Functional Capacity as Gateway to Access and Restrictions on Reassessments (Individual advocacy)

Submission 614

SUBMISSION TO SENATE ENQUIRY

1. Functional Capacity Becomes the Gateway to Access The Bill establishes a new framework for determining access based on “substantially reduced functional capacity” and allows future assessment processes to be developed through subordinate instruments and advisory mechanisms.

Potential concern: If participants are already experiencing difficulties obtaining recognition of their support needs, moving towards standardised functional assessments could create additional barriers for people whose disabilities do not fit neatly within assessment tools. It also places enormous importance on the expertise and consistency of those conducting or relying upon these assessments.

I am particularly concerned by the proposed reliance on “functional capacity” as a central determinant of both access and support needs when there remains significant uncertainty regarding how this concept will be defined and applied in practice. While the Bill establishes a framework for future assessment of functional capacity, it does not itself provide a detailed operational definition or objective measurement methodology.

Unlike many clinical diagnoses, “functional capacity” is not a universally accepted clinical diagnosis or standalone medical condition. Different health professionals, allied health practitioners and assessment tools can produce markedly different conclusions regarding an individual’s functioning depending on the context, environment, support arrangements and methodology used. For many disabilities, particularly psychosocial disabilities, neurological conditions and fluctuating impairments, functional capacity can vary significantly from day to day and across different settings.

This creates a substantial risk that participants will be assessed against inconsistent standards that are not clearly defined within primary legislation. Decisions affecting eligibility, funding levels and support needs may therefore become increasingly dependent upon administrative interpretation rather than transparent legislative criteria. In the absence of a clear statutory definition, independently validated assessment methodology and robust review safeguards, there is a real risk that participants will struggle to understand how decisions are made, how they can challenge those decisions and what evidence is required to demonstrate their actual support needs.

Submission 614

2. Restricting Unscheduled Plan Reassessments The proposed amendments significantly limit when participants can request an unscheduled reassessment of their plan. Reassessments would only occur where there has been a significant and ongoing change in functional capacity or support arrangements.

Potential concern: The proposed restrictions on unscheduled plan reassessments also warrant careful scrutiny. Under the current legislative framework, participants are able to seek review and reconsideration of decisions where they believe a decision is incorrect, unreasonable or inconsistent with the available evidence. The existing system recognises that circumstances can change, new information can emerge, and decisions may simply be wrong. The proposed amendments would significantly narrow the circumstances in which an unscheduled reassessment can occur, limiting these requests primarily to situations involving substantial changes in functional capacity or support arrangements.

I am also concerned by the characterisation of these amendments as merely limiting “unscheduled” plan reassessments. In practical terms, every reassessment is, by its very nature, unscheduled. Reassessment mechanisms exist precisely because it is impossible to predict when issues will arise, when circumstances will change, when critical evidence will become available, or when a participant may be adversely affected by a planning decision. The purpose of a reassessment process is to provide a safeguard against inaccurate decisions and to allow the Scheme to respond to real world circumstances as they occur.

A fundamental flaw in the proposed restrictions on reassessments is that they fail to recognise the role reassessment plays in correcting planning decisions that were incorrect from the outset. Under the NDIS framework, once a plan has been approved and issued, there are very limited mechanisms available to rectify errors, omissions or unreasonable outcomes. In practice, if a participant receives a plan that does not accurately reflect their support needs, the primary mechanism for correcting that outcome is through a reassessment or review process.

The proposed amendments appear to proceed on the assumption that reassessments are only necessary when a participant’s circumstances change. However, many reassessments occur because the original plan was based on an incomplete understanding of the participant’s needs, an incorrect interpretation of evidence, or a decision that cannot be adequately justified when scrutinised. Restricting access to reassessment mechanisms does not reduce the number of incorrect decisions being made; it merely reduces participants’ ability to have those decisions corrected.

Submission 614

This is particularly concerning when considered alongside the increasing emphasis on functional capacity assessments, support needs assessments and administrative decision-making. If the Agency is confident that decisions are accurate and evidence based, there should be no concern about maintaining robust mechanisms that allow participants to seek reassessment where a decision appears incorrect. In fact, those mechanisms are essential safeguards within any administrative scheme. Without them, participants may be left bound by plans that are demonstrably inadequate, with no practical avenue to obtain timely correction short of pursuing lengthy and costly external review processes.

I have a participant under my management whose case illustrates this issue clearly. The concerns raised did not arise because his disability changed, his circumstances altered, or his support arrangements deteriorated. The concerns arose because the planning outcome itself was disputed. Had there been a transparent and effective mechanism for correcting questionable planning decisions at an early stage, significant time, public resources and participant distress could have been avoided.

Many disputes do not arise because a participant’s circumstances have changed; they arise because the original decision failed to accurately reflect the participant’s needs in the first place. My experience with the agency and their management of my clients cases can provide clear practical example of this issue. The concerns raised and subsequently sought to resolve by way of reassessment were not driven by a change in disability, living arrangements or support networks. Rather, they stemmed from ongoing disagreement regarding the interpretation of evidence and the appropriateness of planning decisions. Plans are repeatedly issued witRestricting access to reassessment mechanisms may reduce the number of review requests recorded by the Agency, but it does not address the underlying problem of inaccurate or poorly explained decisions. Instead, it risks forcing more participants into formal review pathways and tribunal proceedings simply to have their concerns properly considered.

3. Ministerial Power to Reduce Funding Categories The Bill would permit the Minister to make determinations reducing funding for groups of supports, including social participation and capacity-building supports.

Potential Concern

This is arguably one of the most significant changes in the Bill. It moves funding decisions further away from individual participant circumstances and introduces a mechanism through which entire categories of support can be adjusted based on broader policy objectives.

Submission 614

For participants like Shaun, whose outcomes depend on individual circumstances being properly considered, this may increase concerns that budgetary considerations could outweigh individual needs.

One of the most concerning aspects of the proposed amendments is the power granted to the Minister to make determinations reducing funding for categories of supports, including social participation and capacity-building supports. This raises a fundamental question: what expertise, evidence base and accountability mechanisms will underpin decisions that have such profound consequences for participants?

The NDIS was established on the principle that supports should be determined according to the individual circumstances of each participant and assessed against the legislative criteria. If a support satisfies the statutory requirements and is determined to be reasonable and necessary, it is difficult to understand the policy rationale for creating a mechanism that permits broad reductions to categories of supports at a later date without reference to the circumstances of individual participants.

The issue is not whether Ministers are entitled to make policy decisions. The issue is whether a Minister should be empowered to effectively override or diminish the outcome of individualised assessments that have already determined a participant’s support needs. Participants are required to provide extensive evidence, undergo assessments and demonstrate that supports meet the legislative criteria. Once those criteria have been satisfied, there is a legitimate question as to whether executive determinations should be capable of reducing those supports on a category-wide basis.

This risks shifting the Scheme away from a rights-based and evidence-based framework towards one in which budgetary and policy considerations can effectively override individual assessments. If a support is genuinely reasonable and necessary for a participant because of their disability, it should remain reasonable and necessary regardless of broader fiscal objectives. The legislation should not create a mechanism whereby supports can be deemed necessary when assessed individually but become unavailable because they fall within a category identified for reduction.

Such an approach risks undermining participant confidence in the integrity of the assessment process. Participants may reasonably ask why they are required to provide extensive evidence to establish eligibility for supports if those supports can subsequently be reduced through a broad policy determination that does not consider their individual circumstances. This appears inconsistent with the fundamental principles upon which the Scheme was originally established.

If Parliament has already established criteria for funding supports, and a participant has met those criteria, should a Minister be able to reduce entire categories of supports without reassessing whether those supports remain reasonable and necessary for that individual?

Submission 614

4. Sustainability as a Mandatory Consideration The NDIA would be required to consider Scheme sustainability and equity across participants when determining what supports are reasonable and necessary.

Potential concern: Historically, the focus of reasonable and necessary decisions has been the participant’s circumstances and evidence. The explicit inclusion of sustainability may create tension between individual needs and broader fiscal objectives.

This is likely to become a major area of future disputes and tribunal litigation.

5. Tightening Permanency Requirements The Bill clarifies that applicants must have undertaken all appropriate treatment and that no other treatment is likely to materially improve the impairment before access can be granted.

Potential concern: This may shift debate away from the practical impact of disability and towards arguments about hypothetical future treatments or interventions.

Appropriate according to whom?

One of the first questions Parliament should be asking is:

Who decides what treatment is “appropriate”?

Will it be:

• the participant’s treating specialist?
• a GP?
• an NDIA delegate?
• a contracted assessor?
• a future Ministerial instrument? Without a clear legislative definition, participants may be left vulnerable to subjective interpretations.

What if treatment exists but is declined?

Many treatments involve significant risks, side effects, costs or uncertain outcomes.

For example:

• major surgery
• psychiatric medications

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• invasive procedures
• experimental treatments
• therapies with low success rates Will participants be expected to undertake these treatments to establish permanence?

If a participant chooses not to undergo a risky procedure, does that mean their disability is no longer considered permanent?

What about psychosocial disability?

This becomes particularly problematic for participants with:

• mental health conditions
• autism
• intellectual disability
• neurological conditions
• chronic pain conditions Many of these conditions fluctuate over time.

There is often no point at which a clinician would say that “all treatment has been exhausted.”

Under this framework, some participants could find themselves trapped in a cycle of being told there may always be another treatment to try.

It appears inconsistent with participant choice and control

One of the foundational principles of the NDIS is participant choice and control.

Historically, participants have been entitled to make informed decisions about:

• medical treatment
• therapeutic interventions
• personal risk The proposed amendment raises an important question:

Can a participant truly exercise choice and control if declining a treatment may jeopardise their eligibility for the Scheme?

Many disability advocates would argue that this creates indirect pressure on participants to pursue treatments they may not want.

Submission 614

One particular matter I have been managing , highlights broader concerns regarding evidentiary standards and decision-making.

Throughout the process, significant difficulties arose in obtaining clear explanations regarding how decisions were reached and what evidence was relied upon.

The introduction of a concept such as “appropriate treatment” without a clear statutory definition creates the risk of further uncertainty.

Participants may find themselves being told:

• they have not undertaken appropriate treatment;
• additional treatment may improve their condition; or
• their impairment is therefore not permanent, without being provided with a transparent evidentiary basis for those conclusions.

6. Increased Information Gathering Powers The NDIA would gain stronger information-gathering powers and expanded investigation capabilities.

Potential concern: While fraud prevention is important, the amendments appear to significantly increase the Agency’s enforcement powers while providing comparatively little detail about additional safeguards for participants.

The proposed expansion of the NDIA’s information-gathering and investigation powers raises a number of important questions that do not appear to be adequately addressed within the Bill or accompanying fact sheet. The current legislative framework already provides the NDIA with significant powers to request information from participants, providers and third parties. Participants are routinely required to provide extensive evidence to support access requests, plan reassessments, reviews and ongoing eligibility. Providers are already subject to record-keeping obligations, audit requirements and compliance activities.

What remains unclear is what specific limitation in the current legislation has prevented the NDIA from carrying out its existing functions and why these expanded powers are considered necessary. The fact sheet refers broadly to strengthening the Agency’s ability to obtain and use information, including for investigations and prosecutions, but does not identify any systemic failure within the current framework that these amendments are intended to remedy.

Submission 614

Equally concerning is the apparent imbalance between the obligations imposed on participants and providers and the accountability mechanisms that apply to the Agency itself. Participants are routinely expected to provide detailed evidence, reports and supporting documentation to justify their support needs. However, when participants seek access to the evidence, reasoning, internal assessments or documentation relied upon by the NDIA to support its own decisions, obtaining that information can be significantly more difficult.

This raises an important question of procedural fairness: if the NDIA is to be granted stronger powers to compel and obtain information from participants and providers, will corresponding obligations exist requiring the Agency to disclose the information, evidence and reasoning upon which its own decisions are based?

Participants should not be expected to meet higher evidentiary standards than the decision-maker itself. Transparency and accountability must operate in both directions. Otherwise, there is a risk that the amendments will further increase the imbalance of power between participants and the Agency while doing little to improve the quality, transparency or defensibility of decision-making.

The experience of participants such as Shaun demonstrates that the issue is often not a lack of available information. In many cases, the Agency already possesses extensive evidence from treating professionals, assessments and participant records. The difficulty arises when participants seek to understand how that information was interpreted and how conclusions were reached. Expanding information-gathering powers will not address these concerns unless equal emphasis is placed on transparency, disclosure and accountability within the decision-making process itself.

7. Automation of Administrative Decisions The Bill allows certain administrative actions to be automated.

Potential concern: Given the complexity of many participant circumstances, there will inevitably be concerns regarding transparency, accountability and review rights where automated systems influence outcomes.

The proposed provisions permitting automation of administrative actions within the NDIA are particularly concerning when viewed through the lens of a coordinators lived experience.

Throughout the last 3 years one of the most persistent issues has been the Agency’s apparent inability to properly consider and respond to the specific evidence presented. Despite repeated requests for clarification, detailed supporting documentation and extensive engagement by those supporting him, the responses received often failed to

Submission 614

address the substance of the concerns being raised. Decisions appeared formulaic, generic and disconnected from the individual circumstances of the participant. If these outcomes are occurring within a system that still involves human decision-makers, it is difficult to see how increasing automation will improve decision quality.

The fundamental difficulty with disability planning is that participants are not data points. They are individuals with unique disabilities, support networks, risks, goals, environmental factors and personal circumstances. Many of the issues that arose in the cases I have managed could not have been resolved through a checklist, algorithm or standardised assessment tool. They required critical analysis of evidence, consideration of competing information, application of professional judgement and meaningful engagement with the participant’s circumstances.

Automation may be suitable for processing routine administrative functions such as payments and claims. However, once automated systems begin influencing decisions relating to eligibility, support needs, funding levels or plan outcomes, there is a significant risk that complex human circumstances will be reduced to predetermined categories and scoring systems. Participants whose circumstances do not fit neatly within those frameworks may receive outcomes that are technically consistent yet fundamentally incorrect.

These cases demonstrate another important risk. When participants challenge questionable decisions, they are frequently unable to obtain a clear explanation of how those decisions were reached. The introduction of automated processes risks further reducing transparency. If participants already struggle to understand the reasoning behind decisions made by delegates, how will they effectively challenge decisions influenced by automated systems, algorithms or decision-support tools? What evidence will they be able to access? How will they identify errors? Who will ultimately be accountable when an automated process contributes to an incorrect outcome?

The Bill’s emphasis on automation appears to be driven by efficiency and administrative streamlining. While efficiency is an important objective, administrative convenience should never come at the expense of procedural fairness, transparency or decision quality. The reality is that the NDIA is already struggling with complaints, reviews, reassessments and tribunal challenges arising from disputed decisions. Introducing automation into a system that is already generating a significant volume of contested outcomes risks magnifying existing problems rather than resolving them.

Most importantly, these cases demonstrates that the Scheme’s greatest challenge is not processing speed. The challenge is decision accuracy. Participants are not seeking faster incorrect decisions; they are seeking decisions that are evidence-based, transparent and capable of withstanding independent scrutiny. Unless the underlying concerns regarding accountability and decision quality are addressed, increased

Submission 614

automation risks producing incorrect decisions more efficiently rather than producing better decisions.

The broader policy issue

The theme running throughout these amendments is a shift from participant-centred decision-making towards system-centred management. The Bill repeatedly references consistency, sustainability, standardisation, budget management, support needs assessments, automation and Ministerial determinations.

The concern that many participants and advocates will likely raise is that the legislation appears to expand the NDIA’s powers while simultaneously narrowing participants’ practical ability to challenge decisions, seek reassessments, or rely upon individual circumstances that fall outside standardised frameworks.

Perhaps the most significant concern arising from these proposed reforms is that they appear to focus heavily on expanding powers, restricting access pathways, increasing compliance obligations and introducing new administrative mechanisms, while doing very little to address the issues that participants and families are already experiencing under the current framework.

In countless cases across the Scheme, a recurring pattern has emerged. Participants provide extensive evidence in support of their needs, planning decisions are made, concerns are raised regarding the outcome, and the Agency is subsequently unable to clearly explain, substantiate or reconcile those decisions with the evidence provided or the legislative criteria being relied upon. The result is an endless cycle of internal complaints, reviews, reassessments, requests for reasons, external oversight referrals and tribunal proceedings. These processes consume enormous public resources while rarely addressing the underlying issue: the quality and defensibility of the original decision.

What is notably absent from the proposed amendments is any meaningful reform directed at improving decision quality, strengthening evidentiary standards, increasing transparency or ensuring that delegates possess the necessary expertise to correctly interpret and apply the legislation. Instead, the reforms appear to proceed on the assumption that the problem lies with participants requesting reviews, seeking reassessments or challenging decisions.

If the Agency is already struggling to consistently apply the current legislation, explain its reasoning and produce decisions that withstand scrutiny, it is difficult to see how granting additional powers, increasing automation, restricting reassessment rights and expanding investigative functions will reduce costs in any meaningful way. These

Submission 614

measures may reduce certain administrative statistics, but they do not address the source of the expenditure.

The greatest financial burden on the Scheme is not participants exercising their review rights nor is it the inability to verify conditions or access evidence of fraud .The ongoing cost of managing avoidable disputes that arise when decisions cannot be adequately justified in the first place is one of the main sources of strain on the current scheme. Until the Agency can consistently produce transparent, evidence-based decisions that are capable of being clearly explained and independently defended, the cycle of complaints, reviews, tribunal proceedings and administrative rework is likely to continue regardless of how many new powers are introduced.

In this respect, The case I have referenced as well as many others that are being dealt with daily by advocates all over Australia demonstrates that the pathway to genuine sustainability is not achieved through restricting participant rights or expanding administrative authority. It is achieved through improving the quality of decision-making at the first instance. Every correct decision reduces the need for complaints, reviews, reassessments, legal costs and tribunal proceedings. Every incorrect decision creates additional expense that ultimately falls upon taxpayers. Unless these underlying issues are addressed, there is a real risk that the proposed reforms will simply add further layers of complexity to a system that is already struggling to manage the consequences of poor decision-making.

Any changes to the legislation need to address the current issues not merely create more administrative errors in areas where there is no need for further clarity . Redefining functional impairment and reducing access to the community and social activities for those people with disabilities who need these supports to survive will not reduce the costs in any way .

Creating stricter regulations around ways in which the funds can be accessed and mandatory processes for proof of supports delivered is one way to start reducing costs for families and the taxpayer . Creating mandatory requirements to attend rehab programs, behavioural programs and genuinely work towards plan goals will all help steer this scheme in the direction it was intended to be . This scheme has become a way for large providers to consistently overcharge, over supply and under support people living with disability .

Submission 614

PROPOSED RECOMMENDATIONS

1. Establish mandatory legislative requirements for NDIA decision-makers to provide clear written reasons and evidence supporting all planning and funding decisions.

2. Introduce independent quality assurance and auditing of planning decisions before funding reductions are implemented.

3. Require the NDIA to demonstrate that all existing legislative review and appeal mechanisms have been exhausted before introducing additional restrictions on participant access.

4. Remove or significantly amend provisions allowing blanket funding caps, support intensity limits and worker ratio restrictions.

5. Ensure participant-specific evidence and demonstrated functional outcomes are afforded equal weight to published research when determining support effectiveness.

6. Amend the proposed permanence provisions to recognise barriers to accessing treatment, including financial hardship, geographical location, service availability and cultural considerations.

7. Strengthen safeguards before plans may be suspended or participant status revoked, including mandatory engagement with nominees, support coordinators, advocates and carers.

8. Require annual public reporting on planning errors, internal reviews, Administrative Review Tribunal outcomes and overturned decisions to improve accountability and identify systemic issues.

9. Invest in planner training, legislative interpretation, quality assurance and decision-making consistency as a primary mechanism for improving Scheme sustainability.

10. Recognise that reducing administrative error and unnecessary review processes may achieve greater cost savings than restricting participant access to supports.

11. Introduce stronger evidentiary requirements for applicants seeking NDIS access based on recently diagnosed conditions where there is limited documented evidence of historical functional impairment.

The NDIS was established to provide support for Australians with permanent and significant disability. Consideration should be given to requiring a demonstrated history of functional impairment, where relevant and appropriate to the

Submission 614

condition, rather than relying solely on a recent diagnosis. This would assist in ensuring that Scheme access is directed towards individuals experiencing longstanding and substantial disability-related support needs while maintaining public confidence in the integrity of access decisions.

12. Require applicants and participants with a disability applicable psychosocial conditions to demonstrate reasonable engagement with available evidence based treatment and clinical supports where these treatments have a realistic prospect of improving functional capacity.

Where an individual has an ongoing psychosocial condition and declines to engage with clinically recommended treatment without a documented medical reason, consideration should be given to whether the person’s functional impairment can properly be considered permanent. The NDIS should remain a disability support scheme rather than a substitute for treatment systems. Appropriate safeguards should apply to ensure that participants are not disadvantaged where treatment is unavailable, inaccessible, contraindicated, culturally inappropriate, or where engagement would create a risk of harm.

13. Strengthen coordination between the NDIS, public mental health services and primary health systems to ensure that psychosocial disability access decisions are based on comprehensive evidence of treatment history, treatment outcomes and residual functional impairment.

Participants should not be excluded solely because treatment options exist. However, where effective and accessible treatments have not been attempted, there should be a clear process for referral to appropriate health services before long-term NDIS eligibility is determined.

Supporting Rationale

The NDIS should continue to support individuals whose impairments are permanent and result in substantial functional limitations. However, the Scheme’s long-term sustainability depends on ensuring that disability supports are distinguished from treatment services. Access decisions should be based not only on diagnosis but also on demonstrated functional impact, treatment history, and evidence that impairments are likely to persist despite reasonable treatment interventions.

At the same time, any such requirements must recognise the realities of service shortages, long waiting lists, regional disadvantage, financial barriers, and individual clinical circumstances. Participants should never be penalised for being unable to access treatment that is unavailable or inappropriate to their needs.

Submission 614

Conclusion

The long-term sustainability of the NDIS depends on effective administration, transparent decision-making and participant trust. While elements of the Bill seek to improve consistency and financial sustainability, several provisions risk reducing access to essential supports and increasing disputes. Sustainable reform should focus on improving the quality and consistency of NDIA decision-making rather than introducing measures that may further disadvantage participants with complex needs.