National Disability Insurance Scheme
(Supports for Participants – Accounting for Compensation) Rules 2013
FRLI: F2013L01414
Portfolio: Social
Services
Tabled: House of
Representatives and Senate, 12 November 2013
Summary of committee concerns
2.1
The committee seeks further information whether the rules relating to
compensation payments are compatible with the right to equality and
non-discrimination, the right to an adequate standard of living, and the rights
to social security and social protection.
Overview
2.2
The National Disability Insurance Scheme Act 2013 (NDIS Act) makes
provision for various matters, including ‘significant policy matters’, to be
covered by the NDIS rules, which are to be made as disallowable legislative
instruments.[149]
The NDIS Act provides that the NDIS rules may prescribe the criteria to be
applied or the matters to be taken into account, when deciding whether to provide
or fund specific supports for NDIS participants.[150]
2.3
These rules set out how compensation payments for a personal injury
suffered by an NDIS participant are to be taken into account in determining the
reasonable and necessary supports that will be funded or provided under the
NDIS.
Compatibility with human rights
Statement of
compatibility
2.4
The statement of compatibility accompanying the bill states that the
bill engages the right to privacy;[151]
the right to self-determination;[152]
and the rights of persons with disabilities.[153]
The statement concludes that any limitations imposed by the instrument are
reasonable, necessary and proportionate 'to ensure the long-term integrity and
sustainability of the [NDIS] and prevent abuse of the scheme'.
Committee view on
compatibility
2.5
The committee considers that the instrument does not raise issues of
incompatibility with the right to privacy. The committee does not consider that
the instrument engages the right to self-determination under the ICESCR as this
is a collective right that applies to peoples rather than individuals. The
committee, however, considers that the instrument raises other issues of
concern which are not adequately addressed in the statement of compatibility.
The committee’s concerns are set out below.
Right to equality and
non-discrimination
2.6
Under article 26 of the ICCPR, article 2(2) of the ICESCR, and article
5(2) of the CRPD, persons with disability are guaranteed protection against
discrimination in the enjoyment of various rights, including the guarantee of equal and effective
legal protection against discrimination on all grounds.
2.7
The statement of compatibility explains that the instrument applies to
participants whose impairment was caused or aggravated by a personal injury and
who have either received a payment of compensation (including under a statutory
scheme), or have entered into an agreement to give up their right to
compensation where the CEO of DisabilityCare thinks that it was unreasonable to
do so. Where this is the case, the participant may have their reasonable and
necessary supports reduced by a ‘compensation reduction amount’.
2.8
The statement of compatibility states that the aim of the instrument is
'to establish that the [NDIS] is intended to complement existing compensation
arrangements for personal injury, rather than one designed to replace them'. The
statement of compatibility, however, acknowledges that, ‘[while] it is
typically not the case that a person will be asked to justify a decision not to
make a claim for compensation,’
[t]he instrument may,
however, appear to influence a person’s rights in making a decision as to
whether to pursue a claim for compensation. An agreement not to pursue such a
claim may impact on the amount for reasonable and necessary supports that will
be approved for their plan (paragraph 3.1(d)).[154]
2.9
These rules would therefore appear to disadvantage individuals accessing
the NDIS compared to non-NDIS participants who suffer a personal injury to the
extent that they effectively remove personal choice with regard to a decision
as to whether or not to pursue a compensation claim. Differential treatment,
however, will not be discriminatory, if it is aimed at a legitimate objective,
and is reasonable necessary and proportionate to that objective.
Rights to social security/right to
an adequate standard of living
2.10
The effect of the rules is that, in a case where the CEO of
DisabilityCare considers that a decision not to seek compensation is
unreasonable, the estimated amount of the compensation foregone may be deducted
from any sums that would have otherwise been payable under the NDIS.
2.11
The statement of compatibility states that the rules do not engage the
right to social security 'as the person is still eligible to receive [NDIS]
payments, despite a potential compensation reduction amount being imposed to
account for assistance that the person has already been provided with through
other sources.'
2.12
However, the committee is concerned that there may be circumstances in
which the amount to be deducted is such that the person affected may be
significantly affected in his or her ability to pay for the support that is
needed for the person to participate in a non-discriminatory basis in everyday
activities. This may have an impact on the person’s right to an adequate
standard of living,[155]
and the rights to social security[156]
and social protection.[157]
2.13
The statement of compatibility does not indicate whether the rules
represent a justifiable limitation on these rights. Nor does it describe any
safeguards to ensure that a person who has such sums deducted will not fall
below the minimum level of enjoyment of those rights to which everyone is
entitled.
2.14
The committee intends to write to the Minister for Social
Services to seek clarification:
- whether the rules relating to compensation payments are
compatible with the right to equality and non-discrimination;
- whether the recovery of compensation amounts may exceed the
difference between compensation amounts and the sum of amounts payable under
the NDIS;
- whether the rules are compatible with the right to an
adequate standard of living and the rights to social security and social
protection, including whether there are safeguards in place to ensure that a
person who has compensation amounts deducted does not fall below the minimum
level of enjoyment of these rights;
- whether provision is made for the CEO’s decisions to be
appealed or subject to external merits review; and
- whether a participant’s supports will be suspended while
seeking a review of the CEO’s decision.
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