Submission 3205 — Dr Stevie Lang Howson and Dr Georgia van Toorn — NDIS Future Generations Bill

Submission to the National Disability Insurance Scheme Amendment

(Securing the NDIS for Future Generations) Bill 2026

Dr Stevie Lang Howson, Disabled People Against Cuts, NDIS participant.

Dr Georgia van Toorn, University of New South Wales, ARC Centre of Excellence for Automated

Decision-Making and Society

In any disability system, someone makes decisions about who gets support, what people get, and when and how they get it. Who has these powers and how they are used, can make a large difference to the quality and efficiency of decisions, and people’s sense of value and their participation in society. Historically, the power has been largely exercised by service providers and government officials (the ‘service centred’ model), with little real decision-making power given to people with disabilities, their carers or families.1

As the Productivity Commission identified in 2011, most programs of disability support around the world operate on a common logic. The role of government is to determine the size of the funding envelope, and the provision of support to individuals from this envelope occurs through a process of rationing.

The National Disability Insurance Scheme (NDIS) was introduced as a world-leading scheme that took a contrary approach.

The NDIS is unique in that it grapples with the reality of the cost of living with disability. Rather than rationing from a fixed envelope, the NDIS was established an uncapped scheme with funding guaranteed to cover supports deemed reasonable and necessary for the realisation of disabled people’s social inclusion and human rights. By building plans from scratch and funding what was deemed reasonable and necessary to achieve an individual’s stated goals, the State was made liable for the cost, in reality, of disability support.

This system was designed to deliver individualised plans for each eligible person, recognising that tailored support represented a pathway to both better outcomes and Scheme sustainability.2 It was also designed to incentivise both early intervention and capacity building that would reduce support needs for some participants in the longer term.3 With the federal budget liable for the reality of disability support costs,

there  is a strong incentive to create a more accessible and equitable  society, as these  structural

improvements can help reduce the need for more costly individualised supports – conceptualised as ‘community capacity building.’4 Together, these insurance principles were designed to drive better outcomes for disabled people, while promoting sustainability of the Scheme overall.5

1 Productivity Commission ‘Disability Care and Support: Inquiry Report’ (2011), https://www.pc.gov.au/inquiries-and-research/disability support/report/, accessed 1/06/2026, p. 344. 2 cost-effectively minimise the impacts of disability, maximise the social and economic participation of people with a disability, create community awareness of the issues that affect people with disabilities and facilitate community capacity building. These measures should be targeted at all Australians, p. 198, recommendation 3.1, p. 204. 3 Productivity Commission ‘Disability Care and Support: Inquiry Report’ (2011), https://www.pc.gov.au/inquiries-and-research/disability support/report/, accessed 1/06/2026 p. 82, p. 204. 4 Productivity Commission ‘Disability Care and Support: Inquiry Report’ (2011), https://www.pc.gov.au/inquiries-and-research/disability support/report/, accessed 1/06/2026, p. 198, The NDIS should ‘cost-effectively minimise the impacts of disability, maximise the social and economic participation of people with a disability, create community awareness of the issues that affect people with disabilities and facilitate community capacity building. These measures should be targeted at all Australians.’ 5 Productivity Commission ‘Disability Care and Support: Inquiry Report’ (2011), https://www.pc.gov.au/inquiries-and-research/disability support/report/, accessed 1/06/2026, p. 204.

However, this version of the NDIS did not eventuate. Very quickly, the Australian Public Service found that a scheme designed to respond to actual need, through a social model of disability aimed at identifying and addressing barriers on an individual level, was very hard to administer. The approach taken by the NDIA in implementing the NDIS was not aligned to the original intent of the scheme as articulated by the Productivity Commission in 2011. Individualised planning quickly gave way to algorithmic planning based on primary diagnoses.6 It proved extremely difficult to orient the administering Agency away from a biomedical view of disability. The promise of greater independence for higher needs participants and both the human rights benefits and cost savings that would entail, has largely been abandoned in preference for retaining congregate care models administered by large corporate and charitable entities at enormous expense. The capacity and culture of the administering Agency has been reviewed and found wanting.7 Funding has been provided in ways that are inappropriate and not matched to need. Appeals to the Administrative Appeals Tribunal/Administrative Review Tribunal over inaccurate, inappropriate and underfunded plans have skyrocketed.8 The costs of the failure to actually implement the NDIS’ in-built sustainability model – individualisation, proactive planning and early investment – have been enormous. It is this failure that has led us to this point where drastic cuts to the NDIS are being justified as essential for future sustainability.

Moreover, in the time since the NDIS was envisioned, our society has changed. Welfare payments have become even more immiserating and meagre in relation to the actual cost of living. The housing crisis has deepened. Public space has not become more accessible. Health and education systems are in crisis. The lack of progress making society more accessible in these areas has likewise driven scheme costs.

The Bill proposes a very specific solution to these problems. It is a familiar solution - rationing. The NDIS, under this Bill, loses its original character as a piece of human rights legislation. It also loses its original approach to sustainability though providing the best and most effective support as early as possible and promoting independence and capacity building. Instead, the NDIS will operate like other rationing systems around the world in which government sets a spending envelope, and a series of subsequent decisions determine who gets what. Incentives for independence, capacity building and the promotion of a more inclusive society are removed.

To do this, the Bill must unhitch the NDIS spend from the actual reality of what it costs to live with disability. Rationing models rely on being able to look at genuine need, and determine that that need is unfundable. The key elements of the Bill can be understood as strategies for detaching the NDIS spend from the reality of the cost of disability. Simply put, this operation is performed in at least three ways, although its signature is found throughout the Bill. First, functional capacity is defined as a biomedical given, outside of the reality of a person’s life. Second, people are to be divided into eligible and ineligible impairments regardless of the reality of how disability is experienced. Third, whether a person’s condition has been adequately treated to be deemed permanent, is to be determined without reference to what a person, in reality, can and can’t do. Finally, sweeping permission is granted for these decisions to be made using automated decision making.

6 van Toorn, Georgia, and Terry Carney. “Decoding the algorithmic operations of Australia’s National Disability Insurance Scheme.” Australian Journal of Social Issues 60.1 (2025): 21-39. 7 Joint Standing Committee on the National Disability Insurance Scheme, Capability and Culture of the NDIA, Inquiry Report (November 2023) https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/National_Disability_Insurance_Scheme/CapabilityandCulture/Report. 8 See for e.g. reporting by Kate Lyons, the Guardian https://www.theguardian.com/australia-news/2025/sep/24/federal-government-waging lawfare-against-disability-support-daunting-process-families-represent-themselves, accessed 1/06/2026.

Functional Capacity

The   Bill  proposes  a  new  definition  of  functional  capacity  as  “the  person’s   ability  to

undertake [an] activity… without assistance from other people, assistive technology or modification.”9 A striking feature of this definition is the requirement that it “excludes, as far as possible, the impact of the person’s environmental and personal circumstances.”10 Given that functional capacity will become central to eligibility and planning decisions, the NDIA will no longer be required to meaningfully engage with the social and environmental conditions in which disability is actually experienced. The Bill permits disability to be assessed as an isolated measure of biophysical and psychological functioning, detached from the circumstances of a person’s everyday life. Yet disability is not experienced in this way, as a collection of isolated functional limitations and support needs cannot be inferred from such limitations alone. They arise uniquely for each individual by virtue of the dynamic relationship between their impairment, personal circumstances, and the accessibility of the world around them. By excluding these considerations, the Bill severs support needs from the conditions that create them and reduces assessment to an isolated measure of bodily and cognitive functioning.

Like the proposed changes to permanence, this represents a retreat from the NDIS’s original commitment to funding reasonable and necessary supports in response to actual need. It substitutes a contextual understanding of disability with a fictional one: a conception of disability reduced to measurable bodily capacities detached from the environments in which people live. The result is the appearance of a needs based funding scheme but in practice it will be one that requires little to no recognition of the social and environmental conditions that create and mediate the need for supports.

In practice, environmental and personal circumstances will almost certainly continue to matter in planning conversations and assessment processes. Even so, the amendment is likely to constrain the discretion of planners to respond to those circumstances. Instead, funding decisions will increasingly be tied to prescribed “classifications or thresholds relevant to an assessment of a person’s ability to undertake a specified activity.”11 Supports must also arise directly from the impairment/s that meets the eligibility threshold. Together, these provisions establish a much narrower conception of need than that which originally underpinned the NDIS.

This narrowing is not accidental. It is intended to reduce access to the Scheme, constrain expenditure, and improve the budget bottom line. But it achieves these objectives by redefining concepts like disability and need, rather than by reducing the actual costs associated with living with disability. What appears to be a sustainable system is, in practice, one that becomes sustainable by refusing to recognise many of the costs it was originally designed to address. These costs do not disappear, but rather transfer from the sphere of disability support more acute settings, like hospitals and the justice system.

The risks associated with this approach are not unique to Australia. Comparable reforms elsewhere have demonstrated how narrow functional assessments can progressively reduce disability support to basic maintenance of bodily existence. In the United Kingdom, similar developments contributed to the erosion of support for social participation, independence, and dignity, reversing decades of progress towards

9 Proposed s 9B(1)(a). 10 Proposed s 9B(1)(b). 11 Proposed s 9B(3)(a).

understandings of disability that recognise the interaction between people and their social and material environments. The danger is that Australia follows a similar path, retreating from a social and relational understanding of disability and returning to a model grounded primarily in biomedical deficit.

Permanence

Likewise, the Bill proposes to tighten access by limiting NDIS eligibility to circumstances where participants can prove they have undertaken ‘all appropriate’ treatment for their impairment. Section 25A provides a definition of appropriate treatment as that which is evidence-based, is ‘reliably expected to materially improve, reverse, or alleviate the impact of, the impairment,’ and is regularly undertaken in Australia. Section 25A(2) explicitly states that a treatment can still be deemed to be ‘appropriate treatment,’ rendering someone ineligible, even where individual circumstances prevent them from accessing it, overturning the Federal Court decision in Davis.12 Section 25A(5) contemplates the creation of rules to determine the circumstances where it has been deemed all appropriate treatment has been undertaken for classes of participants, foreshadowing an approach that may mandate particular treatment pathways for different diagnostic populations.

This continues a trend of orienting the provision of NDIS support away from the real impact and cost of disability and towards a narrow biomedical framework supportive of rationing. In reality, such a provision legislates inequity between people whose personal financial resources and geographic location permit them to undertake and trial a variety of treatments, and those who do not. People in poverty and people in rural and remote Australia will be particularly impacted.

This creates a population of people with significant, and in reality permanent, disability who will be excluded from NDIS support due to their inability to meet administrative burdens associated with proving that there is nothing further that would alleviate their condition, or travel long distances or spend significant sums of money on treatments. It should be noted that reduce or alleviate are very low thresholds. There is no consideration of whether the alleviation or reduction would be substantial enough for the participant to no longer meet the access requirements for the NDIS.

This detaches decision making about NDIS support from actual need. The disabled people impacted will continue to have significant and permanent disability that would have otherwise made them eligible for the NDIS. They will continue to be unable to access the treatment the NDIA deeps appropriate. People with greater financial resources and geographical proximity to treatment will continue to be able to navigate the additional burdens placed on them. This dealignment of decision-making from need does not reduce the presence of need, but facilitates decision-making that obviates it.

Eligible Impairments

The National Disability Insurance Scheme Act 2013 did not define the concept of disability. The concept of impairment is used throughout the legislation. The NDIA collects data relating to primary and secondary disabilities. Over time, the increased use of typical support packages based on diagnosis made this data point increasingly important for funding decisions, with an internal position within the Agency solidifying around the proposition that funding could only be provided in relation to the primary, or listed disabilities. This approach to planning decision-making is a key way in which the NDIA, in its implementation of the

12 National Disability Insurance Agency v Davis; [2022] FCA 1002.

Scheme, deviated from the original legislation and its intent. The assessment of participants based on primary disability was found by the Joint Standing Committee on the NDIS Inquiry into the Capacity and Culture of the NDIA to be an “administrative convenience” with “no basis in the governing legislation” and recommended that the practice be ceased.13

Despite this, in 2024, the governing legislation was amended around this practice, with the insertion of s34(1)aa, requiring NDIS support to only be provided in relation to impairments that meet the access criteria. Following negotiation, a legislative note was added, allowing the consideration of personal and environmental circumstances, and impairments that do not meet the access criteria in determining supports in relation to an eligible impairment. Negotiations also ensured that the participants would be provided with a ‘Notice of Impairment’ specifying which impairments met the access threshold. The rollout of these notices has been significantly delayed and to this day the vast majority of participants do not have a notice of impairment.

In 2025, the Federal Court upheld a decision of the Administrative Review Tribunal to fund a mobility scooter for a Mr Eastham whose accepted impairment was vision impairment.14 It was found that his inability to drive due to his vision impairment gave rise to his need for a mobility scooter. This proposed legislation therefore goes further, inserting the language of “directly arising” and removing the legislative notes. It does so in a context where primary disability, recorded as a diagnosis, continues to be used as a proxy for eligible impairment categories.

There are enormous risks to this approach. The integrity of the data contained within the primary disability field, has been extensively questioned, with numerous examples of this data being incorrect or changed. There is not currently a clear appeal pathway for participants who believe this information is incorrect, but have not received an impairment notice.

The decisions this provision requires are extremely complex. The Bill contemplates that support needs assessors, who are not required to hold any clinical qualifications, let alone medical qualifications - will be capable of making determinations about which support needs arise from which impairments, recorded as diagnoses. This means that an individual without medical qualification, will ostensibly be tasked with determining things like to what extent a person’s challenges with social communication are a result of their eligible Autism, compared to their ineligible brain injury sustained in a motor vehicle accident. It is extremely difficult to understand how such decisions would meaningfully be made.

Therefore, it appears that the utility of the provision is primarily to severs the link between funded support and the reality of people’s lives and needs, and facilitate the use of automated decision making that is grounded in biomedical and diagnostic categories. It is difficult to conceive of any benefit to this approach from the perspective of the original objectives of the NDIS. People are not excluded from social and economic participation in respect of listed disabilities only. The NDIS governing legislation has until now reflected human rights principles and an understanding of disability that recognises that disablement occurs

13 Joint Standing Committee on the National Disability Insurance Scheme, Capability and Culture of the NDIA, Inquiry Report (November 2023) https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/National_Disability_Insurance_Scheme/CapabilityandCulture/Report 2.29 ‘The NDIA’s distinction between ‘primary disability’ and ‘secondary disability’ has no basis in its governing legislation or the reality of participants’ lives,’ 2.30 ‘An administrative convenience: Legal precedents confirm that there is no legislative basis for distinguishing between ‘primary disability’ and ‘secondary disability’. It would, therefore, appear to be an artificial distinction that the NDIA has introduced and imposed.’ 14 Chief Executive Officer of the National Disability Insurance Agency v Eastham [2026] FCA 147.

at the point of interaction of impairment and environment. This amended provision is a key tool in a shift back towards a static, biomedical approach to disability, which suggests that an impairment is a quantifiable lack that can be supported in the same way across a cohort of people, without reference to the types of lives the people within that cohort are actually trying to live.

Automation of administrative decisions The shift towards a restricted, biomedical view of disability through changes to the definition of functional capacity, the permanence test and the categorisation of eligible impairments creates the conceptual foundation for the expansion of automated decision-making. Although limited precedents can be found in provisions of the Aged Care Act (2024), the provisions in Part 2 of the NDIS Amendment Bill contains the most extensive legislative authorisation and protection for automated decision-making introduced to date.

Decisions or recommendations based on classifications and thresholds are typically reached through standardised tools applied consistently across large numbers of cases. Such systems reduce administrative labour and reduce the scope for professional discretion or human compassion. While they may produce consistency, consistency is not the same as accuracy or fairness. A decision-making system can be perfectly consistent in measuring the wrong thing, or measuring the right thing but only partially.

The problem is therefore not standardisation itself. The problem is the highly restricted conception of disability that is being standardised. Disability is being recast as a quantifiable biological state that can be captured through objective indicators and translated into administrative categories. This understanding aligns neatly with automated systems, which are most effective when assessing discrete and measurable variables. Yet disability is not lived as a collection of isolated functional limitations. It emerges through the interaction of bodies, environments, institutions, and social relationships. Once these dimensions are excluded from consideration, as they are in quantitative, algorithmic approaches to disability assessment, the resulting assessments bear only a partial relationship to the realities they claim to capture.

The Scheme has long relied on simplified administrative categories such as primary disability. The Bill takes this logic significantly further, while also dismantling the architecture of needs-based, goal-driven individualised planning. By providing that “decisions and processes are to be automated” and limiting

opportunities to challenge those automated determinations,  it embeds a model of disability that  is

increasingly detached from lived experience. The result is not merely a more efficient disability support scheme, but a scheme organised around an increasingly fictional account of disability itself.

The Explanatory Memorandum states that participants, providers, and the broader public will be able to understand how automated decision-making is being used and that the CEO must publish a statement whenever a computer program is authorised to undertake administrative action. However, transparency of

this  kind  offers  only  limited  accountability.  Publication  requirements do  not  create meaningful

opportunities for affected communities to shape these systems, contest their underlying assumptions, or debate whether they are appropriate in the first place. Merely informing the public that automated tools are being used falls well short of the broader goals of legitimacy, trust, and social licence that these reforms purport to advance. Rather these provisions can be understood as unprecedentedly sweeping permission for the automation of decisions relating to access to the NDIS and provision of support within it.

Conclusion

The proposed Bill can be understood as incepting a foundational reorientation of the NDIS. The original NDIS grounded the provision of disability support in direct relation to the reality of need, reflecting human rights principles, individualisation and social model thinking. The proposed NDIS conceives of disability in static, biomedical terms, with the provision of support likely to be determined at a cohort level with reference to budget rather than human outcomes, administered through the extensive use of automation.

Recommendations:

1. The Bill not be passed in its current form.
2. That disability for the purpose of decisions relating to access and planning be assessed in ways that reflect the reality of need through:

a. defining functional capacity in recognition of the impact of personal and environmental circumstances on disability need;

b. not requiring participants or prospective participants to undertake treatment that they do not have a realistic pathway to access;

c. providing ‘whole of person’ support for eligible participants in order to facilitate inclusion and the objectives of the NDIS.

3. That sustainability be pursued through the original intention of the NDIS, including a. truly individualised plans responding directly to barriers to inclusion; b. facilitation of independent living and autonomy for disabled people, including participants with the highest needs;

   c. the identification and provision of the most cost effective supports for individual

participants;

d. true capacity building and early intervention support; e. and the creation of a fairer and more accessible society wherein barriers to participation by disabled people are reduced on a systemic level.

4. That the use of automated decision making be set aside until appropriate safeguarding, including co-design of the tools and assumptions with disabled people, can occur.