NDIS Appeals Advocacy for Individuals and Families (Individual advocacy) | External submission

Submission 783

Mailing: PO Box 5649

West End QLD 4101

Phone: 07 3255 1244 Email: sufy@sufy.org.au Website: www.sufy.org.au

ABN: 58 812 329 872

SPEAKING UP FOR YOU INC. Speaking Up For You Inc. (SUFY) advocates to ensure people with disability who have been marginalised and made vulnerable by societal systems and discrimination, enjoy the same human rights and autonomy as other community members.

1 June 2026

Committee Secretary

Senate Standing Committee on Community Affairs

PO Box 6100

Parliament House

Canberra ACT 2600

Dear Committee Secretary,

Submission to the Community Affairs Legislation Committee - Inquiry into the NDIS Amendment (Securing the NDIS for Future Generations) Bill 2026

We thank you for the opportunity to provide a submission to your inquiry. We provide our submission below and note that it does not include all views and comments on all areas of the (Securing the NDIS for Future Generations) Bill 2026 (the Bill), as our ability to consider the Bill and discuss it with our community has been constrained by the short timeframe provided for your Inquiry.

Speaking Up for You Inc. (SUFY) is an independent social advocacy organisation for people with disability who have a fundamental need that is unmet in the Greater Brisbane and Moreton Bay area, which includes the Redlands. SUFY’s advocacy is guided by the principles of social advocacy and is informed by the United Nations Convention on the Rights of Persons with Disabilities and the Human Rights Act 2019 (Qld) (see www.sufy.org.au). We are a community based nonprofit incorporated association funded by the National Disability Advocacy Program (NDAP), and the Queensland Disability Advocacy Program (QDAP). SUFY is audited by The Institute for Healthy Communities in accordance with National Disability Advocacy Standards and has an independent complaints process.

SUFY is governed by a management committee of seven volunteers who either have lived experience of disability and or have experience working with people with disability. SUFY employs disability and trauma informed staff, including one Manager, 3 Admin/Intake Workers (including an Operations Administrator), 16 Individual Advocates (including 2 Senior Advocates), 3 part-time NDIS Appeals Advocates (including 1 Senior NDIS Appeals Advocate), a part time Financial Administrator and a part-time Advocacy Resource Officer.

SUFY’s staff includes people with disability, some are NDIS participants, family and friends of NDIS participants, or family members of people with disability. This lived experience, close connection with people with disability and the work performed by our staff, especially our NDIS Appeals Advocates, holds us in good stead to comment on the Bill.

Submission 783

Mailing: PO Box 5649

West End QLD 4101

Phone: 07 3255 1244 Email: sufy@sufy.org.au Website: www.sufy.org.au

ABN: 58 812 329 872

The NDIS Appeals Advocates work for individuals or families seeking an External Review of the Agency’s Internal Review decision in the Administrative Review Tribunal (ART). Generally, these decisions relate to people refused access to the NDIS or participants who have received inadequate supports in their Statement of Participant Supports (NDIS plan). SUFY has been providing advocacy support in the NDIS Appeals space since 2016. Initially that support focussed on education and awareness of the NDIS processes, especially Internal and External Reviews. We now assist through:

Providing NDIS Appeals Advice Clinics and Minor Assistance;
Providing ongoing NDIS Appeals Advocacy by assisting individuals and families to prepare and advance their appeal through the ART; and
Providing community education and resources. Across the last ten years SUFY has observed the myriad of changes to the NDIS, including legislative, policy and procedure.

As an independent social advocacy organisation for people with disability, SUFY works

collaboratively with other advocacy organisations, sharing ideas and resources. Despite the limited time available to review this Bill we have engaged with these organisations to the greatest extent possible and identified shared views and concerns regarding the Bill. SUFY has chosen to provide this submission regarding our views, based on our expertise and experience derived from those people with disability for whom we advocate. We have, however, also reviewed and endorsed the submissions by Queensland Independent Disability Advocacy Network (QIDAN) and Disability Advocacy Network Australia (DANA), of which we are proud to be members.

It is important to acknowledge the many reports and reforms relating to the NDIS over its brief life – since 2013. Notably, many of these have occurred in more recent times. Some of these include: Mr David Tune AO PSM produced his final report for a review of the NDIS Act in 2019;1 the Productivity Commission, National Disability Insurance Scheme Costs - Study report in 2017; the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (2019–

(DRC);2 the Productivity Commission, Advancing Prosperity – 5-year Productivity Inquiry Report, Volume 5, 2023; and the Independent NDIS Review (NDIS Review).3

Notably, many of the proposed amendments in the Bill are stated to be based on the NDIS Review findings and the DRC recommendations. In many of these instances we find it difficult to see the connection. In fact, the lack of connection between the Bill and the Review findings or DRC recommendations, has meant that the proposed amendments were not within the realm of prediction by the disability community. The disability community has been further blindsided by the proposed amendments given the lack of consultation or co-design and the compressed timeframe to scrutinise the Bill. The nature, scale and potential impacts of the proposed reforms make it

1 Tune, D., Review of the National Disability Insurance Scheme Act 2013 - Final Report, 2019 2 While the Royal Commission was broad in its focus, its findings are important considerations for NDIS reform. 3 Independent Review into the National Disability Insurance Scheme (2023) Working together to deliver the NDIS: NDIS Review Final Report. Commonwealth of Australia. 2

Submission 783

Mailing: PO Box 5649

West End QLD 4101

Phone: 07 3255 1244 Email: sufy@sufy.org.au Website: www.sufy.org.au

ABN: 58 812 329 872

essential that the disability community is availed a reasonable opportunity to have a meaningful say in the proposed amendments.

Given the statements in the Explanatory Memorandum regarding the ‘original’ intent of the Scheme we remind ourselves of what we thought was its purpose, which is explained clearly in the Agency’s latest Annual Financial and Sustainability Report:

The purpose of the NDIS is to provide reasonable and necessary funding to people with a permanent and significant disability allowing them to have choices and control over the supports and services they need to pursue an ordinary life.4

A key cornerstone underlying the operation of the Scheme is strong insurance principles, where evidence-based decisions on access and planning are made by drawing on objective information on individuals and the longitudinal data that is collected on participants in the Scheme. Experience is closely and regularly monitored to allow emerging risks and issues to be identified and, where required, remediation strategies to be implemented.5

The Scheme has a lifetime, person-centric approach to its model of support for people with disability, where early investment in core, capacity building and capital supports are anticipated to drive better outcomes for participants and their families/carers over their lifetime.6

It must be remembered that the NDIS was developed to replace the unsuitable fragmented system which was not appropriate for people with disability. Bringing specialist disability services under the one scheme, has provided greater accessible support and a navigable process to people with significant and long-term impairments and their families. The recent and current proposed reforms set out a process aimed at dismantling several important aspects of the Scheme – returning disability support to the ‘old days’. This is clear from the following, but not exclusively, proposed changes:

-   Excluding those who are currently  eligible to access the Scheme and are already

accessing it;

Removing appropriate supports;
Reducing fundamental supports;
Removing processes which place people with disability at the centre of decision making; 4 NDIS Annual Financial and Sustainability Report 2024-25, p. 39. <https://www.ndis.gov.au/publications/annual-financial-sustainability reports#:~:text=The%20AFSR%20provides%20an%20assessment,the%20NDIS%20Act%20(Section %20180B)> Accessed 29 May 2026.

5 NDIS Annual Financial and Sustainability Report 2024-25, p. 39 <https://www.ndis.gov.au/publications/annual-financial-sustainability reports#::text=The%20AFSR%20provides%20an%20assessment,the%20NDIS%20Act%20(Section %20180B)> Accessed 29 May 2026. 6 NDIS Annual Financial and Sustainability Report 2024-25, p. 39 <https://www.ndis.gov.au/publications/annual-financial-sustainability reports#::text=The%20AFSR%20provides%20an%20assessment,the%20NDIS%20Act%20(Section %20180B)> Accessed 29 May 2026.

Submission 783

Mailing: PO Box 5649

West End QLD 4101

Phone: 07 3255 1244 Email: sufy@sufy.org.au Website: www.sufy.org.au

ABN: 58 812 329 872

Removing review rights;
Reducing plan supports. These reforms and their disproportionate focus on cost saving have been devised with insufficient regard for the risks they pose to participants, both collectively and individually, and with limited respect for the lives of individuals with disability and their right to live a dignified life. The proposed amendments perpetuate a policy approach that unfairly targets people with disability. The commentary surrounding the Bill has produced a narrative that participants are too expensive, that people with disability cannot manage their plan funds, that participants are living excessive lives funded by taxpayers (of which they are not acknowledged as being a part) and, consequently, that participants are a burden on the Australian community. This rhetoric exacerbates discrimination by devaluing people with disability and portraying them as a financially burdensome on taxpayers.

We acknowledge the importance of the Scheme being sustainable, as this is imperative to its existence in the future for people with disability who require it. However, the method of achieving this espoused in the Bill is not consistent with the intent of the Scheme and fails to treat participants and those seeking to access the Scheme with fundamental dignity or respect.

For your convenience, we attempt to address the proposed amendments in the order presented in the Bill, along with some of the concepts and examples stated in the Explanatory Memorandum but note that some sit well apart but are interconnected. We also provide examples of potential consequences we have extracted from scenarios we have seen or can foresee.

Our submission addresses the following proposed amendments and concepts mentioned in the Explanatory Memorandum:

Submission 783

Mailing: PO Box 5649

West End QLD 4101

Phone: 07 3255 1244 Email: sufy@sufy.org.au Website: www.sufy.org.au

ABN: 58 812 329 872

Contents Access lists ……………………………………………………………………………………………………………… 6 Defining functional capacity ……………………………………………………………………………………….. 6 Increasing the access decision making timeframe …………………………………………………………… 6 Standardised assessment tool …………………………………………………………………………………….. 7 Permanence – reducing access where an impairment can be treated ………………………………….. 7 Eligibility based on access to other services …………………………………………………………………… 8 Comparing the NDIS to other support systems ……………………………………………………………….. 9 Financial sustainability of the Scheme ………………………………………………………………………….. 9 Participant Plans ………………………………………………………………………………………………………….. 9 Reasonable and necessary …………………………………………………………………………………………. 9 Supports that would be more appropriately provided by other service systems ……………………. 10 Limiting who can apply for plan reassessments on behalf of participants ……………………………. 10 s 48 - a genuine change in a participant’s support needs …………………………………………………. 11 s 48 - change in decision timeframe, repeal of deemed decision and move trigger for new framework plans ……………………………………………………………………………………………………… 11 Disability support needs that ‘arise directly from impairments’ – subsection 34(1)(aa) replacement …………………………………………………………………………………………………………… 12 Plan renewal ………………………………………………………………………………………………………….. 14 Providing a copy of a plan to a participant …………………………………………………………………….. 15 Support Determinations …………………………………………………………………………………………… 16 Ministerial price setting power …………………………………………………………………………………… 17 Ordinary community supports……………………………………………………………………………………. 18 Ministerial determinations - proposed subsections 33(2EA) and 33(2EB) ……………………………. 18 Effective and beneficial considerations - Proposed subsections 34(1E) and (1F) ………………….. 19 Family etc. support - Proposed new subsections 34(1G), (1H) and (1J) ……………………………….. 19 Plan suspensions and revocations …………………………………………………………………………………. 21 Automation of administrative action - automated decision making ………………………………………. 22 Transparency when using ADM …………………………………………………………………………………… 22 ADM - oversight ………………………………………………………………………………………………………. 23 Safeguards for ADM use ……………………………………………………………………………………………. 24 5

Submission 783

Mailing: PO Box 5649

West End QLD 4101

Phone: 07 3255 1244 Email: sufy@sufy.org.au Website: www.sufy.org.au

ABN: 58 812 329 872

Access and planning measures

Access lists Subsections 24(1)(c) and 25(1)(c) of the NDIS Act (the Act) clearly set out the criteria for eligibility to the Scheme or for early intervention. The ‘access lists’ in many situations appeared to be used to provide guidance to Agency staff in relation to disabilities which were likely to meet the criteria in s 24. Level of impairment and functional capacity have always been relevant assessment criteria under ss 24 and 25.

Our experience is that some people whose disabilities are on the access list (List A) have not automatically been accepted on to the Scheme, despite having evidence addressing ss 24 or 25. They have been required to fight their way on to the Scheme through the review process, usually finding success once they enter the Tribunal stage.

The access lists remain relevant and can be useful to Agency staff and those with disability assessing whether the Scheme is likely to be availed to them. Those with specific disabilities may need to be ‘fast tracked’ onto the scheme, where their functional decline progresses rapidly and responsive supports are required. Motor Neuron Disease is such a disability. The NDIS must be responsive to those who need support quickly. It must also be flexible for those whose support needs change quickly.

Defining functional capacity The proposal (s 9B(1)(b)) for ‘functional capacity’ to be redefined to exclude consideration of the person’s environmental and personal circumstances is in fundamental contradiction to the social model of disability. An assessment of a person’s functional capacity cannot simply be about a comparison between ‘peers’. The person’s environment and personal circumstances must be considered. This is why functional capacity assessments usually occur in a person’s home and their immediate environment (including workplace). It must be understood that society’s structures, whether invisible or the built environment, are disabling.

Increasing the access decision making timeframe Increasing the timeframe to decide access to the Scheme from 21 days to 90 days cannot be considered a minor amendment and it is difficult to see how it could have any bearing on improving the operation of the Scheme. Rather, it will be adverse to those applying to the Scheme, especially those who are in urgent need of support, including those who are in hospital awaiting the decision. Access to the Scheme can be life changing for many participants and should be capable of a decision within a reasonable timeframe, of which 21 days (3 weeks) should be the upper limit. It must also be considered that there can be a lengthy time delay between when a person is accepted on to the Scheme and when they have a planning meeting (or potentially undergo an independent assessment process), and then a further period before they receive their first plan. This can take 3 months or so. This proposed amendment should not be accepted given the impact on people with disability in need of supports. 6

Submission 783

Mailing: PO Box 5649

West End QLD 4101

Phone: 07 3255 1244 Email: sufy@sufy.org.au Website: www.sufy.org.au

ABN: 58 812 329 872

Standardised assessment tool We are also concerned that there will be a standardised assessment tool for all applicants to the Scheme, as mentioned by the Minister,7 to determine whether a person is eligible for the Scheme. This is likely to eliminate the personalised assessments and evidence currently collated by participants, which usually provides a long-term understanding of the persons impairments and functional capacity. It is acknowledged that evidence in terms of volume and quality, varies amongst applicants to the Scheme. This is not a valid reason to remove personalised and flexible assessments processes.

It was hoped that the Agency would assist those applicants who endured difficulty gaining evidence, by either financing or providing a fair and informed assessment process relevant to their disability, impairments and personal circumstances. Arguably, this approach would allow for equity across applicants to the Scheme.

Permanence – reducing access where an impairment can be treated Proposed new subsection 25A(1) provides that appropriate treatment for a person’s impairment or impairments is treatment that is evidence based, is regularly undertaken in Australia and can reliably be expected to improve, reverse or alleviate the impact of the impairment or impairments.

Proposed subsections 24(5) and 25A(1) requires a person applying for access to the Scheme to know what the ‘appropriate’ treatments are and to make sure that they have undertaken all of them. Further, an impairment cannot be found to be permanent if there is any other treatment which is likely to materially (noticeably or significantly) improve, reverse, or alleviate the impact of the impairment or impairments.

The insertion of the new criteria regarding permanency of impairments is unfair to many people with disability, especially those who cannot access treatment because of their location, the cost and availability of treatment, or their impairment may make it impossible to undertake appropriate treatments (e.g., psychosocial impairments).

An example where an impairment could prevent a person from accessing treatment could be where a person who has a mobility (physical) impairment and psychosocial impairment, may not be able to undergo an operation that could assist with their physical disability because they are unable to undergo general anaesthetic because of the trauma related to the psychosocial impairment. It could, however, be accepted under proposed subsection 25A(3)(a) that this person is ‘taken to have undertaken all appropriate treatment for an impairment or impairments if there is a medical reason that [they] cannot undertake what would otherwise be all appropriate treatment’. The trauma response to general anaesthetic could be argued to be a medical reason, but this exception will be decided by a delegate of the CEO and may not be successful.

There is also the scenario where appropriate treatment is available but has not been tried, because

it has been medically assessed that  it  will not have any impact  - ‘materially (noticeably or

significantly) improve, reverse, or alleviate the impact of the impairment or impairments’. An

7 Minister Butler, ‘Securing the NDIS for Future Generations’ (Speech, National Press Club, 22 April 2026). 7

Submission 783

Mailing: PO Box 5649

West End QLD 4101

Phone: 07 3255 1244 Email: sufy@sufy.org.au Website: www.sufy.org.au

ABN: 58 812 329 872

example is where a person has mobility and self-care impairments, attributable to Chronic Obstructive Pulmonary Disease (COPD). The person’s General Practitioner is aware that the

Pulmonary rehabilitation program  is generally considered appropriate treatment  for COPD,

however, their patient’s COPD has progressed to a level where the Pulmonary rehabilitation program will not ‘materially (noticeably or significantly) improve, reverse, or alleviate the impact of the impairment or impairments’ for them. There still needs to be a space for this expert opinion, of those who know the person applying for the NDIS. This is not a simple desktop abstract

assessment that can be made based on a person’s impairments,  their  disability and the

‘appropriate’ treatments. The term ‘appropriate’ should continue to account for the person’s personal circumstances

The example of Matiu (Explanatory Memorandum, p. 64) indicates that Matiu’s treating specialist’s advice that no further treatment is likely to result in a material improvement in his functional capacity is unlikely to be interpreted by Agency staff as consistent with the terminology of ‘all appropriate treatment’ in the proposed subsections. We have seen cases where Agency staff override the opinion of medical and specialist professionals regarding the possible impact of some treatments, which have not been recommended by them or tried by the person because of their likely lack of success.

Item 94 provides broad discretion to the Minister and the CEO to limit large numbers of people at once from accessing the Scheme or continuing on the Scheme, despite their support needs or lack of access to supports elsewhere (Explanatory Memorandum, p. 65).

Eligibility based on access to other services There is great danger to the inclusion of rules prescribing alternative service systems as appropriate systems over that of the NDIS. This is important where it applies to groups of people based on certain characteristics, such as age. Rather than simply listing the schemes and declaring them appropriate for the person because they are eligible for them, an assessment is required as to whether the service system adequately caters for the individual person’s impairment support needs. That a person is found to be eligible for aged care services and is accessing or awaiting these services, before applying for access, should not impact their eligibility for the Scheme. For many people, the alternative to not receiving supports is being hospitalised, having to live in unsafe conditions, or even more dire. All people with disability should be supported to apply for and access supports to enable them to live a dignified life.

It is mentioned that aged care may be such a service and this may be prescribed in Category A rules. Presently, Agency staff and some assessors struggle to understand the difference between aged care needs and disability support needs. This assessment required by Occupational Therapists who understand differences between disability and aged care support needs. The age eligibility criteria for access in s 22, is clear in relation to who can apply to the Scheme and should be used as the cut off point for age eligibility.

Submission 783

Mailing: PO Box 5649

West End QLD 4101

Phone: 07 3255 1244 Email: sufy@sufy.org.au Website: www.sufy.org.au

ABN: 58 812 329 872

Comparing the NDIS to other support systems The reasoning surrounding financial sustainability of the Scheme refers to ‘supports funded in other parts of the care and support economy’ and a requirement for ‘[c]hanges … to bring the NDIS in line with other support systems and ensure government is funding a sustainable level of supports, while continuing to meet the needs of people with permanent and significant disability.’ There is an absence of detail in this reasoning, which means it fails to contextualise the reasoning regarding comparable systems. These systems appear to be non-existent, given the uniqueness of the Scheme, unless the comparators are intended to be Medicare, which is for all Australians or even Aged Care, which is inadequate for its purpose. People with significant and permanent disability have unique needs, so it is understandable that they require a unique scheme that is suitable and appropriate for them, such as the NDIS.

In denying a person access to the Scheme or when removing participants, other support schemes must be available, accessible and appropriate. People with disability should not be placed in a position where they have no or inadequate support because it has been deemed that another

service system  is appropriate. The examples  in the Explanatory Memorandum show the

complexity of assessing eligibility and supports for a person with multiple impairments who may have access to other schemes for some impairments, such as personal injury or workers compensation schemes. While it is agreed that the Scheme should not be used instead of these schemes where they are available, where people with disability have not been successful in their applications for them, or they are inadequate, they should not be left without access to the Scheme or supports. The Scheme previously placed people with disability at the centre and the intention was that their support needs were met by the Scheme so they could live a reasonable life.

Financial sustainability of the Scheme Amending s 3(3)(b) in the Objects of the Act to require that regard be had to the Scheme’s sustainability ‘for the first time’ merely moves the requirement for its consideration from the rules regarding supports but also includes it as an explicit consideration for access decisions.

There must be transparency in relation to how financial sustainability of the Scheme is determined in both access matters, when supports are considered, or determinations are made by the Minister. The next step of how it is to be considered in terms of actuary information, should be explained.

There  is no  transparency  or  guidance  regarding  financial  sustainability  as a  practical

consideration. For accountability reasons, information must be available and accessible to people with disability, their families and the general public.

Participant Plans

Reasonable and necessary Changing the application of the concept of ‘reasonable and necessary supports’ to consider ‘what it is reasonable for the Scheme to fund’ devoid of context of how and where a participant is to gain the supports they need, is a major shift for the Scheme. This is stated in the context that no

Submission 783

Mailing: PO Box 5649

West End QLD 4101

Phone: 07 3255 1244 Email: sufy@sufy.org.au Website: www.sufy.org.au

ABN: 58 812 329 872

mechanism or transparency exists in relation to ‘sustainability of the scheme’, the impact on sustainability by individual supports and how this is to be assessed.

The requirement  to consider  financial  sustainability  of  the scheme has always been a

consideration for participant plan supports. This requirement to consider financial sustainability when making its decisions regarding statements of participants supports, is required by the ART. Where the Agency raises scheme sustainability as an issue in dispute in the ART, it is required to evidence its argument. In appeals we have worked on, despite Agency statements that certain supports could not be approved due to impact on Scheme sustainability, actuarial evidence was only provided in one case.

Supports that would be more appropriately provided by other service systems Previously, the government in its changes to the Act (in 2024), removed a requirement to consider if another system should fund a support. This coincided with the introduction of the NDIS supports lists which were intended to delineate supports funded by the Scheme and those that were excluded. Proposed subsection 34(1)(g) will return this requirement.

In the past and subject to this proposed amendment, Agency staff required participants to source either particular approved supports, or parts of their supports elsewhere, even where they cannot, or the supports are inadequate to their needs. For example, continence aids schemes are generally not available to participants on the Scheme, yet participants have been required to show that they contacted these services and were not eligible to access the support. The requirement that participants supplement their Psychology therapy support through GP mental health care plans, even though these are inaccessible to some, does not cover their needs, and usually there is a gap payment that the person cannot afford, is futile. Requiring participants to navigate these processes is cruel and reducing much needed supports on the basis that they ‘should’ or could be accessible through other services, is unacceptable.

Partially funding some supports can and will mean that most participants will be prevented from accessing supports. Most participants are on DSP and will not be able to afford to pay for supports. It must be remembered that the supports are for participants to engage in life, like their non disabled peers, who do not endure these costs. This will result in exclusion of participants from

community  life.  In some  cases, depending on  the  supports and people impacted  the

consequences could be dire.

Limiting who can apply for plan reassessments on behalf of participants Participants on the Scheme have varying degrees of impairments. The Scheme is complex, as are the processes to navigate it, especially when a participant’s plan is no longer suited to their support needs. A participant’s impairment/s may prevent them from engaging directly with Agency staff or completing applications to the Agency, including for a plan reassessment.

Some participants have family members as their nominees. A nominee’s expertise is usually that they know their family member and what they want and need. Nominees are generally not experts on the Scheme or its processes. Some participants do not have nominees or guardians and for various reasons cannot navigate the review or reassessment processes. This may be for a 10

Submission 783

Mailing: PO Box 5649

West End QLD 4101

Phone: 07 3255 1244 Email: sufy@sufy.org.au Website: www.sufy.org.au

ABN: 58 812 329 872

multitude of reasons including that: they cannot read and/or write; cannot use a computer; cannot communicate their wishes without supported decision making; have a communication impairment;

speak  limited  English; are from a  culturally and  linguistically  diverse background; have

psychosocial impairments, etc.

Often, participants and families request support coordinators, plan managers, advocates, hospital social workers or others to apply for plan reassessments on their behalf. They seek out these formal supports as they are often the individuals with expertise in engaging with the Agency and its processes. These are not easy processes to navigate and knowledge of ss 47A or 48 of the Act, along with Agency procedure, are required. It is easy to see that a participant (who has no Nominee or guardian) who is in hospital and cannot be discharged safely without increased support and is unable themself to apply through ss 47A or 48, unless another person applies for them, is at risk of harm.

It should not matter who makes the request, it is for the CEO’s delegates to assess and decide outcomes, including whether the request has the participant’s or their nominees, support. The Agency’s form could simply require the person requesting the application to acknowledge that they have the participant’s or their nominee’s consent to do so. Otherwise, the proposed amendment will be at the cost of participant safety and given the easy fix, it should not occur.

s 48 - a genuine change in a participant’s support needs The proposed criteria for s 48 restrict participants’ and the Agency’s ability to ensure that plans can be adequately adapted to participants’ needs if they change, except where the high thresholds in the proposed amendments to s48 are met. This change, in combination with the reduced review rights available to participants, the increased rigidity of controls to supports through funding components, funding periods and fixed overall budgets, will result in a Scheme that is not responsive to its participants. We foresee increased risk to individuals due to not receiving the supports they require.

s 48 - change in decision timeframe, repeal of deemed decision and move trigger for new framework plans The change in timeframe (proposed subsection 48(3)) for the CEO’s decision from 21 days to 90 days does not reflect the urgency or importance of the decision. There are dire circumstances where participants may be at risk of injury or death without a reassessment of their supports. For example, informal care may no longer be available due to the breakdown of family relationships or the death of a caregiver. Similarly, participants attempting to discharge from hospital may be left with no option but to remain as an inpatient or to rely on family, friends or support services because they have inadequate plan funds and/or supports to return home. This takes a toll on all involved, including the health system. Three weeks (21 days) is already a significantly long timeframe when potential impact is considered and should be the upper reach for these types of decisions.

No reasoning is provided for the increased timeframe to make decisions, making it difficult to assess its reasonableness for the Agency. It is assumed it connects to administrative processes 11

Submission 783

Mailing: PO Box 5649

West End QLD 4101

Phone: 07 3255 1244 Email: sufy@sufy.org.au Website: www.sufy.org.au

ABN: 58 812 329 872

and workloads rather than participant risk factors. If it is because of the number of anticipated requests, it would be thought that the narrowing or the circumstances under which requests can be made and the other proposed amendments should sufficiently reduce the number of these requests to a manageable number.

While there is no proposed change to the CEO’s ability to initiate a plan reassessment at any time and for any reason, the amendment that should be made to s 48 is that the CEO should not have the discretion to act on their own initiative to change a participant’s plan, ‘for any reason’. If the CEO is to decide under s 48, they must positively address the elements of s 48. As with any administrative decision, the CEO must be required to provide reasons for their decision if they conduct a reassessment of their own initiative and full review rights of the content of that decision (the supports) must ensue.

Where that participant has an old framework plan, connecting a request under s 48 with the possibility that it will trigger a new framework plan is confusing for participants and may deter them from applying,8 even when they are in grave need of increased or different supports. This is especially so, given the proposed repeal of s 48(4) regarding a deemed decision. This provides the applicant with the right to review, which will not exist if the CEO does not make a decision. The participant will also not be able to review the CEO’s decision if the CEO decides the participant is to transition to a new framework plan.

These proposed amendments fail to consider that a person has made the request because they require supports at the time of their application. Despite the person having all the relevant evidence regarding the reasoning for a change/s to their plan and the supports they require, they could be required to await a full reassessment process. This will cause substantial delay to them receiving supports they require. A participant with an old framework plan cannot be assured that their application under s 48 will be considered at any level.

Disability support needs that ‘arise directly from impairments’ – subsection 34(1)(aa) replacement The analysis of disability support needs that ‘arise directly from impairments’ that participants have been accepted on to the Scheme for or through early intervention, requires an artificial dissection of the person’s disabilities, impairments, support needs, gender, culture, age environmental and personal circumstances. This presents an impossible task to any assessor and will result in support gaps for participants. This ignores the whole of person and individualised approach applied to date and intended by the Scheme. It is only by considering the participant as an individual, including intersectionality, their health needs, family commitments, work, education, environment and goals, that appropriate supports can be identified for a participant.

We are concerned that this proposed amendment has been included not only as a cost saving measure, but also to accommodate the I-CAN process and its application to participants. Questions have been raised about I-CAN’s ability to appropriately address intersectionality. The premise that individuals with similar disabilities or impairments should receive similar supports

8 After making requests under s 48 participants have had their plan funds reduced, their reassessment dates changed and other unanticipated parts of their plans changed, including plan management. 12

Submission 783

Mailing: PO Box 5649

West End QLD 4101

Phone: 07 3255 1244 Email: sufy@sufy.org.au Website: www.sufy.org.au

ABN: 58 812 329 872

overlooks the reality that participants experience disability in different ways, including through intersectional identities, differing health issues, different built environments, different levels of informal support, notwithstanding the Agency has recorded the same or similar disabilities and impairments. This approach risks embedding systemic bias and discrimination.

A nuanced approach is required if the NDIS is to achieve the objects as set out in s 3 of the NDIS Act. The assessment and planning process must encompass the social model of disability if a person’s support needs are to be understood and they are to receive reasonable and necessary supports.

This proposed amendment also fails to acknowledge fundamental practical matters surrounding the agency’s administrative and technological issues. These issues have resulted in participants either not having all their eligible impairments assessed or recorded and maintained on a reliable database. In some cases, Agency staff informed participants who provided evidence of multiple disabilities and impairments that they were required to nominate only one or two, as primary and secondary disabilities.9 This was explained as necessary because this was how the Agency’s database was structured. Even where further disabilities were argued during appeals and agreed upon, including related supports, participants were told that it would be noted on the system, but that was all that could occur.

For example, for Jane, only intellectual disability (cognitive impairment affecting learning, self-care and self-management) was recorded, and she also had severe lower leg lymphoedema (mobility impairment). Jane requested an Internal and External Review to have the lymphoedema and mobility impairment recognised so she could receive funding for mobility supports and home modifications. While Jane’s appeal was resolved in her favour, the mobility supports were then removed from her subsequent plan, and the lymphoedema was again not acknowledged. This resulted in a further Internal and External Review before the supports were reinstated. The Agency Case Manager informed that they could not provide any correspondence regarding the Jane’s access met disabilities and impairments, but a notation would be provided on the Jane’s file.

Many participants do not have a notice of impairments and do not know which impairments have been recorded for them. This is despite the inclusion of s 32BA of the Act requiring the CEO to provide a notice of impairments as soon is as practicable after a participant gains access to the Scheme, or as required in the NDIS rules, if the rules specify a circumstance that applies in relation to the participant. The result of the above is that the Agency is working with a database where not all participants impairments are accurately recorded. This is in addition to those where they have not had their evidence assessed appropriately, because of the restrictions placed on them to choose a primary and/or secondary disability only.

9 While we note that the NDIS Acts wording pertains to impairments, the Agency’s language until recently has been in relation to ‘disability’, ‘diagnosis’ and ‘conditions’. Further, it is noted that this language remains, and this can be seen in recently published documents on the Agency’s website. 13

Submission 783

Mailing: PO Box 5649

West End QLD 4101

Phone: 07 3255 1244 Email: sufy@sufy.org.au Website: www.sufy.org.au

ABN: 58 812 329 872

Plan renewal We are concerned that plan renewals are said to not be an administrative decision capable of triggering review rights. This is on the basis that these plans will ‘essentially’ reflect the original planning decision. However, each renewed plan will have some commonalities, which may not mirror a participant’s plan, including:

1.  they will be renewed for 12 months, even  if they were for a shorter or longer period

previously);

one-off supports from the previous plan will not carry over (e.g., funding for assistive technology or home modifications); and
the Minister has the power to make additional ‘alterations’ to the new plan through determinations (e.g., time-limited funding or temporary variations may not continue into the new plan).

The 12 month timeframe applies whether the participant’s previous plan was for a lesser or for a longer period. Some participants require shorter plans because their support needs change rapidly (e.g., some people with motor neuron disease) due to known or likely reduction in functional capacity and their plans need to be responsive to this. Some participants, especially those whose impairment and functional capacity levels are settled require longer term plans for certainty, so they can work towards their goals.

The blanket removal of one-off supports ignores the time it can take to gain assessments for assistive technology and home modifications, along with ordering and purchasing assistive technology, especially if modifications are required, and with having home modification works completed. If assistive technology cannot be accessed in a reasonable timeframe, a participant should be able to apply the funding to leasing/hiring assistive technology for a temporary period. A flexible approach should be applied where participants have not spent these funds in their plan and require them in their renewed plan.

The proposed power for and nature of Ministerial alterations by legislative instrument could result in significant changes to participants’ plans and the plans workability for them. The legislative instrument must be accessible to participants, which means it must be provided directly to them in their preferred manner of communication. The method behind the alterations needs to be set out for participants in lay persons terms so that it is understandable to them or can be explained to them or their family, by a lay person.

This renewal process does not allow for any engagement between participants and Agency staff and vice versa for a plan reassessment if the plan is no longer appropriate for the participant. Some participants have not been availed the opportunity for a planning meeting for many years. Some participants have been scared to request a planning meeting, even where their plans require updating, because they are concerned that supports or funds will be cut.

The Minister must consider participant safety when making a determination, including whether funding reductions could place a participant at risk of neglect, crisis or loss of essential functioning (Explanatory Memorandum, page 32). However, participants are still at risk of being unable to 14

Submission 783

Mailing: PO Box 5649

West End QLD 4101

Phone: 07 3255 1244 Email: sufy@sufy.org.au Website: www.sufy.org.au

ABN: 58 812 329 872

access vital supports given the Bill permits support determinations even where the remaining funding is less than the full cost of a participant’s supports (proposed subsection 34A(5)).

Because these determinations operate through legislative instruments, any resulting reductions in funding are not reviewable decisions. Applying this process to circumvent review rights means participants with old framework plans will be limited to the options of applying for a plan variation under s 47A or a plan reassessment under s 48, if they are eligible. It may be the case that the participant was gathering evidence for their next anticipated planning meeting, and they do not meet the criteria in s 47A and the proposed s 48, but their plan is outdated - no longer suited to them.

There is lack of clarity regarding the possible ‘alterations’ that can be made by the Minister to new plans, and the potential impact on participants’ supports. It can be foreseen that forced changes to part of a person’s plan, may require other supports in their plan to be adjusted. This is unlikely to be something a participant can seek to be addressed under s 47A or the proposed s 48. It is our view that these extraordinary changes should not occur, especially given that they fail to consider participants’ support needs or individual risk.

While we understand that technically, the CEO’s plan decision remains unchanged, providing a copy of that plan, rather than a plan with text and money figures that reflects the consequences of a determination to a plan, of Minister’s support determination, will cause great confusion to most, if not all participants. All participants should receive a plan which reflects the funds and supports available to them. It is unacceptable and irrational to provide a plan which does not reflect a participant’s supports and to provide a copy of a Ministerial determination regarding an alteration and expect the participant to understand what has happened. The Scheme was developed for people with permanent and significant disability and any communications to them should have this in mind.

It is notable that we have seen several participant plans where participants have been informed by Agency staff that their plan will ‘rollover’ and they don’t need to attend a planning meeting. When the rolled over plan is received the participant notice that it has changes, including some supports removed. For example, the nature of plan management is changed, usually to Agency managed, support coordination may be entirely removed and the plan term (length of the plan) changes. This is not consistent with the concepts of ‘rollover’ or ‘renewal’ but has the potential to severely impact participants. Removal of review rights for these ‘renewed’ plans will mean participants cannot do anything about these changes.

Providing a copy of a plan to a participant A participant should be assured of receiving a copy of their plan in a reasonable timeframe of its commencement, whether it has been renewed or arises from an assessment. Provision of a plan within 7 days from the day of commencement of the plan, is reasonable as an upper limit. The proposed subsection 38(2) does not include an upper time limit and should not be accepted.

Many participants endure anxiety towards the end of their plan period and in relation to receiving a new plan, even if it is simply a renewal. It is important for participants to have a copy of their 15

Submission 783

Mailing: PO Box 5649

West End QLD 4101

Phone: 07 3255 1244 Email: sufy@sufy.org.au Website: www.sufy.org.au

ABN: 58 812 329 872

plan, so they can check it for errors and to understand their supports for the funding period and/or the term of the plan.

The requirement of providing a plan ‘as soon as practicable’ provides a high level of vagueness and the Agency has not performed well previously when provided this level of discretion in relation to the important task of conducting internal review decisions in a timely manner – some took more than 6 months.

The mere unlegislated intent of the Agency (mentioned on p. 37 of the EMs) to notify a participant of their plan being renewed, prior to the renewal, is inadequate and indicates that participants may not be aware that their plan will be renewed and what this will mean for them, including no review rights. This is extremely unfair on participants, already anxious and stressed about their future funding supports.

Proposed new subsection 38(3), requires the CEO to notify a participant if a funding component amount in their plan is affected by a support determination at the same time as they receive a copy of their plan. This will result in some, possibly many, participants not understanding that their plan has been cut because the Minister has made a determination, possibly until they receive the notice. Given that their plan will include the amount of funding they previously received for the support category, they are likely to endure a high level of confusion regarding their funding. Participants who have planned for their future based on their previous plan funds, will need to reassess their plans.

Support Determinations

The exercise by the Minister of the power to make determinations is extraordinary, far reaching and should be limited to exceptional and urgent circumstances. This process redefines the ‘decision making process’ to remove it from the scrutiny of administrative law, importantly removing rights for review. This must be a serious consideration regarding this proposed amendment. It requires further explanation, discussion and limitations. However, if the power is retained, it should require National Cabinet agreement before it can be exercised.

The Minister has specifically indicated that funding limits or reductions will be used to cut social, civic and community participation and capacity-building supports.10 Serious issues will arise with these support determinations if they apply to participants who require high level and/or constant support. If a participant who receives funding for all or most of the day has their social, economic and community participation funding cut through a determination, it is likely that they will require their in-home support to be adjusted so they receive support during that period. Participants who receive 24/7 support and those who cannot be by themself during waking hours will be at risk if a determination reduces any of their hours. Some participants cannot and no participant should be required to share housing, however determinations cutting supports, support hours or specifying ratios of support could push participants to make a decision on whether they live alone or with others, even though risk of harm will increase for them and potentially those with whom they live.

10 Minister Butler, ‘Securing the NDIS for Future Generations’ (Speech, National Press Club, 22 April 2026). 16

Submission 783

Mailing: PO Box 5649

West End QLD 4101

Phone: 07 3255 1244 Email: sufy@sufy.org.au Website: www.sufy.org.au

ABN: 58 812 329 872

We could take the example of Riley (Explanatory Memorandum, pp. 44-45) who had $20,000.00 in his 1 year plan for social, economic and community participation, which has now been reduced to $10,0000.00, due to a ministerial determination. Assume that Riley also requires 24/7, 1:1 support (inactive overnight) which was funded in his plan, including the $20,000.00 social, economic and community participation funding. Riley now has a gap in his supports, review rights will not apply, nor do the avenues for variation and reassessment requests. It is a separate issue that Riley regularly used the social, economic and community participation funds to attend medical and therapy appointments, which sometimes required significant time in travel and waiting. The determination will result in Riley having a major reduction in his social and economic engagement in the community, causing him further isolation, as most of his social, economic and community participation funds will be used so he can attend his appointments.

The concept of a support determination fails to encompass individual needs of participants, reducing them to sameness. This contradicts the Scheme objects and the present approach to

reasonable and necessary supports, which takes  individual circumstances and goals  into

consideration. The concept of ‘equity’ in this context is about saving money across the board. “Equity’ is not being applied in a conventional sense, with the process explained likely to save the NDIA money, at a huge cost to vulnerable people with disability.

Ministerial price setting power Despite the caveat that the proposed legislative instrument allowing the Minister to set maximum funding amounts, intensity or ratios for individual supports or classes of supports for a certain class of participants will be based on peer reviewed and published evidence, it is unlikely that the impacted supports will be reasonable and necessary for the participants impacted. Again, this is the antithesis to the current person centred approach aimed at ensuring that individual participants receive reasonable and necessary supports appropriate to their lives and their goals.

The NDIS is for those with significant and permanent disabilities, which includes a small number of people who require substantial individualised support to live in the community. The NDIS is the only source of funding for this support,11 without this support, those participants’ families and others, including other government organisations and institutions, carry the cost and weight of filling the gaps. Mr Ryan Caterson, who is an adult participant, is such an example, where the family presently provide a disproportionate level of support to Mr Caterson,12 because the Scheme does not cater for his support requirements. Mr Caterson was successful in his argument in the Tribunal for a one-resident, two-bedroom house.13 Mr Caterson’s impairments mean that he ‘experiences extreme territorialism’14 and cannot live close to others. This was not disputed by the

11 Based on its level of adaption to individual support needs, the NDIS has been the only scheme available to those with extremely complex disabilities, such as Mr Caterson. In reviewing these proposed amendments, consideration must be applied to the scenario where Mr Caterson’s family can no longer provide him with support. 12 This statement is made on the basis that Mr Caterson is an adult and like other adults, should be able to live his life independent of his family. 13 Ryan Caterson and National Disability Insurance Agency [2024] AATA 3440 14 Ryan Caterson and National Disability Insurance Agency [2024] AATA 3440, SM Katter, [14]-[16] 17

Submission 783

Mailing: PO Box 5649

West End QLD 4101

Phone: 07 3255 1244 Email: sufy@sufy.org.au Website: www.sufy.org.au

ABN: 58 812 329 872

Agency in the Tribunal. Mr Caterson requires 24/7 support in a house, that accommodates him and a support worker. The Agency argued that the Tribunal could not determine that the Scheme could fund this, as that type of building is not listed in the Price Guide and is therefore not a support the Scheme provides. While the Agency was successful in its appeal for the decision to be overturned in the Federal Court,15 that decision is currently on appeal to the full court.

Based on its level of adaption to individual support needs, the Scheme is the only scheme available to those with extremely complex disabilities, such as Mr Caterson. Aside from the legal outcome of the current appeal, in reviewing these proposed amendments, consideration must be applied to the scenario where Mr Caterson’s family can no longer provide him with support. The question of where is that support to be derived, if not the NDIS, must be asked. Currently, the NDIS is the only option, yet it does not provide the type of support required for Mr Caterson to live as independently as possible, in the general community.

Ordinary community supports One of the concepts in the Explanatory Memorandum is that ‘participants often do better when informal supports, including family, peers, clubs, employers and local services play a role

alongside funded supports.  It is wrong to assume that these informal supports exist for  all

participants. Even where they do exist  this concept presents foreseeable safety risks  for

participants if their informal supports cannot appropriately support their needs. This can include, not being trained and not having been subjected to the checking processes applied to registered supports. This is especially important when the participant has vulnerabilities or requires personal care support. The presence of informal supports should not be over relied upon by the Agency to supplement a participant’s plan. Participants have the right to dignity and to maintain normalised relationships with family, friends and employers, rather than being required to rely on them for support.

Ministerial determinations - proposed subsections 33(2EA) and 33(2EB) Ministerial determinations (such as mentioned in new subsection 33(2E)) specifying the maximum amount of funding for supports, maximum intensity for provision of supports or a maximum ratio of workers to participant, fail to consider individual circumstances and what the person’s supports/therapists assess as adequate or appropriate. A participant’s support requirements may fluctuate, depending on their circumstances. Participants who rely on supports, the subject of a Ministerial determination, could and are a likely to be harmed when a reduction occurs.

It is an oddity to say on the one hand that there is a ceiling for funding amounts in particular circumstances (proposed s 32E - a support or class of supports in relation to participants generally or a class of participants), yet participants with ‘objectively’ the same support needs could have different supports and levels of support because this is what has been deemed to be reasonable and necessary.

15 National Disability Insurance Agency v Caterson [2026] FCA 287 18

Submission 783

Mailing: PO Box 5649

West End QLD 4101

Phone: 07 3255 1244 Email: sufy@sufy.org.au Website: www.sufy.org.au

ABN: 58 812 329 872

The example  of  Astrid  (Explanatory Memorandum,  pp.  50-51) and Marco  (Explanatory

Memorandum, p. 51) show that the impact of determinations on individual participants will be significant. The 12 hours a week Astrid was accessing the community, may be the only time she leaves her house. The hours could be used for support while travelling to and from activities and support while she engages in activities. The hours Astrid uses for accessing medical appointments and shopping are unlikely to be negotiable and waiting time for her appointments will be out of her

control. The  Ministerial determination which reduces Astrid’s  social, community and  civic

participation support funding from the reasonable and necessary assessed amount of $44,000.00 to $30,000.00, will result in isolation and significantly less time to engage in community activities.

Marco’s example is interesting for several reasons. First, Marco is undergoing a reassessment and assumably plan funds have been used to gain his 3 assessment reports (in 3 disciplines) regarding Marco’s future support needs. Despite the reports recommending therapy hours totalling 96 hours (there is no specification in the example of the hours for each discipline – speech pathology, occupational therapy and physiotherapy) the Agency Planner decides that 30 hours for each of the 3 disciplines (90 hours in total) is reasonable and necessary. However, a support determination applies, which limits Marco to a maximum of 25 hours for each discipline (with a total of 96 hours). Because the support determination is not flexible, Marco’s parents work out how to use the reduced funds where they are best applied. This could mean that Marco’s level of functioning in each area, or one or more of the areas, reduces, stagnates or progresses at a slower rate. This is likely to require increased support for Marco in other areas and in the long term.

Effective and beneficial considerations - Proposed subsections 34(1E) and (1F) The proposed narrowing and prioritising for the CEO of matters that can be considered when deciding whether a support is effective and beneficial, limits their discretion and reduces the

importance  of person-centred evidence. The  prioritisation  of published peer-reviewed and

generalised research about regarding effectiveness of a support, intentionally eliminates variables applicable to the participant that may not have been considered. Determining whether the evidence was in regard to ‘people in similar circumstances to the participant’ is limited to factors such as ‘age and nature of impairments’. The participant may have a range of impairments, which make a support more appropriate for them compared to one that may be suitable for a participant with only one of their impairments. It may be that the ideal support is not effective and beneficial to them due to the interaction of these impairments. This proposed amendment downplays the importance of evidence from the participant’s therapists and medical specialists, along with the participant’s lived experience of what does and does not work for them.

Family etc. support - Proposed new subsections 34(1G), (1H) and (1J) Families across our communities experience varying degrees of complexities and needs in their lives. The proposed changes to s 34(1)(e), regarding what is to be considered in deciding reasonable support for families or carers to provide, lacks clarity as to whether consideration of the whole family unit will be permitted. The only clear reference to consideration of the whole

household  is under proposed subsection 34(1J) where household efficiency  is a prohibited

Submission 783

Mailing: PO Box 5649

West End QLD 4101

Phone: 07 3255 1244 Email: sufy@sufy.org.au Website: www.sufy.org.au

ABN: 58 812 329 872

consideration. If the Act fails to consider the needs and capacity of the family, support and funding gaps will be created, placing additional pressure on the most vulnerable families in our community.

An example of the potential impact of these proposed changes for Angela, who is a mother of three children, each with disability and have access to the NDIS. Each child requires formal support for their activities of daily living. Angela relies on these formal supports to ensure each morning her children make it to school and Angela can go to work. Under the proposed changes parents are responsible for providing substantial care and support for their children including assistance with the activities of daily living. This care and support may be well beyond that required by a parent of a child of a similar age who does not have a disability

There is also a risk under proposed subsection 34(1J) that in relation to Angela’s family situation that the substantial purpose of the support would be interpreted as to improve household efficiency. Under these proposed changes Angela’s children risk losing essential support worker assistance. Consequently, Angela’s children may not receive appropriate care in the mornings, and Angela’s employment may be jeopardised.

Where supports for children are not funded under the NDIS they generally fall on mothers of these children, whether these women are in paid employment or are undertaking full time caring responsibilities for the family. This extra work or increased time spent on these tasks compared to that required for children without disability can and does result in women being excluded from paid employment, or having to work hours or jobs to suit their disabled child’s support requirements, such as part-time, during school hours or in employment roles below their qualifications and experience levels.

The proposed changes will especially disadvantage parents who have a disability who are also caring for a child with disability. The amendments place the threshold as to what would be reasonably expected of a parent without disability. This test is ableist and lacks nuance for the myriad of family circumstances in our communities. This threshold fails to consider, that for a parent who has a disability, there may be barriers they face in in their parenting role.

Currently, in cases where parents are appealing a lack of core funding, they are often refused funding if there is any indication that these funds are being utilised to support them with their parenting role. There is often a lack of understanding that the parent requires funding to support them to care for their child due to their decreased functional capacity to undertake certain aspects of their parenting role. This nuanced distinction is often overlooked by NDIS Planners. This lack of funding means that these families will be greatly disadvantaged beyond what may have been

intended by these proposed amendments. A better understanding by Agency  staff  of  this

distinction will be even more important, given the likelihood of greater cuts to children’s plans for assistance with daily living.

Families where both the parent and child have a disability are at greatest risk of from these proposed changes. For example, Sophie has a mild intellectual impairment. She does not have access to the NDIS but her intellectual impairment impacts the time she needs to undertake some parenting tasks. Sophie is a mother to a young girl with Autism who has access to the NDIS. Under

Submission 783

Mailing: PO Box 5649

West End QLD 4101

Phone: 07 3255 1244 Email: sufy@sufy.org.au Website: www.sufy.org.au

ABN: 58 812 329 872

the proposed changes Sophie’s disability will not to be considered when calculating Emily’s level of funding for assistance with activities of daily living. The lack of consideration of Emily’s family environment could have severe consequences for both Sophie and Emily, if they cannot obtain formal support.

The proposed changes to the interpretation of s 34(1)(e) will place a far greater burden on families to provide care. The consequences for families will be compounded by the proposed changes to funding levels for Social, Civic and Community Participation. Reducing funding for Social, Civic and Community Participation will impact children but especially young adults, who are at an age where socialising is extremely important. Pressure will be placed on family members to provide this support, which consequently could reduce the confidence and development of young adults’ progress towards independence. These proposed changes will impact family dynamics, their stress levels (including emotional and financial stress, carer burnout) and increase risk factors for all family members.

Plan suspensions and revocations Given the serious consequences of suspending a participants plan, this proposed amendment needs to be more specific in relation to the number of attempts to contact (at least 3 attempts), the timeframes between these contact efforts (over a period of at least 6 months) and that the mode of contact used must be the last recorded preferred mode of contact by the participant. This must occur prior to the process for revocation of a participant’s plan.

The content of the correspondence from the Agency, whether in writing or verbal, must inform of the importance of the participant engaging with the Agency and the consequences if they do not engage. The participant should also be informed that they should gain assistance if they do not understand the contents of the letter.

We have seen letters written to participants when they have intellectual disability and cannot read or write. They have plan and correspondence nominees, yet mail is sent to their address. Others with psychosocial impairment have received direct phone calls and emails from Agency staff when they have made it clear that the contact triggers trauma responses from them and that Agency staff are to contact nominated family members who will relay the information to them at a time when they can engage with it.

Many people with disability struggle to understand Agency processes and some people won’t be able to engage, may not see or understand the significance of the correspondence, resulting in a decision that their plans are suspended or their access is revoked. At times we are contacted by participants who are unaware of the review timeframes and their plan supports are unsuitable for them and they want to know what they can do. They do not understand their plans, and they finally find their way to us through a referral.

This proposed amendment should not be passed as is. In addition to the above, there must be a process for participants whose access has been revoked through this process to have their plan supports reinstated in an expedited timeframe.

Submission 783

Mailing: PO Box 5649

West End QLD 4101

Phone: 07 3255 1244 Email: sufy@sufy.org.au Website: www.sufy.org.au

ABN: 58 812 329 872

Automation of administrative action - automated decision making It is indicated in the Explanatory Memorandum that automated decision making (ADM) will be applied to administrative decisions that have to date required evaluation and at times discretion. The evaluative determinations to which ADM will apply must be assessed by the CEO to be ‘sufficiently objective in nature’ and must be an action the CEO themselves could take. This explanation of the intended use of ADM is of itself vague, sets no real parameters of the nature of the decisions to which it will apply, thus causing concern. It is acknowledged that the CEO can substitute an administrative action where the ADM is not ‘correct or preferable’, it is likely that the impacted person will need to draw this to the CEO’s attention. The impacted person will be a person with disability who is unlikely to understand their rights in relation to the decision. Importantly, the concept of a ‘correct or preferable’ decision usually indicates a level of discretion for a decision based on a person’s circumstances/evidence, where more than one decision could have been made. ‘Correct or preferable’ does not connote a mistake in the decision making, but that there was another decision that was the ‘correct or preferable’ decision in the circumstances. These ‘evaluative determinations’ are not the types of decisions that lend themselves to ADM impacting people with disability.

For ADM to work efficiently, database information must be accurate and up to date. As mentioned in the example above regarding the disabilities and impairments recorded for participants, we know that this is not the case. This is important if ADM is to apply to Ministerial determinations that impact participants based on their impairments, including where the person has more than one impairment. It is of concern that there is no reference in the Explanatory Memorandum to the Royal Commission into the Robodebt Scheme (Robodebt Royal Commission) recommendations and how these are to be addressed in designing and implementing ADM. This is crucial given the relevant commentary and precautionary measures in the Robodebt Royal Commission report recommendations, applicable when vulnerable people will be impacted by ADM.

ADM has the potential to increase vulnerability of people with disability by increasing the discrimination and exclusion they experience by social processes, including interactions with government departments and because of government decision making. ADM has not been discussed with people with disability.

The context of the purpose of ADM in this Bill, is to quickly implement decisions to reduce costs, and to not have these decisions reviewed – based on proposed amendments which remove requirements for due process and transparency. This is not how ADM should be designed where those impacted are vulnerable people. Rather, ADM as intended to be used by the Agency will increase or arguably exploit vulnerability. It is highly unlikely that it would be used by government to make such important decisions, at such as mass scale, in this way on the general population.

Transparency when using ADM We know the Agency has already used ADM, albeit not transparently. The purpose of transparency when using ADM requires that any of its applications that impact the recipient of a decision must

be  declared  to  them.  This  includes where  part  of a  decision  is made by ADM,  or

Submission 783

Mailing: PO Box 5649

West End QLD 4101

Phone: 07 3255 1244 Email: sufy@sufy.org.au Website: www.sufy.org.au

ABN: 58 812 329 872

guidance/recommendations is provided by ADM, or calculations are made by ADM. Most people will assume that humans are doing making decisions and calculations, in total, as occurred when Centrelink recipients received the debt notices in the Robodebt scheme.

It should never be assumed, as is expressed in the Explanatory Memorandum (p. 137), that ‘a person may be able to discern that an action was undertaken by a computer program because of the requirement for the CEO to make a standard operating procedure instrument in subsection 59D or publication requirements placed on the CEO in subsection 59E(6).’ It must be remembered that the ‘people’ referred to, are likely to be people with permanent and significant disability.

When the Agency uses ADM, it must use language that best describes the process, which is ADM and it must explain this concept to people with disability. This will be new information to most people. The information must include that the decision is processed by a computer, has little or no human input and that the decision is being made in relation to x participants (e.g., the parameters of the population to which is applies needs to be explained so the people impacted can understand it), for x reason/s. The reasoning must be sufficient for the person to understand it). Where recourse is available if the ADM should not have applied to a person impacted or there are review rights, this information must be made clear to all people the ADM impacts. All this information should be provided in advance of the use of ADM, so the person can best understand the decision when it is implemented.

While it is agreed that information regarding the use of ADM must be published on the Agency’s website, this alone, is insufficient. The website is extremely large and complex, it is difficult to navigate, even when you use search terms, and many people with disability and others who need to find the information regarding ADM, would not be able to find it. The information regarding the use of ADM must be provided directly to those will and who may be impacted by its use, in their preferred mode of communication.

ADM - oversight Given the known impacts of ADM in administrative decision making on vulnerable people and the history of its use and misuse in Australia to date, independent oversight is ideally required before its increased use by the Agency. We understand that while meaningful oversight is currently lacking in Australia and that ADM, where it is low risk and increases efficiency, can be beneficial for services users and government. However, when ADM is applied to vulnerable people, such as people with disability applying to access the Scheme and to participants, it should only be used for low level procedural administrative decisions which do not require evaluations, assessments or risks to the recipient of the decision.

Given the current lack of an oversight body the Agency should develop accountability and transparency processes requiring it to provide information as mentioned above. The Agency should contract external independent consultants with human rights expertise before designing and development ADM processes and when reviewing and updating them. A human rights impact assessment by an independent (external) human rights expert consultant is fundamental prior to ADM being used. This can determine the potential harm of ADM to people with disability and where

Submission 783

Mailing: PO Box 5649

West End QLD 4101

Phone: 07 3255 1244 Email: sufy@sufy.org.au Website: www.sufy.org.au

ABN: 58 812 329 872

deemed too risky or harmful, it should not be used. The results of this assessment should be published on the Agency’s website long with its response.

Safeguards for ADM use This Bill eliminates, in certain circumstances, through technical processes (e.g., plan renewals and Minister determinations), internal and external review processes that have been and should continually be available to those impacted by decision, especially where they are directly impacted by ADM.

We have seen that previous amendments to the NDIS Act, which included the government’s

commitment to reduce the costs  of the NDIS, resulted  in dramatically increased Agency

administrative decisions. This included over 1000 eligibility reassessment letters sent a week to NDIS participants,16 generally requiring participants to provide evidence within 28 days,17 that they remain eligible for the NDIS. The reason provided was that the Agency did not think they were currently eligible. The particularity for the reasoning was not provided and therefore no specific information was requested by the NDIA. The NDIA viewed that requests for general information, provided for a response in 28, whereas requests for specific information or a report, allowed for a response in 90 days.18

Even though review rights were maintained, this process was procedurally unfair, akin to a fishing expedition, requiring the participant to scramble to gain evidence in a relatively short timeframe and await the potentially dire consequence – a decision that they are no longer eligible for the NDIS and immediate termination of their NDIS plan.

These review rights will not be available with many of the proposed ADM decisions, there will be no engagement with Agency staff prior to decisions, and these decisions will occur on an even larger scale.

16 It was also reported that 7847 eligibility reassessments occurred in six weeks, mainly on children accessing the NDIS through the early intervention childhood approach (childhood approach). Of those reassessed, it was decided by the NDIA that 48% were no longer be eligible, 32% were found eligible with permanent disability and further information was being sought for 20% (Rick Morton, The Saturday Paper, Exclusive: ‘NDIS crackdown wrongly withdraws support’, November 9 – 15, 2024, No. 525). 17 It is noted that the Agency subsequently changed its view that the timeframe required was 90 days. 18 National Disability Insurance Agency, ‘How do we decide if you’re still eligible for the NDIS?’, Accessed 10 January 2025, <https://ourguidelines.ndis.gov.au/home/becoming-participant/leaving-ndis/are-you still-eligible-ndis/how-do-we-decide-if-youre-still-eligible-ndis#when-can-you-be-> 24

Submission 783

Mailing: PO Box 5649

West End QLD 4101

Phone: 07 3255 1244 Email: sufy@sufy.org.au Website: www.sufy.org.au

ABN: 58 812 329 872

We again thank you for the opportunity to provide a submission. We welcome you to contact us for further information on any of our views. We hope that you carefully consider each submission and genuinely listen to the views and concerns of the disability. We continue our request for the reforms to cease until and unless genuine consultation and co-design occurs with the disability community.

Yours sincerely,