Occupational Therapist's concerns over plan cuts and functional capacity redefinition

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 1243

Senate Community Affairs Legislation Committee Inquiry into the National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026

Submitted by:

Occupational Therapist NDIS registered provider since 2016

Preamble I am an Occupational Therapist and have been operating under the NDIS since its national rollout in 2016. My clinical work is focused on supporting adults with neurological conditions including spinal cord injury, multiple sclerosis, motor neurone disease, and cerebral palsy. My practice centres on enabling independence, wellbeing, and participation in everyday life through a combination of skills training, assistive technology selection and deployment, and environmental modification.

I am not writing this submission as a partisan critic of the NDIS. I have seen the various reforms in this scheme, some of which have genuinely improved participants’ lives, and I have seen others that set them back. I write now because I am professionally and morally obligated to do so. The measures contained in the National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 will, in my clinical and operational assessment, cause serious and measurable harm to participants, particularly the adults with complex neurological conditions who make up my caseload, and will, in the long run, cost the Australian public significantly more than the savings they purport to generate.

I address five areas of concern:

1. the economic case for proper NDIS investment;

2. the current pattern of plan cuts and their chilling effect on participants;

3. the proposed redefinition of functional capacity;

4. the proposal to replace qualified clinical assessors with non-clinical NDIA employees;

5. and the destruction of a meaningful appeals pathway.

6. the over-reach of power assigned to the minister

7. The NDIS as Economic Investment, Not Cost Centre The Bill is framed as a sustainability measure, and the Government’s public communications have been consistent in presenting NDIS expenditure primarily as a fiscal burden to be contained. This framing is, at its core, economically incomplete.

Per Capita’s landmark report False Economy established through economic modelling that every dollar invested in the NDIS returns $2.25 to the Australian economy, through job creation, stimulation of local business activity, increased labour market participation by carers and people with disability, and reduced downstream costs across health, housing, and social security systems. In 2020–21 alone, the scheme generated an estimated $52 billion in economic benefit.

When the Government announces projected savings of $37.8 billion over a decade, the question that has not been publicly answered, and which this Committee should compel the Government to address before the Bill is passed, is this: what is the whole-of-government cost accounting behind that figure? What does Treasury project that Centrelink, Medicare, state mental health services, hospitals, emergency departments, housing services, and the justice system will spend absorbing what the NDIS no longer funds?

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National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 1243

In my clinical experience, when participants lose NDIS support, they do not simply do without. Needs do not disappear because funding is withdrawn. They present in emergency departments. They are admitted to hospitals for extended stays they would not otherwise require. They place unsustainable care demands on family members who then reduce or exit their own workforce participation. The costs are real; they are simply displaced onto other public budgets and invisible families.

A scheme that is well-administered, with participants and their support networks appropriately supported, is not a budget problem. It is one of Australia’s most effective economic instruments. The question before this Committee is not whether Australia can afford the NDIS. It is whether Australia can afford to hollow it out and see the consequences of that play out.

2. The Current Environment: Fear-Driven Rationing of Supports Before addressing the specific provisions of the Bill, I wish to place on record my direct clinical observations of the environment in which participants are currently operating.

Over recent years I have observed a consistent and disturbing pattern across my caseload: participants whose plans have been cut, in many cases without adequate justification or meaningful engagement with their clinical evidence, are now terrified to utilise their remaining supports appropriately or to advocate for what they genuinely need.

This is not anecdote. This is a clinical observation with direct functional consequences. Participants with progressive neurological conditions who require early intervention and preventative support are delaying engagement with those supports for fear of drawing attention to their plans and triggering a review or further reduction. People with spinal cord injury are declining to request assistive technology assessments. Participants who need environmental modifications to maintain safe, independent living are managing unsafe situations rather than risk a plan change.

The scheme is generating a population of participants who are rationing their own support, not because their needs have reduced, but because the arbitrary and chaotic administrative environment has made advocacy feel dangerous. This is the baseline onto which the Bill’s proposed changes will be layered. The Committee should understand that these measures are not being introduced into a functioning system. They are being introduced into one that has already significantly damaged participant trust and wellbeing.

3. The Proposed Redefinition of Functional Capacity The Bill proposes to redefine functional capacity as a person’s ability to undertake an activity:

“…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.”

As a clinician with nearly a decade of functional assessment experience across a range of complex neurological presentations, I must state plainly: this definition is clinically incoherent, and its adoption into legislation would cause direct harm.

Functional capacity is not static and cannot be assessed in isolation The foundational principle of occupational therapy, and of the rehabilitation sciences more broadly, is that function is a product of the interaction between the person, their activity, and

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National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 1243

their environment. This is not theoretical preference; it is the established scientific basis of functional assessment, reflected in the WHO’s International Classification of Functioning, Disability and Health (ICF), which underpins NDIS assessment methodology.

The functional capacity of a person with a spinal cord injury will be profoundly different in an accessible environment with appropriate assistive technology than it will be in an inaccessible environment without. That is not a variable to be controlled for — it is precisely the point of the scheme. The NDIS exists to fund the supports, technology, and environmental modifications that close the gap between a person’s baseline capacity and their capacity to live an independent and participatory life. To define functional capacity as what a person can do absent those supports is to define the very thing the NDIS is designed to address as irrelevant to the assessment.

The definition will produce inequitable and clinically invalid outcomes The proposed definition would, in practice, require assessors to treat two individuals with similar diagnoses as having similar support needs regardless of material differences in their circumstances. This is not how disability works. Two people with MS at the same stage of disease progression may have radically different functional profiles depending on their home environment, their family circumstances, their geographic location, their existing assistive technology, and a range of other factors that the Bill explicitly proposes to exclude from consideration.

The result would not be equitable assessment. It would be the application of a blind average to individuals with complex and highly variable needs, an approach that will systematically under-fund those whose circumstances are most challenging and who deviate from the norm for various unique reasons.

Functional capacity changes over time Many of the people I work with have progressive conditions. Motor neurone disease, multiple sclerosis, and some presentations of cerebral palsy involve functional capacity that changes, sometimes rapidly, over time. A definition that attempts to establish a decontextualised baseline ignores the dynamic nature of these conditions entirely. It will produce assessments that are outdated almost immediately, generating a planning system that is persistently misaligned with participants’ actual needs.

I urge the Committee to recommend the removal of this proposed definition from the Bill, and to recommend that any future definition of functional capacity be developed in genuine partnership with clinicians and the disability community, grounded in established international frameworks.

4. Non-Clinical Assessors with a Structural Incentive to Under-Report The Bill proposes that functional capacity assessments may be conducted by assessors who are not registered health professionals and who are employees of, or contractors to, the NDIA. This proposal is deeply concerning on two distinct grounds.

Clinical competence Functional capacity assessment of adults with complex neurological conditions is a skilled clinical task. It requires understanding of neurological disease processes, familiarity with the interaction between impairment, activity, and environment, knowledge of the assistive technology landscape, and the ability to contextualise a person’s presentation within a clinical trajectory. It is not a task that can be adequately performed after brief training by someone without a foundation in health science or rehabilitation.

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National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 1243

The introduction of inadequately prepared assessors into a system where their assessments determine the allocation of support will result in assessments that fail to capture the complexity of participants’ needs. Participants with neurological conditions will be the primary victims of this, as their presentations are often the most clinically nuanced, the most likely to vary from week to month to year, and the most poorly served by superficial assessment.

Structural conflict of interest The proposal that these assessors be employed by, or contracted to, the NDIA creates a structural conflict of interest that cannot be managed by goodwill or training alone. These individuals will be assessing needs within an agency that is under significant public and governmental pressure to reduce scheme expenditure. The institutional incentive, whether explicit or tacit, will be to under-report need.

This is not a theoretical concern. The existing ART data demonstrates that NDIA decision- making already systematically underestimates participants’ needs: between July 2023 and March 2024, NDIA decisions were overturned or varied by the Tribunal approximately 75% of the time. That figure reflects the output of a system whose decision-makers are already subject to institutional pressures. My clinical observation is that the NDIA has developed a systematic propensity to deny funding requests and rely on participant capitulation to make those denials stick, knowing that many participants lack the physical, cognitive, or financial resources to pursue an appeal. The 75% overturn rate at the ART does not only demonstrate that decisions are wrong; it demonstrates that the scheme has learned to profit from the gap between a correct decision and a contested one. Embedding those same pressures into the assessment process will compound the problem at its source.

Independent assessment by registered, appropriately qualified health professionals with no financial relationship to the NDIA is the minimum standard required for assessments that are clinically valid and structurally impartial. The Bill falls well short of this standard.

5. The Removal of Meaningful Appeals: A Denial of Justice Perhaps the most alarming provision in the Bill is its treatment of appeals. The current framework, for all its imperfections, provides participants with the right to seek independent external review of NDIA decisions. The Bill proposes to replace this with a circular reassessment process: if a plan is inadequate, the participant may request reassessment; if that reassessment is also inadequate, they may request another reassessment. There is no independent external review mechanism. There is no floor.

The case for preserving a genuine, independent appeals pathway is not abstract. It is quantified. As mentioned above, the 75% overturn rate of the ART (July 2023 and March 2024) is the highest overturn rate, by far, of any Commonwealth government agency. For comparison, Centrelink decisions are overturned 28% of the time; child support decisions 35%.

The Committee should sit with that damning figure. Three in every four times a participant had the resources and determination to challenge an NDIA decision before an independent body, the decision was found to be wrong. The scheme is not being gamed by participants. It is systematically making incorrect decisions about people’s support needs, and the appeals process is the mechanism by which those errors are corrected.

The Bill proposes to remove that mechanism. It would replace independent adjudication with a loop: the same agency that made the wrong decision the first time is asked to reconsider it,

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National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 1243

indefinitely. This is not a review process. It is an administrative circle that will exhaust participants without delivering justice.

For the adults I support — many of whom are managing progressive conditions that are physically and cognitively demanding — the energy required to pursue a plan dispute is enormous. A process that leads nowhere will not merely fail to help them. It will actively harm them by consuming limited capacity and generating stress with direct clinical consequences.

I note with particular concern that this removal of appeals is being proposed in a context where decisions will increasingly be made by non-clinical, non-independent assessors. The less qualified and independent the decision-maker, the more important the existence of an independent review process. The Bill proposes the inverse: a less qualified decision-maker, and less recourse for the participant.

6. Ministerial Overreach: Removing Foundational Protections from Parliamentary Oversight The Bill grants the Minister powers that, taken together, represent an unprecedented concentration of executive authority over the structural operation of the NDIS, powers that should, in a scheme of this scale and consequence, remain subject to full parliamentary oversight. Two provisions are of particular concern.

Pricing by ministerial determination, without parliamentary disallowance Under the Bill, the power to set NDIS pricing levels is transferred directly to the Minister, to be exercised by legislative instrument. Critically, these instruments are not disallowable by Parliament. A pricing determination made by the Minister is published and takes effect without any requirement for parliamentary scrutiny, amendment, or approval. There is no sunsetting provision, meaning a determination made today could remain operative indefinitely, through changes of government and minister, without Parliament ever revisiting it. It is worth noting that the independent NDIS Review had explicitly recommended that pricing be set by an independent body, specifically the Independent Health and Aged Care Pricing Authority (IHACPA). The Bill does the opposite, concentrating that power in a single ministerial office.

Reduction of funding categories by ministerial determination The Bill also grants the Minister the power to apply percentage reductions to entire categories of participant support funding, again by determination rather than by legislation. This means that support categories that are currently protected by the Act can be materially diminished by a single minister acting unilaterally, without a bill, without debate, and without a vote.

Why this matters The NDIS was established by legislation precisely because Parliament recognised that the rights and entitlements of people with disability required the protection of law, not the discretion of an executive officer. The scheme’s founding architecture placed key protections in the Act itself, where they could only be altered through the full parliamentary process: introduction, debate, committee scrutiny, and a vote.

The Bill dismantles that architecture. It converts foundational aspects of the scheme — what supports are funded and at what price — from legislated rights into ministerial preferences. The protections available to a participant under this Bill will depend not on the law, but on whoever holds the ministerial office at the time.

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National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 1243

This is not a theoretical risk. Political priorities change. Ministers change. Fiscal pressures change. A scheme whose core parameters are set by ministerial instrument rather than legislation is a scheme that can be quietly and incrementally hollowed out without Parliament, without public debate, and potentially without most participants even being aware it is happening until the effects are already embedded in their plans.

I urge the Committee to recommend that any pricing power be vested in an independent statutory authority as the NDIS Review recommended, that any ministerial power to reduce funding categories be made subject to disallowance by Parliament, and that the Bill’s Schedule 5 transitional powers (which allow the Minister to temporarily modify how parts of the Act operate without new legislation) be removed or substantially constrained with appropriate parliamentary safeguards.

A Note on Trust: The Agency’s Conduct Under the Current Legislation The arguments above concern what the Bill proposes to do. But the Committee should also weigh what the NDIA has already demonstrated what it will do when participant protections are inadequately enforced, because the pattern of conduct under the existing legislation provides no basis for confidence that the Agency will act in good faith under a framework that affords it even greater discretion and reduced accountability.

The eligibility reassessment process that followed the October 2024 legislative changes is instructive. The new legislation explicitly provided participants with 90 days to respond to an eligibility reassessment request, a recognition, built into the law, that gathering specialist clinical evidence takes time. Despite this, the NDIA routinely issued reassessment notices giving participants only 28 days, arguing that the 90-day provision did not apply unless specific information was formally requested. This interpretation was widely condemned as contrary to the intent and plain operation of the legislation, and the ART found against the NDIA’s position on procedural fairness. The Agency was forced to reverse course only after sustained public pressure from the disability community and advocacy organisations. Critically, reassessment letters also consistently failed to specify which eligibility criteria the NDIA believed the participant no longer met, making it structurally impossible for participants to mount a meaningful response, regardless of how much time they were given.

Meanwhile, NDIA CEO Rebecca Falkingham acknowledged at Senate Estimates in February 2025 that NDIA staff cannot read the lengthy clinical reports that participants are required to fund and provide as evidence for their plans. This is not a minor administrative imperfection. The scheme mandates clinical evidence at every stage of planning and review, participants spend thousands of dollars in plan funding obtaining that evidence, and the agency charged with acting on it has publicly admitted it does not have the capacity to read it. Despite this, decisions are made, decisions that are then found to be wrong 75% of the time when independently reviewed. This is perverse.

Taken together, these facts describe an agency that is already operating outside the spirit of its own legislation, that has applied legal provisions in ways courts have found to be procedurally unfair, and that is making consequential decisions about vulnerable people’s lives without meaningfully engaging with the evidence placed before it. This is the agency that this Bill proposes to trust with unchecked powers over pricing, unchecked powers to reduce funding categories, and the role of first and last resort in a circular reassessment process from which there is no independent exit. The Committee should not simply take on faith that these powers will be exercised with restraint and in participants’ best interests. The available evidence shows that the removal of guardrails will ensure that the scheme will only veer further off-course

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National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 1243

Conclusion and Recommendations I wish to be clear about what I am not arguing. I am not arguing that the NDIS has no problems. It does. Planning inconsistency, fraud, inadequate support coordination, and LAC under-resourcing are all real and serious issues. I am not arguing that costs require no management. I am arguing that the measures contained in this Bill do not address those problems, and will create new and serious ones.

Based on my clinical experience and my analysis of the Bill’s provisions, I make the following recommendations:

1. The Government should commission and publicly release a whole-of-government cost accounting for the projected $37.8 billion in savings, including projected downstream costs to health, housing, social security, and justice budgets, before the Bill is passed.

2. The proposed redefinition of functional capacity should be removed from the Bill. Any future definition must be developed in partnership with clinicians and the disability community, grounded in the WHO’s ICF framework.

3. The provision for non-clinical, NDIA-employed assessors to conduct functional capacity assessments should be removed. Independent assessment by registered, appropriately qualified health professionals must be the legislated standard.

4. The Bill’s circular reassessment model should be rejected. A genuine, independent external review pathway must be preserved for all participants, consistent with principles of administrative justice.

5. Given the compressed submission timeline for this inquiry (two weeks for a 113-page Bill with multi-decade consequences for people with disability) the Committee should recommend that the reporting date be extended to allow the disability community, clinicians, and the public adequate time to engage meaningfully with its provisions.

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