Concerns regarding functional capacity definition and parental responsibility provisions (Provider experience)

Submission 688

SUBMISSION TO THE SENATE COMMUNITY AFFAIRS LEGISLATION COMMITTEE

National Disability Insurance Scheme Amendment (Securing the NDIS for Future

Generations) Bill 2026

Submitted by:

Sally Pearman

Occupational Therapist

AHPRA Registration No:

Harmony Allied Health | Gordon/NSW

Email:

Date: 29 May 2026

Submitted to: community.affairs.sen@aph.gov.au

This submission draws on analysis of the Bill and its Explanatory Memorandum, and is informed by the OTSi Discussion Paper (17 May 2026) and OTSi Submission (21 May 2026) to this Inquiry, the detailed

submission of The Growing Space (Sam Paior), Women With Disabilities Australia, the Justice and Equity

Centre, and Common Ground Disability. Passages attributed to OTSi reflect their published analysis and are reproduced with acknowledgement.

Executive Summary

I am an Occupational Therapist (OT) with experience working within the NDIS, supporting participants across a range of disability types including autism spectrum disorder, acquired brain injury, intellectual disability, psychosocial disability, rare and complex conditions, and progressive neurological conditions. I submit these concerns in my professional capacity.

I support the objective of a sustainable, accountable, and well-governed NDIS. I do not support the National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 (the Bill) in its current form.

OTSi — the Occupational Therapy Society for Hidden and Invisible Disability — has characterised this Bill as one of the most significant restructures of the NDIS since its inception, with profound implications for disabled people, families, therapists, and broader community systems. I agree with that assessment. The Bill is not a targeted sustainability measure. It is a wholesale architectural rewrite of the scheme — and many of its components will directly harm the participants I work with and undermine the clinical role of occupational therapists in supporting them.

The disability community is already reporting escalating distress, fear, and increased contact with suicide prevention and mental health crisis services following the Budget and legislative announcements. This is the human context in which this Committee is meeting. I urge it to be taken seriously.

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My core concerns, consistent with those raised by OTSi, are:

• The new functional capacity definition (s 9B) is built on an assessment approach with no proof of concept, is inconsistent with the social model of disability and Australia’s obligations under the CRPD, and contains a fundamental internal contradiction with the parental responsibility provisions.

• The repeal of section 31 removes the scheme’s central legislative commitment to participant-directed, individualised planning — a change the Explanatory Memorandum tries to minimise but which OTSi correctly identifies as a profound philosophical shift.

• The word ‘directly’ inserted into s 34(1)(aa) erects an unworkable, medicalised barrier that ignores how disability actually operates in chains and cumulative interactions.

• The new evidence hierarchy (ss 34(1E)–(1F)) marginalises OT clinical expertise, lived experience evidence, and individualised outcome data in favour of population-level peer-reviewed research that may not exist for many participants’ conditions.

• The tightening of permanence requirements (Items 88–94) raises profound concerns about bodily autonomy, informed consent, and the practical reality of healthcare access — particularly for people with ME/CFS, dysautonomia, Ehlers-Danlos Syndrome, psychosocial disability, and other invisible or fluctuating conditions.

• Financial sustainability is embedded as a dominant legal principle capable of overriding reasonable and necessary support entitlements (s 17B), a shift OTSi describes as risking fundamentally altering the balance between participant rights and fiscal management.

• Proposed section 34A — Ministerial power to impose blanket percentage funding cuts without individual reassessment, parliamentary disallowance, or sunset — is, in OTSi’s words, ‘one of the most extraordinary powers ever proposed within the NDIS legislative framework.’

• Automated planning decisions (Schedule 3) authorise opaque algorithmic administration without meaningful transparency, human review rights, or safeguards — risks OTSi has characterised as parallel to the aged care IAT experience, where nuanced needs are overlooked and professional judgement is reduced to a secondary role.

• Reassessment and suspension provisions significantly weaken participant safeguards, with particular risks for participants with hidden and invisible disabilities who may be unable to respond to contact attempts due to the direct impacts of their disability.

• The Bill’s projected $37.8 billion savings do not account for downstream costs to Medicare, Centrelink, state mental health, child protection, housing, and emergency services.

• The consultation period for a 109-page Bill affecting 760,000 Australians is inadequate and does not meet any standard of meaningful co-design.

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1. Professional Context and Standing Occupational therapists are university-trained, AHPRA-registered health professionals who assess and support a person’s ability to perform daily occupations — the activities that give life meaning and enable participation in community. Within the NDIS, OTs routinely undertake Functional Capacity Assessments (FCAs), write clinical reports informing plan funding, conduct home modification and assistive technology assessments, develop Behaviour Support Plans, and provide therapeutic intervention.

The OT Society for Hidden and Invisible Disability (OTSi) is a peak body representing OTs who work with psychosocial disability, autism, ME/CFS, neurological conditions, and other invisible and fluctuating disability presentations — precisely the populations most at risk from this Bill. OTSi has now lodged a formal submission to this Inquiry (Submission 32, 21 May 2026) setting out twelve formal recommendations. I align with all twelve. This submission expands on them from a clinical practice perspective.

As OTSi has stated: the assessment of function, functional ability, and functional capacity — and the translation of those findings into tailored support recommendations — is a core competency of occupational therapy. This reflects internationally recognised expertise in evaluating how individuals function within their environments and how supports can mitigate risk and promote participation. The NDIS Review repeatedly identified that poor decision making driven by inadequate assessment of functional capacity and support needs increases participant harm and drives higher scheme costs. This Bill risks entrenching that failure pattern rather than fixing it.

2. Repeal of Section 31 — The Most Consequential Change Nobody Is

Talking About

Item 66 of Schedule 1 repeals section 31 — the central legislative articulation of participant directed and individualised planning within the NDIS. Section 31 is not a procedural provision. It anchors the scheme in principles of choice and control, requiring participant plans to reflect the individual’s goals, aspirations, circumstances and support needs.

OTSi: ‘The repeal of section 31 represents a significant philosophical shift in the purpose of the NDIS. The Scheme was originally designed as an individualised insurance model recognising that disability support cannot be effectively delivered through standardised assumptions or generic service models.’ (OTSi Submission, p.6)

The Explanatory Memorandum suggests these principles are preserved through amendments to sections 4, 17A, and 17B. OTSi does not accept this — and nor do I. The new provisions introduce concepts of sustainability and value for money. They do not replicate the participant centred obligations in section 31. Taken together with section 34A, the standardised support needs assessment model, and the sustainability principles in s 17B, the repeal of section 31 risks entrenching increasingly standardised planning practices, administrative categorisation, and broad fiscal decision-making in place of individualised, person-centred assessment.

From an OT practice perspective, this matters profoundly. Occupational therapy is built on the principle that every person’s occupational needs are unique to their context, history,

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environment, and goals. A scheme that removes the legislative requirement for plans to be individualised creates the conditions for our assessments and recommendations to be routinely overridden by standardised models — not because we are clinically wrong, but because the scheme no longer requires what we find to be determinative.

Recommendation 1: Delete Item 66 of Schedule 1 in full. Retain section 31 as a core interpretive provision of the NDIS Act. Reinstate explicit legislative obligations requiring participant plans to remain individualised, participant-directed, outcomes-focused, and grounded in participant goals, aspirations, and lived circumstances.

3. The Functional Capacity Definition — s 9B

3.1 An Assessment Approach With No Proof of Concept

The Bill defines functional capacity as the ability to perform an activity without assistive technology, without home modifications, without support from other people, and excluding environmental and personal circumstances as far as possible.

OTSi: ‘The practical application of such an assessment approach has not been proven. While in theory, the concept is alluring due to potential objectivity, the practical implementation of isolating function from environmental factors, is deeply complex. It has not been proven that such an assessment is possible, particularly when we combine this assessment approach with an attempt to attribute functional capacity to specific impairments, where there is multiple. OTSi is deeply concerned that this proposed approach is overly ambitious, and hypothetical. The legislation should not change, in the absence of proof of concept that the approach is feasible.’ (OTSi Submission, p.7)

This is a critical point that has not received adequate public attention. Parliament is being asked to legislate the legal shell of an eligibility test — and require existing participants to be reassessed under it from January 2028 — before anyone has proven the underlying assessment approach is even possible.

OT assessment is built on the person-environment-occupation model and the WHO’s International Classification of Functioning, Disability and Health (ICF). The ICF explicitly recognises that disability arises through the interaction between impairments, environmental factors, participation barriers, support systems, and personal circumstances. The Bill proposes to assess participants in a contextual vacuum. This is not a minor technical adjustment — it is a departure from the evidence-based framework that underpins disability assessment internationally.

3.2 Invisible and Fluctuating Disabilities Are Especially Vulnerable

OTSi has been particularly clear that participants with hidden and invisible disabilities face disproportionate risk under snapshot-style functional capacity models. This includes people living with ME/CFS, dysautonomia, POTS, Ehlers-Danlos Syndrome, psychosocial disability, and neurological conditions. As OTSi notes:

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OTSi: ‘Many forms of exhaustion, pain, autonomic dysfunction, sensory overload, cognitive function, fatigue and post-exertional deterioration are not readily observable within short administrative interactions.’ (OTSi Submission, p.7)

From my clinical experience, the following populations face the greatest risk of systematic underassessment under the proposed definition:

• Autistic people who mask symptoms during formal assessments, appearing capable while exerting compensatory effort that is unsustainable across a full day or week.

• People with ME/CFS and energy-limiting conditions, where post-exertional malaise means that performing an activity during an assessment directly worsens their condition for days or weeks afterwards — a consequence that cannot be observed in the assessment itself.

• People with psychosocial disability experiencing episodic presentations, who may function differently on an assessment day than on a typical day.

• People with executive functioning impairments — including those with autism, acquired brain injury, intellectual disability, and neurological conditions — who experience substantial impairments in planning, organising, sequencing, emotional regulation, and system navigation despite appearing superficially capable during short administrative assessments.

• People with cumulative or intersecting impairments, where neither impairment independently explains the support need but their interaction creates it.

3.3 Executive Functioning and Self-Management

OTSi has specifically highlighted the risk that the new framework will narrowly understand functional capacity in ways that inadequately recognise executive functioning impairments. Within the NDIS, self-management includes the ability to plan and sequence activities, organise routines, manage appointments, initiate and complete tasks, regulate behaviour and emotions, coordinate supports, navigate systems, and manage resources and daily living demands. These functions are frequently impaired across autism, acquired brain injury, intellectual disability, psychosocial disability, and neurological conditions.

Snapshot-style assessment models focused on basic personal care activities will systematically underestimate these support needs — creating not just inequity but increased downstream costs when participants without adequate planning and system-navigation support decompensate.

3.4 The Internal Contradiction: Assessed Alone, Funded as Supported

The assessment strips out informal supports to reveal the ‘true’ level of disability. The funding test then requires the planner to consider what informal supports can provide. The participant gets the worst of both positions.

Section 9B defines functional capacity without reference to other people. Section 34(1G)–(1K) then requires the CEO to consider parental responsibility and informal supports before approving funded supports. A participant is assessed as if they have no informal support network, and funded as if they do. No Government representative has publicly explained how these two provisions are reconcilable.

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3.5 The Assessment Tool Does Not Exist

Parliament is being asked to legislate this framework before the assessment tool has been designed, validated, consulted on, or published. OTSi correctly notes that the Explanatory Materials provide limited detail regarding how impairment categories will be determined, how existing evidence held by the Agency will be used, whether clinical judgement, administrative guidance, or algorithmic systems will inform categorisation, and how consistency across delegates and regions will be ensured. The Bill also removes safeguards deliberately inserted into previous legislation to avoid excessively medicalised assessment approaches, including the removal of subsection 32K(3A) and the note in section 32L(6).

Recommendation 2: Amend section 9B to require functional capacity to be assessed in real world conditions, taking into account assistive technology, environmental barriers, reasonable adjustments, fluctuating disability, executive functioning impairments, and cumulative impacts of multiple impairments (OTSi Recommendation, Table 1). Delay commencement of any reassessment of existing participants under s 9B until the assessment tool has been designed, published in draft, consulted on with the disability community and allied health peak bodies including OTA and OTSi, piloted with diverse cohorts, and made subject to disallowable parliamentary scrutiny.

4. Financial Sustainability as a Legal Override — s 17B Section 3(1)(d) is rewritten so the scheme’s objects become providing supports ‘so far as is consistent with the financial sustainability of the scheme.’ Section 31 — the principles directing planning to be individual, choice-led, and participant-directed — is repealed in full. New section 17B requires the CEO to have regard to scheme sustainability in every planning decision.

OTSi: ‘Financial sustainability risks becoming a dominant interpretive principle capable of overriding reasonable and necessary support entitlements.’ (OTSi Submission, Table 1) OTSi recommends that s 17B expressly state that ‘sustainability is a relevant administrative consideration but cannot override statutory entitlements to reasonable and necessary supports under section 34.’

From an OT practice perspective, section 17B creates an impossible clinical position. OTs are trained to assess individual need and recommend supports based on that need. If our recommendations can be overridden not because they are clinically wrong but because the scheme decides it cannot afford them, the integrity of the assessment process is compromised and our professional accountability is undermined. We cannot ethically sign off on assessments that we know may be disregarded on fiscal grounds rather than clinical ones.

Recommendation 3: Amend s 17B to expressly state that financial sustainability is a relevant administrative consideration but cannot override statutory entitlements to reasonable and necessary supports under section 34. Delete Item 66 (repeal of section 31) and restore the planning principles as a core interpretive provision.

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5. The Word ‘Directly’ — s 34(1)(aa) The Bill inserts the word ‘directly’ into the reasonable and necessary test, requiring that supports arise ‘directly’ from an NDIS-eligible impairment. OTSi correctly identifies this as further entrenching the ‘directly arising’ test in a way that risks excluding essential supports that enable functional participation.

Disability does not operate in direct, single-cause chains. As the Federal Court recognised in NDIA v Eastham, ‘a need for a support will invariably be the product of a confluence of factors.’ The Bill demands the opposite: attribution of each support need to a single qualifying impairment, directly. The following clinically common chains illustrate why this is unworkable:

• An intellectual disability creates communication difficulties → communication difficulties create social isolation → social isolation creates anxiety and depression → anxiety impairs sleep → sleep disruption worsens cognitive function. Anxiety supports do not arise ‘directly’ from the intellectual disability; they are two or three steps removed.

• Autism creates sensory processing differences → sensory overload creates behavioural dysregulation → dysregulation creates risk of harm in community settings. Behaviour support does not arise ‘directly’ from autism, but from the interaction of autism with environmental demands.

• Acquired brain injury creates fatigue → fatigue reduces capacity for self-care → reduced self-care creates skin integrity risk. Is personal care support arising ‘directly’ from the brain injury, or from fatigue, or from the resulting skin risk?

• A person with ME/CFS may require support worker assistance for food preparation not because they cannot physically cook, but because any exertion triggers post-exertional malaise that worsens their overall condition for days. The support need arises from the interaction of the impairment with the energy cost of the activity — not ‘directly’ from the impairment.

• For autistic people, anxiety arises from the interaction of autism with a world not designed for them. Under a strict ‘directly’ reading, anxiety supports — among the most commonly documented secondary presentations in autistic adults — may be excluded.

No guidance has been provided on what ‘directly’ means in practice, who will interpret it, or whether clinical guidance will be issued. OTs will be required to frame assessment reports around an undefined legal term, placing us in the impossible position of clinical responsibility without regulatory clarity.

Recommendation 4: Delete the word ‘directly’ from s 34(1)(aa), restoring the whole-of person approach. If the Government believes targeted reform is needed for multi impairment situations, require consultation with allied health peak bodies including OTSi and publish clear clinical guidance before any amended wording commences.

6. The Evidence Hierarchy — ss 34(1E)–(1F) The Bill introduces a new evidence hierarchy ranking: (a) published peer-reviewed research first; (b) participant’s circumstances second; (c) previous plan outcomes third; (d) ’other

Submission 688

matters’ last. Section 34(1F) gives the CEO power to refuse to fund a support if peer-reviewed research is missing.

OTSi: ‘The proposed evidence hierarchy within sections 34(1E) and (1F) risks diminishing the status of participant lived experience. The reforms elevate generalisable research and cohort evidence while reducing the weight given to individualised lived outcomes. This approach disadvantages participants with rare conditions, fluctuating disabilities and disabilities that are poorly represented in published research.’ (OTSi Submission, p.14)

From an OT perspective, placing treating practitioners’ clinical evidence in category (d) — ‘other matters’ — is clinically indefensible. OT reports and FCAs represent the application of clinical science to an individual’s specific circumstances. This is not a lesser form of evidence; it is the appropriate form for individualised planning. The NDIS Review itself recommended that assessment processes allow for evidence from a range of sources, including treating professionals. This evidence hierarchy reverses that recommendation.

The specific clinical risks are:

• Rare conditions such as dysautonomia, POTS, Ehlers-Danlos Syndrome, and many genetic syndromes have limited peer-reviewed cohort studies. Missing research is not evidence of ineffectiveness — it is evidence that the condition is under-researched.

• Novel, customised, or individually-tailored therapeutic approaches — which OTs routinely develop — do not have a research base. The s 34(1F) veto could be used to refuse any OT-recommended support for which a randomised controlled trial does not exist.

• Lived experience evidence — knowing what works because you live in your body and have tried numerous approaches — has no statutory anchor at all under the new hierarchy.

• Participants with invisible and fluctuating disabilities are especially disadvantaged, as OTSi notes, because their support needs are frequently misunderstood, underestimated, or dismissed when assessment frameworks privilege easily observable or static forms of impairment.

Recommendation 5: Amend s 34(1E) to enumerate ‘lived experience of the participant’ and ‘clinical evidence from treating practitioners with direct knowledge of the participant’ as evidence categories of equal weight to published peer-reviewed research. Remove s 34(1F) so that the absence of peer-reviewed research cannot operate as a veto where other categories of evidence support the participant.

7. Permanence, Appropriate Treatment, and Bodily Autonomy — Items 88– 94 (s 25A)

The Bill significantly tightens the permanence test by requiring participants to undertake ‘all appropriate treatment’ before impairments may be considered permanent. Section 25A(2) states that treatment may still be considered ‘appropriate’ regardless of the participant’s financial circumstances, geographic location, or capacity to access treatment.

Submission 688

OTSi: ’This proposal goes substantially further than previous failed reforms. It creates a model in which disabled people may effectively be required to continue exhausting interventions, treatments and medical pathways before they are considered sufficiently ‘stable’ to qualify for support… The drafting also raises profound concerns regarding bodily autonomy and informed consent.’ (OTSi Submission, p.8)

OTSi has given two specific clinical examples that I want to place before the Committee directly. First: a deaf person who chooses not to undergo cochlear implant surgery due to personal preference, cultural identity, communication preferences, or concerns about outcomes. Under this Bill, that decision — entirely legitimate and consistent with Deaf community identity — may become a barrier to accessing the NDIS. Second: a person with psychosocial disability who has previously undergone electroconvulsive therapy and experienced persistent cognitive impacts including memory impairment. This person should not be required to repeat a treatment that caused further functional harm, in order to prove treatment options have been exhausted before accessing the NDIS.

From my clinical practice, the broader barriers OTSi identifies are real and common:

• Participants with ME/CFS, dysautonomia, and energy-limiting disabilities experience deterioration following exertion-based interventions. Requiring them to repeatedly engage in inappropriate treatment programs before disability is considered permanent risks significant harm.

• Capacity-building interventions — OT, speech pathology, physiotherapy — may be reinterpreted as ‘appropriate treatment’ that participants must undertake before being considered eligible. This creates a perverse situation where the supports the NDIS is designed to fund become prerequisites for accessing the NDIS.

• Many treating practitioners already refuse to provide NDIS reports due to the administrative burden associated with NDIA requirements. Clinics may no longer retain historical records. Participants with lifelong conditions may no longer have access to treating practitioners from years ago. The Bill does not acknowledge these barriers.

• OTSi specifically notes that participants from rural and remote areas already rely primarily on GPs or general physicians whose evidence the NDIA may not accept, while specialists with expertise in complex conditions are unavailable, unaffordable, or geographically inaccessible.

• The legislation exempts only treatments that ‘cannot be undertaken for medical reasons.’ It does not protect the right to decline treatment for trauma, risk, side effects, religious beliefs, prior treatment failures, or quality of life considerations. This is inconsistent with fundamental principles of informed consent and bodily autonomy.

Recommendation 6: Amend Items 88–94 so participants are only expected to undertake treatments that are evidence-based, clinically appropriate, reasonably available, financially accessible, and undertaken with free and informed consent. Explicitly protect the right to decline treatment without losing scheme access (OTSi Recommendation, Table 1). Recognise disability-related barriers to producing historical treatment evidence, including disrupted records, service closures, cognitive barriers, trauma, and geographic isolation.

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8. Plan Reassessment, Suspension Powers, and Procedural Fairness — Schedule 1, Parts 2 and 7

8.1 The Reassessment Threshold

The Bill restricts unscheduled plan reassessments to situations involving a significant and ongoing change in functional capacity that substantially reduces the ability to perform daily activities. This threshold is clinically unjustifiable and internally inconsistent with the scheme’s early intervention principles.

OTSi: ‘Disability-related deterioration is often foreseeable in a general sense while still being devastating in its practical impact. The worsening illness of an ageing parent, escalating domestic violence, progressive neurological deterioration or the collapse of caring arrangements may all be foreseeable while still requiring urgent reassessment.’ (OTSi Submission, p.9)

The requirement that changes be ‘unanticipated’ creates particular barriers:

• For a child with autism or intellectual disability leaving school at Year 12, the overnight loss of structured routine, peer connection, and therapeutic support creates immediate occupational disruption. This transition is entirely foreseeable — and entirely devastating if a reassessment cannot be requested because functional capacity has not ‘substantially declined.’

• For an adult with acquired brain injury whose primary carer becomes unwell, the collapse of informal support creates an immediate increase in unmet need — but unless the participant’s own functional capacity has substantially declined, a reassessment cannot be requested.

• For a person with multiple sclerosis or motor neurone disease, early intervention means increasing supports before function is significantly lost. The reassessment threshold says: come back when you are substantially worse.

• For participants with ME/CFS or episodic psychosocial disability, the loss of a key support worker, a period of hospitalisation, or a relapse can create immediate life-threatening gaps. These are foreseeable risks for people with fluctuating conditions — not qualifying ‘unanticipated’ changes.

8.2 The 90-Day Timeframe and Removal of Deemed Decision Safety Net

Extending the NDIA’s response window from 21 days to 90 days — while simultaneously removing the ‘deemed decision’ safety net for missed deadlines — leaves participants without appropriate supports for three months after their circumstances have already substantially deteriorated. OTSi specifically recommends restoring the appeal rights removed by Items 21–

25. There is also no emergency reassessment pathway in the Bill for participants facing urgent safety, housing, behavioural, or support-breakdown risks.

8.3 Suspension for Non-Contact

The Bill enables the NDIA to suspend a participant’s plan if they are not contactable after ‘reasonable attempts’ — a term that is not defined, with no minimum number of attempts, no requirement to use multiple communication channels, and no obligation to contact known

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providers, support workers, or nominees. If suspension continues for 90 days, participant status can be revoked entirely.

OTSi: OTSi specifically asks the Committee to consider: Deaf participants who cannot hear phone calls; blind participants who cannot read inaccessible correspondence; autistic participants overwhelmed by administrative communication; participants with psychosocial disability experiencing periods of disengagement or paranoia; and people experiencing homelessness or family violence who have changed phone, email and residence. ‘Suspending or revoking plans because contact was unsuccessful risks exposing participants to neglect; homelessness; hospitalisation; institutionalisation; mental health crisis; and suicide risk.’ (OTSi Discussion Paper, p.10)

OTSi’s position is unequivocal: no participant should lose supports without demonstrated accessible communication attempts; independent safeguarding review; welfare checks where appropriate; alternative supports in place; and consideration of participant safety. I fully endorse this position. The Bill must explicitly recognise that the impacts of disability itself may directly affect a participant’s ability to comply with Agency expectations and administrative requirements.

Recommendation 7: Restore the 21-day reassessment decision timeframe. Restore the ‘deemed decision’ safety net (Items 21–25). Remove the ‘unanticipated’ qualifier on informal-support changes. Recognise life transitions including school exit and carer incapacity as bases for reassessment without requiring proof of functional decline. Insert an emergency reassessment pathway with a 14-day statutory timeframe triggered by participant, nominee, or treating practitioner certification of urgent risk.

Recommendation 8: Define ‘reasonable attempts’ in ss 40A and 30(1A) to require evidenced multi-channel contact over a minimum 60-day period, including contact with any known support coordinator, plan manager, or OT. Require demonstrated accessible communication attempts. Remove the direct-revocation pathway in s 30(1A)(a). Mandate an independent safeguarding review, welfare check, and consideration of participant safety before any suspension or revocation takes effect.

9. Ministerial Powers to Cut Support Categories — s 34A OTSi: ‘Proposed section 34A is one of the most extraordinary powers ever proposed within the NDIS legislative framework.’ (OTSi Submission, p.10) OTSi submits that proposed section 34A should be deleted in full. If Parliament nevertheless proceeds, any use of the power should be subject to public consultation, parliamentary disallowance, independent review, publication of impact assessments, and Category A Rule status requiring agreement of states and territories.

The Bill grants the Minister power to reduce the funding available in an entire support category by any percentage, across all participants simultaneously, by legislative instrument, without parliamentary disallowance, and without sunset. The Explanatory Memorandum confirms this remains valid even if a participant’s plan no longer covers the full cost of their reasonable and necessary supports, and that changes are not subject to merits review.

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The Government has announced a 50% reduction to social, civic, and community participation funding from 1 October 2026. OTSi is particularly concerned — and I strongly agree — that people with hidden and invisible disabilities are likely to be among those most severely impacted, because community participation supports often function as critical safeguards against isolation, deterioration, institutionalisation, and mental health decline.

From my OT practice, a 50% cut to community participation does not halve what participants do in the community — it eliminates it entirely for those whose plans are already tight. As OTSi notes, the explanatory materials themselves acknowledge risks relating to gender equity, Closing the Gap outcomes, increased reliance on unpaid female carers, and safeguarding risks associated with reduced supports — yet the legislation contains no requirement for independent impact assessment, intersectional analysis, or rolling audit of human consequences.

OTSi further submits that any powers allowing changes to permanence definitions, functional capacity thresholds, reductions to funding categories, or support determination percentages should be designated as Category A Rules requiring agreement from states and territories. This is a critical safeguard that the Bill currently lacks.

OTSi also highlights the risk that blanket cuts will normalise partial funding approaches inconsistent with landmark NDIS jurisprudence, including the McGarrigle case. Where a participant’s reasonable and necessary support needs are established, a percentage reduction that leaves those needs unmet is legally questionable, not merely ethically problematic.

Recommendation 9: Delete proposed section 34A in full. Alternatively: require any determination under s 34A to be subject to public consultation, parliamentary disallowance, independent review, publication of human rights and safeguarding impact assessments, and Category A Rule status requiring agreement of states and territories (OTSi Recommendation, Table 1). Exempt participants whose plan funding in the affected category reflects high or complex support needs including 24/7 supervision and intensive 1:1 requirements. Designate any powers allowing changes to permanence definitions, functional capacity thresholds, funding categories, or support determination percentages as Category A Rules.

10. Automated Planning Decisions — Schedule 3 Schedule 3 creates a broad legislative framework for automation and algorithmic administration within the NDIS, authorising automated decision-making for planning, payments, claims, and pricing — commencing seven days after Royal Assent. The safeguards in s 59E are not legally enforceable.

OTSi: ‘The disability community has already witnessed the risks associated with highly standardised classification systems through the rollout of the Integrated Assessment Tool in aged care. Emerging evidence indicates that nuanced needs are overlooked; carer strain is underestimated; participants may receive lower support classifications than required; transparency is limited; and review mechanisms are difficult to navigate.’ (OTSi Discussion Paper, p.13)

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OTSi draws a specific and important parallel: in aged care, support allocations are increasingly determined through classification algorithms that assessors cannot override. Responses are scored, weighted, and converted into support classifications, reducing professional judgement to a secondary role. If structured assessment scores become the dominant mechanism for determining NDIS participant budgets, the same pattern will emerge — and the populations most at risk are exactly those OTSi specialises in: participants with psychosocial disability, autism, fluctuating conditions, cumulative impairments, and communication barriers.

OTSi is also specifically concerned by provisions stating that failure to comply with safeguards does not affect the legal validity of automated decisions. This undermines procedural fairness. As OTSi states: ‘Participants and the Administrative Review Tribunal cannot effectively review decisions where the assumptions, algorithms, weighting systems and calculation methodologies underpinning those decisions are hidden from scrutiny.’

The Government committed after Robodebt to not repeating those mistakes. Automated NDIS planning decisions with legally unenforceable safeguards, no mandatory human review, and no algorithmic transparency require explanation from the Government of how they differ structurally from the Robodebt model.

Recommendation 10: Prohibit fully automated eligibility and funding decisions. Require mandatory human review rights and appeal pathways for any automated decision adversely affecting a participant’s funding, eligibility, or claim. Make s 59E safeguards legally enforceable. Require publication of algorithms, calculation methodologies, and assumptions. Mandate independent audits and parliamentary scrutiny before any expansion of automation powers (OTSi Recommendation, Table 1). Require OT and allied health reports to be specifically documented as received and considered in any plan determination.

11. Parenting, Children, and Family Sustainability — ss 34(1G)–(1J) OTSi: ‘The proposed amendments relating to parenting and family responsibility risk significantly increasing pressure on families already operating at crisis point… OTSi is deeply concerned that reducing these supports may contribute to escalating child protection involvement, family breakdown and removal of children into out-of-home care. This outcome would not only be profoundly harmful for families, but economically irrational. The cost of providing preventative disability supports to families is substantially lower than the long term costs associated with child protection intervention, foster care and family separation.’ (OTSi Submission, p.11)

The amendments codify parental responsibility in law, defining what parents are expected to provide and requiring the CEO to consider what informal supports can provide before approving funded supports. OTSi recommends the legislation require explicit consideration of family sustainability, cumulative caring burden, child wellbeing, parental disability, and the comparative costs of withdrawing supports.

There is also a specific drafting flaw: the ‘regardless of the child’s disability’ qualifier in s 34(1H) applies only in paragraph (b), not in paragraph (a). On the literal text, paragraph (a) presumes parents provide substantial care generally — not merely at the level expected for a non disabled child of the same age. This appears to be a drafting error that must be corrected.

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Recommendation 11: Amend ss 34(1G)–(1J) to require explicit consideration of family sustainability, child wellbeing, cumulative caring burden, parental disability, and the comparative social and economic costs of withdrawing supports (OTSi Recommendation, Table 1). Insert ‘regardless of the child’s disability’ into s 34(1H)(a). Tie the ‘reasonably expected of a parent’ benchmark to what a parent of a non-disabled child of the same age would provide, modulated by parental capacity and cumulative care load.

12. Pricing Powers and Allied Health Workforce — Schedule 3 The Bill significantly expands Ministerial control over pricing arrangements while reducing the role of independent oversight. OTSi is concerned that pricing mechanisms may increasingly prioritise expenditure reduction over workforce sustainability, participant safety, and service quality.

OTSi: ‘The allied health sector is already experiencing substantial workforce shortages, particularly in rural and remote regions. Participants with hidden and invisible disabilities often already experience significant barriers accessing appropriate therapy supports, specialist clinicians and practitioners with expertise in complex or poorly understood conditions. Any further reduction in therapy accessibility is likely to disproportionately harm these cohorts. Inadequate pricing settings risk further destabilising service delivery and increasing co-payments for participants who are already living on fixed incomes.’ (OTSi Submission, p.12)

This is a direct concern for occupational therapy. OT services are already difficult to access in rural and remote areas, with extended waitlists in metropolitan centres for specialist OT expertise in autism, psychosocial disability, and complex presentations. Ministerial pricing caps without adequate consultation risk driving OTs out of the NDIS market entirely — reducing access to the very clinical expertise that the scheme’s planning and assessment functions depend upon. Independent pricing through IHACPA is the optimal approach, as both OTSi and Occupational Therapy Australia have consistently advocated.

Recommendation 12: Establish independent pricing for NDIS supports through IHACPA rather than Ministerial instrument. Require mandatory consultation with allied health peak bodies including OTA, OTSi, and AHPA before any pricing determinations affecting therapy supports. Ensure pricing reflects actual complexity and sustainability of service delivery, including for rural and remote service provision.

13. Auto-Renewal of Plans — Schedule 1, Part 5 (s 50A) From 1 February 2027, plans automatically renew for 12 months by operation of law. Unspent funds are removed. One-off funding for assistive technology and home modifications does not carry over. Auto-renewal is not a reviewable decision.

From an OT perspective, unspent funds in a disability support plan are frequently not waste — they are clinical contingency for anticipated equipment repairs, planned therapy intensives, or periods of increased need. Combined with the restrictive reassessment threshold in s 48A, auto

Submission 688

renewal risks locking participants into plans designed for a previous life stage, with reduced effective spending power if ministerial category reductions have occurred, and no individual assessment or merits review available.

There is also a specific drafting flaw: one-off funding for assistive technology or home modifications that has been quoted, ordered, or actioned but not yet delivered will disappear at plan end date on the literal text of s 50A(2)(b). The Agency cannot restore it through the s 47A variation power. This appears to be an unintended oversight that requires correction before the provision commences.

Recommendation 13: Amend s 50A(2)(b) to carry over one-off funding that has been quoted, ordered, or otherwise actioned at the plan end date. Require plans for children and young people to be scheduled for review at age-appropriate milestones regardless of the auto-renewal framework. Restore contingency reserve provisions for participants with fluctuating conditions.

14. Self-Management, Claim Windows, and Record-Keeping — Schedule 2 The claim window drops from two years to 90 days from 1 December 2026. Missing records produce an automatic debt (s 182(4)) with no equivalent participant defence to the ‘justified in the circumstances’ mechanism available to providers. There is no binding pre-claim advice mechanism.

OTSi’s emphasis throughout both documents on the reality that disability itself directly affects a participant’s capacity to comply with administrative requirements is highly relevant here. Participants managing complex caring roles, episodic conditions, or significant cognitive or executive functioning impairments will miss 90-day windows. The automatic debt that results mirrors the structural feature of Robodebt: the debt arises by operation of law, and only the waiver is reviewable, not the underlying debt.

Recommendation 14: Retain a minimum 6-month claim window with explicit exceptional circumstances discretion covering disability-related barriers, hospitalisation, and family emergency. Amend s 182(4) to require the CEO to consider whether the absence of records actually corresponds to non-entitlement before raising a debt. Insert a binding pre-claim advice mechanism and statutory safe-harbour provision for good-faith reliance on written Agency advice.

15. Transitional Rules — Schedule 5 The Bill grants broad transitional rule-making powers to the Minister, including the ability to temporarily modify how provisions operate. OTSi is concerned that these powers are highly discretionary, may significantly affect participant rights, and operate with limited parliamentary scrutiny.

Submission 688

OTSi: ‘Given the scale of the proposed reforms, OTSi submits that transitional arrangements require greater transparency; independent oversight; public consultation; and parliamentary accountability.’ (OTSi Discussion Paper, p.14)

Recommendation 15: Require parliamentary oversight, public consultation, and publication of implementation impact assessments for all transitional arrangements under Schedule 5. Require independent review of transitional arrangements before commencement. Ensure transitional rule-making power cannot be used to reduce participant rights or protections below the level established by the principal Act.

16. Fraud and Integrity — Schedule 2 OTSi and I both support appropriate measures to prevent fraud, exploitation, and misuse of public funds. However, OTSi is concerned that several proposed powers are excessively broad and may create fear, surveillance, and over-policing of disabled people and providers.

OTSi’s central concern — one I share entirely from clinical practice — is the insufficient recognition throughout this Bill that disability itself may directly affect a participant’s capacity to comply with Agency expectations, procedural requirements, communication demands, and evidentiary obligations. The Bill repeatedly frames these issues through a compliance lens rather than a safeguarding lens. The expansion of nominee liabilities and investigative powers risks discouraging family members from acting as nominees altogether, at precisely the time when participants most need that support.

Recommendation 16: Amend all fraud and integrity provisions to require compliance, investigation, and enforcement measures to be implemented proportionately, transparently, and with embedded safeguarding mechanisms. Require accessible compliance pathways, independent oversight, trauma-informed administration, and funded advocacy access. Explicitly recognise that disability may directly affect a participant’s capacity to comply with Agency expectations, communication processes, and procedural requirements (OTSi Recommendation, Table 1).

17. The Role of OTs in the New Planning Framework — Schedule 4 Schedule 4 introduces a new planning framework without specifying its content. The assessment methodology, funding calculation model, and the role of allied health evidence are all to be determined by ministerial instrument after the Bill passes.

OTSi: ‘The proposed planning model risks replacing individualised supports with standardised budgeting and partial funding approaches.’ OTSi recommends: ‘Retain person centred planning principles, prohibit standardised rationing replacing reasonable and necessary assessment, preserve lived experience evidence and require transparency regarding assessment tools and budgeting methodologies.’ (OTSi Submission, Table 1)

The specific concerns for OT practice are:

Submission 688

• OTs invest significant clinical time, expertise, and professional accountability in FCAs and support recommendations. If the new framework does not require planning systems — human or automated — to engage substantively with OT reports, this investment is wasted and participants lose the benefit of evidence-based professional assessment.

• The role and evidentiary weight given to OT FCAs in the new Participant Statement of Supports must be defined before the framework commences. Under current proposals, a Support Needs Assessment may generate an algorithmic report stating what supports should be funded. The Participant Statement of Supports cannot be appealed — the tribunal can only direct the Agency to complete another Support Needs Assessment.

• OTA, OTSi, and AHPA have no guaranteed formal involvement in designing the new assessment tools or planning methodology under this Bill. Given that these tools will fundamentally shape OT clinical practice and participant outcomes, this is unacceptable.

• OTSi has noted that the New Framework Planning model appears designed primarily around expenditure control rather than participant outcomes — and that the directly arising test and standardised support categorisation create increasing risk that the cumulative interaction of physical, neurological, psychosocial, and environmental factors will go unrecognised.

Recommendation 17: Require OTA, OTSi, and AHPA to be formally involved as co-design partners in developing all assessment tools, planning frameworks, and support determination processes before commencement. Publish the Independent Technical Review. Ensure the Participant Statement of Supports retains full merits-review rights. Prohibit standardised rationing from replacing individualised reasonable and necessary assessment. Preserve the role of lived experience evidence and require transparency regarding assessment tools and budgeting methodologies (OTSi Recommendation, Table 1).

18. Whole-of-Government Cost Modelling The Productivity Commission built the case for the NDIS on whole-of-government cost modelling: investing in formal disability support reduces catastrophic downstream costs of informal carer breakdown, workforce exit, mental health deterioration, and family crisis. The Government projects $37.8 billion in NDIS savings. Those savings are drawn exclusively from the NDIS budget line.

OTSi: OTSi specifically notes the Bill ‘fails to adequately consider the broader social and economic consequences of reducing supports.’ Withdrawal of enabling parenting supports may increase rates of family breakdown and child removal. Reductions to therapy, community participation, and maintenance supports may increase hospitalisation, mental health crises, and long-term deterioration. ‘The explanatory materials themselves identify significant safeguarding and equity risks, including increased reliance on unpaid female carers and negative impacts on Closing the Gap outcomes, yet the legislation contains limited mechanisms to monitor or mitigate those harms.’ (OTSi Submission, p.2)

When formal supports are reduced, the costs do not disappear — they transfer. Parents exit paid employment → Centrelink costs increase and tax revenue declines. Carer mental health deteriorates → Medicare demand increases. Participants who lose community support are at

Submission 688

greater risk of behavioural crisis and emergency presentation. Children who lose therapeutic scaffolding lose the developmental gains that enable greater independence over time — increasing long-term costs. None of these costs appear in the NDIS budget line. All are paid by Australian taxpayers.

Recommendation 18: The Government must publicly release whole-of-government cost modelling before the Bill proceeds. The Committee should seek from Treasury the projected increase in expenditure by Centrelink, Medicare, state mental health services, emergency departments, child protection, housing, and the justice system as a result of the supports this Bill will reduce or remove. Require a rolling independent audit of downstream costs following any use of the s 34A funding reduction power.

19. What Occupational Therapists Support in NDIS Reform OTSi’s conclusion is clear and I adopt it as my own: sustainability cannot be measured solely through reductions in scheme expenditure. A genuinely sustainable NDIS must also preserve dignity, participation, safety, family stability, human rights, and equitable access to support.

I want to be explicit: OTs are not opposed to NDIS reform. We support, and call for:

• Stronger fraud prevention and enforcement, including effective use of existing NDIS Quality and Safeguards Commission powers — noting that only 0.22% of over 7,000 fraud reports led to prosecutions despite the Commission having power to act.

• Consistent, transparent, and accountable planning processes in which clinical evidence — including OT FCAs — is substantively engaged and documented as considered.

• Improved planner training and accountability, including mandatory engagement with clinical reports and demonstrated competency in disability-specific presentations.

• Independent pricing through IHACPA, not concentration of pricing power in a single ministerial office without independent advice or parliamentary scrutiny.

• Genuine co-design of assessment frameworks, support lists, and planning tools with people with disability, families, and allied health professionals — including OTSi, OTA, and AHPA.

• Implementation delayed pending comprehensive consultation, independent legal and human rights review, the establishment of foundational supports, and the introduction of stronger parliamentary oversight and safeguarding protections (consistent with OTSi’s formal position).

• A comprehensive human rights, gender, First Nations, and socioeconomic impact assessment before any provision of this Bill commences.

• A statutory independent post-implementation review commencing no later than two years after Royal Assent, with mandatory community consultation, cohort-disaggregated analysis, and a Government response obligation.

Submission 688

20. Summary of Recommendations Recommendation 1: Delete Item 66 of Schedule 1 in full. Retain section 31 as a core interpretive provision. Reinstate explicit legislative obligations for individualised, participant-directed, outcomes-focused planning.

Recommendation 2: Amend s 9B to require functional capacity to be assessed in real-world conditions including environmental barriers, assistive technology, fluctuating disability, executive functioning, and cumulative impairments. Delay commencement until the assessment tool is designed, published in draft, consulted on, piloted with diverse cohorts, and subject to disallowable parliamentary scrutiny.

Recommendation 3: Amend s 17B to expressly state that financial sustainability cannot override statutory entitlements to reasonable and necessary supports under section 34.

Recommendation 4: Delete ‘directly’ from s 34(1)(aa). Consult allied health peak bodies and publish clinical guidance before any amended wording commences.

Recommendation 5: Amend s 34(1E) to give ‘lived experience’ and ‘clinical evidence from treating practitioners’ equal weight to peer-reviewed research. Remove the s 34(1F) veto.

Recommendation 6: Amend Items 88–94: treatments must be evidence-based, clinically appropriate, reasonably available, financially accessible, and undertaken with free and informed consent. Explicitly protect the right to decline treatment without losing scheme access.

Recommendation 7: Restore 21-day reassessment timeframe. Restore Items 21–25 appeal rights. Remove ‘unanticipated’ qualifier. Recognise life transitions as a basis for reassessment. Insert emergency 14-day reassessment pathway.

Recommendation 8: Define ‘reasonable attempts’ in ss 40A and 30(1A) to require multi channel contact over 60 days including known providers and nominees. Remove direct revocation pathway. Mandate safeguarding review, welfare check, and consideration of participant safety before any suspension or revocation.

Recommendation 9: Delete proposed s 34A in full. Alternatively: require parliamentary disallowance, public consultation, independent review, human rights impact assessments, and Category A Rule status. Exempt participants with high or complex support needs. Designate permanence, functional capacity, and funding powers as Category A Rules.

Recommendation 10: Prohibit fully automated eligibility and funding decisions. Make s 59E safeguards legally enforceable. Require mandatory human review, published algorithms, independent audits, and parliamentary scrutiny before expansion of automation powers.

Recommendation 11: Amend ss 34(1G)–(1J) to require consideration of family sustainability, cumulative caring burden, child wellbeing, and parental disability. Correct the s 34(1H)(a) drafting flaw.

Recommendation 12: Establish independent pricing through IHACPA. Require mandatory allied health consultation before any pricing determinations affecting therapy supports.

Recommendation 13: Amend s 50A(2)(b) to carry over quoted/ordered AT and home modification funding. Require age-milestone reviews for children’s plans.

Submission 688

Recommendation 14: Retain minimum 6-month claim window with exceptional circumstances discretion. Amend s 182(4) to require genuine non-entitlement assessment before raising a debt. Insert binding pre-claim advice and safe-harbour mechanisms.

Recommendation 15: Require parliamentary oversight, public consultation, and independent review for all transitional arrangements under Schedule 5.

Recommendation 16: Amend all fraud and integrity provisions to be proportionate, transparent, and safeguarding-focused. Explicitly recognise disability as a direct barrier to administrative compliance. Require funded advocacy support.

Recommendation 17: Formally include OTA, OTSi, and AHPA in co-design of all new assessment tools and planning frameworks. Publish the Independent Technical Review. Preserve merits-review rights for the Participant Statement of Supports. Prohibit standardised rationing from replacing individualised assessment.

Recommendation 18: Publicly release whole-of-government cost modelling. Require Treasury projections for downstream costs across all government systems. Require rolling independent audit of downstream costs following any use of s 34A.

Closing Statement

OTSi’s conclusion resonates with everything I have observed in NDIS practice: ‘The NDIS exists because Australians recognised that disabled people deserve dignity, autonomy, participation and equality. Any reform to the Scheme must strengthen those principles rather than diminish them.’

The reforms this Bill contains go far beyond the sustainability measures the Government has described publicly. They represent a fundamental architectural shift in who makes decisions, on what basis, with what evidence, and with what oversight. The disability community — including the OT profession — was not meaningfully consulted before a 109-page Bill was introduced with a 15-day submission window.

The Committee has an opportunity to recommend amendments that preserve the Government’s sustainability objectives while protecting the foundational principles of individual need, clinical evidence, and human accountability that the scheme was built on. I urge the Senate to take that opportunity.

Respectfully submitted,

Sally Pearman

Occupational Therapist

AHPRA Registration No:

Harmony Allied Health

29 May 2026