National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 732
Staying Independent | Submission to the Senate Community Affairs Legislation Committee
Allied Health and Supports Provider ABN 61 681 736 130
Submission to the Senate Community Affairs Legislation Committee Inquiry into the National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026
Submitted by: Kezia Kingston, Founder and Chief Executive Officer, Staying Independent Pty Ltd Date: 30 May 2026
- About Staying Independent Staying Independent is a multidisciplinary allied health and disability support practice based in Zetland, Sydney. We support more than 160 NDIS participants and employ a team of 25 staff including occupational therapists, speech pathologists, support workers, alongside operations and coordination staff.
We are a provider that set out to operate differently. We developed our own model of care, the Integrated Outcomes Model, which brings allied health clinicians and support workers together under one roof and one coordinated team. Assessment, therapy, and day-to-day support are delivered as a single integrated service rather than in fragments. We believe this approach is both more effective for participants and more efficient for the Scheme: it is designed to drive real growth in a participant’s capacity and independence while making careful use of funding. Sustainability and good outcomes are not in tension in our experience. The right model delivers both, we can move and adjust in real time with our participants and not wait weeks for meetings to implement change among multiple providers.
We are a provider that works with people other services turn away. A significant part of our practice supports some of the most vulnerable people in the community: people with complex mental health needs, people with polydrug use, people experiencing homelessness, and people coming from the justice system. We have a sub speciality working with adolescents and young adults, as well as more broadly, much of our clinical work concerns people with cognitive disability: those whose disability affects how they plan, sequence, communicate, regulate, and navigate everyday systems, and who are most at risk of being unable to access support, services, and technology independently.
Staying Independent has been recognised for its model of care both in Australia and internationally. Our awards include Winner, Most Outstanding Healthcare Company for Innovation and Management across Asia Pacific, at the 2025 International Stevie Business Awards, and Business NSW Most Outstanding New Business (Sydney) 2025 for our innovative healthcare model. We are
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National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 732
Staying Independent | Submission to the Senate Community Affairs Legislation Committee
proud to be an NDIS provider. It is because we believe in the Scheme, and in the people it exists to serve, that we are making this submission and are willing to appear before the Committee to speak to it.
Staying Independent supports the long-term sustainability of the NDIS. A scheme that endures for future participants, and that is protected from fraud and waste, is in the interest of every person we support.
We do not dispute that the Scheme must be placed on a sound financial footing. We make this submission because several provisions of the Bill, as currently drafted, will not achieve sustainability in a durable way. They will instead narrow access and funded supports through assessment and evidence mechanisms that misdescribe how disability actually presents in the people we see every day. On that basis we urge the Committee to recommend substantial amendment before the Bill proceeds.
- Summary of recommendations This submission focuses on the provisions of Schedule 1 where our clinical experience gives us particular insight. We do not attempt to canvass the Bill in full.
• Recommendation 1. Amend proposed section 9B so that functional capacity is assessed in real-world conditions, taking into account assistive technology, environmental factors, and support, rather than in an artificial setting that excludes them.
• Recommendation 2. Ensure functional capacity is assessed by, or meaningfully informed by, qualified allied health clinicians, with occupational therapy recognised as the profession whose core expertise is functional assessment, and using disability-specific validated tools consistent with the Agency’s own current evidence guidance, so that disability is not misclassified by assessors or instruments not equipped to recognise it.
• Recommendation 3. Amend the assessment rule-making powers in proposed subsections 9B(2) to (3) and the note to subsection 32L(2) so that any assessment tool or method is selected through genuine disability-sector consultation and remains subject to full parliamentary disallowance.
• Recommendation 4. Calibrate the evidence hierarchy in proposed subsection 34(1E) so that individual outcome evidence and practice-based evidence are given genuine weight, and so that emerging and individualised supports, including assistive technology, are not excluded for want of generalisable published research.
• Recommendation 5. Ensure the “directly arising” test in proposed section 34(1)(aa) is not applied so as to defund supports that a participant with multiple, interacting impairments reasonably requires.
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National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 732
Staying Independent | Submission to the Senate Community Affairs Legislation Committee
- Proposed section 9B: defining functional capacity
3.1 What the Bill does Proposed section 9B defines a person’s functional capacity as their ability to undertake an activity “without assistance from other people, assistive technology or modifications”, and “in a context that excludes, as far as possible, the impact of the person’s environmental and personal circumstances”. The Explanatory Memorandum describes this as confining assessment to the person’s “intrinsic” ability. Subsections 9B(2) and (3) then create a rule-making power to prescribe the methods, criteria, classifications, and thresholds by which that capacity is assessed.
3.2 The clinical problem This definition does not describe how disability presents in practice, and it inverts the clinical reality our occupational therapists and speech pathologists observe daily. For most of the people we support, capacity is not a fixed intrinsic quantity. It is the product of the person, their supports, and their environment interacting. A person’s ability to undertake an activity changes, often dramatically, depending on whether they have the scaffolding, the assistive technology, the routine, and the regulated environment that allow them to function.
A teenager may complete a task in a quiet, structured, one-to-one clinic room and be entirely unable to do the same task in a noisy classroom, on a difficult morning, without the prompts and supports they rely on. An adult with cognitive disability may manage a daily routine well with a familiar support worker and visual scaffolding, and be unable to manage it at all without them. To assess that person “without assistance” and stripped of context is not to find a purer measure of their disability. It is to measure a situation that does not exist in their life.
There is a deeper contradiction. The whole purpose of good allied health practice, and of assistive technology, is to change what a person can do. The more effective a support is at enabling someone, the more an intrinsic-capacity assessment that excludes that support will understate the very disability the support exists to address. The Bill therefore risks penalising effective intervention: a participant whose supports are working may present, on a decontextualised assessment, as less disabled than they are, and may lose access to the supports that produced that result. This is not a hypothetical concern. It is the predictable consequence of assessing capacity in the absence of the things that create it.
The approach is also untested. As other clinical bodies have noted to this Committee, it has not been demonstrated that intrinsic function can be reliably isolated from environmental and personal factors at all, still less that it can be isolated while also attributing capacity to specific impairments where a person has several. Legislating an assessment model whose feasibility has not been established is a poor foundation for consistent decision-making.
Finally, the people most disadvantaged by a decontextualised, snapshot assessment are precisely those whose disability is least visible in a short interaction: autistic people who mask, people with psychosocial and fluctuating disability, people with executive functioning impairment, and people with energy-limiting conditions. A definition that cannot see masking, fluctuation, or the role of support will systematically under-assess this cohort.
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National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 732
Staying Independent | Submission to the Senate Community Affairs Legislation Committee
Recommendation 1. Amend proposed section 9B to require that functional capacity be assessed in real-world conditions, expressly taking into account the impact of assistive technology, environmental factors, reasonable adjustments, fluctuating and episodic presentation, executive functioning, and the cumulative effect of multiple impairments. Assessment should measure the person as they actually live, not in an artificial setting from which the determinants of their capacity have been removed.
- The clinical expertise the Bill designs out Underlying the new functional capacity definition and the assessment rule-making power is an unstated assumption: that measuring functional capacity is a standardised, tool-driven task that can be reduced to a questionnaire and administered by a generic assessor. This assumption is wrong, and acting on it would be a serious error.
Measuring function is not an incidental activity. It is a discipline, and Australia already has a qualified workforce built entirely around it. Occupational therapy is the profession whose core purpose, across university training, supervised practice, and entire careers, is the assessment of how a person functions in the activities of their daily life. Occupational therapists are already in the workforce, already regulated, and already expert in exactly the task the Bill is attempting to standardise. This is a gift to the NDIS, not a problem to be engineered around.
Within the profession there are also subspecialties whose practitioners understand particular disabilities in depth. Measuring function is not one-size-fits-all, because disability is not. An occupational therapist who works with psychosocial disability, or with autistic adults, or with acquired brain injury, brings a depth of understanding of those presentations that a generic standardised instrument cannot hold and an untrained assessor does not possess.
The difference is not academic. A trained clinician sees what an untrained eye misclassifies, and misclassification at the point of assessment determines whether a person gets support. Two examples from clinical practice make the point:
• The flat affect, social withdrawal, and reduced motivation of negative-symptom schizophrenia can be read by an untrained assessor as the person being uncooperative, disengaged, or simply not interested in support. To a clinician, these are the disability itself.
• The resistance, distress, and reactivity of pathological demand avoidance can be read as obstructive, difficult, or aggressive behaviour. To a clinician, this is a recognised feature of the person’s disability, requiring an entirely different response from the one those labels would invite.
A standardised tool administered by a non-specialist does not merely miss subtlety. It actively misreads disability as non-cooperation, and then penalises the person for it. The people most exposed to this are those whose disability is least legible on the surface: psychosocial disability, autism, fluctuating and energy-limiting conditions, and complex co-occurring presentations. These are the very cohorts our practice exists to serve.
If the assessment of functional capacity is taken out of the hands of skilled clinicians and reduced to a tool applied by generic assessors, the consequences for participants will be severe. People will be found not to meet criteria, or to have lower needs than they do, not because their disability has
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National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 732
Staying Independent | Submission to the Senate Community Affairs Legislation Committee
changed, but because the method could not see it. We urge the Committee to ensure that skilled functional assessment by qualified clinicians, with occupational therapy at its centre, remains integral to how capacity is assessed under the Scheme, rather than being displaced by a standardised instrument that the existing professional workforce is far better equipped to apply and interpret.
4.1 The NDIA’s own practice already shows one tool cannot fit all disabilities This is not a contested proposition. The NDIA already accepts, in its own published guidance and its own forms, that function is measured with different validated tools for different disabilities. The Agency’s current guidance on disability evidence sets out, disability by disability, the assessment tools it accepts in order of preference, and they are not the same tool. They are condition-specific instruments matched to how each disability actually presents.
By the Agency’s own current guidance, for example:
• cerebral palsy is assessed using the Gross Motor Function Classification System, the Manual Ability Classification System, and the Communication Function Classification System;
• intellectual disability and autism using the DSM-5 and the Vineland Adaptive Behavior Scale;
• psychosocial disability using the Life Skills Profile 16 and the Health of the Nation Outcome Scales;
• spinal cord injury using the ASIA Impairment Scale;
• stroke using the Modified Rankin Scale;
• multiple sclerosis using the Expanded Disability Status Scale;
• vision impairment using the Impact of Vision Impairment questionnaire.
General measures such as the WHODAS 2.0 and the PEDI-CAT appear in this guidance, but characteristically alongside a condition-specific tool and usually ranked below it. The Agency’s settled position, in other words, is that a general functional measure is not sufficient on its own, and that the right instrument depends on the disability.
The same is true of the way the Agency already measures functional impact at the point of access. The NDIA’s own Access Request Supporting Evidence Form asks, for each functional domain, whether the person needs assistive technology, special equipment, home modifications, or assistance from other people. In other words, the Agency’s current access instrument measures function inclusive of the supports and environment a person relies on. Proposed section 9B would require the opposite: function measured with those supports stripped away.
This is the heart of our concern. The Bill’s single, decontextualised definition of functional capacity contradicts the Agency’s own existing, working practice: disability-specific tools, applied by clinicians, measuring function as the person actually lives it with their supports in place. The Bill would replace a sound and established approach with one that is less accurate, less specialised, and untested. If the rule-making power is then used to mandate a single general instrument, the loss of accuracy will fall hardest on exactly the cohorts whose disability a single tool measures least well.
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National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 732
Staying Independent | Submission to the Senate Community Affairs Legislation Committee
Recommendation 2. Ensure that the assessment of functional capacity under the new framework is conducted or meaningfully informed by qualified allied health clinicians, with occupational therapy recognised as the profession whose core expertise is functional assessment, and that it continues to use disability-specific, validated assessment tools matched to the person’s disability, consistent with the Agency’s own current evidence guidance, rather than a single general instrument applied across all disabilities. Any standardised tool should support, not replace, skilled clinical judgment, and the framework should expressly preserve the role of clinicians with relevant subspecialty expertise in assessing the cohorts they know, so that disability is not misclassified as non-cooperation or behaviour by assessors without the training to recognise it.
- The assessment rule-making powers (subsections 9B(2)–(3) and the note to subsection 32L(2)) The substance of how functional capacity will be assessed is not in the Bill. It is deferred to NDIS rules made under subsections 9B(2) and (3), which the Explanatory Memorandum indicates are expected to commence from 1 January 2028. A related provision, the note to subsection 32L(2), allows those rules to “apply, adopt or incorporate” a document prepared by the Agency, such as a questionnaire or manual, as in force from time to time.
Taken together, these provisions allow a single standardised assessment tool, and the thresholds that determine who is and is not eligible, to be selected and changed by delegated instrument and by Agency documents incorporated by reference. Decisions of this magnitude, which determine access to the Scheme, should not be made with less scrutiny than the Act itself receives.
The disability and allied health sectors have direct, recent experience of the risks of standardised classification tools imposed without adequate co-design, including in the aged care context. A tool that is poorly matched to how cognitive, psychosocial, and fluctuating disability presents can entrench inconsistency rather than cure it, and can do so at scale and out of public view. Where an assessment instrument carries this much weight, its selection and any subsequent change must be transparent, genuinely co-designed with people with disability and clinicians, and reviewable by the Parliament.
Recommendation 3. Amend the rule-making framework in subsections 9B(2) to (3) so that any assessment tool, method, or threshold prescribed for functional capacity is developed through genuine, documented co-design with people with disability and the allied health sector, is supported by published evidence of validity for the cohorts to which it will apply, and remains a disallowable legislative instrument subject to full parliamentary scrutiny. Any Agency document incorporated under the note to subsection 32L(2) should be published and subject to the same safeguards, and should not be able to alter practical eligibility thresholds without fresh scrutiny.
- Proposed subsection 34(1E): the evidence hierarchy Proposed subsection 34(1E) requires the CEO, when deciding whether a support is effective and beneficial, to weigh certain kinds of evidence in a fixed order of importance, with “published, peer reviewed and generalisable” research ranked first. Subsection 34(1F) then makes clear that the CEO
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National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 732
Staying Independent | Submission to the Senate Community Affairs Legislation Committee
may decide a support is not effective specifically where there is limited or no research of that first kind, even where there is evidence that the support works for the particular participant or for similar participants.
We are strong supporters of evidence-based practice. It is therefore important to be clear about what evidence-based practice is. As the discipline has defined it for many years, evidence-based practice rests on three things together: the best available research evidence, the clinician’s expertise, and the individual’s circumstances and values. Research evidence alone was never the standard. A finding applied to a person without clinical judgment about whether it fits them is a misuse of evidence, not good practice.
Proposed subsection 34(1E) collapses that three-part definition into one part. By ranking generalisable published research first in a fixed hierarchy, and allowing the CEO to find a support ineffective specifically where such research is limited or absent, the Bill elevates one tier of evidence above clinical expertise and individual circumstances and lets it override them. This is not evidence-based practice as the discipline understands it. Generalisable research answers whether a support works for populations on average. It cannot answer whether a support is working for the individual in front of the clinician, and for that question the other two components are essential.
Applied without calibration, this will disadvantage exactly the supports that matter most to the people we serve. Much of effective practice in cognitive and psychosocial disability is individualised, neurodiversity-affirming, and practice-based. It does not always have, and in many cases will never have, large generalisable randomised trials behind it, because the populations are small, the presentations are heterogeneous, and the supports are tailored to the individual. The same is true across much of assistive technology, where devices for low-incidence conditions are unlikely ever to reach a generalisable published evidence base.
A rigid hierarchy that subordinates individual outcome evidence to generalisable research risks two harmful results. First, it freezes the funded toolkit at the current state of published evidence and shuts out emerging and innovative supports, which is squarely at odds with the object of the Act in section 3, which commits the Scheme to promoting “high quality and innovative supports”. A Bill that defunds the new because it is new defeats one of the purposes it is meant to serve. Second, it penalises participants with rare conditions and complex presentations, for whom the generalisable evidence base will never arrive, regardless of how clearly a support works for them. The absence of generalisable research for a rare or complex presentation is not evidence that a support is ineffective.
Evidence of what actually works for the individual in front of the clinician is not weak evidence. For tailored cognitive and assistive supports it is frequently the most relevant evidence available, and the legislation should permit it to be weighed as such.
Recommendation 4. Amend proposed subsection 34(1E), or require the supporting NDIS rules to provide, that evidence of effectiveness for the participant or for similar participants, and credible practice-based evidence, may be given equal weight to generalisable published research where the support is individualised, is assistive technology, or is for an impairment or cohort for which generalisable published evidence is not reasonably available. The decision-maker should not be permitted to find a support ineffective solely because generalisable published research is limited or absent.
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National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 732
Staying Independent | Submission to the Senate Community Affairs Legislation Committee
- Proposed section 34(1)(aa): the “directly arising” test The Bill narrows the test for funded supports so that a support need must arise “directly” from an impairment, meaning the impairment must be the direct and immediate source of the need rather than a contributing cause. For the participants we support, support needs are rarely traceable to a single impairment in isolation. They arise from the interaction of co-occurring conditions: communication, behaviour, daily living, and regulation needs that emerge together from the combination of, for example, autism, intellectual disability, and a psychosocial or neurological condition.
A strict application of “directly arising” risks defunding supports that a person plainly requires, on the technical basis that the need arises from the interaction of impairments, or from a functional consequence of an impairment, rather than from one impairment directly. Where that occurs, the participant is left without a support they need, and the cost is typically shifted to families, to health systems, or to crisis services that are more expensive and less appropriate.
We ask the Committee to ensure the rules made under this provision do not narrow funded supports below what participants with multiple, interacting impairments reasonably require to participate in ordinary life.
Recommendation 5. Ensure, in the primary legislation or the supporting rules, that the “directly arising” test in section 34(1)(aa) does not exclude supports required because of the interaction of multiple impairments, or because of the functional consequences of an impairment, where those supports are reasonable and necessary for the participant’s participation.
- Conclusion
Staying Independent supports a sustainable NDIS. We accept that consistency and integrity are legitimate and important objectives, and as a provider built around an integrated model of care, we know first-hand that sustainability and good outcomes are not in tension. The right model delivers both.
Our central concern is simple. This Bill pursues consistency by adopting a model of disability that our clinicians do not recognise in the people we support. It assesses capacity without the supports and environment that create it. It discounts what demonstrably works for the individual in favour of evidence that, for many of our participants, will never exist. And it allows the tools that decide who is eligible to be set out of public view, despite the NDIA’s own current practice showing that function is measured by skilled clinicians using disability-specific instruments, with the person’s supports in place. These are not refinements of good practice. They are a departure from it, and from the Agency’s own working approach.
The people who will pay for that departure are the ones whose disability is least visible to a snapshot: people with psychosocial, fluctuating, and cognitive disability, the very people our practice exists to serve, and the people other services already turn away. When the Scheme cannot see them, the cost and the harm do not disappear. They move to families, to hospitals, and to crisis
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National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 732
Staying Independent | Submission to the Senate Community Affairs Legislation Committee
systems, where they are higher and the outcomes are worse. That is not sustainability. It is cost- shifting dressed as reform.
The amendments we have set out would keep the Scheme’s commitment to consistency and integrity while preserving its ability to see disability as it actually presents. We urge the Committee to recommend them. We would welcome the opportunity to appear and to assist the Committee with anything further from our clinical practice.
Kezia Kingston Founder and Chief Executive Officer Staying Independent Pty Ltd
Sources referenced: National Disability Insurance Agency, guidance on disability evidence and assessment tools by primary disability (ndis.gov.au); National Disability Insurance Agency, Access Request – Supporting Evidence Form.
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