Concerns about impact on rights of people with disability (DRO advocacy) | External submission

Submission 600

1 June 2026

Committee Secretary

Community Affairs Legislation Committee

By email: seniorclerk.committees.sen@aph.gov.au

INTELLECTUAL DISABILITY RIGHTS SERVICE NSW

IDRS NSW

SUBMISSION

NDIS Amendment (Securing the NDIS for Future Generations) Bill 2026

Submitted by: Intellectual Disability Rights Service NSW (IDRS NSW)

Date: April 2026

Contact: Ms. Alexandra Craig Principal Solicitor. IDRS NSW

Address: 89 York St, Sydney, NSW, 2000

Phone: (02) 9265 6300

Email:

Classification: Public Submission

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ABN 11 216 371 524

PO Box 20228, World Square NSW 2002

P 1300 665 908 • P 02 9265 6300 • F 02 9318 2887

Submission 600

About Intellectual Disability Rights Service Intellectual Disability Rights Service (IDRS) is an umbrella organisation that has operated in New South Wales since 1980. IDRS provides free legal advice, advocacy, casework, community education and systemic reform work to and for people with disabilities across NSW and includes the Ability Rights Centre - an independent community legal centre for people with disability as well as the Justice Advocacy Service (JAS), which provides specialist disability advocacy to people with cognitive disability who are involved in the criminal legal system across NSW. IDRS specialises in working with people with intellectual disabilities, including those who also have associated conditions such as autism spectrum disorder, acquired brain injury, and psychosocial disability. Our client base includes some of the most marginalised individuals in Australian society, many of whom are NDIS participants who face compounding barriers to exercising choice and control over their lives. This submission draws on our direct casework experience, legal expertise, and the evidence base from the broader disability rights and legal sector.
Executive Summary The Bill should not proceed in its current form. It requires substantial amendment to protect participants’ rights, procedural fairness, review rights and meaningful choice and control. This Bill will overturn Federal court decisions in the pursuit of “financial sustainability” when the priority of the scheme should be meeting the needs of people with disabilities

IDRS welcomes the opportunity to make submissions to the Senate Community Affairs Legislation Committee regarding the NDIS Amendment (Securing the NDIS for Future Generations) Bill 2026.

Whilst IDRS accepts that the Scheme must be sustainable, safe and protected from fraud or misuse, IDRS holds serious concerns about the impact of the Bill on people with disability in its current form and we believe it requires substantial amendment.

The NDIS is a rights based social insurance scheme that enables people with disability to live ordinary lives, participate in their communities, avoid institutionalisation, reduce carer stress and exercise choice and control over their supports. We believe that theamendments proposed will seriously jeopardise the rights of people with disability and Page2

ABN 11 216 371 524

PO Box 20228, World Square NSW 2002

P 1300 665 908 • P 02 9265 6300 • F 02 9318 2887

Submission 600

shift the NDIS away from individualised, participant centred support, towards a narrower, more standardised and more financially constrained scheme.

Submissions- Summary of Concerns I. The Bill will overturn Federal Court Decisions that protect participants in the pursuit of “financial sustainability.”

IDRS is concerned as we believe that The Bill will reverse or weaken important participant protective Federal Court authority in the pursuit of “financial sustainability” when the priority of the scheme should be meeting the needs of people with disabilities.

The Bill will reverse the decision in McGarrigle v National Disability Insurance Agency [2017] FCA 308 – a long-established decision that found if a support is a disability support for an individual then all of the costs of that support should be covered.

The Bill would undo the whole of person approach for participants with multiple or interacting impairments established in the case of decision in CEO of the NDIA v Eastham. Eastham was a recent decision that said when considering the supports appropriate for a person the whole person must be taken into consideration and support should not be limited to only the condition for which a person meets the disability criteria of substantial functional capacity.

IDRS is concerned as the proposed legislation would mean that a person can only meet access once. The NDIA can grant access for only one of the conditions for which a person meets the access requirements. This Bill will prevent a person’s ability to add other conditions with a section 48 reassessment.

IDRS believes that you cannot grow the potential and capability of a person by looking at their primary diagnosis only. They interact with all elements of themselves and people with disability often have intersectional factors that impact on their disability including trauma and health conditions.

II. Standardised Assessment Tools will significantly limit individualised planning for participants.

The proposed legislation appears to implement standardised assessment tools to determine whether people meet the functional capacity threshold in order to access the scheme. A standardised assessment would be a major change from the current approach, where people can use reports from their doctors or allied health practitioners.

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ABN 11 216 371 524

PO Box 20228, World Square NSW 2002

P 1300 665 908 • P 02 9265 6300 • F 02 9318 2887

Submission 600

IDRS  is concerned because a  standardised assessment may  not  properly  capture

psychosocial, intellectual disability, episodic or fluctuating conditions, complex trauma, first nations context or culturally or linguistically diverse contexts. For example, people with intellectual disability may have fluctuating functional capacity which changes or depends on the support that they receive and the context of any given situation including their access to good healthcare and safe housing.

IDRS is concerned if the assessment does not consider and measure the person’s disability in relation to the support available to them and the context that they are in, then they may be significantly disadvantaged which would impact on their ability to be included and participate. Assessments must be tailored to meet the needs of people with intellectual disability and be done by skilled practitioners who understand intellectual disability.

No balance and check

The NDIA already have their own team that assesses and determine a person’s level of functional capacity ( TAPIB) and they already make mistakes in their assessments. The NDIA already over generalise individuals skills inappropriately apportioning capacity where an individual can complete one task ( with no questioning of how long or how they complete the task)

Example: Do you have a bank account ? As evidence of financial capacity ; Can you use an app on your phone? As evidence of capacity to learn. There will now be no balance or check on the NDIA’s understanding of an individual’s disability by independent clinical evidence and there is already very little understanding of the impact of cognitive disabilities.

Masking

People may be asked  if they can complete tasks which they  will confirm they can in

circumstances that have more to do with appearing competent than actually being competent in the task. Example: do you have friends? Yes and do you catch up with those friends regularly Yes [ asked of a young woman with no skills to make and keep friends who was talking about Facebook friends and making comments in Facebook]

Set up to fail

Assessors unlikely to understand an individual’s negative reaction to being asked to complete a task that they find overwhelming in a government assessment context are more likely to assess the person as uncooperative rather than there being an issue with the assessment.

Those people who have the least capacity to attend or complete assessments will fall through the gaps, additionally, The NDIA is not set up to follow up and persistently pursue individuals or support individuals to complete assessments. If they are the body which is administering assessment process in reality people with cognitive capacity will be the first to fail to gainaccess. Page4

ABN 11 216 371 524

PO Box 20228, World Square NSW 2002

P 1300 665 908 • P 02 9265 6300 • F 02 9318 2887

Submission 600

III. Changes to eligibility requirements for an impairment to be ‘permanent’ could greatly limit access to the NDIS

The Bill introduces several provisions that would prevent people accessing the NDIS if there are treatments that could improve or reduce the effect of their impairment. It may also require that a person try all appropriate treatment before accessing the scheme. The requirement to try “all appropriate treatment” could have unfair or unpredictable impacts.

IDRS is concerned as people with disability should not be denied support because treatment is theoretically available. A treatment may be clinically available in Australia but practically inaccessible because of cost, waitlists, cultural unsafety or lack of specialists available.

Significantly, these provisions would reverse the Federal Court’s decision of the NDIA v Davis [2022]FCA 1002 where the Court found where a possible treatment for a person’s impairment existed but the person could not realistically access the treatment for reasons such as being unable to afford it or their geographic location, this would not bar them from accessing the scheme.

IDRS recommends that The Bill should be amended so that treatment is only relevant where it is realistically available

IV. Negative impact of narrow assessment pathways

IDRS is concerned about the negative impact of the assessment pathway closing. The NDIA will now be the sole point of clinical evidence about what is available to treat a condition. Already the NDIA make incorrect assessments about whether a treatment would fully cure a medical condition based on their own internal teams. They currently make mistakes and misunderstand clinical conditions and what is available. If the NDIA do not take into consideration the evidence of a person’s actual treating team then how can they know if a person’s condition is permanent for them. Outcomes would be based entirely on what is generally the case for individuals.

V. Other available support systems may limit access to the scheme IDRS is concerned that The Bill may allow the NDIA to deny access or supports because another service system is said to be responsible. In practice, this may affect people who interact with mental health services, health, justice, aged care, child protection or the Office of the Children’s Guardian. IDRS believes that the proposed Bill could lead to unfair outcomes and leave some people without the supports that they need.

IDRS has seen matters where the existence of another system has been relied upon to avoid or delay disability supports. Examples include:

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ABN 11 216 371 524

PO Box 20228, World Square NSW 2002

P 1300 665 908 • P 02 9265 6300 • F 02 9318 2887

Submission 600

a child in out-of-home care being denied disability-related supports because the child was “in care”;
a person over 65 being asked to establish whether support needs could be met through aged care; and
a person remaining in hospital while the question of NDIS support was unresolved. The NDIS should not duplicate other systems, but people should not be left in gaps between systems. The Bill should include a clear no-gap safeguard: a person should not be refused NDIS access or support unless the alternative service is actually available, appropriate, funded and capable of meeting the person’s disability-related needs.

VI. Changes to NDIS planning including curtailing reassessments removes

practical safeguards for participants

Currently, participants can request a plan reassessment at any time (section 48). Under the proposed changes (proposed section 48A), participants can only request a reassessment if:

There has been a significant and ongoing change in their ongoing support needs; and
The change affects either a participant’s: a. functional capacity in an ongoing way – meaning changes that relate directly to an existing impairment, or a new impairment that meets the access criteria, and cause a substantial reduction in the person’s ability to do daily activities; or

b. personal or environmental circumstances – meaning ‘unanticipated’ changes such as losing a primary informal carer, or changes in living, work and/or education arrangements.

Because the change must be ongoing, temporary injuries or changes to care arrangements would not be enough to seek reassessment.

Reassessment is one of the few practical safeguards available when a participant’s plan no longer meets their needs. The Bill would significantly restrict reassessment by requiring a significant and ongoing change, extending the NDIA response timeframe from 21 days to 90 days, and requiring requests to be made in a specific form with information requested by the NDIA.

These changes are particularly problematic for people with intellectual disability and cognitive disability, many of whom cannot independently complete forms, use online systems, gather evidence or understand written administrative requirements.

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ABN 11 216 371 524

PO Box 20228, World Square NSW 2002

P 1300 665 908 • P 02 9265 6300 • F 02 9318 2887

Submission 600

IDRS is also concerned that restricting reassessments may prevent participants from adding other relevant impairments to their NDIS record, especially where access was originally granted on one impairment but the person has multiple conditions affecting support needs.

Plan errors

The Bill also fails to adequately address plan errors. Participants are often required to use

reassessment  or “change  of circumstances” processes  to  correct obvious  errors.   If

reassessment is restricted, participants may be left with incorrect plans and no timely pathway to correction.

The 90-day timeframe is especially concerning. Participants seeking reassessment often do so because their support arrangements are unsafe, insufficient or no longer workable. Extending the response timeframe from three weeks to three months may increase risk of crisis, neglect, hospitalisation, carer breakdown or homelessness.

VII. Plan suspensions do not take into account participants accessibility needs

The Bill allows the NDIA to suspend plans where it is trying to get information from a participant and the participant is not contactable (Proposed s 40A). Before suspending a plan, the NDIA must make reasonable attempts to contact the person. If a participant remains uncontactable after 90 days, the NDIA can suspend their plan. The Bill also allows for a participants plan to be revoked if they remain uncontactable for 90 days after their plan has been suspended. This would mean that a person would loose access to the NDIS.

IDRS is concerned that participants with intellectual disability or cognitive disability may be particularly at risk of having their plans suspended if they are not given enough time to respond or are not able to understand written information. The Bill does not require the NDIA to take into account a persons accessibility needs. IDRS believes that this may have a disproportionate negative impact on our clients.

Conclusion

IDRS NSW supports reform that improves safety, integrity and the long-term sustainability of the NDIS. However, sustainability cannot be achieved by narrowing access, reducing support below assessed need, limiting reassessment and review rights, or shifting responsibility to underfunded mainstream systems and unpaid carers.

IDRS believes that several amendments must be made to The Bill in its current form. Page7

ABN 11 216 371 524

PO Box 20228, World Square NSW 2002

P 1300 665 908 • P 02 9265 6300 • F 02 9318 2887

Submission 600

Recommendations

IDRS NSW makes the following recommendations  to the Senate Community  Affairs

Legislation Committee to amend the NDIS Amendment (Securing the NDIS for Future Generations) Bill 2026:

The Bill should not proceed in its current form and should be substantially amended before passage.
Any access or functional capacity assessment must be individualised, culturally safe, trauma-informed and able to consider treating evidence, lived experience evidence, carer evidence and advocate evidence.
A person should not be denied access because treatment is theoretically available unless that treatment is realistically available, affordable, timely, appropriate and likely to materially improve functional capacity.
A person should not be refused or removed from the NDIS because another service system may exist unless that support is actually available, funded, accessible and capable of meeting the person’s disability-related needs.
The Bill should preserve the whole-of-person approach for participants with multiple and interacting impairments.
Where a support is assessed as reasonable and necessary, the Scheme should fund that support at the level required to access it.
Participants should retain meaningful reassessment rights, including the ability to correct plan errors and respond to changes in support needs, carer availability, housing, health, safety and risk.
Any decision affecting access, funding, reassessment, plan transition, suspension, revocation, debt or support caps should be reviewable.
Automated decision-making should not be used for complex or rights-affecting NDIS decisions without clear notice, human review and appeal rights..

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ABN 11 216 371 524

PO Box 20228, World Square NSW 2002

P 1300 665 908 • P 02 9265 6300 • F 02 9318 2887

Submission 600

Broad Ministerial powers to alter the operation of the NDIS Act by delegated instrument should be removed or tightly limited and subject to proper parliamentary scrutiny.

Yours Sincerely,

Alexandra Craig

Principal Solicitor

Ability Rights Centre (A Service of IDRS)

Endorsed by Council for Intellectual Disability

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ABN 11 216 371 524

PO Box 20228, World Square NSW 2002

P 1300 665 908 • P 02 9265 6300 • F 02 9318 2887