Introduction
2.1
This chapter provides background on the National Disability Insurance Scheme (NDIS) and the role of the National Disability Insurance Agency (NDIA). An overview of relevant work conducted by this committee and various other committees is presented. Finally, a brief discussion of publications and work of other relevant bodies and initiatives, including the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability and the NDIS Review is given.
Background to the NDIS
2.2
The NDIS is an insurance-based and demand-driven model of funding and supports for people with disability, families and carers. It is jointly governed and funded by Federal, state and territory governments. It replaces the previous state-based system of block funding with a fee-for-service, market-based approach. The NDIS is based on the premise that each person with disability has their own individual support needs and should be able to exercise choice and control in relation to their supports.
National Disability Insurance Agency
2.3
The NDIA is a corporate Commonwealth entity, with statutory authority under the National Disability Insurance Scheme Act 2013 (NDIS Act). The NDIA is the independent statutory agency responsible for the governance and administration of the NDIS. Its main purpose is to deliver the NDIS in a way that maximises choice and control for participants and promotes the provision of high-quality supports, while managing, advising and reporting on the financial sustainability of the NDIS.
2.4
This purpose is supported by five 'aspirations', as follows:
A quality experience and improved outcomes for participants
A competitive market with innovative supports
A genuinely connected and engaged stakeholder sector
A financially sustainable NDIS
National rollout of the NDIS
2.5
The NDIS became operational on 1 July 2013 with the commencement of trial sites. National rollout of the scheme began on a geographic and age basis from July 2014, with the majority of jurisdictions beginning transition on 1 July 2016. The transition to full scheme was guided by bilateral agreements between Commonwealth, state and territory governments.
Legislative framework for the NDIS
National Disability Insurance Scheme Act 2013
2.6
The NDIS is established under the National Disability Insurance Scheme Act 2013 (NDIS Act). The Act sets out the objectives of the NDIS, which include:
supporting the independence and social and economic participation of people with disability;
providing reasonable and necessary supports, including early intervention supports, for NDIS participants;
enabling people with disability to exercise choice and control in the pursuit of their goals and in the planning and delivery of their supports;
facilitating the development of a nationally consistent approach to accessing, planning and funding of supports for people with disability;
promoting the provision of high quality and innovative supports;
protecting and preventing people with disability from being harmed by poor quality or unsafe supports and services; and
giving effect to Australia's human rights obligations relating to people with disability.
2.7
The NDIS Act further provides for: how a person may become a participant in the NDIS; how a participant's plan is prepared and reviewed, including how the NDIA approves funding for supports; how a provider can become a registered provider of supports; and the processes for reviewing decisions.
Independent Advisory Council
2.8
The Independent Advisory Council (IAC), under the NDIS Act, 'has a statutory requirement to provide formal advice to the NDIA Board about the way the NDIA performs its functions'. Meeting monthly, the IAC comprises 12 members who have experience and knowledge about different areas of disability.
2.9
The IAC also has four reference groups to 'inform any formal advice provided to the Board', and the groups are for children, young people and families; equity and inclusion; home and living; and intellectual disability. With regard to informal advice, the IAC provides such advice to 'NDIA business areas and external stakeholders, based on current issues impacting the disability community.'
Participant Service Charter
2.10
First released in 2020, the Participant Service Charter (PSC) outlines the level of service that participants can expect when dealing with the NDIA. The PSC details five principles for the NDIA's engagement with participants, and stipulates that the Agency will be:
transparent – making it easy to access and understand the NDIA's information and decisions;
responsive – responding to participants' individual needs and circumstances;
respectful – recognising individual experiences and acknowledging that participants are experts in their own lives;
empowering – making it easy for participants to access and use information and be supported by the NDIS; and
connected – supporting participants to access the services and supports they need.
2.11
The PSC was updated in 2022, to align with legislative changes brought about by the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 (Participant Service Guarantee Act).
Participant Service Guarantee
2.12
The Participant Service Guarantee (PSG) was formalised in legislation in 2022, in response to the 2019 Review of the NDIS Act led by Mr David Tune AO PSM (Tune Review).
2.13
The Participant Service Guarantee Act amended the NDIS Act to insert timeframes within which the NDIA must make certain decisions and take certain actions, including in relation to access requests, plan approvals, reassessments and variations, and nominee changes. The aim of this was to reduce and standardise the timeframes for NDIS processes, thereby providing greater certainty for participants and prospective participants.
2.14
The Participant Service Guarantee Act also enables the creation of rules under the NDIS Act to prescribe requirements for:
the preparation of plans;
reporting by the Commonwealth Ombudsman on the NDIS; and
the manner of engagement with participants and prospective participants.
Participant Service Improvement Plan
2.15
The Participant Service Improvement Plan (SIP) sets out the actions taken by the NDIA to ensure the Scheme meets the expectations of participants. The SIP reflects the deliverables outlined in the PSC and PSG, as well as the feedback received from participants.
2.16
A new SIP was launched in July 2022, following the conclusion of the 2020–21 SIP in December 2021. The 2022 SIP details what the NDIA will do over the next two years to deliver the NDIS in a way that meets participant expectations, 'by making practical changes' to how it works.
2.17
Across 2022 and 2023, the SIP will guide the delivery of 51 commitments over nine improvement areas. According to its 2021–22 Annual Report, the NDIA 'delivered on 24 out of the 51 commitments in the SIP' and 'commenced implementing a further 21 commitments' during 2021–22.
Disability Reform Ministerial Council
2.18
The NDIS Act requires that a Ministerial Council is to consider policy matters that relate to the scheme or arise under the Act and advise the Minister about such matters. From February 2023, following the outcomes of the 2022 Review of Ministerial Councils, the Disability Reform Ministers' Meeting has been upgraded to a Ministerial Council, reporting to National Cabinet on key priorities. The new body is the Disability Reform Ministerial Council (DRMC). Ministerial Council meetings are held several times a year, to provide a forum for all Commonwealth, state and territory ministers responsible for disability policy to drive national reform in disability policy, including through the National Disability Strategy and the NDIS.
2.19
At the 10 February 2023 meeting of the DRMC, the Co-Chairs of the NDIS Review Panel provided an update on early findings and recommendations of the NDIS Review, including work on quality and safeguarding arrangements, workforce, and alternative commissioning approaches to ensure people with disability in remote and First Nations communities can access the supports they need.
Corporate Plans
2.20
Under the NDIS Act, the NDIA is required to prepare corporate plans, and provide them to the Ministerial Council before the start of the period covered by the plan. Corporate plans must include details about the financial sustainability of the NDIS. In its most recent corporate plan, the NDIA outlined its key areas of focus, including:
essential service delivery and support for participants through the COVID‑19 pandemic;
contributing data and information to a review of the NDIS design, operation and sustainability;
engaging with the views and experiences of people with disability through the Engagement Framework;
making it easier for participants to vary their plans, without the need for lengthy review;
reducing the number of matters that progress to the Administrative Appeals Tribunal; and
strengthening fraud and compliance measures through a multi-agency partnership between the Australian Federal Police, NDIA and Services Australia.
Annual reports
2.21
In accordance with the Public Governance, Performance and Accountability Act 2013 and the NDIS Act, the NDIA is required to provide an Annual Report, detailing the Agency's performance and operations during that year.
2.22
The Agency's Annual reports provide an overview of the progress of the NDIS for that year, as well as summaries of the organisation's financial statements, information on financial sustainability, governance, risk management and workforce management. Previous and current Annual reports can be found on the NDIS website in various formats including 'easy read' versions.
Quarterly Reports
2.23
Under section 174 of the NDIA Act, the Board of the NDIA is required to prepare a report on the operations of the Agency for each quarter, for provision to the DRMC by 31 January, 30 April, 31 July and 31 October each year.
2.24
The NDIA website states that its Quarterly Reports 'provide disability ministers with information (including statistics) about the participants in each jurisdiction and the funding or provision of supports by the NDIA in each jurisdiction'.
2.25
Broadly, the Quarterly Reports contain information on participant plans and experience, service providers and the broader disability service market, the financial sustainability of the scheme and statistics regarding the characteristics of NDIS participants.
Relevant work of the 46th Parliament
Supported independent living
2.26
On 1 August 2019, the committee decided to undertake an inquiry into Supported Independent Living (SIL), with particular reference to the approval process for access to SIL, the vacancy management process, the funding of SIL, and any related issues.
2.27
The committee published 51 submissions to the inquiry and held seven public hearings. Evidence indicated the SIL regime suffered from various issues with the potential to undermine choice and control for participants and affect the financial viability of providers.
2.28
On 13 May 2020, the committee tabled its report with 45 recommendations to improve the SIL regime. These focused on maximising choice and control for participants and reducing unnecessary financial hardship for providers.
2.29
The government response was to support, or support in principle, 25 of the recommendations made in the committee's report. The remaining 20 recommendations were noted, citing ongoing reforms being progressed by the NDIA.
2.30
In response to a question on notice, the NDIS advised the committee that action on 16 recommendations was complete, 1 was on track, 9 were ongoing, 3 were noted and 16 required no action.
NDIS Planning
2.31
On 1 August 2019, the committee decided to undertake an inquiry into NDIS planning, with particular reference to planner capability and capacity, participant involvement in planning, the review process, length of plans, and adequacy of the planning process for rural and regional participants.
2.32
The committee published 157 submissions to the inquiry and held 14 public hearings. Evidence indicated there may be major inconsistencies in plan development, such as not including funded supports due to an assumption that a participant has informal supports when they do not, in fact, have informal supports. Evidence also indicated that planner errors, such as listing the wrong disability in participants' plans, were a result of high workloads. In addition, there was evidence that planners may have been ignoring or changing expert recommendations provided by allied health practitioners about the supports that are appropriate for a particular participant. Further, participants reported excessively delayed responses to queries, not being spoken to appropriately during planning meetings or not being invited to the meetings. Participants never meeting the delegate who makes decisions about content and funding of plans was raised as an issue. The committee also heard there were concerns with the NDIA's response to AAT applications, including use of private lawyers, and plans offered after an order by the AAT not reflecting the order or, after the plan has ended, the supports that the AAT ordered have not been included in the new plan.
2.33
On 1 December 2020, the committee tabled its final report, including 42 recommendations additional to the 14 made in its interim report. These recommendations were intended to bring greater transparency, consistency and accountability to how the NDIS is administered and implemented.
2.34
The government response to the interim report was to support, or support in principle, 12 of the recommendations and note two. In response to the committee's final report, the government supported, or supported in principle, 26 of the recommendations. The remaining 16 recommendations were noted, citing ongoing reforms being progressed by the NDIA.
2.35
In response to a question on notice, the NDIS advised the committee that action on 16 recommendations was complete, 2 were on track, 14 were ongoing, 3 were noted and 7 required no action.
Independent Assessments
2.36
On 10 December 2020, the committee decided to conduct an inquiry into independent assessments under the NDIS, with particular reference to justification of its introduction, implications for participants, and appropriateness of independent assessments for different cohorts of participants.
2.37
The committee received 402 submissions, including confidential submissions, and held 8 public hearings. Opposition to independent assessments was almost universal in evidence from state and territory governments, academics and universities, allied health professionals, allied health peak bodies, disability providers, advocacy groups and people with lived experience and their families. On 9 July 2021, the Minister announced that independent assessments would not proceed. The committee welcomed this announcement.
2.38
On 19 October 2021, the committee tabled its final report, including 6 recommendations regarding broader matters of financial sustainability, approaches to co-design and consultation, and bulk-billed appointments with medical and allied health professionals.
2.39
The government response to the final report was to support in principle two of the recommendations. Four recommendations were noted, with two of these considered in the review of the design, operation and sustainability of the NDIS, which commenced in late 2022.
NDIS Quality and Safeguards Commission
2.40
On 23 June 2020, the committee decided to conduct an inquiry into the NDIS Quality and Safeguards Commission, with particular reference to enforcement powers, effectiveness of processes and communication, adequacy of resources and management of the transition period.
2.41
The committee published 75 submissions and held 4 public hearings. Evidence indicated the Commission's approach to its work could be improved, in particular, by incorporating more proactive engagement with participants and the sector and increasing its proactive compliance and enforcement measures. Gaps were reported in safeguarding arrangements for NDIS participants and people with disability more broadly, particularly in the areas where NDIS services interface with services provided by state and territory governments or other areas of the federal system.
2.42
On 30 November 2021, the committee tabled its final report, which included 30 recommendations. To date, no government response has been issued.
NDIS Workforce
2.43
On 6 February 2020, the committee decided to undertake an inquiry into the NDIS Workforce, with particular reference to workforce size, composition, attraction, retainment and development; role of jurisdiction governments in a strategic workforce plan; interaction of the NDIS workforce with adjacent sectors including health and aged care; and related matters.
2.44
The committee received a total of 58 submissions, including 6 submissions (in addition to 23 supplementary submissions) which were provided to the inquiry after the interim report was tabled in December 2020. Eight public hearings were held. Key issues raised related to workforce conditions, professional development, thin markets, employment opportunities for people with disability, and workforce development.
2.45
On 9 December 2020, the committee tabled its interim report with 14 recommendations. The final report was tabled on 15 February 2022, including an additional 8 recommendations. The government response to the interim report supported or supported in principle 11 of these and noted three. No government response to the final report has been issued.
Current Scheme Implementation and Forecasting for the NDIS
2.46
In October 2021, the committee decided to conduct an inquiry into the current scheme implementation and forecasting for the NDIS, with particular reference to the demand for NDIS funding; interface with alternative funding schemes; reasons for variation in plan funding between participants with similar needs; financial and actuarial modelling and forecasting; financial sustainability of the Scheme, and ongoing reforms.
2.47
The committee received 92 public submissions, including 13 supplementary submissions provided after the tabling of the interim report. Three public hearings were held. Among a broad range of issues, the committee heard that the Information, Linkages and Capacity Building (ILC) program does not yet meet community needs; interface between Commonwealth and State schemes are not well managed; transparency is required in relation to data; and trust needs to be rebuilt between the NDIA and people with disability following the distress caused by the government's attempts to introduce independent assessments.
2.48
On 31 March 2022, the final report was tabled, including 6 recommendations. To date, no government response has been issued.
Other inquiries
Disability Royal Commission
2.49
The Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Disability Royal Commission) was established in April 2019 in response to community concern about widespread reports of violence against, and the neglect, abuse and exploitation of, people with disability. Seven Commissioners were appointed, chaired by former Federal Court and NSW Supreme Court Judge, the Hon. Ronald Sackville AO KC.
2.50
As at 30 June 2022, the Royal Commission had received 4879 submissions, held 24 public hearings and received 2916 registrations for a private session. The Interim Report, delivered 30 October 2020, and six progress reports have outlined evidence that people with disability experience attitudinal, environmental, institutional and communication barriers to achieving inclusion within Australian society. The final report will be delivered to the Australian Government by 29 September 2023.
NDIS Review
2.51
On 18 October 2022, Minister for the NDIS, the Hon. Bill Shorten MP, announced a review of the NDIS. The NDIS Review will examine the design, operations and sustainability of the NDIS, and ways to build a more responsive, supportive and sustainable NDIS market and workforce. The co-chairs of the Independent Review Panel are Professor Bruce Bonyhady AM, one of the key architects of the NDIS, and Ms Lisa Paul AO PSM, former senior Australian public servant and policymaker.
2.52
To date, the NDIS Review has received submissions from over 783 individuals and organisations and has held 178 stakeholder meetings. The NDIS Review will publish an interim report in March 2023 and provide a final report to the Disability Reform Ministers' Meeting by October 2023.
2.53
In February 2023, the Independent Review Panel met with South Australian and Queensland government officials and representatives of disability and community organisations. Co-Chair Professor Bonyhady also attended the National Early Years Strategy Summit, which included discussion on supporting children with disability.