NDIA Accountability Project

Concerns regarding functional capacity assessment and access to treatment for people with disabilities

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Submission 1820

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

29 May 2026

To the Senate and Community Affairs Legislation Committee,

I am an occupational therapist who has been working in the disability sector for 15 years. I currently work as an employee of a small private practice consisting of allied health professionals (occupational therapists, speech pathologists, social worker, support workers and therapy assistants). We service predominantly children with ASD, ADHD, GDD and other disabilities in Western and South Western Sydney; however also provide services to many young adults with intellectual disability, ASD and other disabilities.

I previously worked for Ageing, Disability and Home Care (ADHC), which provided state-funded disability services to the community in NSW. I have been a part of the transition into the NDIS and have seen the benefits of providing choice and control to participants and increased accessibility to allied health services as a result of the NDIS.

Whilst I acknowledge the importance of the sustainability of the scheme, I am deeply concerned about the new legislation that has been proposed and its implications for people with disabilities, their families as well as the majority of hardworking allied health professionals and key workers who currently support the disability community. I believe the proposed NDIS bill is in direct opposition to the foundational principles outlined in the NDIS ACT to:

  • Support people with disability to achieve their goals
  • Facilitate choice and control for participants
  • Provide reasonable and necessary supports based on individual needs

In particular, my concerns in the proposed NDIS Bill are:

  • The proposed new definition of functional capacity (Schedule 1 – 9B): As an occupational therapist trained in holistic care, environmental supports are considered an essential factor to determining an individual’s functional capacity. An assessment of an individual’s functional capacity without consideration of the environmental supports required (e.g., assistive technology, support systems, environmental barriers) will result in an inaccurate assessment of an individual’s support needs. Not to mention, the functional capacity of people with disabilities can fluctuate and change depending on the environment they are in. For example, a child with poor gross motor skills due to a neurological condition may appear to be able to mobilise independently when assessed in a space where there is level access. However, they may actually be unable to participate in age-appropriate gross motor play and daily activities when you assess them within the school or community context (e.g., they need physical assistance to walk up and down stairs, or climb playground equipment). Furthermore, people with executive functioning impairments may mask their disability or may present inconsistently in daily

Submission 1820

activities which may not be picked up in a one-off assessment with an assessor without appropriate clinical qualifications. Without a comprehensive assessment of a person’s functional capacity within their current environments, there is increased risks of people with disabilities not being provided with the adequate support they require.

Recommendation: It is recommended that section 9B is amended to ensure the functional capacity of an individual is assessed within their real-world environmental context, and considers the environmental barriers, assistive technology, support systems, cumulative impact of multiple disabilities and fluctuating condition of individuals with permanent life-long disabilities.

  • The proposal of alternative supports (Schedule 1 -25B): The proposal of a stricter permanence test where participants are required to attempt to take “all appropriate treatment” regardless of financial barriers, geographical location or a participant’s capacity to access treatment is discriminatory in nature and does not provide equitable access for people to NDIS. This would reduce access for people with disabilities who live in rural or remote areas, and those with lower socioeconomic backgrounds. As a provider in Western Sydney and South Western Sydney, there is a larger population of people from lower socioeconomic backgrounds who already limited access to allied health services. This requirement for people to undertake “all appropriate treatment” would create inequitable access for people in this area who don’t have the financial means or even capacity to access treatment due to lower income households and reduced family support systems as many are migrants. Furthermore, it raises concerns for the autonomy for people to choose and decide treatment for their own body. People with disabilities should retain the right to refuse treatment as it is their body and their choice.

Recommendation: Section 25B should be amended so that exclusions should only apply where alternative supports are available, accessible, timely, culturally safe, within their geographic and financial means.

  • Automation and algorithmic decision making (Schedule 3): This new Bill proposes increased automated decision-making without sufficient transparency, human oversight or right for individuals to request for an appeal. People with disabilities can vary in their presentation and fluctuate on a day-to-day basis. Assessment of an individual’s need requires nuanced clinical judgement and holistic methodologies. It is concerning that an individual’s needs will be based on algorithm that does not capture fluctuating disability, their environmental barriers, cumulative impact of multiple disabilities, psychosocial needs or their communication needs. This places people with disability at risk of not being provided with the appropriate supports they need and as a result leading to neglect, hospitalisation, institutionalism or mental health crisis.

Submission 1820

Recommendation: Provide full transparency of algorithms, methodologies and criteria in how eligibility and funding decisions are made. Prohibit fully automated systems and ensure all decisions are reviewed by humans, with independent audits, and legislation around the transparency on algorithms and eligibility and funding processes.

The proposed Bill requires substantial time for reconsideration and amendment in order to provide people with disabilities with safe and equitable access to supports they need. Further consultation is required with the disability community and allied health professionals who work in this sector.

Thank you for reading this submission.