Introduction
3.1
The capability of the NDIA to deliver the NDIS is integral to the experience of participants, and that capability is strongly informed by organisational culture.
3.2
The committee has heard from numerous submitters and witnesses that there are significant issues with the capability and culture of the NDIA, which are having a serious impact on delivery of the NDIS and on people trying to access information, support and service from the agency.
3.3
This chapter examines several areas related to the capability and culture of the NDIA about which submitters and witnesses have raised concerns. The issues raised – while genuine and pressing – are not new, and the committee in previous Parliaments has made recommendations to address these concerns. Where recommendations have been made and government responses received, this is noted in the footnotes.
Administrative burdens
3.4
Submitters described a culture within the NDIA where some staff do not accept that participants, their carers, and their health professionals are best placed to assess which supports are reasonable and necessary for daily living.
3.5
It was put to the committee that organisational pressures to cut costs appear to have encouraged planners to find ways to justify denying or reducing services to participants, or require participants to have to prove again and again their disability and their need for support. In many cases, participants with permanent disabilities have felt forced to repeatedly explain their disability and their ongoing need for appropriate supports. This has created a significant administrative burden not only for participants, but also for service providers.
3.6
The Australian Federation of Disability Organisations described a gradual erosion of the concept of 'reasonable and necessary' supports within the NDIA, with its workforce failing to recognise people with disability as experts in their own lives, and frequently disregarding the advice of health professionals.
3.7
The Aboriginal Health Council of Western Australia described the administrative burden of the NDIS as cumbersome and often beyond what is manageable. They noted that this was especially true for small organisations and regional, remote and very remote providers which deliver NDIS services while managing multiple complexities.
3.8
National Legal Aid explained that the NDIA's unwillingness to fund medical reports for participants who are unable to pay for reports themselves creates administrative burdens for others.
This imposes an increased burden, including an administrative burden, on the resources of other agencies, such as state health services, therapists, disability advocates, the Administrative Appeals Tribunal (AAT), and the LACs.
3.9
The ACT Government cited feedback from consultation with the disability community that participants felt strongly that the NDIA was overly bureaucratic and complex. Participants reported being exhausted by the administrative burden, and the need to communicate with multiple layers of management and different organisations.
3.10
This view was echoed by the mother of an adult NDIS participant with Down syndrome:
… while I understand the need for evidence and a strong support for 'reasonable and necessary', that sense of having to prove it being put on the participant I think is sometimes quite inappropriate, and it's certainly exhausting. You are trying to stay a step ahead of what the NDIS might ask, and therefore are collecting information that normally you would let go. It's a constant load to try and meet that sense of evidence.
3.11
Ms Grace, Advocacy Services Manager at Kin Disability Advocacy, explained that the evidence-gathering process was especially difficult for certain already disadvantaged groups and delayed their access to important supports.
Some of our clients—newly arrived refugees, Aboriginal clients living remotely and clients with psychosocial disability—often have difficulty providing evidence when applying for the NDIS. This means that they often go lengthy periods of time without support whilst awaiting an appointment with specialists to provide the required evidence. It really impacts on newly arrived families.
3.12
National Disability Services cited surveys of disability providers since 2014, which had continued to describe frustration with administrative burdens, NDIS systems and processes, and the way in which the NDIA works with providers.
Requirement to repeatedly prove disability
3.13
NDIS guidelines note that if applicants meet the disability requirements for eligibility, they are likely to need the NDIS for a long time, which means that participants will not need to prove their disability every time plans are reassessed.
3.14
The NDIA gave evidence that in 2021, in response to the Tune Review, it made 24 month or longer plans the norm for participants with stable support needs. During the time covered by a plan, a check-in is to take place with a participant's planner, partner or support coordinator to discuss whether the plan continues to meet their needs.
3.15
Many submitters gave evidence of their frustration at having to continually prove their disability at each annual plan review, its impact on their lives, and their need for appropriate supports.
3.16
The Darwin Community Legal Service (DCLS) made clear that it is 'degrading and harmful to force a person to explain and evidence the functional impact of their impairment(s) over and over again.' The DCLS stressed that accessing and using the NDIS places an enormous administrative burden on participants.
This begins when a person is expected to prove their disability and functional capacity impairment to make access to the scheme and, when successful, to substantiate supports for the first plan. The plan reassessment cycles and appeals process again burden participants, as they are forced to use their resources to confirm that their impairments continue to impact their lives.
3.17
The Summer Foundation explained that participants 'often dread upcoming plan reassessments and feel that there's a burden on them to have to fight for reasonable and necessary supports.' When the Summer Foundation surveyed participants, one person responded that 'funding has been really difficult to continue to fight for each year, having to prove lifelong disability that will never improve.'
3.18
This frustration was especially acute for participants with progressive or degenerative disabilities. For example, Muscular Dystrophy Australia gave evidence that:
… current NDIS arrangements don't work well for people living with the knowledge their disability is progressive. Each of the 60-plus forms of muscular dystrophy our clients live with are comparatively rare. People tell us they feel they're constantly having to 'prove' their disability status; collate reports, information and evidence; and re-educate NDIS staff on the condition with which they live.
3.19
An NDIS participant described the experience of stress, anxiety and uncertainty caused by annual plan reviews:
It doesn't get any easier each time I have to do it. It puts great strain on my mental health knowing that this could potentially happen every time my plan is due for review. This has left me feeling highly anxious whenever I need to think about or discuss my NDIS plans. This is one of the reasons I want a three-year plan. Even though my circumstances may change, having a yearly plan scares me.
3.20
A parent who cares for her son with disability reflected on the burden of annual planning reviews and the need to repeatedly prove her son's level of disability:
Like many other older parents I cannot continue to live under the shadow of a forthcoming Annual Planning Review. These reviews have become Funding Reviews more than Planning Reviews. The prospect of having to prove [my son's] level of disability every year is too much for me. It also imposes a huge burden on his main provider whose team has to get all kinds of internal and external reports and assessments in place to satisfy NDIA. [My son] also has to be taken to specialists for statements of his 'current' need for support. This is so frustrating and I ask the question: Who benefits?
3.21
The committee notes legislative changes that commenced on 1 July 2022, which allow for participants to request variations to their NDIS plan, without having to replace the current plan with a new one.
3.22
The committee also recognises that NDIA delegates must obtain necessary evidence and documentation to make appropriate decisions. However, the committee is concerned about the administrative burden placed on participants by having to repeatedly prove their experience of permanent disability.
NDIA handling of documents
3.23
Evidence to the committee suggests that administrative burdens on participants, carers and service providers are exacerbated where NDIA staff require applicants and participants to supply the same information multiple times. Several submissions shared frustrations at having to repeatedly submit the same documents to the NDIA at each plan review.
3.24
The Rights Information Advocacy Centre (RIAC) gave evidence of documents being mishandled by the NDIA, which leads to significant delays in preparing AAT appeals. RIAC advised of an instance with the NDIA where:
From the beginning of the process, when our request was lost and had to be resubmitted, to incorrect supports listed on documents, I was needing to contact them on several occasions to get things documented correctly… It's a bit hard when they lose your paperwork after you've submitted an internal review, and then three months later you have to chase them up for them to acknowledge they've lost it and can you resubmit it thanks. In our particular case this year, then when we finally got the internal review back they actually had incorrect information on the document, so I then had to follow them up to get that adjusted.
3.25
The sister and guardian of an NDIS participant gave evidence that when helping her brother to apply for internal review of a decision:
We did all the reports that we were supposed to and everything that they asked for. We had already provided some of these. There was more cost to get the same reports when they basically already had all the information. Then we were asked questions about what his NDIS number was, because we didn't provide it. Obviously, they are not reading documents, because it was put in the documents to start off with; it's not something that was forgotten. I feel that they are not reading all the documents properly and just making the decisions without going through all the detail.
3.26
The committee was told that requiring applicants and participants to resubmit documents while reviews or appeals are on foot could result in withheld supports until the matter was resolved. For example, Autism Aspergers Advocacy Australia (A4) described an AAT appeal process where NDIA representatives claimed not to know about previous appeals and required the applicant to resubmit all the evidence needed to justify a complex combination of supports. While the appeal was delayed, funding for services was cut and services stopped. A4 asserted that this loss of services was later used to justify further cuts due to reduced NDIS plan utilisation.
3.27
Advocacy for Inclusion ACT called on the NDIA to reduce the administrative burden on people with disability across every aspect of applying for access, planning, review and engagement, noting that they had seen participants being required to submit the same documents over and over again.
3.28
The committee notes the Minister's announcement of increased resourcing in the October 2022–23 Budget to reduce the number of appeals to the AAT and to support participants and families with the AAT appeals process.
Organisational culture
Focus on costs
3.29
Many submissions suggested that a cost-cutting culture has emerged within the NDIA, at the expense of supports for participants. While one of the five pillars of the NDIA is to provide a financially stable NDIS, the committee received evidence that this is being given priority over providing a quality experience and improved outcomes for participants.
3.30
The committee engaged extensively with a range of reports related to the costs of the NDIS in its report on Current Scheme Implementation and Forecasting for the NDIS, including those of data analytics and actuarial firm Taylor Fry and the Productivity Commission.
3.31
A joint submission from advocacy organisations suggested that the NDIA's culture is focused on cost-saving over the wellbeing of participants, and that this shapes organisational practices, procedures and workforce culture, with profound impacts on people with disability.
3.32
Spinal Cord Injuries Australia (SCIA) discussed a perception that the NDIA 'is constantly looking for opportunities to make cuts to services and funding'. Price freezes on support coordination, plan management and therapy services were assessed to have 'seriously impacted participants, support coordinator providers and their staff', especially in underserved regional and rural areas.
3.33
This view was supported by Allied Health Professions Australia, who described the impact of cost-cutting on participant outcomes:
There is an attitude generally of cost-cutting before all else that reflects the focus on so-called financial sustainability. This appears to be short-sighted, with planners and local area coordinators having no understanding of why certain services or equipment are vital to that person's life, and may actually save money in the future. This attitude is reflective of a dehumanisation of people with disability, whereby there is a monetary figure placed upon their inclusion and participation. And if the equipment or services necessary to achieve this are deemed to be too expensive, these people are denied these basic rights.
3.34
An NDIS participant gave evidence that the NDIA's focus on costs led her to feel that her goals and needs were ignored and led to insufficient funding being granted under her plan:
I provided what I believe to be reasonable and necessary evidence to support my new plan request. However, when I received my new plan, my funding was a fraction of what I needed. I felt very upset and dismayed that the NDIA was seeing me more as a budget of dollars to be managed, rather than supporting me as a person with a disability. They disregarded my goals and they didn't even look at how my goals related to my funding. Had they bothered to consult me and see how my funding related to my goals, they may have been able to come to a more reasonable outcome.
3.35
Some submissions expressed concern that the NDIA may be devaluing the services of allied health professionals in order to substitute them with less expensive services in participant plans. For example, Speech Pathology Australia submitted that:
There are consistent accounts of NDIA staff questioning the expertise of experienced allied health professionals. Families have discussed with speech pathologists that NDIA staff have disclosed they have not even read the reports, or that they will be making the decision, regardless of the advice of the therapist… This devaluing of allied health providers is also seen in the numerous reports of NDIA staff refusing to fund qualified speech pathologists, and instead insisting that an Allied Health Assistant (AHA) is able to provide the same service, leading to drastic plan reductions with therapy funds being significantly limited.
3.36
The NDIA drew attention to the increasing costs of providing the NDIS, saying the 'most recent estimate is that the NDIS will cost $50.3 billion in 2025–26 and more than $70 billion in 2029–30.' The NDIA explained that:
The rationale for this increase has been attributed to two key drivers – the increasing average cost of participant plans and an increase in the number of Australians eligible for the NDIS.
3.37
As the NDIS continues to grow, so do the NDIA's operating expenses, which have increased from $906 million in 2017–18 to $1.58 billion in 2021–22. It is anticipated that operating expenses will increase to $1.57 billion in 2022–23, and $1.83 billion in 2023–24, reducing to $1.5 billion in 2024–25.
3.38
However, the NDIA observed that 'as a percentage of participants' costs, operating expenses have decreased from 16.7% in 2017–18 to 5.5% in 2021–22'. The NDIA continued that:
In the 2017 Productivity Commission report on NDIS costs, it suggested a range of 7–10% as an appropriate amount for NDIA operating expenses, while noting that an operating budget set too tightly 'could hinder [the NDIA's] ability to implement upfront investments, such as in LACs and planners, which could in turn have a significant effect on package costs and Scheme sustainability.'
3.39
In its most recent Annual Financial Sustainability Report, the NDIA notes that there are 'few substantive legislative, policy or operational responses currently planned to mitigate upward cost pressures'. With the exception of current initiatives to improve agency processes and to address fraud and compliance, no additional future savings have been explicitly allowed for.
3.40
The committee understands the importance of the role of the NDIA in ensuring that the NDIS is sustainable. However, it is equally important that the NDIA maintain connection and meaningful engagement with stakeholders and ensure a quality experience with improved outcomes for participants. The committee acknowledges that the NDIA has not said that cutting costs is its primary focus, and also welcomes the government's legislative changes to refocus the NDIA on participant engagement and outcomes.
Staff turnover and reliance on labour hire
3.41
Evidence to the committee indicated that the capability and culture of the NDIA has been affected by staff turnover and a continued reliance on labour hire staff, despite recent increases in APS staffing levels. Several submitters gave evidence that high staff turnover negatively affected continuity of care, with participants and carers having to explain issues again and again to new staff members.
3.42
The Northern Territory Public Guardian and Trustee submitted that frequent staff turnover exacerbates difficulties for NDIA staff in directly engaging with participants to build understanding and ongoing relationships with participants, their families and decision makers.
3.43
The Community and Public Sector Union (CPSU) submitted that data from August 2022 indicated 1,818 labour hire staff were employed by the NDIA, which is the highest level since April 2020. The CPSU called on the government to prioritise the reduction of insecure labour hire arrangements.
3.44
National Disability Services (NDS) submitted that an overreliance on contractors and labour hire employees at the NDIA had been a consistent issue for some years. NDS welcomed a recent increase in APS staffing at the NDIA, but also noted that the use of labour hire employees had not been reduced. NDS also asserted that reliance on labour hire staff resulted in insecure working conditions, short-term contracts, large turnover, double handling, wasted investments and differentials in pay.
3.45
The Australian Federation of Disability Organisations recommended that the government reinstate a 10,000 APS workforce operating model for the NDIA, to enable NDIS planning activities to be done by APS staff, and prevent continued reliance on contractors and labour hire staff.
3.46
The committee notes the government's commitment in the October 2022 Budget to hire an additional 380 permanent NDIA staff to better support people with disability and their families, carers, disability service providers and workers.
Disability training for NDIA staff
3.47
Planners play a key role in funding supports for people with disability, determining eligibility for support and the amount of funding allocated. However, evidence presented to the committee suggested that many NDIA staff do not seem to have adequate training, experience, or understanding of disability. Many submitters to the inquiry have called on the NDIA to ensure that planners are appropriately trained and supported to ensure that they are making sound decisions and respecting the lived experience of people with disability.
3.48
The Office of the Public Advocate Victoria (OPA) noted that planners have varying degrees of experience and expertise. The OPA suggested that some planners demonstrate an in-depth understanding of disability and are able to accurately estimate service hour requirements during a planning meeting, whereas others with less knowledge are not able to make accurate recommendations. The OPA therefore recommended that the NDIA establish a requirement that all planners and LACs have relevant disability and mental health training. The OPA also called for the development of a national training program for planners and support coordinators.
3.49
The Australian Lawyers Alliance (ALA) submitted that many NDIA planners seem to lack specific knowledge or relevant professional qualifications, and suggested that this leads them to disregard recommendations of health professionals. The ALA reflected that NDIS participants with complex care needs are among the most vulnerable cohort of NDIS participants, and therefore require planners with sufficient training and experience to create appropriate, comprehensive and tailored support plans.
3.50
Occupational Therapy Australia expressed concerns that a perceived lack of training and decision-making support for planners and coordinators 'can result in inconsistent and opaque decisions which do not result in the best outcomes for participants or the best use of funds to improve participants' daily lives.'
3.51
Dementia Australia submitted that there is inconsistent awareness of dementia among NDIA staff, which impacts the quality of NDIS plans. Dementia Australia agreed that it was essential that NDIA staff, including planners and LACs, should receive training on complex disabilities, and that this should be mandated in the NDIS Act.
3.52
Women with Disabilities Victoria Bendigo Hub (WDV) contended that applications were being rejected in cases where a planner without understanding of specific disability made inappropriate assumptions about its characteristics. For example, a person with multiple sclerosis (MS) was rejected because the word 'degeneration' was not in their plan, yet a person with a basic knowledge of MS would understanding that it is a degenerative condition. WDV members reported frustration and exhaustion at trying to educate NDIA staff on their disability, which left them feeling discouraged, devalued and unsupported.
3.53
The NDIA outlined its training resources for NDIA and partner staff, including a one-day 'Welcome to the NDIA' induction course, a series of mandatory eLearning modules, 'planner essentials training, and a range of complementary resources and training including 'disability snapshots' developed in partnership with peak disability organisations'.
3.54
The NDIA's operating model includes direct employment of a service delivery workforce, alongside employment of a smaller cohort of staff providing support for NDIA's corporate functions. The NDIA also works with 26 community-based organisations to deliver the NDIS, known as Partners in the Community.
3.55
NDIA staff are a combination of APS employees, labour hire engagements or contractors. The NDIA explained that it employs staff:
… with a range of different skills and capabilities. The NDIA has a highly skilled and capable workforce focused on improving service delivery to participants. Planners are expected to understand how disability impacts a person's daily living, assess their support needs where necessary, and identify when they could benefit from early intervention.
3.56
The NDIA's submission discussed several strategies designed to attract suitable staff and encourage the employment of people with disability. These measures include the RecruitAbility program, which allows for reasonable adjustments to participate in interviews, any assessments and to perform workplace duties; affirmative measures to advertise specific roles only to people with disability; and accreditation as a Disability Confident Recruiter by the Australian Network on Disability, which requires organisations to demonstrate that its recruiters and procurement processes are free from barriers to people with disability.
3.57
The committee shares the concerns of submitters who have given evidence that suggests that many NDIA staff, particularly planners and local area coordinators, may not have adequate professional qualifications or training to appropriately assess reasonable and necessary supports.
3.58
In its December 2020 report on NDIS Planning, the committee made several recommendations in relation to planner qualifications, training and resourcing. The government response to the report supported two of the recommendations, supported one in principle, and noted one.
Respecting professional expertise
3.59
Submitters and witnesses agreed that many NDIA planners appear not to have sufficient training or knowledge of particular disabilities, and voiced concerns about planners disregarding or not reading the reports of health professionals. Several submissions reflected that this may be due to planners being assigned caseloads that did not allow sufficient time to read relevant materials.
3.60
Ms West from Allied Health Professions Australia said that evidence gathered by NDIS participants is commonly lost or not read by planners, meaning that planners often have a poor understanding of participants' disabilities.
We have many, many instances where it's been reported that families have spent thousands of dollars on getting this evidence that they've been told they have to have, and then it's not even read, or it's strongly implied that it's been lost. Sometimes people have been told it's been lost—several times—and it's had to be resubmitted. And then the same questions come up—I've been part of several planning meetings—in the planning meeting that were actually addressed in those reports or in that evidence.
3.61
The Summer Foundation submitted that health professionals shared the frustrations of participants at not being able to plan for the long term due to plan and funding restrictions, the need to repeatedly prove participants' level of disability at planning meetings, and NDIA staff disregarding professional assessments. The Summer Foundation said that:
Removing the repeated burden of proof – these are people with severe permanent disabilities already accepted onto the scheme, we should not have to prove this each time, nor have to endlessly justify to NDIS staff with NO health background or understanding, the recommendations we are making based on our degrees, ongoing CPD [Continuing Professional Development] and years of experience.
Communications
3.62
Evidence to the committee indicated opportunities for the NDIA to improve the frequency, clarity and transparency of its communications with participants, carers and service providers.
Close and ongoing engagement
3.63
The committee notes evidence criticising the NDIA for a lack of meaningful engagement with the disability community. For example, a joint submission from disability advocacy organisations reflected that meaningful engagement between the NDIA and people with disability had decreased due to 'inaccessible and unreliable systems, a lack of transparency, minimal participation and the NDIA's unfair decision-making'.
3.64
Similarly, the Australian Federation of Disability Organisations called on the NDIA to undertake meaningful consultation with people with disability and representative organisations to improve planning processes.
3.65
The committee heard from multiple sources that NDIA staff often do not communicate directly with participants, resulting in decisions being made from a distance without consultation or adequate understanding of participants' individual circumstances.
3.66
The father of an adult NDIS participant with Down syndrome spoke of the risk of misunderstandings occurring as a result of LACs acting as intermediaries between planners and participants.
I'm now talking to a local area coordinator, who then documents something and then hands it over to a planner. … it's a planner that we don't even know, we've never met, we've never seen and has not talked to my son. For all I know it could be an IBM computer doing it. It's just totally divorced of any contextualisation of the reality that we live in. … We want not only to deal with this planner directly but someone that understands what it's like to live with people with an intellectual disability.
3.67
Mrs McGarrigle, Intake Officer at the Rights Information Advocacy Centre (RIAC), gave evidence that a lack of communication between decision-makers and participants damages the quality of the NDIA's decision-making.
… all I see is the agency hiding behind an impenetrable wall of silence and bureaucratic red tape designed to bamboozle and exhaust those that the scheme is intended for. Communication is a one-way street, especially in the review process. … The fact that the delegate that is making this life‑altering decision is at least two degrees of separation away means that misunderstandings can occur and the decision-maker has had no interaction with the actual participant.
3.68
An NDIS participant suggested that NDIA staff should consult closely and regularly with participants to genuinely understand individuals' disabilities and needs.
Ask the participant how their plan is working for them and what changes, if any, need to be made. Involve us in the process as it's our lives. NDIA needs to return to a person centred approach. Treat us like humans. If you are not sure what supports should be in place, come to my home and meet me. I will help you to understand my disability and how these supports help me.
3.69
The NDIA's 2022–26 Corporate Plan states that it aims to 'keep improving the NDIS in line with the participant-centred vision outlined in the 2011 Productivity Commission Report', and notes this will only be possible 'through the commitment of [its] dedicated staff and partners'. The Plan continues that:
In 2022 and beyond, we will focus on improving our processes and systems – getting the basics right and making things as simple as we can. We continue to update our Operational Guidelines, sharing with participants clearer information about the NDIS and their plans, how we make decisions, and how they can best use their NDIS funds. This follows our commitment to make the Scheme more transparent and easier to understand.
3.70
The committee notes that recent updates to legislation have had the intent of refocusing the NDIA on the key role of people with disability in delivering the NDIS and looks forward to seeing the NDIA undertake more meaningful engagement with the disability community. The committee also notes ongoing consultation with the disability sector, including via the NDIS Review.
Clarity on roles
3.71
Participants and providers called for additional clarity regarding the nature of the roles of staff within the NDIA, including planners, LACs and support coordinators.
3.72
To illustrate this point, Vision Australia said that greater clarity is needed regarding the role of plan managers and the ways in which providers can reasonably expect them to administer funding, as mismanagement of funds leads service providers to take on an unacceptable level of financial risk that is not sustainable.
3.73
Occupational Therapy Australia (OTA) voiced concerns that there is a lack of training for support coordinators and too few stated expectations to guide people in the performance of their roles. OTA said that support coordinators should aim to facilitate participants and care providers working together to achieve positive outcomes. Greater training and clarity for the expectations and roles of the support coordinator role would therefore improve the outcomes for both participants and providers seeking to navigate the system.
3.74
Ms Jean Cotchin, Campaign Manager for Every Australian Counts, gave evidence that more clarity regarding the roles of planner, LAC, support worker and advocate would be helpful to participants and applicants, who currently face difficulty in finding the appropriate NDIA staff to help and support them.
3.75
Dr Baylosis, Policy Officer at Disability Advocacy NSW, provided an example of an NDIS participant with a psychosocial disability who did not know the difference between an LAC and a planner, and that he could request a meeting directly with a planner. Dr Baylosis suggested that meaningful engagement with participants at every stage of the planning process is key to ensuring that participants are adequately informed of the different roles of NDIA staff.
Transparency of rules and decisions
3.76
Speech Pathology Australia (SPA) expressed the view that there was a lack of transparency, where major changes to the NDIS were not well communicated by the NDIA, which at times appeared to border on obfuscation. SPA said that:
Major changes that have direct impacts upon providers and participants alike are implemented without any lead time or prior information. The rules shift frequently, but then are not communicated to the sector, placing the onus on the provider to notice a shift in wording, change their processes or documents and communicate this to the participants they work with.
3.77
Academics from the Hopkins Centre and the Law Futures Centre at Griffith University reflected on research findings that the NDIA's decision-making concerning reasonable and necessary funded supports lacked transparency and accountability, at the planning, review and appeal stages.
3.78
The father and guardian of an NDIS participant expressed his frustration about the lack of explanation regarding the NDIA's decision to reduce his son's funding:
There is a complete lack of transparency as to how these decisions about funding levels are made and how such decisions can ignore irrefutable clinical and other evidence clearly demonstrating the need for the supports that have been in place for a number of years needing to be maintained.
3.79
In its submission to the inquiry, the NDIA advised that it makes decisions about whether someone is eligible to become an NDIS participant and, if so, how much funding they will receive. The NDIA made the point, however, that while the 'fundamental objectives and principles of the scheme are simple and universally supported', there is complexity in the Scheme's implementation. The NDIA explained that:
… making decisions about a person's entitlements to NDIS supports is complex, with decisions about access to the scheme and reasonable and necessary supports made on a case by case basis.
3.80
The NDIA advised that in line with the NDIS legislation, only certain access and planning decisions can be made by a delegate of the NDIA CEO, and that delegates must be an APS employee. The increasing number of NDIS participants has therefore necessitated the 'placement of APS employees in key access and planning roles'.
3.81
The NDIA spoke to the decisions that these employees, as delegates, must make as part of the Scheme:
On average each month, these delegates make around 50,000 often complex decisions across 28 categories. Around 1,800 of these decisions are subject to an internal review, with around 400 proceeding to an external review by the Administrative Appeals Tribunal (AAT). While around 240 decisions have been overturned through formal external review, this represents 0.25% of all delegate decisions. The NDIA continues to make improvements to the dispute resolution process, and is committed to resolving disputes early.
Importance of draft plans
3.82
Transparency could also be improved through the provision of draft plans to participants, carers and advocates. The 2019 Tune Report noted that 'the participant experience would be improved if full draft plans were made available to participants prior to the NDIA delegate approving the plan', which would also reduce the incidence of unscheduled review requests, appeals, or difficulties in implementing plans.
3.83
The committee's December 2020 NDIS Planning final report similarly recommended that the NDIA 'provide fully costed, detailed draft plans to participants and their nominees at least one week prior to their meeting with an official with the authority to approve the plan'.
3.84
It is therefore disappointing to note the frustrations of many submitters to this current inquiry who advised that draft plans are still not being provided to participants, carers, and their advocates.
3.85
For example, Queensland Advocacy for Inclusion (QAI) commented that participants, especially those accessing the NDIS for the first time, report 'difficulties understanding plans and knowing which funds are intended for which purpose'. QAI observed that providing draft plans to participants would enable them to ask questions, provide feedback, and receive further advice about how to use their plans before final plans were issued.
3.86
South West Autism Network (SWAN) submitted that the NDIA 'has repeatedly stated that the agency's IT systems do not permit the sharing of draft copies of participant plans'. SWAN also shared its concerns about the deletion of the requirement for the NDIA to provide draft copies of participants' NDIS plan from the NDIA's Participant Service Improvement Plan 2022–23.
3.87
Vision Australia observed that participant involvement in the planning process could be improved through increased direct contact with planners, as well as provision of draft plans that are viewable by the participant and discussed with the planner prior to implementation.
3.88
A series of reports, including the Tune Review and those of this committee, have recommended that participants, carers and service providers be given copies of draft plans for review, to ensure that errors and omissions are corrected before plans are put in place and reduce the need for reviews and appeals. The committee is disappointed that, in many cases, draft plans are not being provided and urges the NDIA to restore the provision of draft plans to its Participant Service Improvement Plan as soon as possible.
3.89
When the NDIA responded to the committee's request for an update on its progress towards providing draft plans, the NDIA stated that it launched a pilot program in Tasmania on 14 November 2022 to test ways to improve how people learn about, connect with, and apply to the NDIS, create plans, and are supported to make the most of their NDIS plans.
Engaging with culturally and linguistically diverse communities
3.90
Meaningful engagement with the disability community and transparency of process, decision-making and staff roles also require communicating clearly in ways that participants can understand. Communication must also be done in ways that are safe and comfortable for participants. This is especially salient for participants from culturally and linguistically diverse communities, participants with neurosocial disabilities, and participants whose disabilities make it difficult or impossible to understand spoken or written communication.
3.91
The committee heard from several organisations that there needs to be greater awareness within the NDIA of the cultural barriers to people with disability from multicultural backgrounds accessing the NDIS. These barriers include, for example, stigma surrounding disability, a lack of understanding that supports are available, and mistrust of government agencies.
3.92
To improve communication with these communities, the Australian Federation of Disability Organisations recommended that all NDIA planners and associated staff be trained to 'communicate in a way that is inclusive and culturally safe in particular to the needs of participants with intellectual disability, autism, brain injury, psychosocial disability, First Nations and CALD communities'.
3.93
The committee heard from several organisations that the NDIA does not communicate in plain English. Participants for whom English is not their first language commonly struggle to understand the language used by the NDIA and consequently do not understand the process they are expected to follow.
3.94
CASS Care submitted that one of the main challenges that participants and carers from CALD communities faced in accessing services was that there were not sufficient bilingual NDIA staff to support their needs. Even where interpreters were available, participants felt as though they were unable to freely express their needs and difficulties, which further impacted their ability to access the NDIS and needed supports.
3.95
Deaf Connect submitted that there are significant challenges for deaf participants in the NDIA's implementation of the NDIS, citing a lack of awareness of deafness and Auslan amongst the NDIA, delegates and access partners and an overall lack of culturally and linguistically appropriate resources.
3.96
A lack of awareness of deafness and Auslan within the NDIA is even more concerning for deafblind participants. Deafblind West Australians recommended that the NDIA create communication materials for deafblind participants using 'plain, basic English with visual prompts and videos'.
3.97
The NDIA submitted that it was currently developing an inclusion plan to support the inclusion of all staff, regardless of their background, religion, race or beliefs. The NDIA advised the committee that, according to 2022 APS Census data, 25 per cent of its staff were born in a country other than Australia and 20 per cent reported speaking a language other than English at home.
3.98
The committee notes that the NDIA is currently co-designing a new Cultural and Linguistic Diversity (CALD) Strategy and action plan, and has invited CALD people with disability to have their say and contribute to the strategy. The committee looks forward to the final strategy and action plan being delivered in 2023.
Engagement with First Nations peoples
3.99
The Northern Territory Department of Health asserted that the NDIA had 'a reputation for a lack of cultural safety and poor cultural responsiveness in the processes of pre-access, access, planning and review'. For example, staff at Katherine Hospital asked whether there were any First Nations people working with the NDIS, as the NDIA staff they were dealing with had 'no concept of sorry business'.
3.100
The Northern Territory Department of Health noted that interpreters were rarely present at planning meetings with Aboriginal participants, even where English was not their first language, resulting in a lack of informed consent about the decisions being made in planning meetings.
3.101
Mr Ropitini, Executive Director, Population Health at the Victorian Aboriginal Community Controlled Health Organisation, expressed concern that the NDIA's policy and strategy documents relating to First Nations engagement, employment and reconciliation demonstrated a lack of clarity of goals and a lack of understanding of the differences between terms such as 'cultural awareness' and 'cultural safety'.
3.102
The Aboriginal Health Council of Western Australia noted that Aboriginal people often have difficulty navigating health systems, and that NDIS eligibility requirements and application processes are often not well understood. These difficulties are often exacerbated by a reluctance to access government services due to historical and personal experiences of institutionalised racism and a lack of cultural safety.
3.103
Ms Anderson, Legal Practice Manager at the Villamanta Disability Rights Legal Service, gave evidence that invasive and demeaning questioning of participants by NDIA staff alienates First Nations and multicultural participants and discourages them from further engagement with the NDIS:
When you already feel 'othered' in your own community and when you already feel like an outsider and an unwanted presence, imagine dealing with an agency that treats you as if you are a liar by default. Imagine dealing with an agency that questions everything: 'When are you getting better? Do you really need that? Why can't you just—'. These are the sorts of things that make people actually retreat from dealing with the agency at all because of the shame of being put through this—of being asked questions by completely unqualified individuals that should never be asked of anybody.
3.104
The Northern Territory Government described particular challenges for children and families living in remote communities. They observed that the NDIA is currently funding two Partners in the Community programs for the Northern Territory, both based in Darwin. The Northern Territory Government argued that the lack of an Early Childhood Early Intervention Partner outside Darwin meant that children and families in Alice Springs and remote locations often had reduced utilisation of NDIS funded supports. Furthermore, many children in these areas grew too old for early childhood services before they had the opportunity to access family-centred supports.
3.105
The committee notes that the NDIA has established a First Nations Advisory Council and is partnering with First Peoples Disability Network (FPDN) to co‑design a new NDIS First Nations Strategy and action plan that reflects the goals and aspirations of First Nations experiences and voices. The committee looks forward to the First Nations Strategy being released in 2023.
Service availability in rural, regional and remote areas
3.106
Other submissions also indicated that access to the NDIS for people in rural, regional and remote areas may impacted by a shortage of NDIA staff and service providers in those areas.
3.107
The NDIA submitted that it has standalone offices and co-located sites throughout Australia and that, in regional areas, it works with Community Connectors (similar to partners) who travel to remote communities to support the delivery of the NDIS.
3.108
The National Rural Health Alliance (NRHA) suggested that, although the proportion of people with disability is higher in regional areas, people in those areas experience significant difficulty in accessing services. The NRHA said that access to NDIS services was limited by the availability of the health workforce in rural areas, and that:
… availability of a workforce to provide care and support for people living with a disability decreases with remoteness, including services provided by the allied health workforce and pharmacists. Long travel distances and limited choice of providers also impacts on the availability of support for people with a disability in rural Australia.
3.109
Carers WA gave evidence of the challenges faced by people living in rural and remote areas, including: increased transport costs and availability, access to technology (internet, phones and computers), resource availability, education and access to local supports. Carers WA called for improvements to locally available and accessible community supports, in addition to those provided through the Carer Gateway, such as local peer support networks, flexible respite, and funding to increase rural and remote access (including transport and travel for support staff).
Supported Independent Living
3.110
Supported Independent Living (SIL) funding and supports are designed to assist with and supervise daily tasks in the home, to help NDIS participants live as independently as possible.
3.111
SIL was intended to replace the state-based system of group homes, where funding was provided directly to operators and supports were often tied to residence in a group home.
3.112
In its May 2020 Report into Supported Independent Living, the committee noted evidence that the existing SIL regime may force participants with SIL to live in shared settings, and may be perpetuating older models of disability support rather than delivering the innovations promised by the NDIS. The committee called on the NDIA to clarify that all NDIS participants must have genuine choice and control over their support and funding arrangements. The committee also recommended that the NDIA give all participants the choice whether to live in shared or individual accommodation and, for those in shared accommodation, the choice of who they live with.
3.113
The committee received evidence for this current inquiry that group homes remain a principal form of supported accommodation, and that the experience for many people in group homes includes social isolation, denial of basic human rights, violence, abuse, neglect and exploitation.
3.114
Family Advocacy submitted that SIL funding rarely allowed for anything other than group living arrangements and did not take into account relevant research in relation to the impact of these arrangements on participants. Family Advocacy suggested that a lack of knowledge among LACs, planners and service providers created reluctance to utilise funding for individual living arrangements.
Early childhood approach
3.115
The goal of the NDIA's early childhood approach is to support children younger than seven with a disability or developmental delay, and their families. The early childhood approach is intended to support best practice in early childhood intervention, to help children and their families build their capacity and promote greater inclusion in the community.
3.116
Dr Megan Barr called for the NDIA to change its early childhood approach to have an emphasis on prevention, rather than deficit. Dr Barr explained that a prevention approach would avoid the potential stigma of categorising children as having a disability, while still providing developmentally appropriate supports. This would save money in the long term by improving overall development and educational outcomes.
3.117
The Association for Children with Disability (ACD) agreed with the importance of early childhood intervention in promoting child development, but asserted that the NDIA was falling short of its aim to provide timely access to the supports that children and their families need. The ACD observed that the NDIA 'has not undertaken market stewardship to ensure that young children can access early intervention as quickly as possible'. The ACD noted that, while the Early Childhood Approach allows children to access NDIS plans relatively quickly, children can spend months on waiting lists for services, especially in areas with thin markets.
3.118
The Australian Psychological Society advocated for its members to be provided direct access to specialist teams within the NDIA, rather than pursuing escalation through a centralised provider engagement team. Psychologists suggested that non-specialist provider engagement staff 'are often not aware of the complexities of the Early Childhood Approach and therefore tend to provide inconsistent or inaccurate information.'
Advocacy services
3.119
Advocacy services provide NDIS participants and applicants with information, resources, advocacy and peer support to help people with disabilities to access the NDIS, prepare for planning meetings, understand and implement their NDIS plan, self-manage funding and seek internal review of decisions and plan variation reassessments. Many submissions called for an expansion of advocacy services to help participants and carers navigate difficulties in their interactions with the NDIA.
3.120
The Darwin Community Legal Service (DCLS) submitted that the NDIA's systems, reasoning and decision making were highly problematic, and that the NDIA's culture had become increasingly oppositional, inflexible, and uncommunicative. The DCLS said that substandard decision making had led to mistreatment of participants and applicants, increased NDIS appeals, and put strain on service providers, which had dramatically increased the need for NDIS advocacy support.
3.121
Evidence received by the committee suggested that an increase in AAT appeals had significantly impacted the availability of advocacy services.
3.122
The Queenslanders with Disability Network submitted that where participants were faced with a choice whether to appeal their cases to the AAT, most were unable to access advocacy services, due to the high volume of NDIS matters before the AAT. QDN said that this left participants without the capacity to understand, or ability to access, the information they needed to progress their cases, leaving them feeling too overwhelmed to proceed.
3.123
Advocacy for Disability Access and Inclusion SA (ADAI) and the Multicultural Disability Advocacy Association (MDAI) agreed that the demand for advocacy services to provide NDIS appeals support was very high due to the large number of appeals before the AAT. ADAI gave evidence that they had a waitlist of clients seeking support for appeals.
3.124
Spinal Cord Injuries Australia (SCIA) submitted that cutting funding for advocacy services had increased the difficulty of resolving many of the issues and complexities faced by participants and their families. SCIA suggested that any savings achieved by cutting funding for advocacy services may have been expended on appeals and mediation.
3.125
The NDIA said that it had established a new Co-design and Engagement Branch to work across the agency and with external stakeholders to deliver a best-practice co-design approach for strategic projects. The NDIA has also set up a co-design advisory group to provide strategic advice on the implementation of co-design and other engagement processes with the disability community and NDIA staff.
3.126
The committee reminds the government of its recommendations concerning access to advocacy services, and the government's budget announcement of funding to introduce an expert review pathway to resolve disputes arising from NDIA decisions, reduce the number of appeals to the AAT, and provide better and earlier outcomes for NDIS participants. The committee calls on the government to act on these recommendations with focus and urgency.
3.127
The committee also notes the Minister's recent announcement of increased funding for Disability Representative and Carers Organisations to support co‑design activities and community engagement.
Observance of model litigant rules
3.128
The committee received evidence arguing that an increased need for advocacy services was due in part to the NDIA's failure to follow model litigant rules. As a Commonwealth agency, the NDIA is obligated to conduct itself as a model litigant. This broadly means that the NDIA must 'act fairly, with complete propriety and in accordance with the highest professional standards' in connection with litigation.
3.129
The Commonwealth's obligation to behave as a model litigant is said to arise from the Commonwealth's responsibility to uphold justice and the rule of law, and to serve the public interest. Further, the model litigant obligation is often justified to mitigate the imbalance of power between the well‑resourced Commonwealth and its less resourced litigation opponents.
3.130
While the model litigant obligation originated at common law, this obligation is now reflected in Appendix B to the Legal Services Directions 2017 issued by the Attorney-General under section 55ZF of the Judiciary Act 1903.
3.131
Although there are slight differences between the model litigant rules at common law and those set out in the Legal Services Directions 2017, both recognise that the model litigant rules include, for example:
facilitating the efficient conduct of proceedings;
not relying on purely technical points of pleading;
making appropriate concessions; and
considering options for settlement and alternative dispute resolution.
3.132
The model litigant rules apply not only to ongoing litigation, but also prior to litigation commencing, and during settlement negotiations and any alternative dispute resolution and merits review proceedings.
3.133
National Legal Aid (NLA) noted that the AAT merits review is intended to be fair, just, economical, informal and quick, with the NDIA required to conduct itself as a model litigant. By contrast, NLA suggested that the current AAT appeals process is generally adversarial, technical, long and complex, which is intimidating for unrepresented applicants and non-legally trained advocates.
3.134
A joint submission from advocacy organisations called for the NDIA to provide equal legal representation to participants and applicants when the NDIA chooses to be legally represented.
3.135
The Public Interest Advocacy Centre acknowledged the government's recent commitment to reform the AAT appeal process for NDIS matters by 'implementing additional, less-adversarial appeal pathways, reducing the backlog of cases at the AAT by making reasonable settlement offers, and considering ways to adhere more carefully to model litigant obligations.'
Conclusion
3.136
The committee considers that there is an urgent need for action to improve the capability and culture of the NDIA, and to refocus the agency on delivering the promises of the NDIS. The committee appreciates that the government has indicated a commitment to getting the NDIS back on track, with initiatives including:
a Fraud Fusion Taskforce with $137.7 million to strengthen fraud detection and better safeguard the NDIS from organised crime and other fraudsters;
a $5.8 million Alternative Dispute Resolution Pilot to achieve fairer, faster and better outcomes for NDIS participants, with an additional $6.6 million for participants to access advocacy and legal assistance;
an independent NDIS Review led by a panel of experts and people with disability to create a roadmap for improving the NDIS, rebuilding community trust and ensuring the scheme's sustainability; and
an additional 380 permanent staff to ensure the NDIA can better support people with disability and their families, carers, disability service providers and workers, including through stronger market stewardship.
3.137
The committee will give further consideration to the issues raised in this chapter, and the issues noted in Chapter 4, in the coming months, before tabling a final report in relation to the capability and culture of the NDIA later this Parliament.