Chapter 2Capability and Culture
Introduction
2.1The capability and culture of the National Disability Insurance Agency (NDIA) has its roots in its governing legislation, Australia's international obligations including the United Nations Convention on the Rights of People with Disability (CRPD), and the policy directions provided by successive governments and ministers.
2.2Key objectives of the National Disability Insurance Scheme Act 2013 (NDIS Act) include providing reasonable and necessary supports for participants and enabling people with disability to exercise choice and control regarding those supports.
2.3Some submitters suggested that the NDIA's culture doesn't reflect this mandate to facilitate the provision of choice and control for participants though the National Disability Insurance Scheme (NDIS). The key question before the committee is whether the policies and practices of the NDIA reflect a genuine organisational ethos that participants, supported by their families and carers, are the experts in their own lives and disabilities.
2.4The committee notes the significant investment in the capability of NDIS of $732.9 million over 4 years in the 2023–24 Federal Budget. Key aspects of this measure include:
Capability: $429.5 million investment in the NDIA's workforce capability and systems resulting in better consistency and equity in decision-making for access and planning decisions for NDIS participants;
Better planning: $73.4 million to better support participants to manage their plan within budget, including assistance from the NDIA during the year and holding plan managers, support coordinators and providers to account;
Flexibility: $63.8 million to take a lifetime approach to ensure plans are more transparent and flexible for life events;
Independent living: $56.4 million to strengthen supported independent living decisions, including by introducing a home and living panel with highly trained staff to improve consistency across decisions and updating guidelines for planners to improve participants' ability to live independently;
Evidence-based supports: $29.3 million to support the quality and effectiveness of services provided to participants, through improving oversight of services and increasing take up of evidence-based supports;
Blended payment trial: $24.6 million to work with participants and providers to trial blended payment models, to increase incentives for providers to innovate service delivery and improve outcomes;
First Nations and remote communities: $7.6 million to pilot approaches to partner with communities to improve access to supports in remote and First Nations communities; and
Fraud: $48.3 million to crack down on fraud and non-compliant payments in the Scheme and to develop a business case for new IT platforms and systems to detect and prevent fraud and non-compliant payments.
Deficit model of disability
2.5Evidence to the committee indicates that the NDIA's policies, practices and approach are premised on a deficit model of disability. This means that applicants and participants have to describe their impairments in terms of perceived deficiencies, problems and needs to access supports, rather than their goals, aspirations and ambitions.
2.6A deficit approach is disempowering for participants. It manifests in several ways:
NDIA focuses on what's missing, rather than what's possible;
participants are forced to focus on the 'worst days' to gain or retain supports;
participants fear expressing signs of advancement or progress, in case supports are removed; and
NDIA language and communications minimalise and marginalise people with disability.
2.7Queenslanders with Disability Network (QDN) summarised the effects of this deficit model of disability on participants' choice and control:
The NDIA is a scheme underpinned by participant choice and control; however, assessment and planning approaches reinforce a deficit model of disability. People are needing to tell their worst story in order to get those services and supports. That has been the overwhelming experience of our members, and it continues to this day. People are experiencing medicalised assessment processes—a one-size-fits-all approach to fitting people in to getting services, rather than reasonable and necessary supports based on choice and control and building on what their needs are.
2.8Dr Megan Barr gave evidence that a deficit-based approach was particularly counterproductive for children with developmental delays, and may prove more costly than funding supports earlier.
In early childhood we know that prevention is best practice. Unfortunately, the NDIS is based on a deficit-based approach. So we have to wait for children to be behind to be able to access NDIS support. Once they're behind, we know they're going to cost more going forward, not just for the disability system but also for the education system.
So we should be moving to best practice and relooking at the early childhood approach to have a prevention emphasis rather than a deficit emphasis, because we know the children who are more likely to be developmentally vulnerable.
2.9QDN further noted that deficit thinking applied by NDIA staff and Local Area Coordinators (LACs) meant that a strengths‑based approach was not applied during planning, that would otherwise build participants' capacity to manage their own lives and participate in the social and economic life of the community.
2.10Many submitters gave evidence that having to frame their disabilities in terms of deficit was traumatising and did not acknowledge, or even undermined, their strengths and capabilities. The Australian Federation of Disability Organisations submitted that the 'deficit-based nature of the planning process means that many people with disability are choosing not to participate in their own planning meetings, which is at odds with the aspirations of the scheme'.
2.11The committee received evidence that participants are retraumatised during NDIS plan reviews, where they are forced to repeatedly prove their disability and justify their need for supports. For example, Ms Alecia Thomas submitted that she approached her child's plan review with 'a distinct feeling of dread'.
Instead of feeling like I am walking into a productive meeting that centres on building my child's capacity, I am walking in to, once again, justify my child, his disabilities and prove that he is incapable of 'functioning like a normal child' … We get told that we shouldn't speak to them from the worst moments of our children's disability, but from their progress. However, when we do this, we are told that we no longer need the support and our funding for them is cut causing my child to lose what progress they have made.
2.12Similarly, Autism Aspergers Advocacy Australia indicated similar trauma is caused by having to repeatedly explain one's disability and need for supports to the Administrative Appeals Tribunal (AAT):
… the AAT process prevents it from recognising the pattern of failing plan review and consequent AAT matters. The matters are treated in isolation. The previous matters are hidden from the latest AAT review, even if it is exactly the same material being rehashed over again. So much for people not having the trauma and frustration of having to repeat their worst experience.
This certainly goes against the idea of just telling your story once: basically, you are expected to retell your story each time you go to the AAT. You have to describe your worst situations over and over again. The process aims to cause maximum trauma.
2.13The committee received evidence that for people with psychosocial disability, the inherent nature of their impairments can make them highly vulnerable to trauma caused by NDIA processes. For example, the National Mental Health Consumer and Care Forum (NMHCCF) indicated that the NDIA's focus on deficit forced participants to speak the language of impairment rather than focus on their own strengths. It concluded that this results in moral injury, whereby the participant can experience distress so severely that their impairments are made worse.
2.14NMHCCF also advised the committee that, for people with psychosocial disability, having to repeatedly explain their impairments and justify their need for supports was also likely to exacerbate the trauma inherent to their disability:
Planning meetings in particular have been triggering for many participants as the current format of interrogating functionality results in a fear of losing crucial support. Many people living with primary psychosocial disability report that such interactions are reminiscent of difficulties with obtaining the Disability Support Pension, and they report that they are left feeling as though they are undeserving of such support.
2.15The Rights Information Advocacy Centre gave evidence that as participants have, by definition, proven that their disabilities are genuine and permanent, they should not be forced to repeatedly explain their need for supports. To the contrary, the onus should be on the NDIA to justify any proposed reduction in support:
They need to flip it. Rather than us having to justify in our next plan review that we still need the same supports from last time, they should be justifying to me how and why my son's plan – which is going along fine; there are no changes and nothing's happened differently in his life – can be cut. Once again, the onus is always on the participant to prove their self-worth, to prove their right to live a life, instead of the agency proving why I need less. The power is always in the hands of the agency, never in the hands of the participant.
2.16This chapter will examine the ways in which the capability and deficit culture of the NDIA has affected applicants, participants, their families and carers.
First, it will examine the impact of the NDIA's distinction between 'primary disability' and 'secondary disability'.
Second, it will investigate the agency's handling of invisible, episodic and rare disabilities.
Third, it will apply a similar lens to the NDIA's treatment of psychosocial disabilities.
Fourth, it will look at the agency's treatment of requests for sexual activity supports.
Fifth, it will consider the ways that the agency deals with fraud, and the implications not only for the sustainability of the scheme but also for the culture of the NDIA.
Finally, it will examine concurrent inquiries that also offer insight into the capability and culture of the NDIA.
Funding for advocacy groups
2.17The committee received significant evidence which highlighted that these practices and the approach taken by the NDIA is having a significant impact on participants who require advocacy services to support them when trying to navigate the NDIS.
2.18In a joint submission, Disability Advocacy NSW, RIAC, Villamanta DRLS and Leadership Plus highlighted that the consequences of poor service delivery on the part of the NDIA can create stress amongst participants, which leads to greater demand on advocacy services.
2.19They drew the committee's attention to several organisational practices on the part of the NDIA which resulted in increased advocacy work to resolve issues. These include a lack of transparency with regard to the complaint's mechanism, which erodes trust amongst participants, as well as a failure on the part of the NDIA to communicate consistent information with participants. They also noted that the NDIA planning division fails to communicate with the AAT division, resulting in increased advocacy work to resolve issues. The overall consequence of these various practices is greater demand on advocacy services which are 'overrun with NDIS matters' with many such services having to 'close their books.' This means that:
… people with disability are left with few options but to self-advocate in an intimidating process, particularly when facing the NDIA's external lawyers. More concerningly many people are deterred from exercising their right to appeal decisions because the process is largely inaccessible and support is unavailable.
2.20Disability Advocacy NSW, RIAC, Villamanta DRLS and Leadership Plus recommended improved safeguards to ensure people are appropriately supported to navigate the NDIS, including greater advocacy and culturally appropriate supports.
2.21QAI also raised concerns regarding the increased demand for advocacy support, noting that this was particularly difficult given advocacy funding, especially at the state level, has resulted in the reduced availability of disability advocates. QAI described the consequences on their services:
In Queensland, QAI operates the Pathways hotline, a centralized phone support providing information and referral for all people with disability in Queensland. From 01 January 2022 to 30 June 2022, Pathways received 395 enquiries, of which 35% were for NDIS related issues. Similarly, among the Queensland Disability Advocacy Program funded organisations, 36% of advocacy services delivered within the same timeframe were for NDIS related issues. Of the NDIS related inquiries, almost half were for access related problems. This is a significant portion of increasingly scarce advocacy resources and highlights the ongoing plight of many Queenslanders seeking access to and supports from the scheme.
2.22Highlighting concerns with NDIA staff interaction with current and prospective participants of the scheme, QAI noted that the latter are reporting to have to educate agency staff about their disability. It suggested that NDIA staff practice is to ignore the 'extremely high and complex decision-support needs of some participants in the scheme' such as cognitive challenges. QAI made the point that such participants likely require support from independent, specialist advocates to elicit their will and preferences and to make sure their right to exercise choice and control is upheld. However, this is not routinely offered to participants and may not be readily available in their local area.
2.23The Darwin Community Legal Service described the NDIA's capabilities as being 'highly insufficient' in the NT and argued that its culture has become increasingly 'oppositional, inflexible, and uncommunicative'. It noted that the NDIS is also undergoing rapid change, resulting from the new directions of the current federal government aimed at addressing numerous deficiencies and to reset the relationship with NDIS participants. It drew the committee's attention to the impact of these changes:
We particularly note the announced intention to implement rapid resolution options for the 4,000 NDIA appeals before the AAT. While these are very welcome developments there is still a crisis in the NT in access to advocacy support and legal representation for appeals.
2.24The Darwin Community Legal Service stated that an NT NDIS appeals advocacy and legal support plan is urgently required for the territory and that it should include an 'immediate injection of funds for direct local access to specialist advocacy and legal support' for people who are appealing NDIS access, supports or related decisions'.
2.25Advocacy for Disability Access and Inclusion Inc SA raised concerns regarding funding for legal advice and representation for NDIS appeals applicants within the AAT as well as the need for increased funding for advocacy for applicants to the AAT. It made the point that:
Without advocacy clients are disempowered, overwhelmed and at risk of not having their matters properly presented to the AAT.
Primary and secondary disabilities
2.26According to the NDIS Act, a person meets the eligibility criteria for the NDIS if they have a permanent disability that is attributable to one or more intellectual, cognitive, neurological, sensory, physical or psychosocial impairments that result in substantially reduced functional capacity. The legislation thereby recognises that the totality of a person's disability may be the product of multiple impairments. It makes no mention of 'primary' or 'secondary' disability and does not specify how planning decisions should be made if a person has multiple impairments.
2.27By contrast, the NDIA's policies and systems distinguish between participants' 'primary' and 'secondary' disabilities. This is reflected in its published materials, where the NDIA makes extensive use of the phrase 'primary disability'. For example, the NDIA describes a person's 'primary disability' as 'the impairment that has the greatest impacts most [sic] on your daily life', and good evidence of disability as that which confirms a person's 'primary disability' and its effects on different areas of a person's life.
2.28Furthermore, in terms of eligibility for the NDIS, the NDIA states that good evidence of disability is that which confirms a person's 'primary disability' and is completed by a treating health professional who is relevant to that 'primary disability'.
2.29The NDIA's distinction between 'primary disability' and 'secondary disability' has no basis in its governing legislation or the reality of participants' lives. This section will consider the impact that this imposed differentiation, which operates as a form of discrimination, has on participants. As a starting point, it can result in participants being denied supports for impairments that the agency determines are not related to their 'primary disability'.
An administrative convenience
2.30Legal precedents confirm that there is no legislative basis for distinguishing between 'primary disability' and 'secondary disability'. It would, therefore, appear to be an artificial distinction that the NDIA has introduced and imposed.
2.31Section 24 of the NDIS Act outlines the disability requirements for eligibility for NDIS supports. As Justice Mortimer observed in Mulligan v NDIA (2015), the term 'disability' is used throughout the NDIS Act, including in section 24:
… as a descriptive concept for the overall effect of a person's impairments on that person's abilities to participate in all aspects of personal and community life' and that 'provisions such as s 24 operate not on the concept of disability, but on the concept of an impairment, which … is generally understood as involving the loss of or damage to a physical, sensory or mental function.'
2.32Furthermore, Justice Mortimer noted that, although an impairment may be responsible for, or related to a disability, the threshold in section 24 of the NDISAct 'revolves around the severity and permanency of the effects of the impairments experienced by a person' and that assessments of impairment and capacity should be 'avowedly functional, and multi-faceted'.
2.33The AAT, in McLaughlin and NDIA (2021), stated that nothing in the NDIS Act's description of the scheme's access criteria required reference to a specific impairment. The AAT found that, if decisions regarding reasonable and necessary supports were intended to be governed by the specific impairments that had met the threshold for access to the scheme, then the NDIS Act would have made this clear. The AAT further observed that it would be impractical if a participant could only obtain supports that related to the impairments which qualified them for access to the scheme, as a person's impairments may change over time.
2.34Ms Marie Johnson, a former Head of the NDIS Technology Authority, suggested that the distinction between 'primary disability' and 'secondary disability' was an 'actuarial fiction', which has created endless problems for people with disability in gaining access to the NDIS and in securing necessary supports.
Negative effects
2.35The distinction between 'primary disability' and 'secondary disability' would therefore seem to raise the prospect that an applicant might be excluded from the scheme, or a participant might be denied reasonable and necessary supports, where particular impairments, or the totality of their impairments, could not be readily attributed to their 'primary disability'.
2.36Evidence to the committee, and to other reviews such as the 2019 Review of the National Disability Insurance Scheme Act 2013 (Tune Review), indicates that applicants have been denied access, participants have had supports denied, and other participants have had difficulty accessing supports, where supports were requested for an impairment attributed to a 'secondary disability', rather than their 'primary disability'.
2.37The Tune Review received evidence that some applicants and participants with multiple impairments were required to choose their 'primary disability' and were advised that the NDIS would not provide supports for any other disability or impairment they may have. Participants also reported that they had to submit a second access request on the basis that the NDIS would not provide supports for a secondary impairment unless that secondary impairment also satisfied the criteria for access to the scheme when considered in isolation.
2.38The Tune Review noted that the NDIS Act does not distinguish between a 'primary' or 'secondary' disability and instead provides for a holistic approach to planning. It indicated that, while recording a 'primary disability' may be relevant for data and research purposes, the NDIA should take every effort to inform participants that the recording of a 'primary disability' does not in any way affect the supports they are to receive under the NDIS.
2.39AMPARO Advocacy suggested that it can be very difficult for participants to gain NDIS access for more than one condition, and that funding may be limited if the NDIA determines that a participant's substantial functional impairment is not attributable to the 'primary disability' for which they have been granted access. AMPARO noted that even in cases where participants are granted NDIS access for multiple conditions, they are required to determine which is the 'primary disability' and which is the 'secondary disability', with higher levels of funding being allocated to the former. AMPARO submitted that it may be difficult to determine which functional impairment is attributable to which condition, particularly when multiple conditions may have an equal impact on support needs.
2.40A parent of three autistic children, all of whom are NDIS participants, submitted that NDIS guidelines on multiple disabilities did not appear to be consistent with legislation. The parent informed the committee that some LACs would not submit information on multiple disabilities because they thought that only a 'primary disability' should be taken into consideration when creating NDIS plans. The submitter further noted that, despite having a PhD in applied science, she found it difficult and frustrating to navigate the NDIS, and reflected that people with multiple disabilities might be least likely to have the mental, physical or emotional resources to do this.
2.41Ms Catherine Walker indicated that the entire concept of primary disabilities was an 'NDIA fiction' that had no basis in legislation. She argued that this 'fiction' led to under-recording of multiple disabilities and therefore compromised disability-related data not only in relation to participant supports, but also for the entire Australian population. In evidence given at a hearing, Ms Walker informed the committee that she had felt pressure from the NDIA to accept a package of supports for autism, her 'primary disability', without receiving supports for her impairments related to Ehlers-Danlos syndrome.
2.42Ms Priya Fernandes submitted that the way in which multiple disabilities interact with and affect each other can change how disability presents in a person, and that while each disability is defined in its own right, they should not be treated separately when found together in one person. Ms Fernandes suggested that this may be especially salient for participants who have invisible or rare disabilities.
2.43Villamanta Disability Rights Legal Service gave evidence that recording a participant's 'primary disability' would effectively determine which of their impairments would be supported and what levels of funding would be provided in their plan. It explained the impacts of this 'cookie-cutter' model:
But people don't come pre-packaged with a primary disability. People come with all sorts of complex situations, and one person with disability A is not the same as another person with disability A. Furthermore, … the agency is making their own decisions about what the most important condition is. Regardless of what doctors tell them, regardless of what the participant tells them, and regardless of repeated challenges, they are deciding, 'No, your primary disability is hearing loss and the other conditions don't even count.' That is not what the legislation says, that's not what the case law says and it's not fair or reasonable. It's not how people are.
2.44Evidence to the committee indicated that, even where additional impairments are well-known by the medical community to be aspects of particular disabilities, participants may find it difficult to access supports for those impairments if NDIA planners do not agree. For example, a participant with multiple sclerosis (MS) as her 'primary disability' described being denied support for hearing loss, despite a report from her neurologist that confirmed hearing loss to be a well described phenomenon in patients with MS, and strongly associated with the neural degeneration characteristic of that condition.
2.45Deafblind is an example of a single disability characterised by multiple impairments. The NDIA lists deafblindness as a condition likely to meet its disability requirements. However, deafblind NDIS participants provided evidence to the committee to indicate that their interactions with the NDIA have at times been frustrating when all aspects of their disability are not suitably accommodated and supported.
2.46Ms Kirsty Lim, of Deafblind West Australians, gave evidence at a hearing that deafblind is commonly thought of as two separate disabilities. Ms Lim advised the committee that NDIA planners and LACs focused on her deafness or blindness, without any recognition that she is impacted by both. MsLim gave evidence that she had felt as though she was required 'to choose one disability', and receive services and supports for either deafness or blindness, but not both. Ms Lim said the NDIA should improve its recognition of deafblindness as a single disability involving dual sensory loss.
2.47Occupational Therapy Australia (OTA) suggested that an artificial distinction between 'primary' and 'secondary' disabilities contributed to unclear and inconsistent processes to identify participants' daily living support needs. OTAsubmitted that determining participants' functional levels is of crucial importance and is linked to funding via Typical Support Packages (TSPs). However, linking TSPs to participants' 'primary' disabilities is likely to disadvantage participants with multiple disabilities, which may not be taken into account.
2.48In response to the submission of Ms Marie Johnson, noted earlier, MsRebeccaFalkingham, Chief Executive Officer of the NDIA, addressed the issue of TSPs:
The Typical Support Packages (TSP) is one of several tools (including operational and expert guidance) utilised in assisting NDIA staff and Partners to develop individual NDIS plans. The primary function of TSP is to assist planners when considering the level of funded supports to be included in a NDIS participant's plan and to understand how the funding compares to other participants with similar characteristics and support needs. TSP does not limit or otherwise prescribe the level of reasonable and necessary funding a NDIS participant may receive. TSPs also do not limit delegate decision making which is evidenced by the majority of NDIS plans developed between 2016 and 2022 [having] deviated from the TSP by more than 30%.
2.49Ms Falkingham also addressed the agency's distinction between 'primary disability' and 'secondary disability':
Mrs Johnson is correct that the current system requires the recording of a primary disability. However, all disabilities reported by a NDIS participant are captured in the CRM [customer relationship management] system, including a secondary disability or in free text fields. All disability information provided by NDIS participants is considered by NDIA planners. The NDIA's new system PACE has not been designed with this constraint.
2.50Notwithstanding this positive development, an anonymous submitter recommended that multiple disabilities be acknowledged and recognised as primary disabilities so that suitable NDIS plans can be implemented, given the significant effects of each of those impairments on people's daily lives.
Invisible, episodic and rare disabilities
2.51People who have invisible, episodic or rare disabilities gave evidence of difficulties they experienced in having those disabilities recognised by the NDIA, and in accessing reasonable and necessary supports.
2.52Invisible disabilities are disabilities that may not be immediately apparent to others. This could include physical, mental health or neurological conditions, or neurodiversity. Episodic disabilities are those whose symptoms can fluctuate in severity over time, thus requiring different levels of support at different times. Rare disabilities are typically related to rare genetic diseases which, in Australia, are defined as diseases that affect less than 5 in 10,000 people.
2.53The NDIA requires applicants to prove that their impairments are likely to be permanent. The agency notes that there may be some periods where a person's disability has less impact on their daily life, if the impairment is episodic or fluctuates in intensity. Nevertheless, the agency reminds applicants that they may not be eligible if their impairment is temporary, still being treated, or if there are remaining treatment options.
Experience of rejection
2.54For many applicants with invisible, episodic or rare disabilities, their first interaction with the NDIA resulted in rejection and being told that they were ineligible for the scheme.
2.55In the NDIA's lists of disabilities, some invisible, rare and episodic disabilities are described on List A, as conditions that are likely to meet the disability requirements, or List B, conditions that are likely to result in a permanent impairment. Others are not listed and, according to submitters, therefore much more difficult to have recognised as causing permanent impairment and reducing functional capacity.
2.56It was put to the committee that a culture exists in the NDIA where invisible, episodic and rare disabilities are not considered as valid as visible disabilities. For example, Ms Priya Fernandes observed that:
… the view of 'traditional' disabilities continues to persist despite the list of disabilities allowed on the NDIS having been amended to be more inclusive, resulting in bias and inconsistency in NDIA decision making.
2.57Submitters pointed out that this culture significantly disadvantages people with episodic disability. A member of the Queenslanders with Disability Network expressed the view that:
NDIS is still on a medical model; this is not the only way we should be addressing NDIS. Conditions that are episodic conditions need to be recognised, as [participants] can't live with just having a few good days a month.
2.58The committee received evidence of the NDIA forcing people with invisible, degenerative conditions to exhaust all treatment options and wait for their level of impairment to become permanent. This resulted in participants needing higher levels of support than if supports had been provided earlier. For example, Call for Change submitted that forcing participants to endure ineffective treatments 'can cause permanent decline in functional capacity thus increasing disability impairments and consequently support needs'.
2.59At a public hearing, Syndromes Without a Name Australia gave evidence that coordinators and planners should not necessarily be expected to understand each of the approximately 7,000 rare genetic conditions. However, coordinators and planners should have a general understanding that genetic conditions can be episodic and fluctuate in nature, often quite quickly.
Individualised and flexible plans
2.60The importance of individualised and flexible NDIS plans was highlighted by submitters, including recognition of the ways in which the needs of people with episodic disability differ to those with a more consistent level of impairment.
2.61The Rights Information Advocacy Centre gave evidence that making longer‑term plans available at a participant's request could be empowering. However, they noted that some requests for longer plans had resulted merely in the same funding as a shorter plan being spread out over a longer period, thereby reducing the level of support per year.
[If] they want a longer-term plan with supports to give them certainty, why can't the NDIA provide that? What we've seen happen is that sometimes they are getting better at that, but we get calls from people who have said, 'Yes, all my supports are going well, can I have a plan rollover? Can I get two years?' And they say, 'Do you want a two-year plan?' You might say yes, and then the plan comes back and it's a two-year plan with the same level of funding as for one year. And it's not a mistake.
2.62Spinal Cord Injuries Australia also called for greater flexibility in the length of plans. They indicated that while longer plans of up to five years might give some participants more certainty and comfort, shorter duration plans should be available at a participant's request. Even if five year-plans were implemented, some caveats were recommended:
Regular check-in options should be given to people who have episodic or deteriorating conditions and there should always be the consideration that people may not have fully comprehended the longer-term implications of their plan or their circumstances may have changed unexpectedly.
2.63Others called for flexibility in the ways in which funds are provided. For example, South West Autism Network suggested funding for longer plans should not all be granted at once:
… dispersal of funding in annual increments would enable participants to meet their fluctuating needs, manage billing by providers, and have choice and control, without being overwhelmed by trying to manage consistent spending of 2–5 years' worth of funding.
2.64Syndromes Without a Name (SWAN) Australia called for flexible and rapid adjustments to funding in response to a sudden increase in a participant's level of impairment or need for support:
Flexibility needs to be applied, and if funding is deemed urgent then plans should be reviewed within seven days e.g. a child comes home from hospital and may require a different level of support. SWAN children's genetic conditions are often complex in nature and can be episodic and fluctuate. Their condition can deteriorate rapidly, and they may need more supports to what was originally allocated in their plan.
2.65Similarly, Ms Priya Fernandes recommended in her submission that the NDIA:
… increase flexibility in how funds can be used without requiring 'constant' allied health support letters through staff training, and by including specific examples of invisible and non-typical disabilities in the guidelines.
Support for people with psychosocial disabilities
2.66Psychosocial disability is 'a disability arising from a mental health condition or conditions'. The term 'emphasises the social consequences of a disability, as opposed to the term 'psychiatric disability' with its emphasis on a medically defined illness or impairment'.
2.67As at 31 December 2021, 53,100 NDIS participants had a psychosocial disability listed as their 'primary disability'. This was the third largest 'primary disability' group among NDIS participants. The rate of NDIS participants with a psychosocial 'primary disability' was almost three times higher for Aboriginal and Torres Strait Islander people than other Australians (468 and 164 people per 100,000 respectively.
2.68The original concept of the NDIS was outlined by the Productivity Commission in its 2011 report on Disability Care and Support. The final report suggested that individuals with 'significant and enduring psychiatric disability' would meet the criteria to receive funded individualised supports through the NDIS. This would include individuals who:
have a severe and enduring mental illness (usually psychosis);
have significant impairments in social, personal and occupational functioning that require intensive, ongoing support; and
require extensive health and community supports to maintain their lives outside of institutional care.
2.69The Productivity Commission posited that the NDIS would focus on providing community supports to enable people with psychiatric disability to achieve their goals and participate in the community, while the mental health sector would continue providing clinical care services. Examples of NDIS community supports include home-based outreach, day programs, respite services and some accommodation-based supports.
2.70After stakeholder consultation, the Productivity Commission's final report included 'psychiatric disability' as a category that should be eligible for funded individualised supports under the NDIS. Despite this inclusion, critics commented:
While the mental health sector broadly supported being included, the NDIS was largely designed to meet the needs of people with physical, sensory or intellectual disability with limited reference to the needs of people with psychosocial disability.
2.71In the initial years of the NDIS rollout, enrolment rates of people with psychosocial disabilities were low. Based on 2017 data, University of Sydney researchers reported that only 6.4 per cent of participants had a primary psychosocial disability, which was less than half of what was expected. The researchers surmised that many people with psychosocial disabilities were not applying for the NDIS, and that those who did were rejected.
2.72In its 2017 report on psychosocial disabilities, the committee recommended that the NDIA monitor eligibility rates for people with psychosocial disabilities in order to better understand the reasons for a higher rejection rate compared to other disabilities. The government supported this recommendation and committed to continuing to 'engage with stakeholders to improve understanding of the NDIS access requirements for people with psychosocial disability through a number of forums'.
2.73Despite this, by 2022 little had changed. Four years after the government's declared support, a review noted that there was a significant gap between the numbers of anticipated and actual NDIS participants with psychosocial disabilities, representing only a small proportion of the total number of Australians living with severe mental health problems. This was attributed to a lack of knowledge of the NDIS among people with psychosocial disabilities and issues with application assessments.
2.74Enrolments from people with psychosocial disabilities now appear to be increasing. The NDIA reported that active NDIS participants with primary psychosocial disability had increased to 62,011 at the end of June 2023, comprising the fourth largest category of 'primary disability'. A Taylor Fry report also forecasted 'large gains' in the number of participants with psychosocial disabilities to 2030 and beyond.
Barriers to access and support
2.75Evidence to the committee suggested that the experience of people with psychosocial disabilities is no different from that of people with other invisible and episodic disabilities. Peak mental health organisations jointly submitted that:
Despite implementation of some recommendations of the 2019 review of the NDIS Act, the NDIA's organisational culture (including its policies and practices), still does not allow for appropriate consideration of the episodic impacts of disabilities, including psychosocial disabilities, particularly at the level of face-to-face interaction with participants and prospective participants.
2.76Those organisations also noted that the NDIA's 'lack of flexibility to accommodate episodic conditions fundamentally impacts on all aspects of the NDIS journey for people with psychosocial disability'. They stated that people with psychosocial disabilities may find it difficult to provide evidence of permanent disability, as the NDIA's reliance on core supports is at odds with the strengths-based recovery frameworks used by mental health professionals.
2.77People With Disabilities WA (PWDWA) suggested that the size and complexity of the NDIA itself can present a barrier to access for people with psychosocial and intellectual disabilities. PWDWA stated:
… beginning from their initial contact with the NDIA, people are stressed and apprehensive they won't do the right thing and they don't know the rules in such a large and complex organisation – a perception shared by Participants across the country.
2.78Richmond Fellowship ACT suggested that the NDIA's processes do not adequately address the episodic nature of psychosocial disability and recovery programs, and plan and review processes demonstrated poor understanding of daily support needs. They also suggested that the NDIA's deficiencies in knowledge and understanding of psychosocial disability were due, in part, to a high level of staff turnover.
2.79The NMHCCF noted that many people with psychosocial disability report that the NDIA lacks understanding of their needs:
This is particularly pronounced for populations with additional contextual needs such as the LGBTIQA+ community, those from culturally and linguistically diverse communities, rural and remote areas and people who experience co-occuring disability or chronic illness. The Agency needs to be conceptually and culturally competent to understand and therefore deliver on the needs of those living with primary psychosocial disability.
2.80An anonymous submitter with lived experience of psychosocial disability stated that the NDIA had never handled psychosocial disability well:
They seem confused by their own guidelines and demonstrate no understanding that although invisible and episodic, psychosocial disability involves the same level of serious and permanent impairment that physical, neurological and intellectual disabilities do. The NDIS must learn that psychosocial disability impacts on all aspects of life and impairment increases with age resulting in significantly higher rates of physical ill-health and a shortened lifespan.
Valuing informal carers
2.81Carers Australia submitted that a lack of carer-inclusive processes and procedures has been detrimental to the capability and culture of the NDIA:
Current operational processes and procedures used by the Agency work to identify and recognise carers is ad hoc at best, and often rely on the carer of the participant already identifying as a carer. Even when a carer is identified by the Agency as an informal support for a participant, the carer's role is often acknowledged only superficially, without taking steps to support and enable the carer to best support the participant so that both parties may be sufficiently supported to thrive and participate in the community.
2.82Tandem indicated that families and informal carers of participants with psychosocial disability were taking on the work of support coordinators and support workers.
NDIA has no formal processes in identifying the role of family and carers or the acknowledgement of the care and support they provide, and the money they save the Government in providing this support. Tandem knows that the scheme itself relies on the support from family and carers in 'filling in the gaps' from participants' plans. The NDIA culture is viewed as power and control, power over the decisions, resources, and funding for meaningful supports in participants plans. NDIS Act 2013 promotes the choice and control those participants accessing the scheme will have, family and carers have neither.
2.83The NMHCCF also indicated that the NDIA does not fully recognise the psychosocial disability expertise of families and informal carers. They also suggested that the NDIA has a poor understanding of the relational, social and family context in which participants with psychosocial disability live.
There is currently no structural integration for families within the Scheme and accordingly valuable expertise and input is missing. The impact on families and carers is also not captured within the Scheme.
Recovery-focused approaches
2.84From 2020, the NDIS moved towards a recovery-oriented approach to supporting people with psychosocial disabilities, including the provision of 'psychosocial recovery coaches' to work with participants, and a Psychosocial Disability Recovery-Oriented Framework to guide the NDIS.
2.85The responsibilities of a recovery coach include working with participants to increase recovery skills and personal capacity, including motivation, strengths, resilience and decision‑making; collaborating with the broader system of supports to ensure supports are recovery-oriented; and supporting engagement with the NDIS, including support with plan implementation.
2.86A person living with psychosocial disability expressed their views about the benefits of a recovery coach in a 2022 study by University of Sydney researchers:
I have a recovery coach now instead of a support coordinator. It is really good because it frames things in a trauma-informed way and an actual recovery process … I want to progress and recover. I think the support coordinator fits the physical disability-based model so where you do need supports for everyday tasks, but it just doesn't work for the psychosocial disability stream because … it doesn't allow you to move forward.
2.87While the committee heard other positive views about recovery coaches, stakeholders were largely dissatisfied with the way in which the recovery coach model has been designed and funded. Concerns were raised that recovery coaches were being approved at the expense of, rather than in addition to, support coordinators, despite the recovery coaches requiring additional skills and knowledge. The Queensland Alliance for Mental Health told the committee that recovery coaches are funded by the NDIS at a significantly cheaper rate than support coordinators, while being expected to perform substantially similar responsibilities.
2.88The owner of a company that provides support coordination and psychosocial recovery coaching under the NDIS stated that the recovery coaches are expected to have more qualifications than a support coordinator. However, while their role includes all the responsibilities of a support coordinator, as well as providing recovery coaching, they are paid less.
2.89AMPARO Advocacy argued that the lower rate of pay offered to a recovery coach makes this position less attractive while also undermining the NDIA's aim of building a recovery coach workforce with mental health expertise.
2.90As a consequence, psychosocial service providers struggle to attract and retain 'experienced and appropriately qualified staff'.
2.91The Queensland Alliance for Mental Health submitted that difficulties in attracting and retaining suitable staff would make it difficult for NDIS planners and LACs to find recovery coaches suited to each participant's unique needs and preferences.
Psychosocial Disability Recovery-Oriented Framework
2.92The NDIA's 2021 Psychosocial Disability Recovery-Oriented Framework (Framework) updated the current psychosocial recovery coach support item to 'provide revised guidance on the purpose, competency expectations and funding of this role to support participants in their recovery journey'.
2.93The Framework sets out six principles to guide the NDIS' understanding of, and response to, psychosocial disability:
supporting personal recovery;
valuing lived experience;
NDIS and mental health services working together;
supporting informed decision making;
being responsive to the episodic and fluctuating nature of psychosocial disability; and
a stronger NDIS recovery-oriented and trauma informed workforce.
2.94When the NDIA launched the Framework, it also announced development of an Implementation Plan to ensure that its practices adhere to the Framework, alongside a Monitoring and Evaluation Strategy to measure the effectiveness of the Framework principles.
2.95Evidence to the committee focused on the need for the NDIA to better implement a recovery-oriented, trauma-informed approach and demonstrate increased understanding of psychosocial disability.
2.96Participants with psychosocial disability, their families and carers, indicated that the agency's commitments under the Framework are yet to be fulfilled. For example, the NMHCCF stated that while the Framework aims to improve the lives of participants living with psychosocial disability, 'it does not specifically address many of the issues associated with the NDIA's capability and culture.'
2.97This was supported by evidence of a need for greater consultation with front‑line NDIA employees. Organisations submitted that NDIA planners were not well equipped to work with participants with invisible, rare, episodic, or psychosocial disabilities. The lack of flexibility inbuilt into guidelines, in conjunction with lack of specialised knowledge, has led to a perception that the NDIA is not capable of working with particular groups of participants.
2.98Sexuality is a key aspect of the human experience and cannot be separated from other aspects of life. However, people with disability who want to experience their full sexual development and sexual expression face complexity, controversy, and barriers to inclusion. These issues are especially salient for people with intellectual and cognitive disabilities, whose sexuality is more often problematised, controlled, or erased.
2.99This section will first examine the restrictions and controls that are placed on the sexual expression of people with disability, then consider their effects. It will then look at the public controversy regarding the provision of NDIS supports for sexual activity and consider the legislative framework and Australia's international obligations, before concluding with evidence regarding the provision of supports for sexuality, sexual development and sexual expression under the NDIS.
Historical context
2.100Historically, attitudes regarding the sexuality of people with disability have been very negative. Representations of disability and sexuality have included assumptions of asexuality (lacking a biological sex drive), inability to participate in sexual activity, undesirability as a sexual partner, or, especially for people with intellectual or cognitive disabilities, lacking the capacity to understand or respect consent to sexual activity.
2.101These attitudes have led to denial and suppression of the sexuality of people with disability. For example, the global eugenics movement of the 1880s to the 1940s led to mass sterilisation, segregation and institutionalisation of people with disability. It was not until the civil rights and sexual liberation movements of the 1960s that attitudes began to change.
Current controls on sexuality of people with disability
2.102Despite moves towards deinstitutionalisation, people with disability are, in many cases, still subject to significant familial, community and organisational restrictions and controls on their sexual development and expression.
2.103Women With Disabilities Australia published a position statement indicating that:
Women and girls with disability express desires for romantic, sexual and intimate relationships but report limited opportunities and difficulty negotiating relationships, often due to lack of support and paternalistic attitudes … Attitudes toward women and girls with disabilities' expression of their sexualities remain restrictive and laws against sexual exploitation are often interpreted as a prohibition of consensual relationships.
2.104Parents and carers of people with disability are often concerned about sexual exploitation, non-compliance with societal standards of sexual behaviour, or unwanted pregnancy.
2.105In some cases, these concerns are addressed through forced sterilisation. The Australian Human Rights Commission indicates that women and girls with disability are subject to higher rates of involuntary or coerced sterilisation than men and boys with disability. This may be attributed to concerns such as managing menstruation, reducing the burden on carers, and preventing pregnancy.
2.106In a submission to the Disability Royal Commission, Women with Disabilities Australia noted that:
… through guardianship and financial management, women with disability can be subject to interventions such as non-consensual sterilisation, contraception, and menstrual suppression that violate their bodily integrity and deny to them the ability to make profoundly personal and significant life decisions.
2.107In its Australian Sterilisation Data Report for 2021–22, the Australian Guardianship and Administration Council (AGAC) recorded 14 instances where state and territory civil and administrative tribunals have authorised procedures that resulted in the sterilisation of adults with cognitive impairment, an increase on the 9 such procedures that were authorised in 2020–21.
Negative effects
2.108Stabilise submitted that there are still negative attitudes towards the sexual development and sexual expression of people with a disability. They are rarely seen as sexual beings with the same needs as others for information, education, and inclusion to ensure they are self-determining in such a fundamental aspect of their humanity. Stabilise noted that assumptions that people with disability are not sexual beings can lead to serious impacts on health and wellbeing, including:
basic sexual health care not being provided, such as breast, cervical and prostate checks;
training for health care and support workers not including sexuality;
no accredited courses to work with people with disability on sexuality;
referral forms for services not including questions about intimacy, sexuality, sexual health and relationships;
sexual health services lacking accessible facilities, e.g. examination tables;
internal contraception being left in place long after menopause;
a lack of sexual education in 'special' schools, increasing the likelihood of a person with disability becoming a survivor or perpetrator of sexual assault;
the justice system being unable to respond to nonverbal people with disability; and
communication devices lacking symbols or concepts for anatomy, intimacy, sexual health or relationships.[118]
2.109The committee received evidence that neglecting the needs of people with disability regarding sexual development and sexual expression has severe negative effects. For many people with disability, their first experience of sex and sexuality is through being the victim-survivor of sexual violence.
2.110Young people with disability can experience exclusion from sexual education provided to their peers. For example, Northcott gave evidence that students with disability are often removed from classrooms when sexual education is being provided in high schools.
2.111For people with disability, an absence of proper supports for sexual education may leave them without understanding of appropriate behaviours. For example, SECCA gave evidence that:
A lot of our clients are involved in the justice system either, as I said, as a victim or as a person who's accused of committing a crime. A lot of the crimes that we see our clients having been accused of being a perpetrator of are what we would call accidental crimes—crimes where they haven't actually understood what the social rules are … There's an incredibly strong link between people having a cognitive or intellectual disability and their engagement with the justice system that's not understanding or supportive of what their needs are. As you've identified, we're needing to take those steps back to see that there's a huge gap in sexuality education and support that's essentially setting people up for failure and setting them up to be a part of these kinds of incidents and justice systems.
2.112People with disability who live in group accommodation may experience barriers to their privacy due to staff attitudes. The Disability Royal Commission received evidence from Sophie, who lived in group accommodation. Despite Sophie clearly communicating her interest in pursuing intimate and sexual relationships, the accommodation provider 'did not sufficiently support her in achieving this goal or in obtaining appropriate sex and relationship education'. Instead, the provider imposed 'relationship rules', which limited her freedom, privacy and confidentiality.
2.113Sexuality Education Counselling and Consultancy Agency (SECCA) also noted that the extensive documentation and validation that the NDIA requires before providing supports may put participants' privacy and safety at risk, if supports relate to sexual development, sexual health, or sexual expression.
For people with disability, the initial documentation is excessive and contains many private details that may require that people with disability to reveal their sexual orientation, gender and sexual preferences in official documentation when they are not out, or cannot come out to people within their lives.
Public controversy
2.114Those opposed to the use of NDIS funding for sexual supports argue that the NDIS should not pay for participants to access sexual services. In some media outlets, the NDIA is accused of secret payments for sex work, with the inference that it is a real threat to the ongoing sustainability of the scheme.
2.115There has been no evidence in the annual financial sustainability report that sexual activity supports are a financial risk to the scheme.
2.116In the earliest days of the NDIS rollout, the then Assistant Minister for Social Services acknowledged the potential for media-driven moral panic regarding provision of sexual supports under the scheme. Responding to questions after an address to the National Press Club, Assistant Minister Fifield declined to 'give an on-the-spot ruling' on whether sex services would be funded under the NDIS.
Partly because I don't want to have a headline that says, 'Minister says x, y, z is in, shock horror'. So I'm going to leave it there because the essence of the NDIS is working on a plan for an individual. What are the goals, what the plans, what are the objectives for an individual? And each plan will be different, each plan will be personalised, and I'll leave it at that.
2.117On 2 June 2017, responding to media coverage, the NDIA affirmed that it did not cover sexual services, sexual therapy or sex workers in participants' NDIS plans. The NDIA noted that plans may include psychological counselling or physical therapy to help someone understand and overcome a physical impediment to intercourse, but would not fund sexual services.[126]
2.118On 28 August 2020, the then Minister for the NDIS, the Hon Stuart Robert MP, announced a package of proposed reforms to the NDIS, which included implementation of the government's Response to the Tune Review and the new NDIS Participant Service Guarantee. In November 2020, the Department of Social Services (DSS) released an information paper, providing further information about the proposed reforms. Among other issues, the paper foreshadowed legislative changes to clarify that NDIS funding was not to be used to purchase the services of a sex worker or devices solely for sexual stimulation.
2.119The proposal to introduce Commonwealth legislation to specifically exclude sexual activity supports from NDIS funding was not supported by state and territory governments, and no legislation was introduced to implement the policy.
Legislative framework and international obligations
2.120A guiding principle of the NDIS Act is that 'people with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development'.[130] To this end, objects of the NDIS Act include providing 'reasonable and necessary supports'[131] and promoting 'the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community'.[132]
2.121The NDIS Act is aligned with a range of international standards and obligations. The CPRD requires that people with disabilities be provided with the same range, quality and standard of free or affordable health care and programmes as provided to other persons, including in the area of sexual and reproductive health.
2.122The World Health Organisation (WHO) states that sexual health is fundamental to individuals' overall health and wellbeing and requires a positive and respectful approach to sexuality and sexual relationships. The WHO further proposes that the ability of individuals to achieve sexual health and well-being depends on:
access to comprehensive, good-quality information about sex and sexuality;
knowledge about the risks they may face and their vulnerability to adverse consequences of unprotected sexual activity;
ability to access sexual health care; and
living in an environment that affirms and promotes sexual health.[134]
2.123The World Association for Sexual Health (WAS) Declaration on Sexual Rights includes a right to the highest standard of health and wellbeing in relation to sexuality, including the possibility of pleasurable, satisfying and safe sexual experiences. This requires the availability, accessibility and acceptability of quality sexual health services.
Case law
2.124In NDIA v WRMF (2020)[136], the Full Court of the Federal Court affirmed the decision of the AAT[137] that the services of a specialised sex therapist, provided once a month, constituted a reasonable and necessary support for a participant with multiple sclerosis.
2.125The AAT noted that the NDIS Act provided a general principle that people with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development.[138] The AAT then held that if something about a disabled person means that they are not able to fully participate in the community, and a reasonable and necessary support could avoid that result, it should be provided.[139] The AAT accepted that the services of a specialised sex therapist would positively contribute to the participant's mental, emotional and physical wellbeing,[140] while helping her to realise her potential for social and emotional development and participate in social life.[141]
2.126The Full Court agreed that the participant should receive NDIS funded support involving the services of a 'sex worker' or 'specially trained sexual therapist',[142] to facilitate 'achievement of sexual release'.[143] Furthermore, the court considered whether the costs of the proposed services were reasonable having regard to market rates for sex work.[144]
2.127The Full Court also dealt with the NDIA's assertion that it 'does not fund' sexual activity. The court noted that neither the NDIS Act nor the NDIS Rules expressly exclude such supports, and that principles in the legislation of autonomy, 'best interests', 'exercising choice and control', 'participation in the community', 'full inclusion', 'potential for physical, social, emotional and intellectual development', 'respect for their worth and dignity', 'maximising independence' and 'maximising independent lifestyles' should not be subject to a limit, at the point of physical intimacy with another human being.[145]
2.128On 14 October 2022, the NDIA wrote to the national Roundtable on NDIS and Sex Services, advising that sexual activity supports may be reasonable and necessary, limited to the narrow and specific circumstances of the Full Court's decision in the WRMF case.[146]
Provision of sexual supports
2.129Many people with disability, and their advocates, believe that supports should be funded to assist people with disability to participate in sexual activity. For example, People with Disability Australia (PWDA) stated that people with disability have a right to a sexual life and should not be subjected to historical societal beliefs that they are either asexual or hypersexual and being denied autonomy over their own bodies.[147]
2.130The committee received evidence that healthy and safe relationships and sexual activities can support participants' health, wellbeing, sense of belonging and inclusion. At a public hearing, PWDA emphasised that it was reasonable and necessary for the NDIS to provide supports relating to sexuality, relationships, sexual intimacy, and repairing the relationships that people with disability have with their own bodies, in safe and supportive environments.
2.131Evidence indicated that people with disability have the same needs, wants and desires as everybody else in society, and the impact of their disability meant that they need support. Northcott emphasised that:
This is equally true in the area of sexuality and relationships, because people with disability want to be engaged in relationships, explore their sexuality and find love—all those things that we all want to do—so our role is to support that.
2.132Sexual Health and Family Planning ACT (SHFPACT) gave evidence that a rights-based approach should inform the sexual and reproductive health needs of people with disability:
We acknowledge a long history of maltreatment and harm caused by institutions, systems and the people operating within them—perhaps well intentioned but with disastrous impacts in the lives of people with disability. In our work in this area, we stress collaboration, transparency, support for self-advocacy, the right to safety, the right to bodily integrity and to sexual wellbeing, the presumption of ability and responsiveness to individual needs as ways in which we can continue to empower people with disabilities for full community, social and economic participation, including the right to form relationships, to sexual expression and to safety and respect.
2.133SECCA cite numerous benefits that comprehensive sexual education would bring, including reduced family and domestic violence, higher relationship self‑efficacy and self‑knowledge, and lower rates of unwanted pregnancy and sexually transmitted infection.[151] SECCA submitted that NDIS plans should include a sexuality and relationships section for goals for all participants, and for people with disability to have co-design input on the goals in this section.[152]
Fraud and the culture of mistrust
2.134Over many years, there have been serious allegations of fraud and financial mismanagement of NDIS funds. Such allegations are often characterised as a threat to the sustainability of the scheme.
2.135This section considers the scale of the problem, its impact on public trust in the scheme, and the culture of mistrust it has created, whereby participants are made to feel like they are themselves fraudulent.
2.136At the same time, the committee heard evidence that the NDIS incentivises participants to report that they are not improving, or are getting worse, for fear that current supports will be cut. This has contributed to a culture in which the integrity of participants is questioned.
2.137In August 2022, then-CEO of the Australian Crime and Intelligence Commission, Michael Phelan, quantified the scale of systemic fraud, estimating that as much as 15 to 20 per cent of the $30 billion scheme was being misused every year through falsified bookings, inflated invoices, or invoices charged through stolen information.
2.138In October 2022, the Hon Bill Shorten MP, Minister for the NDIS, announced the establishment of a Fraud Fusion Taskforce to detect and protect the scheme against organized crime and other fraudulent activity. The Taskforce is a partnership between 15 government agencies including the NDIA, Services Australia, the Australian Federal Police and the Australian Criminal Intelligence Commission. It aims to:
improve how government agencies work together to quickly detect, resolve and prevent fraud and serious organised crime in the NDIS and other government programs;
strengthen and improve the NDIS and other government payment systems, making it harder to intentionally do the wrong thing, including spending funds incorrectly;
reduce the impacts of fraud on NDIS participants; and
protect the safety and wellbeing of NDIS participants and other Australian systems of social supports improve systems, skills and knowledge across government to help protect the integrity of programs and payments.
2.139In May 2023, the Taskforce held Participant First focus groups to hear participant views on a range of issues around integrity in the NDIS. The findings of these focus groups were not published.
2.140In November 2022, the NDIA published its Fraud Strategy Statement, noting that there would be 'zero tolerance for fraud against the NDIS, participants and the NDIA'. It describes fraud as dishonest conduct with the intent to gain benefit for oneself or another. It gives examples of such conduct:
unlawfully obtaining and using NDIA information or restricted data;
providing false or misleading information;
using fake documents and invoices;
making claims for services or products that were not provided;
misusing funds;
theft;
unlawful disclosure of official information;
accounting fraud (e.g. false invoices, misappropriation);
fraudulently claiming leave, travel and other entitlements; and
misuse of assets, equipment or other facilities.
2.141The statement notes that conduct that relates to misuse of NDIS funds but that does not have ill intent may not amount to fraud. This could include financial exploitation of participants, or non-compliance.
Detection and prevention of misconduct
2.142Many submitters pointed out that the NDIA does not seem to monitor how participants' rights are upheld and their needs met, let alone the provision or quality of services provided. Of particular note was evidence that the NDIA does not appear to have a mechanism to confirm that services that have been charged to a participant's plan have indeed been provided. It was suggested that the lack of a monitoring regime makes it difficult to protect participants from fraudulent practices and financial exploitation. The committee also heard that the systems and processes of the NDIA are unnecessarily complex and have 'created the opportunity for fraudulent activity'.
2.143Mr Ian Excell recommended the NDIA's approach to fraud detection and prevention be modernised to view clients positively, and thereby assume that participants and providers aim to engage legally with the scheme. Mr Excell also recommended system reform to monitor participant and provider engagements with the NDIS and flag suspicious behaviour in real time.
2.144 At a public hearing, the NDIA CEO told the committee that the agency was taking a much more hands-on approach to market stewardship:
We are bringing together all the different practice models within the agency to look at everything from how we are developing different markets to how we're cracking down on and approaching fraud and integrity issues we're seeing within the scheme.
2.145 At the same hearing, the NDIA Deputy CEO, Governance, Risk and Integrity, discussed a range of activities to detect non-compliance and fraud, including desktop reviews, and investigations of more serious matters. The Deputy CEO noted that tip-offs from internal staff and the general public had increased by 177 per cent over the preceding 12 months, resulting in 14 matters of alleged fraud before the courts, with a total value of $15.4 million.
Provider conduct
2.146 The committee received evidence that some service providers are taking financial advantage of NDIS participants through practices which may or may not amount to fraud or non-compliance. Several practices were described by submitters, including:
charging more for services than was quoted;
hidden administration costs;
requests for out-of-pocket payment; and
charging for services that were cancelled by the participant.
2.147A carer submitted that the NDIS had produced a 'gold rush' or 'cash cow', whereby entrepreneurial organisations and individuals believed that the system could be exploited for 'easy money'. They suggested that there are 'some rather unethical and dubious service provider organisations, disability support workers, and allied health professionals cashing in on the NDIS bonanza'.
2.148The complexity of the scheme, including limited information on services, can lead to a situation whereby participants may not be sure of what they are being charged for and why. As one submitter expressed, 'you don't always know what you're being billed for with extra dribs and drabs'.[164] Advocates also informed the committee of financial exploitation, whereby providers request out‑of‑pocket payments for costs the participant was not liable for, such as support worker food and transport.[165]
2.149Ms Courtney Watts, a parent of a participant, described the costing practices of NDIS providers as 'incredibly exploitative', noting that many providers have specifically raised prices to meet the NDIS cap. Ms Watts suggested that the NDIA should take a more active role in ensuring that providers are paid appropriately and cannot raise their rates unnecessarily. She also proposed that service providers who raised prices unreasonably should lose their NDIS registration.
2.150People with Disabilities WA told the committee of consequences when participants seek to make a complaint about such practices, and some providers had bribed participants to remain silent about exploitation:
When Participants tell Providers that they are going to make a complaint, some Providers will bully Participants and take their funds. In some instances, it appears the Provider has offered a bribe to the Participant [to] stop a formal complaint process.
For example, it has been reported that one Participant had her funding taken away. When the Participant complained, her funding was replaced by the Provider and an additional $16,000 was put into the Participant's personal account.
Provider registration
2.151To provide services that are funded by the NDIS, a provider may or may not be required to register with the NDIS Quality and Safeguards Commission (NDISQSC). Registration with the NDIS QSC allows providers to provide services to participants whose plans are managed by the NDIA, and to provide more specialized services. To gain and maintain registration, providers must comply with a range of quality and safety standards including complaints management, worker screening and the NDIS Code of Conduct. Registered providers are also subject to a quality audit. Becoming registered gives providers greater access to the NDIS market and is intended to ensure quality of service for participants.
2.152The committee heard differing views on whether provider registration protects participants, and the agency, from fraud and financial exploitation.
2.153Some submitters agreed that provider registration is an important feature of the scheme to ensure quality of service. However, it was also noted that meeting registration obligations is resource intensive, with some questioning whether it is worth being registered when many NDIS-funded services can be delivered by unregistered providers.
2.154CASS Care submitted that they had received considerable feedback from NDIS participants and workers regarding non-compliance of non-registered service providers and waste of funding caused by fraud and scams. Participants told CASS Care that some non-registered sole traders do not meet the required level of quality and safety stated in the NDIS Practice Standards, but continue to provide low level care and support services to NDIS participants. Other participants, who self-manage their plans and pay providers directly, told CASS Care that a lack of registration and effective oversight of who receives payments and of the actual expenses opens the door to loopholes, fraud and scams.
2.155 By contrast, some submitters told the committee that registered providers deliver services no better in quality than unregistered providers. These submitters were of the view that larger, registered providers were more likely than smaller, unregistered providers to financially exploit participants.[172]
2.156Therefore, it would appear from the evidence before the committee that greater oversight of all providers, as well as the quality of their services, would benefit the scheme and its participants.
Charging for cancellations
2.157A common concern raised in evidence is the charging of participants' plans when the participant has given less than seven days' notice to cancel a service. While this practice is not illegal, it has been raised by many participants who are ultimately charged for a service they didn't receive.
2.158In July 2022, the NDIA updated the NDIS Pricing Arrangements and Price Limits to permit service providers to charge the full cost of a service where a participant has given less than seven days' notice of cancellation. This is an increase from the previous rule which required two days' notice to avoid a charge. Submitters made the point that it was difficult to meet this notice period with the consequence that they are not able to make full use of their plan funding, as they are charged for services they have not accessed, despite giving often several days' notice of cancellation. As expressed by one submitter, 'who else in society has to give 7 days' notice of being ill'.
2.159The scheme stipulates that a participant's plan can be charged only if the service provider is unable to fill the billable hours associated with the service. Some submitters informed the committee that, in their experience, this was not the practice. Instead, some providers are allegedly 'double-dipping' by billing a participant who has taken up the newly freed service provider time, as well as the participant who cancelled the service with less than seven days' notice.
2.160Participants also highlighted the apparent double standard where a service provider may cancel a service at short notice, with no consequence.
Impact on participants
2.161Submitters told the committee of their concerns with how participants may be perceived in light of the public narrative around fraud and the NDIS.
2.162It was suggested that a culture has developed within the NDIA to prioritise cost‑cutting above participant wellbeing. Some submitters associated this experience with a perception that people accessing any government social welfare funding are viewed with skepticism and mistrust.[179] Consequently, many participants leave interactions with the agency feeling that their integrity has been questioned and treated as though they are seeking to defraud the public.[180] These concerns were borne out in the Royal Commission into the Robodebt Scheme, which received evidence that '[t]here is an enduring assumption that all persons on welfare or pension payments are potential or actual cheats'.
2.163Submitters gave evidence that rules around proper use of NDIS funding are not always clear. If rules are broken inadvertently, this may be considered non‑compliance rather than fraud. However, participants shared fears that they would be accused of fraud, or not believed, for making a genuine mistake. Mrs Lynda Lett shared her experience:
I had support workers in hospital to help me. Instead of explaining to me that I'm not able to do this I'm told if I put another claim through that I'll be charged with fraud and audited … It was innocent error.
2.164Evidence from many submitters indicated that the need for applicants and participants to describe their impairments in the worst possible terms had led the NDIA to develop an adversarial culture, where participants are assumed to be exaggerating their impairments and needs for support. For example, the South West Autism Network submitted that:
Increasingly, NDIS representatives are treating NDIS participants, families and supporters as being deliberately deceptive and fraudulent when requesting funded supports to meet their disability needs. There is a lack of respect for participants and their supporters … The default stance within NDIA and NDIS Partners in Community seems to be the assumption that the participant, nominee and/or supporters are over-exaggerating or lying about their needs. Participants and families frequently report highly adversarial meetings and interactions with NDIS representatives, and SWAN is often contacted by distraught people, particularly after negative planning and reassessment meetings. Planning, Review and Reassessment meetings need to be collaborative, as per the NDIS legislation.
2.165Similarly, Ms Heike Fabig suggested that the NDIA culture disempowers participants:
… by arguing about plans, ignoring specialist reports, making people go through endless rounds of specialist reports, applications, reviews, and AAT appeals, the NDIA is undermining the very confident consumer and consumer market it says is trying to create. There seems to be an underlying presumption of incapacity (if not malevolence) of people with disability at the NDIA, the very agency that aims to increase capacity of [people with disability], exemplified by a culture of cost cutting and interference with independent reports of [occupational therapists] and other professionals. This attitude is fundamentally mistrusting and infantilising.
2.166The experiences described by these two witnesses reflect the experience of many NDIS participants. They indicate that the NDIA's capability and culture have not fulfilled the functions of the agency as outlined in its governing legislation.
2.167Participants with caring responsibilities, such as parenthood, reported similar fears of being considered non-compliant or fraudulent if their supports indirectly benefit their dependents. One participant told the committee:
Parents with disabilities will, due to the nature of parenting with a disability, have their plans indirectly benefit their children, we should not feel ashamed, or like we are risking fraud accusations to use our plans and still be parents. The NDIS should value and prioritize participants' relationships as well as their dependents when considering accommodation decision making.[187]
2.168Concerns were also raised about participants being accused of non-compliance and even fraud in cases of NDIA staff error. The committee heard that when a planning error has occurred, participants are required to provide evidence that they did not act in error or fraudulently, despite the error not being their doing.[188] People with Disability WA shared a case where a person was blamed for seemingly no fault of their own:
… a Participant coming out of major surgery was told he would have to withdraw from a number of supports (including mobility supports) to get NDIS assistance. The Participant couldn't withdraw from those supports as he needed them acutely. The Participant also thought he could apply for the NDIS in early 2022 when he was in a better position to transition his supports needs. He subsequently withdrew his application.
The Participant received letters in early February 2022 from the NDIS and Services Australia accusing the Participant of fraud because the NDIA officer had not withdrawn his NDIS application as requested. Instead, the NDIA officer signed up the Participant for the NDIS and also signed the consent form on his behalf.
Additionally, NDIA officer who had registered the Participant for supports notified Services Australia that the Participant was receiving NDIS supports. Services Australia then came to a conclusion the Participant had committed fraud by receiving funding from both agencies.
The Participant had to go to a meeting to explain the situation, but he had no idea what had happened. The Participant had to prove he had not committed fraud or had been 'double dipping'.[189]
2.169The critical importance of considering the concept of 'vulnerability' when delivering government services, and the impacts on individuals and communities when services are not designed to comprehensively account for vulnerable persons, was emphasised in the Royal Commission into the Robodebt Scheme. It highlighted that 'vulnerable people may struggle with accessing, understanding and navigating the social security system and may require additional support'.
2.170The committee received evidence that the manner in which the NDIA conducts fraud investigations, along with a general culture of mistrust, may have adverse outcomes on vulnerable participants. It is necessary to ensure that the NDIA has in place polices and processes which ensure vulnerable participants receive clear, de-stigmatised information on the rules for NDIS funding, so that they can effectively engage services without fear of adverse action for non-compliance.
2.171The NDIA claims that 'participants are at the heart of everything we do'. The Summer Foundation addressed this claim by noting participants' reports of not feeling listened to by the NDIA and frustration at not being seen as the experts in their own lives. They submitted that this indicated a culture within the NDIA that lacked trust in participants and assumed that many participants ask for more support than what is reasonable and necessary. They called on the NDIA to 'implement a participant-first culture by understanding participants' needs and goals and ensuring funding decisions actively enable choice and control'.
2.172The NDIA submitted that it has begun implementing a new engagement framework to guide co-design with participants and representative organisations. The agency noted significant efforts to establish co-design practices to deliver strategic projects.
Early Childhood Early Intervention
2.173The NDIS early childhood approach is designed to give 'children and their families the right supports to enable them to have the best possible start in life'. According to the NDIA, the early childhood approach:
… supports best practice in early childhood intervention because it helps the child and family to build their capacity and supports greater inclusion in community and every day settings, meaning each child will be provided with opportunities to grow and learn.
2.174One of the main goals of the Early Childhood Early Intervention (ECEI) approach is to enable children with disability to develop skills and take part in daily activities. By providing support as early as possible in a child's life, ECEI aims to minimise the amount of complex services and supports that they might require as they grow up.
2.175Until recently, the scope of early childhood approach was limited to children younger than 7 years of age. From 1 July 2023, the early childhood approach changed to include children younger than 9 years of age.
2.176The NDIA submitted that Early Childhood (EC) Partners are required to demonstrate that their staff have experience and clinical expertise in working with young children with developmental delay or disability, and their families. The agency noted that, as of 30 June 2022, EC partners supported 82,863 children younger than 7, including 11,686 children receiving early intervention support.
2.177Earlier this year, the NDIA established a Children's Task Force to better support young people and their families to access the scheme and accelerate improvements in the EC approach.
2.178However, the Association for Children with Disability (ACD) highlighted some perceived shortcomings with the current implementation of the early childhood approach. ACD described a 'strong adult-centric bias', with the interests of children not always represented in NDIS consultations and decision-making structures. They also submitted that the NDIA could do more to ensure that young people could access suitable services as quickly as possible. ACD noted that although children could access NDIS funding relatively quickly, they might then spend months on waiting lists for services, especially in underserved areas.
2.179The Northern Territory Government expressed similar views regarding the availability of Early Childhood Partner services outside capital cities. They submitted that:
There is an inadequate number of ECEI services provided outside of Darwin, resulting in children and families not having choice and control and reduced utilisation of their NDIS funded supports; … the lack of an Early Childhood Early Intervention Partner in areas outside Darwin has children aging out of early childhood services, before having the opportunity to access the expertise in family-centred supports for the child.
2.180Syndromes Without A Name submitted that a lack of experience in rare disabilities among Early Childhood Partners, as well as LACs and planners, meant that initial plans often did not provide adequate supports. This resulted in an estimated 30 per cent of plans for children with rare disabilities requiring review.
2.181Medical specialists also drew the committee's attention to some areas of the NDIA lacking relevant knowledge or access to information. For example, members of the Australian Psychological Society observed that while NDIA staff within the Early Childhood Branch were approachable and knowledgeable, non-specialist provider engagement staff were often unaware of the complexities of the Early Childhood Approach and therefore tended at times to provide inconsistent or inaccurate information.
2.182Vision Australia called on the NDIA to simplify the pathway for early intervention and to develop clearer guidelines regarding evidence for disability to support access to the NDIS for children under 7 years of age. They submitted that these steps would reduce financial burdens and stress for families, while providing more efficient and timely access to Early Childhood Partner services.
2.183Evidence to the committee indicated the benefits of state and territory government investments in early childhood intervention, to complement the NDIS. For example, Autism Tasmania welcomed Tasmanian Government investment in early childhood intervention centres, with an emphasis on early diagnosis, connecting with families, capacity building, and access to early intervention services.
Women
2.184The committee received evidence that women with disability face additional challenges in navigating the NDIS and accessing appropriate supports.
2.185Access to NDIS supports including safe supported accommodation can be vital for women with disability. Northern Territory Health observed that the NDIA had:
… an aversion to placing women with a disability into a safe Supported Independent Living (SIL) accommodation due to cost, even if they are waiting on their SIL to escape domestic violence. It cannot be more cost effective to leave a woman who needs fulltime support in a situation that endangers her life.
2.186Similar evidence was given by the Queenslanders with Disability Network, who discussed women with disability feeling forced to stay in bad or violent relationships because they were unable to access the NDIS supports or accommodations that they would need to live independently.
2.187The ACT Government submitted that agencies other than the NDIA should improve their responses to people with disability who experience domestic or family violence. They suggested that the domestic, family and sexual violence services sector did not always know how to recognise and respond appropriately to people with disability.
By services not adequately understanding or responding to people with disability, it may result in those people experiencing barriers to safety and appropriate supports. A lack of appropriate responses when experiencing domestic and family violence can increase safety risks for people with disability. People with disability have identified that having to explain personal information to multiple services can have a negative impact, particularly when there is history of trauma and family violence.
2.188Furthermore, the ACT Government also noted two ways in which NDIS supports could be affected by domestic or family violence. Abusers could deliberately act to control, manipulate or remove support services to increase their control over a victim-survivor. In addition to this:
People with disability may have their support services suspended or ceased when domestic or family violence is identified. This can be due to concerns for worker safety, lack of understanding and training in identifying risk, information sharing and safety planning. Any change or suspension to a person's supports may impact on a person's feelings of isolation, their wellbeing, as well as physical and emotional safety.
2.189Women with disability may also seek supports to safely navigate romantic and intimate relationships. Ms Nicole Lee, President of People with Disabilities Australia, gave evidence of the high levels of sexual violence experienced by women with disability, describing the dating scene as 'toxic, violent and volatile'. Ms Lee told the committee that many women with disability have been exposed to such levels of violence that they avoid sexual intimacy and contact, which impacts on their ability to enjoy the fullness of the human experience:
We shouldn't have to do that to live an everyday life, like everybody else, and to have enjoyment and expression and to relate to the world around us. We all want to have intimacy and we all want to be touched, but we also know that we all want to be safe in doing that. We don't want to have to put our safety on the line just to be intimate with someone and just to feel wanted and desired.
Aboriginal and Torres Strait Islander people
2.190The committee received evidence of difficulties faced by Aboriginal and Torres Strait Islander people when engaging with the NDIS. For example, the First People's Disability Network submitted that:
First People with disability and their families are amongst the most seriously disadvantaged and disempowered members of the Australian community; the systemic and intergenerational trauma experienced through being a part of both the Aboriginal and Torres Strait Islander Community and Disability Community means that First Nations people with disability face double disadvantage in areas such as health, employment, education and engagement in various services. Once a First Nations person with disability engages with these systems, they then face double disadvantage when navigating it. Often, First Nations people are unsupported to understand these systems, and have no choice and control over the outcomes of these engagements because of this lack of support.
2.191The Darwin Community Legal Service submitted that the NDIA had insufficient connections with Aboriginal and Torres Strait Islander peak organisations. The resulted in a lack of co-design to customise the NDIS to Aboriginal and Torres Strait Islander communities, or for NDIA staff to believe and respond to of people's support needs including logistics, travel, and costs, especially for people in regional and remote areas.
2.192The committee received evidence that a culture of mistrust created unnecessary barriers for people from culturally and linguistically diverse backgrounds and Aboriginal and Torres Strait Islander people, who may have difficulty evidencing disability when applying for access to the NDIS. Kin Disability Advocacy expressed concern that this meant that people from these communities often went without supports for long periods of time while awaiting appointments with specialists to provide the evidence the agency required:
Thus, we note with concern that the behaviour and culture of NDIA present adversarial norms where necessary disability supports are withheld from participants and little or no capacity is left for them to negotiate especially if our clients are struggling with language, culture or access to information. The consequences of this practice and procedure are profound since they are already marginalized in the mainstream disability system and the option available for the participants is to withdraw their access requests or reviews, because the culture and capacity of the NDIA appears driven to minimise spending on participant plans. Subsequently the participants are left without adequate support, impacting the health and wellbeing of the individual, and broken trust with the NDIA.
2.193Several submitters suggested that the NDIA should develop language and processes that are accessible and culturally safe for people from Aboriginal and Torres Strait Islander people.
2.194The Northern Territory Government submitted that culturally safe engagement by the NDIA could be improved by increasing the number of local Aboriginal people in Northern Territory NDIA offices.
2.195The committee received evidence that, while there are some Aboriginal and Torres Strait Islander staff working for the NDIA, those staff were perceived to be fighting to change the agency from within but encountering barriers. The Victorian Aboriginal Community Controlled Health Organisation gave evidence that they had examined the agency's documents published since 2017 concerning Aboriginal and Torres Strait Isander engagement and employment:
There are some common themes that we see across all of these documents, and they relate to an overall lack of focus and clarity in the management and governance of the agency in the space of creating equitable outcomes for Aboriginal communities and in building their own capability and culture for Aboriginal and Torres Strait Islander understanding, responsiveness and safety. There is a lack of transparency across all of these documents and a lack of clarity as to what they're trying to achieve in this space, and what successes they're willing to report. We also see a lack of commitment to genuine and authentic leadership in action, including employing executives who identify as Aboriginal people. And there is an overall lack of cultural responsiveness and safety that we hear reported by Aboriginal members of staff at the National Disability Insurance Agency.
2.196In some areas of Australia, appropriate services for Aboriginal and Torres Strait Islander people may be entirely absent. For example, the ACT Government submitted that:
The ACT community identified that there are no Aboriginal NDIS plan managers in the ACT and that there are also no specialist disability support services for and lead by Aboriginal and Torres Strait Islander people in the ACT … The ACT community has a strong view the NDIA needs to increase its cultural competence and play a more active role in stewarding Aboriginal Community Controlled disability support organisations … The ACT disability community very strongly identify that codesign and increased representation of people in leadership positions in the NDIA is a critical component of improving culture, capability, and outcomes for NDIS participants.
2.197The NDIA submitted that had established a Co-Design and Engagement Branch within the agency to work across internal teams and with external stakeholders to deliver a best practice co-design approach for strategic projects, including a 'strategy refresh' project for Aboriginal and Torres Strait Islander peoples.
Culturally and Linguistically Diverse people
2.198The committee received evidence that people with disability who are from Culturally and Linguistically Diverse backgrounds also face additional barriers to accessing information about the scheme, receiving culturally appropriate supports, and accessing legal information and representation. For example, AMPARO Advocacy submitted that:
Whilst service systems should be designed to deliver good outcomes for individuals regardless of cultural or linguistic backgrounds, the NDIS is a complex specialist disability service system that is extremely difficult to access and navigate and it has not been designed to respond well to language and cultural differences of individuals.
2.199The NDIA submitted that its Co-Design and Engagement Branch was also working on a 'strategy refresh' project for Culturally and Linguistically Diverse people.
LGBTQIA+
2.200The committee received evidence on the importance of co-design in developing and implementing policies related to sexuality. For example, Yooralla called on the NDIA to employ and consult with LGBTQIA+ people with disability, and do more to support relevant service providers. Yooralla also noted that NDIA staff have a profound influence on participants' experiences with the agency. People with disability should not be expected to be able to communicate their values and choices until the NDIA provides a safe space in which to do so. For this reason, Yooralla submitted that the NDIA should invest in building staff capacity to drive an inclusive culture and appropriately support people with disability. They suggested that the NDIA fund identity exploration supports such as shared safe spaces for LGBTQIA+ people with disabilities, their peers, families, carers and close supports.
2.201Freedom to express one's gender and sexuality are basic human rights recognised by the CRPD. Submitters suggested that Functional Capacity Assessments (FCAs) were not inclusive of gender and sexuality, leaving people without supports that were vital to their overall health and wellbeing.
2.202For example, the Sexuality Education Counselling and Consultancy Agency (SECCA) gave evidence that 'cisnormative, heteronormative, and Asexual stereotypes damage informed consent capacity of a people with disability's experience, if they are a member of the LGBTQIA+ community.' SECCA called on the NDIA to recognise these implications, and ensure that NDIS plans, funding, and support are provided to LGBTQIA+ participants to afford them the same sexual rights as other people.
2.203Yooralla emphasised the importance of the NDIA employing LGBTQIA+ staff, as well as signalling in other ways that LGBTQIA+ participants were welcome and that the agency understood their support needs.
2.204The NDIA submitted that it was committed to the inclusion of all staff within the workplace, regardless of their gender identity, gender expression, biological sex, sexual orientation or attraction. The agency emphasised that it recognised the importance of creating a workplace where genuine inclusion underpins NDIA operations so that staff, participants, and others who come into contact with any staff member to feel safe. Furthermore:
The NDIA LGBTIQA+ Inclusion Plan 2021–23 was developed following extensive consultation with internal and external stakeholders. To achieve outcomes that will bring about positive change and drive inclusive practices, the plan is underpinned by specific, tangible actions including capability and leadership, culturally safe workplace culture and inclusive policy and practice.
Other reviews
2.205The Disability Royal Commission was established on 4 April 2019 to investigate:
preventing and better protecting people with disability from experiencing violence, abuse, neglect and exploitation;
achieving best practice in reporting, investigating and responding to violence, abuse, neglect and exploitation of people with disability; and
promoting a more inclusive society that supports people with disability to be independent and live free from violence, abuse, neglect and exploitation.
2.206The Disability Royal Commission tabled its final report on 29 September 2023. Its recommendations will inform the committee's future inquiries.
NDIS Review
2.207On 18 October 2022, the Hon Bill Shorten MP, Minister for the NDIS, announced the NDIS Review.
2.208An Independent Review Panel, comprising Professor Bruce Bonyhady AM (co‑chair), Ms Lisa Paul AO PSM (co-chair), Mr Kevin Cocks AM, MsJudyBrewer AO, Dr Stephen P King, Mr Dougie Herd and Ms Kirsten Deane OAM are reporting directly to Disability Reform Ministers.
2.209The purpose of the NDIS Review is to:
analyse challenges to the effectiveness of the NDIS and the NDIS market and workforce, and opportunities to improve their effectiveness to support people with disability and their families and carers, helping them achieve their life goals and participate in social and economic life. This includes analysis of barriers to accessing and navigating the NDIS;
consult widely to ensure participant, provider and community feedback and, where necessary, draw on specialist expertise while managing demands on those consulted;
examine barriers that have affected the operation of the NDIS and the NDIS market and the development of a capable workforce, including an assessment of the impact of major policy changes, regulation and interaction with other systems;
co-design directly with participants, carers and their families, and providers and workers, and prioritise potential reforms to improve the responsiveness and capability of the NDIS and the NDIS market to ensure they deliver for Australians with a disability and their families and carers, and society more broadly; and
review the reasons for ongoing significant upward revisions of cost pressures on the scheme and identify options to ensure scheme sustainability and manage future financial risks, including growth in scheme costs.
2.210The Independent Review Panel is to provide its final report to Disability Reform Ministers by October 2023. The committee looks forward to the final report and will consider its recommendations in planning future inquiries.
Royal Commission into the Robodebt Scheme
2.211On 18 August 2022, a Royal Commission was established to inquire into the Robodebt scheme, which had been developed by the then Department of Human Services to recover alleged overpayments from welfare recipients. While the inquiry was focused on the specific conduct of government agencies in the administration of the Robodebt scheme, the Royal Commission made recommendations broadly applicable to the design and implementation of service delivery across government.
2.212A key recommendation of the Royal Commission into the Robodebt Scheme (Robodebt Royal Commission) was that policies and processes be designed with emphasis on the people they are meant to serve. It was recommended that government service departments and agencies place their primary emphasis on recipients of their services, including:
avoidance of language and conduct which reinforces feelings of stigma and shame associated with the receipt of government support;
facilitation of easy and efficient engagement with services which is sensitive to the particular circumstances of customers;
explanation of processes in clear terms and plain language when communicating with customers; and
acting with sensitivity to the stresses experienced by customers, and taking all practicable steps to avoid exacerbating these stresses through interactions with the government.
2.213These recommendations are applicable to the capability and culture of the NDIA. Throughout the inquiry, submitters have questioned whether the NDIA's policies and processes are actually designed to serve their primary client, the participant.
2.214The Robodebt Royal Commission also highlighted the need to improve the administration and structure of the Australian Public Service. Recommendations were made with a focus on improving front-line and customer services, as it was found that 'those who designed and implemented the Robodebt Scheme failed to recognise their role in a service delivery organisation, and the characteristics of the people they sought to serve'.
2.215The Royal Commission recommended a renewed focus on customer service, with Services Australia and the DSS introducing mechanisms to ensure all new programs and schemes are developed with a customer-centric focus, and that specific testing be done to ensure that all recipients are at the forefront of each new initiative.
2.216The Royal Commission also recommended that the Australian Government explore the feasibility of establishing an internal college within Services Australia to provide training and development to staff, linked to the skills and knowledge required to undertake their duties. The Report highlighted the need for concerted upskilling of front-line staff in key subject matter areas affecting the implementation of new processes, to enhance customer experience and achieve better outcomes.
2.217Similarly for the NDIA, the committee received evidence of a strong need for further training of frontline staff and availability of specialists to ensure that the needs of participants are fully met during all interactions with the NDIA. A lack of understanding of specific disabilities, and how these may be reported by participants in the first instance, reduces the efficacy of services provided by the NDIA.
2.218For this reason, many submitters called on NDIA staff, including planners and LACs, to respect and accept expert medical opinion on participants' disabilities and needs for support.
2.219It is noted there has been significant investment into the capability the NDIA at the 2023–24 Federal Budget to improve specialisation of planning and the committee looks forward to hearing more about the implementation of these initiatives.