27 Disability planning turns on nuanced, fluctuating and context-dependent clinical realities, the very factors that are difficult to automate reliably. Authorising automated systems to make evaluative judgements about a person’s support needs, while preserving the validity of those decisions even where safeguards are not met, raises significant procedural-fairness concerns. Australia’s experience with automated government decision-making, most notably the Robodebt scheme, is a clear warning that

20Bill, proposed s 34(1K). 21Bill, proposed s 17B(3). 22Bill, amended s 48(3). 23Bill, proposed s 48A. 24Bill, proposed s 40A. 25Bill, proposed s 30(1A). 26Bill, proposed s 59B, especially s 59B(4). 27Bill, proposed s 59E(3) and (5).

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complex circumstances can be under-recognised, and decisions harder to challenge, when automated processes rather than qualified clinicians drive the outcome.28

9. Pricing and the allied health workforce The Bill empowers the Minister to set maximum prices for NDIS supports by legislative instrument.29 We support transparent, fair pricing. But ministerial price-setting driven by a sustainability mandate, without independent pricing oversight, risks pushing occupational therapy and allied health prices below viable levels. That will deepen existing workforce shortages and reduce the availability of qualified clinicians30, most sharply in rural, remote and outer-urban communities, at the very moment the Bill increases reliance on quality assessment and evidence.

Recommendations Recovery in Mind Occupational Therapy urges the Committee to recommend that:

1. The Bill not be passed in its present form, and that any reform be deferred until there has been genuine co-design with disabled people and the sector, a public assessment of how the changes affect people’s rights and which groups are most affected, and foundational supports outside the NDIS that are properly funded and fit for purpose..

2. Environmental, personal and contextual factors be retained in the assessment of functional capacity (amend s 9B), and whole-of-person assessment of cumulative and interacting impairments be preserved.

3. Section 34A be withdrawn. The power to impose group-wide percentage funding reductions decoupled from individual need has no place in a needs-based scheme. If retained, any such determination should require individual safeguarding review before taking effect and should not commence without the agreement of the states and territories as parties to the Scheme.

4. The requirement to have undertaken “all appropriate treatment” be removed where treatment is not genuinely accessible; the exemptions in s 25A be broadened beyond medical reasons to include financial, geographic, workforce and trauma-related barriers; and a person’s reasonable decision to decline a particular treatment should not, of itself, disqualify them from the Scheme.

5. The fixed evidence hierarchy in s 34(1E)–(1F) be removed, and treating-practitioner evidence and the participant’s own demonstrated outcomes be given genuine weight.

6. Capacity-building, psychosocial recovery and community-participation supports be expressly protected from blanket reduction or capping.

7. Fully automated eligibility, planning and funding decisions be prohibited; s 59E be amended so that a failure to meet automation safeguards renders the resulting decision invalid, and so that people are always told when a decision was automated.

8. Strong safeguards apply before any plan suspension or loss of access for participants who are not contactable, including demonstrated accessible communication, welfare checks, alternative supports and independent review.

9. Meaningful reassessment rights be restored, including a shorter decision timeframe and recognition of foreseeable deterioration.

28Royal Commission into the Robodebt Scheme, Report (Commonwealth of Australia, 2023). https://robodebt.royalcommission.gov.au/publications/report 29Bill, proposed s 45C. 30On workforce capacity, thin markets and the importance of professional assessment, see Independent Review of the National Disability Insurance Scheme, Working Together to Deliver the NDIS: Final Report (2023). https://www.ndisreview.gov.au/resources/reports/working- together-deliver-ndis/

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10. Independent pricing oversight be established to protect allied health viability and participant access.

Closing We make this submission on behalf of the people we work alongside every day, whose stability, independence and safety depend on supports this Bill would narrow. The test of any reform is whether it leaves disabled people safer and more able to participate in their communities. On the evidence of the Bill’s own text and Explanatory Memorandum, this Bill does not meet that test. We would welcome the opportunity to provide further information or to give evidence to the Committee.

Yours sincerely,

Bianca Parsons Director / Founder On behalf of Recovery in Mind Occupational Therapy

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