National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021


Introductory Info

Date introduced:  28 October 2021
House:  House of Representatives
Portfolio:  National Disability Insurance Scheme
Commencement:  Details of commencement are set out at page 3 of this Bills Digest.

Purpose and structure of the Bill

The purpose of the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021 (the Bill) is to amend the National Disability Insurance Scheme Act 2013 (the NDIS Act or the Act) to implement a range of measures including to:

  • fulfil the Government’s intention of legislating the proposed Participant Service Guarantee (the Guarantee or the proposed Guarantee) for National Disability Insurance Scheme (NDIS) participants – the relevant amendments are in Schedule 1 of the Bill
  • allow for the variation of NDIS participant plans, including by permitting the Chief Executive Officer of the National Disability Insurance Agency (CEO of the NDIA or CEO) to vary a plan of their own initiative – the relevant amendments are in Schedule 1 of the Bill
  • introduce so called ‘flexibility measures’ into the NDIS Act including by strengthening the objects and principles in the Act, allowing direct funding to NDIS providers and amending requirements relating to psychosocial disability – the relevant amendments are in Schedule 2 of the Bill and
  • a range of technical amendments to reflect the fact that the NDIS has now been rolled out across Australia – the relevant amendments are in Schedule 3 of the Bill.

Many of the measures in the Bill, including the proposed Guarantee, implement certain recommendations from the 2019 Review of the National Disability Insurance Scheme Act 2013 conducted by David Tune AO PSM (also known as the Tune Review).[1]

Commencement details

Amendments related to the proposed Guarantee and amendments consequential to the completed roll-out of the NDIS commence on the seventh day after Royal Assent. The remainder of amendments commence either three months and a day after Royal Assent or on 1 April 2022, whichever is later. The commencement details are set out at clause 2 of the Bill.

Background

The National Disability Insurance Scheme

The NDIS provides support to people with disability, their families and carers. The NDIS represents an insurance-based approach predicated on the premise that people with disability have different support needs and should be able to exercise choice. The NDIS replaced the previous block funding system with a fee-for-service market based system and is jointly funded by the Australian, and state and territory governments. The NDIS commenced on 1 July 2013.[2] The NDIS focuses on ‘participant plans’ that set out a participant’s goals as well as their funded supports.[3] The NDIS is administered by the National Disability Insurance Agency (NDIA).

2015 Review of the NDIS Act

The NDIS Act required an independent review of the Act to occur on the second anniversary of the commencement of the provisions relating to participants and their plans.[4] In December 2015, the consultancy firm Ernst & Young published its Independent Review of the NDIS Act (the 2015 Review).[5] The report found that broadly speaking the NDIS legislative framework was enabling the government to further the objectives and principles of the Act.[6] The report however found that there were four broad areas where there could be legislative reform:

  • the need to provide greater clarity on the intent of government policy and how the NDIS should be administered in practice
  • the need to amend the NDIS Act to enhance the efficiency and effectiveness of NDIS administration
  • scope to amend the wording of the NDIS Act (including through the introduction of new principles) so that the legislative framework better reflects government policy, the reality of the Scheme’s operation and the lived experience of people with disability and
  • the need for amendments to the NDIS Act to operationalise the bilateral agreements that have been signed between the Commonwealth and the states and territories, and the recommendations from other key reviews.[7]

The 2015 Review made 33 recommendations in total. The Bill implements a certain number of these recommendations.[8]

Commitment to introduce a participant service guarantee

During the 2019 federal election campaign, the Coalition committed to introduce a new NDIS Participant Service Guarantee. The Nationals Party noted:

With the NDIS transition period nearing an end, it is now also time to set up the NDIS for future success.

A re-elected Liberal and National Government will therefore introduce a new NDIS Participant Service Guarantee following the practical completion of the NDIS rollout in 2020.

The new NDIS Participant Service Guarantee will set timeframes for participants to receive an access decision (that is, a decision on whether they will be covered by the NDIS); to have their NDIS plan approved; and to have their NDIS plan review, should a participant request a review.

…

These new service standards will reduce the time taken for people with disability to access the NDIS, and have their plan approved and implemented.

Specific service standards will be enforced for children with disability and participants requiring specialist disability accommodation and assistive technology. This will ensure that children in need of assistance will be provided with immediate support.

…

The NDIA will be required to report against their performance under the new NDIS Participant Service Guarantee to the COAG Disability Reform Council.

The Commonwealth Ombudsman will be given additional resources of $2 million to allow it to monitor the NDIA’s performance against the Participant Service Guarantee timeframes, and to support NDIS participants pursuing complaints about time frames they have experienced.[9]

2019 Tune Review

In 2019, David Tune conducted a review into the NDIS Act which examined participants’ experiences of the NDIS and opportunities for improvement of the scheme (referred to in this Bills Digest as the Tune Review or the Review). The Review focussed on the Government’s commitment to legislate a Participant Service Guarantee.[10] The Tune Review noted:

The Participant Service Guarantee should require the NDIA, when requested by a person with disability, to provide an explanation of an access, planning or plan review decision in an accessible format of their choice. This would be consistent with best practice administrative decision-making principles, reinforce robust planning practices, and ensure the NDIS remains accountable to the people it was designed to support.

The Participant Service Guarantee should also empower participants to be able to review and consider a full version of their draft plan before it is approved, inclusive of the estimated plan budget. The provision of a whole draft plan is an important mechanism to ensure decision-making processes are transparent and for keeping the participant at the centre of the planning process.

The timeframes in the Participant Service Guarantee should be ambitious, but achievable. They should recognise that, due to current workforce capacity and ICT constraints, business as usual timeframes may not be deliverable by the NDIA by 1 July 2020, and/or requisite changes to the NDIA’s ICT systems may not be deliverable by 1 July 2020. To provide certainty for participants, the Participant Service Guarantee should have a staged implementation, including slightly longer timeframes for the 2020–21 financial year.[11]

The Tune Review made 29 recommendations in total. The Government supported, or supported in principle, all 29 recommendations.[12] The Bill centres on responding to recommendations from this Review.[13] Where possible this Bills Digest references the relevant Tune Review recommendations implemented by the key provisions of the Bill.

Consultation on Exposure Draft and release of draft NDIS rules

The Department of Social Services released an Exposure Draft of the Bill, with consultations on the Exposure Draft of the Bill taking place between 9 September 2021 and 7 October 2021, including four live briefing sessions.[14] The Department’s consultation report noted that 313 submissions were received as part of this process.[15] A number of changes were made to the final Bill as introduced as a result of feedback received through the consultation process – a summary of these changes can be found at page 10 of the Explanatory Memorandum to the Bill.

Draft NDIS rules

By way of background, subsection 209(1) of the NDIS Act provides that the Minister may, by legislative instrument, make NDIS Rules prescribing matters that are required or permitted by the NDIS Act to be prescribed by the rules.

Subsections 209(4)–(7) of the NDIS Act set out four categories of NDIS Rules:

  • the Minister must not make Category A rules unless the Commonwealth and each host jurisdiction have agreed to the making of those rules
  • the Minister must not, unless the host jurisdiction has agreed, make Category B rules relating to:
    • an area, law or program of a host jurisdiction or
    • the commencement of the facilitation of the preparation of plans of participants who are identified by reference to a host jurisdiction
  • the Minister must not make Category C rules unless the Commonwealth and a majority of host jurisdictions have agreed to the making of the rules and
  • the Minister must not make Category D rules unless each host jurisdiction has been consulted in relation to the making of the rules.[16]

The substantive detail to implement many measures in the Bill will be set out in future NDIS Rules, if the Bill is enacted. Many of the rules will be Category C or Category D rules, meaning the exact manner in which the Bill will operate will be contingent on the final content of the NDIS Rules.

The Government has released Exposure Drafts of these rules as part of its consultation process which indicates how it intends the Bill to operate. These are:

Where possible this Digest refers to the draft rules. It should be noted that these draft rules are indicative and could change after passage of the Bill. It has been reported for example, that the NDIS Minister is already considering the redrafting of certain rules in response to stakeholder concerns.[18]

As legislative instruments, there will be a degree of Parliamentary oversight of the rules once tabled through the disallowance process under the Legislation Act 2003 and through assessments undertaken by the Senate Standing Committee for the Scrutiny of Delegated Legislation.

Bill introduced in context of other proposed reforms

It should be noted that the Bill was introduced following the Government’s decision not to proceed with independent assessments.[19] The Independent Advisory Council to the NDIS and major stakeholders have suggested that trust in the Government among the disability sector is low at present because of the widespread belief that independent assessments were designed to reduce forecasted expenditure on the scheme. Much of the scepticism from the disability sector about the Bill appears to arise from the belief that the Government intends to increase the powers of the NDIA and thereby indirectly introduce cost-cutting measures.[20] For example, one hearing witness to the Senate Committee inquiry (discussed below), from the key advocacy group Every Australian Counts, argued:

Put simply, this is about trust. The actions of the government and the NDIA in their campaign for independent assessments left all of us feeling suspicious and truly exhausted. On this legislation, we've heard the minister and the agency ask us to relax and trust them again, but it's hard for our community to take … [P]eople with disability have told us that they do not trust that this bill is safe to pass.[21]

Committee consideration

Senate Community Affairs Legislation Committee

The Bill was referred to the Senate Finance and Public Administration Legislation Committee for inquiry and report by 25 November 2021. Details of the inquiry are at the inquiry webpage. The Committee recommended that the Bill be passed.[22] The Committee noted that the Bill’s intent was broadly supported by those who participated in the inquiry as were many specific provisions within the Bill.[23] The Committee however did acknowledge that certain parts of the Bill raised concerns with stakeholders, including the broad powers provided for in delegated legislation.[24]

In relation to the concerns around the provisions relating to varying a participant’s plan (discussed below in this Bills Digest), the Committee noted:

… the proposed variation rules, which the Government has undertaken to release prior to parliamentary debate, must align with the pillars upon which the NDIS has been built and serve the principles of the NDIS Act. The committee understands the particular concerns raised by submitters about the potential impacts of section 47A in particular, but accepts that the intention of the provision is to be of benefit to participants, rather than to their detriment.[25]

The Committee similarly acknowledged concerns around the contracted consultation period for the Bill, but noted that the Bill built upon previous consultation processes and that timely implementation of the reforms would benefit participants.[26]

The Australian Greens released a dissenting report which is discussed further below in the Policy position of non-government parties/independents section of this Bills Digest.

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Committee for the Scrutiny of Bills expressed concerns around the inclusion of significant matters in delegated legislation – especially in relation to the measures in Schedule 1 of the Bill.[27] To this end, the Committee requested the Minister’s advice on:

  • why it is considered necessary and appropriate to leave key details in relation to the implementation of the proposed Guarantee to delegated legislation and
  • whether the Bill can be amended to include at least high-level guidance in relation to these matters on the face of the primary legislation.[28]

Policy position of non-government parties/independents

Australian Greens

The Greens Senators released a dissenting report as part of the Senate Committee process.[29] They discussed various concerns in their report, including the overreliance in the Bill on delegated legislation, the proposed variation and reassessment powers of the CEO with respect to participant plans, eligibility requirements and changes with respect to psychosocial disability, the short consultation period on the Bill and the need for greater co-design and representation in relation to reforms to the NDIS.

The Greens recommended that the Bill not be passed in its current form and that further consultation and ‘genuine co-design’ occur in relation to any future reforms to the NDIS.[30] The Greens further recommended changes to the current Bill should the Government proceed. These are set out in full at page 42 of the Committee report – they include for example amending proposed section 47A to either remove the CEO’s powers to vary a participant’s plan or significantly limit this power, amending the NDIS Act to include all disabilities in relation to ‘episodic’ and ‘fluctuating’ qualifiers for establishing permanence, and changing the categorisation of certain NDIS rules.[31]

Australian Labor Party

The ALP Senators also tabled a dissenting report on 2 December 2021 separate to the above Senate Committee report.[32] ALP Senators noted that they ‘do not agree that the Bill is fully faithful to those recommendations or with this report’s [the Senate Committee report] finding that the Bill be passed in its current form’.[33] They also disagreed with the majority report in noting that consultation on the Bill was not sufficient.[34] The ALP Senators expressed concern around the use of delegated legislation in noting that the reliance on Category D Rules (only requiring consultation with states and territories) creates a ‘blank cheque’ for the Commonwealth Government to decide who receives support and how much.[35] 

Labor Senators recommended the Bill not be passed in its current form and that the Government engage in ‘genuine co-design and consultation’ on both the Bill and Rules before either proceed.[36] They recommended the Bill be amended in almost identical terms to the recommendations in the Greens Dissenting Report.[37]

Position of major interest groups

As part of the Senate Committee process outlined above, the Committee received 78 submissions from various stakeholders, disability peak bodies, state and territory governments and relevant employee groups. As noted above, the Senate Committee considered that there was broad support for the Bill amongst stakeholders, at least for certain aspects of the Bill::

A number of aspects of the bill received widespread support across submissions, including:

· clarification of the Administrative Appeals Tribunal’s jurisdiction;

· implementation of the Participant Service Guarantee, including the commitment to time limits for National Disability Insurance Agency (NDIA) decisions;

· implementation of the Commonwealth Ombudsman’s review of the NDIA’s performance against the Participant Service Guarantee, as well as in relation to participant experience;

· improved market levers for the NDIA to intervene to remedy thin markets;

· clarification of language around the different types of ‘reviews’;

· improvement of the NDIS principles, including adding co-design with people with disability, and using more inclusive language; and

· replacing the term ‘psychiatric condition’ with ‘psychosocial disability’.[38] 

One controversial matter amongst stakeholders was proposed section 47A which allows the CEO of the NDIA to vary or reassess a participant’s plan of their own initiative. Some of these views are set out in the relevant part of the Key issues and provisions section of this Bills Digest.

The Committee also noted that a criticism of the Bill shared by a number of stakeholders was that the Bill makes use of broad discretionary powers in delegated legislation that should be incorporated into the Bill itself and that certain categorisations of proposed NDIS rules should be reconsidered.[39] 

Some stakeholders argued that the consultation period for the Exposure Draft of the Bill was not sufficient, with the Office of the Public Advocate for South Australia, for example, arguing that the ‘short window for public consultation and feedback seems contradictory to the principle of co-design espoused by the Bill’.[40]

This Bills Digest references a selection of key stakeholder submissions in the Key issues and provisions section of this Digest, focusing on those stakeholders that commented on the measures in the Bill itself.

Financial implications

The Government notes that there are no significant financial impacts with the Bill and that it has committed $2 million over 4 years from 2020-21 to enable the Commonwealth Ombudsman to monitor the Agency’s performance in delivering the Guarantee (the proposed role of the Commonwealth Ombudsman is discussed below in this Bills Digest).[41]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[42]

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights (PJCHR) considered in detail the human rights implications of the measures in the Bill that would allow the variation or reassessment of a participant’s plan (this measure is discussed further in the Key issues and provisions section below).[43] The PJCHR noted that the Bill’s statement of compatibility with human rights did not address the extent to which the ability of the CEO of the NDIA to vary or reassess a participant’s plan is compatible with these rights.[44]

The PJCHR concluded that it had not yet formed a final view and needed more information from the Minister:

The committee notes that this bill would allow an NDIS participant's plan to either be varied or reassessed on the CEO's own initiative or on request of the participant. The matters to which the CEO must have regard in deciding whether to vary or reassess a participant's plan on their own initiative are to be set out in the NDIS rules.

The committee notes that a number of the measures in the bill would promote or facilitate the realisation of some of Australia's obligations under the Convention on the Rights of Persons with Disabilities. However, the committee notes that allowing the CEO, on their own initiative and without the participant's consent, to vary or reassess a participant's plan, engages and may limit a number of rights. In particular, where a participant's supports are reduced or adversely changed as a result of the CEO varying or reassessing the participant's plan, the measure would engage and may limit the rights to health and an adequate standard of living, as well as the rights of persons with disability, including the right to live independently and be included in the community. These rights may be subject to permissible limitations if they are shown to be reasonable, necessary and proportionate.

The committee notes that the statement of compatibility did not acknowledge that this measure may engage and limit these rights and so does not provide an assessment as to the compatibility of this measure with these rights. The committee considers there are questions as to the objective being pursued by this measure and whether it is a proportionate means of achieving this objective, particularly as much of the detail is to be included in the as yet unmade NDIS rules. [emphasis added][45]

Key issues and provisions

Schedule 1

Introduction of the Participant Service Guarantee

The Tune Review, as part of its terms of reference, was tasked with considering how best to implement the proposed Guarantee.[46] The Tune Review recommended (at Recommendation 25) the following in relation to implementing the Guarantee, including that its details should be set out in subordinate legislation:

That the NDIS Act is amended to legislate the Participant Service Guarantee as a Category C rule, to be updated from time to time, with:

a. relevant existing timeframes for decision-making moved from the NDIS Act to the new rule

b. new timeframes for decision-making, engagement principles and performance metrics

c. prospective participants and participants being empowered to request an explanation of an access, planning or plan review decision made by the NDIA

d. participants being empowered to receive a full draft plan before it is approved by the NDIA

e. a review within two years of being enacted.[47]

The Department of Social Services has released an Exposure Draft of the National Disability Insurance Scheme (Participant Service Guarantee) Rules 2021 (the draft Guarantee Rules) on its website.[48] While this draft is subject to change, it has been considered at various points in this Digest in relation to the measures the Government intends to implement under the proposed Guarantee.

The subordinate legislation that will implement the details of the Guarantee under the Bill will be ‘Category C rules’.[49] This means that the Minister cannot make these rules unless the majority of states and territories have agreed to them.[50]

Service standards and performance monitoring elements of the Guarantee

As noted at Recommendation 25b excerpted above, one of the recommendations of the Tune Review was that the NDIS Rules should provide for engagement principles and performance metrics as part of the Guarantee. The Bill inserts the ability for the NDIS Rules to provide for engagement principles (how the NDIA and CEO engage with participants and prospective participants, and vice versa).[51]

The draft Guarantee Rules set out the intended ‘engagement principles’ under the proposed Guarantee at sections 5 and 6. Section 5 of the draft Guarantee Rules sets out the principles for the NDIA and CEO (and other responsible persons), this centres on five key engagement principles:

  • Transparency — Participants and prospective participants have access (that is easy to understand and available in formats that meet their needs) to clear, accurate, consistent and up-to-date information about the NDIS, their plans and the funding allocated for their plans
  • Responsiveness — Participants and prospective participants are supported and their independence is maximised by addressing their individual circumstances and needs
  • Respect — Participants and prospective participants are valued, listened to and respected
  • Empowerment — Participants and prospective participants are empowered to make access requests, navigate the NDIS system, participate in the planning process and purchase supports under their plans and
  • Connectedness — Barriers are removed so that participants and prospective participants are connected to the services and supports they need.

These principles reflect those principles identified by the Tune Review as being the relevant considerations that the new Guarantee should be built around.[52]

These principles correspond to relevant service standards – for example the engagement principle of ‘Respect’ is tied to the service standard of treating participants/prospective participants and their families and carers with empathy, dignity and respect for their diverse experiences, values and beliefs.[53] Similarly, the engagement principle of ‘Empowerment’s is tied to the service standard of requiring the NDIA and CEO to inform participants/prospective participants of their right to bring anyone they choose to help support them through the process.[54]

While these proposed engagement principles and service standards are detailed and are a key part of the Guarantee, they are not assured by the Bill itself (as they will be set out in a legislative instrument). As noted, the Exposure Draft is subject to change before to enactment.

Quarterly report

The Bill also facilitates the Government’s intention that the Board of the NDIA will report on certain performance metrics in relation to the Guarantee to the Ministerial Council overseeing the NDIS (as part of its quarterly report).[55] The provision of a quarterly report is already a requirement under the NDIS Act, with the Minister able to prescribe additional information by legislative instrument to be in this report, provided the majority of the Ministerial Council has agreed to the instrument.[56]

The Bill amends these provisions so that the Commonwealth Minister alone can prescribe required information in the report without the agreement of the remainder of the Ministerial Council.[57] The draft Guarantee Rules sets out the detail of the information the Government intends to be in this quarterly report at section 15. The Government expects, for example, that the report should include information on:

  • activities undertaken or improvements made in the period in relation to each engagement principle, and service standard (as set out in the NDIS Rules)
  • the average response or decision time against each timeframe that applies to the Agency or CEO and percentage of responses or decisions made outside of this timeframe and
  • the number of different types of decisions made under the NDIS Act and information on outstanding matters.[58]
Commonwealth Ombudsman

The Tune Review recommended (at Recommendation 26) that the NDIS Act be amended to clarify the Commonwealth Ombudsman’s powers to monitor the NDIA’s performance in delivering against the Guarantee.[59] The Review noted that the Ombudsman Act 1976 already provides the Ombudsman the power to monitor and investigate the NDIA in relation to its functions under the proposed Guarantee. The Review nevertheless found that there was ‘merit’ in explicitly providing for this matter in the NDIS Act.[60] 

The Bill provides that as soon as practicable after each financial year, the Ombudsman must prepare and give to the Minister a report about some or all of the matters prescribed by the NDIS Rules. The report must be tabled in Parliament within 15 sitting days. The amendments also provide that the powers of the Ombudsman under the Ombudsman Act extend to the preparation of the report.[61]

Section 16 of the draft Guarantee Rules highlight the Government’s intention for the Ombudsman’s report to use the engagement principles in the Guarantee (discussed above) as the relevant performance metric to report against.

Relevant timeframes under the Guarantee

A key aspect of the proposed Guarantee is the setting of timeframes for key decisions in the NDIS process – thereby providing certainty for current and prospective participants.[62] The Bill mostly provides for these timeframes to be set out in the NDIS Rules. The amendments relating to timeframes implements Recommendations 25a and 25b of the Tune Review (excerpted above). The NDIA notes that since 1 July 2020, it has been measuring itself against the proposed Guarantee ahead of the proposed legislative change – it notes that these timeframes are being met 95% of the time.[63] The key amendments relating to timeframes in the Bill are briefly outlined below.

Access requests

Currently, access requests to the NDIS by prospective participants must be decided by the NDIA within 21 days.[64] The Bill does not change this requirement but stipulates that while the NDIS Rules can provide for a shorter timeframe, the 21 day period cannot be extended.[65] In effect this ensures that the 21 day timeframe will generally be the maximum period to decide access requests.

Request for information from the NDIA

The Tune Review recommended (at Recommendation 9) that prospective applicants be given up to 90 days to provide information requested by the NDIA to support an access decision, before it is deemed that their request has been withdrawn.[66] The Review notes that the current 28 day timeframe has been highlighted as problematic through consultation – with some submissions to the Review noting that it took between two and three months to provide the requested information (such as information required from specialist health professionals).[67]

The Bill makes these changes in legislation so that prospective participants will have 90 days to respond to a request for information from the CEO of the NDIA.[68]

Development of a participant’s plan

The Tune Review recommended (at Recommendation 11) that the NDIS Act be amended to reflect that a NDIS participant plan must be facilitated and approved in accordance with the timeframes outlined in the proposed Guarantee.[69] The NDIS Act does not currently set a timeframe in which a plan must be approved. The Tune Review ‘heard that participants, their families and carers have experienced lengthy delays in getting their plan approved, often with no communication from the NDIA as to why or when they can expect it’.[70] 

The Bill amends the NDIS Act so that it will be a requirement for the CEO of the NDIA to begin facilitating the preparation of the participant’s plan within 21 days of the person becoming a participant.[71] The amendments to the Bill however do not create a time limit for the approval of the plan as such.

A participant’s plan is in effect when the CEO has received the participant’s statement of goals and aspirations and when the CEO has approved the statement of participant supports (the decision to approve or not must be done ‘as soon as reasonably practicable’).[72] The Bill does not create a timeframe for this approval in the NDIS Act.

Instead, the Bill requires the CEO to approve the statement of participant supports within the period worked out in the NDIS Rules, or if there are no such rules, then as soon as reasonably practical.[73] The draft Guarantee Rules envisages the time period to be 90 days for those aged under seven, or 56 days for other participants.[74]

Cancellation of appointments of nominees

The NDIS Act allows for the appointment of plan nominees and correspondence nominees (as a last resort) to undertake activities on behalf of a participant.[75] This appointment can be cancelled on request of the participant or where the nominee no longer wishes to be appointed. Items 34 and 35 of Schedule 1 amend the Act so that the CEO must cancel the appointment within the period provided for by the NDIS Rules or as soon as practical.[76] Section 12 of the draft Guarantee Rules notes the Government’s intention is that this period be 14 days after the request is made by the participant or 14 days after being informed by the nominee.

Timeframe for internal reviews

Currently, where a decision maker reviews a ‘reviewable decision’, they must make a decision to confirm the decision, to vary the decision or to set aside and replace the decision ‘as soon as reasonably practical’.[77] Items 42-44 of Schedule 1 amend the NDIS Act so that the NDIS Rules can prescribe the relevant time period for this to occur. If no such rules exist, then the time limit becomes 90 days from when the decision maker receives a request for review or from when they have been taken to have made the decision.[78] Section 14 draft Guarantee Rules reflect the Government’s current intention that the period should be limited to 60 days.

Stakeholder views

During the Exposure Draft consultation process and Senate Committee Inquiry process, most stakeholders supported the Bill’s provisions concerning the proposed Guarantee, welcoming, for example, the requirement that the Commonwealth Ombudsman report on the NDIA’s performance against the Guarantee.[79]

However, Professor Bruce Bonyhady AM, one of the key designers of the NDIS, suggested there was ‘a significant risk’ that the NDIA would make ‘poorly considered and ill-informed decisions quickly’ to meet the timeframes set out in the proposed Guarantee.[80] Other stakeholders who submitted to the consultation expressed concern that the NDIA ‘is not sufficiently resourced to meet the requirements in the guarantee’ or may not have the capacity to meet the timeframes of the proposed Guarantee.[81]

Variation of plans

Currently, the NDIS Act does not allow the variation of a participant’s plan. A plan can only be changed where a participant changes their statement of goals and aspirations and provides this to the CEO of the NDIA.[82]

In other circumstances, a plan needs to be replaced rather than varied. A new participant plan can be made in circumstances including:

  • when the participant requests an unscheduled plan review
  • the NDIA initiates an unscheduled plan review or
  • as part of a scheduled plan review – where the NDIA conducts a review of the plan by the date and under the circumstances in the plan itself.[83]

The Tune Review noted:

… , a participant’s plan cannot be varied unless a new plan is created under Division 4 of the NDIS Act. In short, this means to make any change to the plan – including making the most minor administrative change to a plan (such as fixing a typographical error or updating the participant’s contact details) – requires the participant to undergo a full plan review. Understandably, this has caused significant frustrations for participants.

…

Consultation feedback indicates that participants feel this process might mean that all their plan supports could be reassessed and reduced, rather than the review being limited to the matter in contention. For this reason, a significant number of participants indicated that they, despite needing additional or new supports, are choosing not to request unscheduled reviews of their plan. Although, it should be noted the legislation currently requires the NDIA to be satisfied all supports in the plan are reasonable and necessary, regardless of the reason the review was initiated or the type of change the participant asked for.[84]

To this end the Review recommended (at Recommendation 21) that the NDIS Act be amended to introduce a new Category D rule making power giving the NDIA the ability to amend a plan in appropriate circumstances.[85]

The Bill inserts proposed section 47A (as inserted by item 23) so that a participant’s plan can be varied on request of the participant or on the CEO of the NDIA’s own initiative. The CEO can make the variation where:

  • it is a change to the statement of participant supports in the circumstances prescribed by the NDIS rules
  • a correction of a minor or technical error or
  • of a kind prescribed by the NDIS rules.[86] 

The relevant NDIS Rules made under proposed section 47A will be Category D NDIS Rules.[87] This means that while states and territories have to be consulted on the proposed rules, they do not have to provide their consent for them to come into force.

The CEO must have regard to certain considerations, including the participant’s statement of goals and aspirations, relevant assessments conducted in relation to the participant, that the supports are reasonable and necessary,[88] the principle that the participant should manage their plan to the extent that they wish as well as the operation and effectiveness of any previous plans of the participant.[89] The CEO must make a decision on a request for variation within 21 days.[90]

As noted, the CEO can vary a plan on their own initiative. This has been a source of controversy for certain stakeholders (discussed below). The Government provides case studies on how it envisages these powers to be used in practice at pages 20-21 of the Explanatory Memorandum. The case studies indicate the Government’s hope that the powers will assist participants with positive changes to their plans without needing to go through a full plan replacement process.

The amendments require that variations ‘must be prepared with the participant’, however the Bill is silent on explicit protections on CEO variations that could be to the detriment of participants. The Government however argues that the qualitative elements of the Guarantee will act as a safeguard:

A variation may be different from the one requested by the participant however each variation must be prepared with the participant. This means these new provisions should be read in conjunction with new requirements for transparency under the Guarantee.[91]

However as discussed above, the qualitative elements of the Guarantee will be in the NDIS Rules rather than the Bill itself. Section 10 of the draft Plan Administration Rules provides guidance of sorts on the circumstances in which a CEO could exercise their discretion to vary a plan of their own initiative, including for example where the variation is minor or technical, relates to adding a particular support, increases the total funding to the plan or mitigates an immediate risk of harm to the participant.[92]

In contrast, the intended matters to be considered when deciding to vary a plan on the participant’s request are the same as above but are expanded to include matters such as a significant change in circumstances, to functional capacity or to degenerative conditions.[93] It should be noted that these draft rules once in force, would not remove the discretion of the CEO to make a decision notwithstanding these considerations. In other words they represent relevant factors that must be considered in making a decision, rather than thresholds that must be met for a particular decision to be made.

Stakeholder views

Many submitters to the Senate Committee Inquiry expressed concern about proposed section 47A, particularly that the circumstances in which the CEO of the NDIA could vary a participant’s plan would be prescribed in delegated legislation rather than the Act itself.[94] These concerns included the ways in which such rules would be categorised, which would determine the level of agreement or consultation required from the states and territories. For example, the Australian Human Rights Commission argued that given the rules had not been published when the Senate Inquiry was referred, ‘Members of Parliament are being asked to give the NDIA powers that may be confined or clarified in the future’. It suggested that in these circumstances the rules should be classified as Category A rules, which would require the unanimous agreement of the states and territories, rather than Category D rules. This was echoed by other submitters, such as the WA Government.[95]

The Public Interest Advocacy Centre argued that proposed paragraph 47A(4)(c) should be omitted so that, if a participant requested a variation of their plan, ‘the CEO should only be able to decide to vary the plan, or not vary the plan’ and ‘not have the power to decline the plan variation and instead reassess the plan under s 48(1)’. The Public Interest Advocacy Centre took this position because, it contended, a ‘participant should be able to request a plan variation without being concerned that their access to the Scheme and all of their existing supports [would be] open for reassessment’.[96]

It has been reported that in response to stakeholder concerns, the Government decided to amend the powers of the CEO ‘to ensure they could only be used in circumstances where a participant required crisis or emergency funding, a new “minor support” such as a piece of technology or a change to their plan reassessment date’.[97] At the time of writing this Digest it is unclear whether these reported changes will involve amendments to the Bill itself or changes in the finalised Plan Administration Rules.

Reassessment of plans

The Tune Review recommended that the NDIS Act be amended to remove the duplicate use of the word ‘review’ in the Act, as it has been confusing for participants.[98] A table  at page 19 of the Explanatory Memorandum distinguishes the meaning of ‘plan variation’, ‘plan reassessment’ and reviewable decision’. In particular, the plan review processes currently in place will be known as plan reassessments under the Bill’s amendments.

The Tune Review recommended (at Recommendation 20) that the NDIS Act be amended to introduce a new Category D rule making power that sets out the matters the NDIA must consider when deciding whether to undertake an unscheduled plan review.[99] The Review noted that consultation feedback indicated that people with disability do not understand the circumstances in which they should request an unscheduled review of their plan and the things the NDIA will consider when deciding whether to conduct it. The Review noted that the same confusion applies to knowing when the NDIA might decide to initiate a review of their plan.[100]

The Bill replaces existing provisions to, amongst other things, clarify that the CEO must have regard to the NDIS Rules in deciding whether to conduct a reassessment of a participant’s plan on their own initiative.[101] In addition, if the reassessment is requested by the participant, the CEO can consider whether to make a variation of the plan as opposed to a reassessment.[102] The Government notes that this is an ‘improvement’ as the CEO will be afforded greater options which will allow ‘for a more tailored response to the needs of the participant’.[103] The timeframe for decision on reassessment requests will be 21 days.[104]

Again the draft Plan Administration rules set out the proposed what the CEO must consider when deciding to conduct a reassessment of a participant’s plan.[105] These reflect the matters that are considered by the CEO when deciding to vary a plan on the participant’s request (discussed above).

The CEO will also be required to complete a reassessment of a participant’s plan before the stipulated date in the plan, and either vary the plan as a result or prepare a new plan with the participant.[106]

Decision making issues

The Tune Review recommended (at Recommendation 25c, excerpted in full above in this Digest) that participants and prospective participants be allowed to request reasons from the NDIS on decisions relating to access, planning or plan review.[107]

The Bill amends the NDIS Act to make it mandatory for the CEO to provide reasons for any reviewable decision. These decisions include for example decisions that a person does not meet the NDIS access criteria, decisions to revoke a participant’s status and decisions to approve a statement of participant supports in a plan.[108] These amendments reflect changes made to the Exposure Draft in response to the consultation process – feedback had noted that reasons should be given automatically and not just on request as was originally intended.[109]

In addition items 45-49 of Schedule 1 make amendments to the NDIS Act to ‘provide for anybody reviewing a decision on its merits to have the ability to take into account decisions which are made while the review is underway’.[110] In particular, the Tune Review recommended (at Recommendation 23) that the Administrative Appeals Tribunal’s (AAT) jurisdiction be clarified to include the power for a plan to be amended while a matter is before the AAT.[111]

Stakeholder views

Many major stakeholders welcomed amendments that would see the AAT able to review plans that were varied or replaced by new plans after an appeal to the AAT commenced.[112] However, Queensland Advocacy Incorporated called for ‘legislative clarity regarding the AAT’s jurisdiction over supports that were not originally requested or relevant at the time of the participant’s internal review application’ with the NDIA.[113]

Schedule 2

Schedule 2 contains amendments aimed at addressing flexibility issues with the NDIS and improving participant experience. These amendments include for example:

  • amendments to allow the CEO of the NDIA to approve forms and requiring the publishing of these online – this is aimed at improving the online experience of participants, an issue that was flagged in the Tune Review[114]
  • amendments clarifying how payments are made under the NDIS and enabling payments to be made directly to providers[115]
  • amendments enabling the NDIS Rules to prescribe requirements for providers that receive NDIS amounts on behalf of participants to retain records[116]
  • including the possessing of a disability or lived experience with disability as a characteristic that the Minister can consider when deciding to appoint a member to the Board of the NDIA as well as other amendments relating to Board appointments[117] and
  • clarifying the circumstances around debts payable the NDIA.[118]

These are not discussed in detail in this Bills Digest.

Amendment to general principles

The NDIS Act sets out general principles intended to guide actions under the Act.[119] The Bill amends these principles in various ways. First the Bill amends the NDIS Act to remove moderating language from these guiding principles.[120] Currently the relevant provisions in the NDIS Act refer to supporting people with disability to contribute to economic and social life ‘to the extent of their ability’ and the right to exercise choice and engage as equal partners ‘to the full extent of their capacity’. The Bill removes the moderating language: ‘to the extent of their ability’ and ‘to the full extent of their capacity’ from these provisions.

Significantly, the Bill also gives explicit recognition to the following principles:

  • that people with disability are central to the NDIS and should be included in a co-design capacity (this was a recommendation of the 2015 Review)[121]
  • that people with disability require access to a diverse and sustainable market for disability support in which innovation, quality, continuous improvement, contemporary best practice and effectiveness of those supports is promoted (currently the provision makes reference to the promotion to these listed factors but not to the need for market access)[122] and
  • the relationship between people with disability and their families and carers is to be recognised and respected.[123]

In relation to this last listed principle, the Bill also amends the NDIS Act so that the relationship between people with disability and their families and carers is recognised and respected as part of the preparation, review and replacement of a participant’s plan.[124] The Bill will also amend the Act to allow the CEO of the NDIA to consider the effect of obtaining compensation for a personal injury on the participant’s carers.[125]

It remains to be seen to what degree the amended general principles will affect the administration of the NDIS in practice and whether they will guide actions differently under the NDIS Act.

Stakeholder views

A number of stakeholders expressed support for the addition of the new general principles guiding actions under the Act, particularly the principle concerning co-design.[126] However, the Australian Human Rights Commission and the Office of the Public Advocate SA noted that the Bill does not define ‘co-design’, with the former calling for clarity or a definition of this term.[127]

Allied Health Professions Australia (AHPA) stated that it did not support the amendments that repeal and replace subsection 4(15) of the Act to add market access as the key factor around which other factors are to be promoted in the provision of supports to people with disability (listed above). AHPA argued that the proposed provision to replace this subsection did not reference any need for market intervention where market gaps may exist. AHPA further argued that the relevant 2015 Review recommendation was not as market focused in its wording and that the amendment does not reflect recommendations from the Tune Review.[128] 

Enabling access to disability supports

In general, the NDIS focuses on providing individualised supports for participants. However the NDIS Act does allow for more general funding assistance to be provided to persons or entities under Chapter 2 of the Act.[129] The following was noted in the 2015 review:

The key purpose of the NDIS is to provide individualised support for eligible people with permanent and significant disability, their families and carers. The NDIS, however, also plays a broader role in providing general supports to people with disability, their families and carers. This general support, which was originally called Tier 2, but is now referred to as Information, Linkages and Capacity Building (ILC) …

…

ILC is intended to complement the individually-funded supports available under Chapter 3 of the NDIS Act and to broaden the range of supports available to people with disability and their families, carers and communities.

The purpose of Chapter 2 is to provide the legislative foundation for ILC. As the nature and scope of ILC had not been agreed when the NDIS Act was drafted, Chapter 2 is both brief (comprising only five sections) and broad (in that its provisions are relatively wide-ranging in their application).[130]

Recommendation 6 of the 2015 review, which is reflected in Recommendation 27b of the Tune Review, recommended that the Information, Linkages and Capacity Building funding be provided with greater definition in the legislative framework.[131]

To this end, item 10 of Schedule 2 repeals the current more generalised purposes of NDIS direct funding and replaces it with the following more specific purposes:

  • enabling those persons or entities to provide information in relation to disability and disability supports and services
  • enabling those persons or entities to provide assistance in building capacity within the community in connection with the provision of goods and services to people with disability and their families and carers
  • enabling those persons or entities to assist people with disability to realise their potential for physical, social, emotional and intellectual development or
  • enabling those persons or entities to assist people with disability, and their families and carers, to participate in social and economic life.[132]

The above amendment can be seen as a response to Recommendation 13 of the Tune Review.[133] That recommendation was made in response to the need to maximise the benefits of early intervention for children – to this end the Review had recommended that:

The NDIS Act is amended to provide more flexibility for the NDIA to fund early intervention support for children under the age of seven years outside a NDIS plan, in order to develop family capacity and ability to exercise informed choice and control.[134]

The amendments made by item 11 of Schedule 2 are also in part a response to this recommendation. This item amends the NDIS Act to clarify that the NDIA can provide funding to a person or entity to:

  • assist one or more participants to receive supports or
  • to assist a participant who is a child aged under seven to access supports, before the child’s plan comes into effect, in relation to child’s disability needs.[135]

The Explanatory Memorandum notes that these amendments will allow the NDIA to use the interventionist approach of ‘direct commissioning’ where necessary, contracting directly with organisations to deliver supports and services. The Explanatory Memorandum notes that the provision:

… will allow funding to be provided to Early Childhood Early Intervention (ECEI) Partners. ECEI Partners assist families, even if not NDIS participants, to understand the potential role of the NDIS and to guide them to other appropriate supports and to offer independent advice on providers of support most suited to their needs. Funding ECEI Partners will assist families to start accessing approved early intervention supports while building their readiness to go through the planning process. Any ancillary funding for capacity building supports proposed to be provided for children under seven for the purposes set out in paragraph 14(2)(b) will cease once a plan is approved for that child.[136]

The Bill also provides that the NDIS Rules may set out the matters that the NDIA must consider when deciding to provide this direct funding.[137] The draft Plan Administration Rules sets out the Government’s intention in this regard, including mandating considerations around the urgency for participant supports, the extent to which the participant is able to exercise choice and control and best-practice approaches in relation to assisting participants of particular cultural backgrounds.[138]

Amendments relating to psychosocial disability

The NDIS Act contains provisions relating to disability requirements and early intervention requirements.[139] The Bill makes various amendments to these provisions with respect to psychosocial disability. The amendments respond to the Recommendation 8 of the Tune Review which recommended that:

The NDIS Act and Rules are amended to:

a. provide clearer guidance for the NDIA in considering whether a psychosocial impairment is permanent, recognising that some conditions may be episodic or fluctuating

b. remove references to ‘psychiatric conditions’ when determining eligibility and replace with ‘psychosocial disability’.[140]

In response to Recommendation 8b, the Bill updates the language in the NDIS Act by replacing the references to impairments ‘attributable to a psychiatric condition’ in the Act with references to impairments ‘to which a psychosocial disability is attributable’.[141] The Explanatory Memorandum notes that these changes ‘are in keeping with best practice approaches and recognise that psychosocial disability may be broader than the classification of psychiatric conditions’.[142]

In response to Recommendation 8a of the Tune Review, the Bill clarifies when a psychosocial condition should be considered permanent for the purposes of the NDIS. To meet the disability requirements under the NDIS Act, the relevant impairment needs to be permanent or likely to be permanent.[143] Similarly, in order to meet the early intervention requirements under the NDIS Act, relevant impairments need be permanent or likely to be permanent.[144]

The Bill amends the relevant provisions so that a psychosocial disability that is ‘episodic or fluctuating’ is taken to be permanent for the purposes of these requirements.[145] To illustrate how these amendments are intended to operate, the Explanatory Memorandum uses a case study of a person who can do certain activities during periods of wellness, but not during episodic periods where they are unwell due to their psychosocial disability – it is intended that such persons would be granted access to the NDIS.[146]

Currently, to meet the disability requirements under the NDIS Act, the relevant impairments must also affect either ‘functional capacity’ or ‘psychosocial functioning’ in relation to certain activities (such as social interaction, learning and mobility).[147] The Bill amends this provision so that psychosocial functioning is no longer considered separately from functional capacity in relation to these matters.[148] The Explanatory Memorandum further notes that the effect of the amendments is to clarify ‘that, for the purpose of whether a person meets the disability requirements, the same activities for reduced functional capacity apply to psychosocial impairments as they do for all other impairments’.[149]

Stakeholder views

Most concerns raised by key stakeholders about amendments regarding psychosocial disability largely related to the draft NDIS Rules released with the Exposure Draft, and not proposed amendments to the Act itself.[150] However, some called for legislation or guidelines to help interpret terms like ‘psychosocial disability’ in the Act, particularly because this cohort of potential participants may reject or not identify with the term.[151]

Requirements for impairments to be considered permanent

Section 27 of the NDIS Act allows for the NDIS Rules to deal with the disability requirements and early intervention requirements under the NDIS Act. The Bill amends this provision so that the NDIS Rules will be able to prescribe the criteria for impairments to be considered permanent (so as to meet disability/early intervention requirements).[152] Similarly, the Bill will allow NDIS Rules to be prescribed that would set out what requirements would need to be met for impairments to be considered as reducing functional capacity.[153]

The draft Becoming a Participant Rules detail the Government’s proposed requirements that will be set out in the NDIS Rules. This includes for example, there being no known evidence-based clinical, medical or other treatments for non-psychosocial disabilities and the requirement that the person is undergoing or has undergone appropriate treatment for managing the person’s mental, behavioural or emotional condition for psychosocial disabilities.[154]

Plan Management

Under the NDIS Act, while all participants can choose their support providers, some participants may ask someone else to do it for them (a plan nominee); decide to manage the supports in their plan themselves (self-manage); or use a registered plan manager.[155] The NDIA and the participant may also agree that the NDIA will be responsible for purchasing and managing the supports in their plan.[156] ‘Plan management’ refers to where a provider supports a participant in managing the funding in their NDIS plan.[157]

The Tune Review noted that there are currently protections for those who choose for the NDIA to manage their plan or to manage the plan themselves. The Review notes that where the NDIA manages a plan, only registered service providers (who have been assessed as suitable) are used.[158] Self-managing participants are not required to use registered providers, however the legislative framework provides for a risk assessment in deciding whether this self-management should be permitted in the first place.[159] Participants who use plan management options however are not similarly protected.

The Tune Review noted:

Plan management offers the same level of choice and access to unregistered providers as self-management and it is the role of support coordinators and not plan managers to assist participants in choosing and connecting with providers. For these reasons, it is unclear why plan management is an option in its own right rather than a variation of self-management.[160]

To this end the Tune Review recommended (at Recommendation 19) that the NDIS Act be amended so a participant who requests to ‘plan manage’ their NDIS funding be subject to the same considerations as those who apply to self-manage.[161]

The Bill amends the NDIS Act to prescribe how a self-management request should be treated by the NDIA and to implement this Review recommendation.[162] In effect the amendments will allow the NDIA to undertake risk assessments for participants who request their supports to be managed by a registered plan manager.[163] The draft Plan Management Rules outlines the proposed factors that might give rise to unreasonable risks, noting that these are subject to change in any finalised legislative instrument.

Schedule 3

The NDIS was first introduced by the Gillard Labor Government on 1 July 2013 with the initial stages of the NDIS consisting of a trial phase known as the NDIS Launch. In effect the NDIS began to be introduced across Australia (with the exception of Western Australia) from July 2016 in a progressive fashion.[164] In December 2017, it was announced that the national NDIS would be rolled out in WA. The NDIA assumed responsibility for the NDIS in that state from 1 July 2018, with delivery continuing in a staged approach in different areas across that state.[165]

On 1 July 2020, the then Minister for the NDIS announced that the staged geographical roll-out of the NDIS had been completed and that the NDIS was now available to all eligible Australians regardless of their location in the country.[166]

The amendments in Schedule 3 (titled ‘Full Scheme Amendments’) reflect the completed implementation of the NDIS – the schedule consists of the removal of redundant provisions and other technical amendments given the completion of the rollout. Examples of these changes include:

  • replacing the outdated terminology of the National Disability Insurance Scheme Launch Transition Agency and related amendments[167]
  • amending the term ‘host jurisdiction’ as the NDIS has now been rolled out in all states and territories[168] and
  • clarifying that the age requirement for NDIS participants is that they are less than 65 years old (currently there is the ability to make NDIS Rules with different age requirements for those jurisdictions which rolled out the NDIS according to age cohort, which is now redundant).[169]

Further detail and explanation of the amendments in Schedule 3 is at pages 50-58 of the Explanatory Memorandum.