2.1
This chapter provides an overview of recent and proposed changes to the NDIS, as announced by the Australian Government and the National Disability Insurance Agency (NDIA) since the committee tabled its last General Issues report in December 2020.
2.2
The chapter also briefly examines the work of other bodies, including the Disability Reform Ministers’ Meetings and the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (the Royal Commission).
Major changes to the NDIS announced since December 2020
2.3
Announcements from the NDIA about changes to the NDIS, in the period December 2020 to November 2021, included the following:
Senator the Hon Linda Reynolds CSC was appointed the new Minister for the NDIS from 30 March 2021, replacing the Hon Stuart Robert MP;
An automatic increase in transport funding for participants with high out-of-pocket taxi costs;
12-month automatic plan extensions for participants;
Longer plans, i.e. 24 months or longer, including of up to 36 months if a participant's support needs are stable, with the NDIA continuing to use check-ins to determine whether a participant needs a plan review (shorter plans continue for some, for example participants under the age of 7);
The public release in April 2021 of: new operational guidelines regarding NDIS planning; a statement of the principles used by the NDIA to develop NDIS plans and make decisions; and a 'Would we fund it?' catalogue (which was also updated in July 2021);
The release of the Personalised Budgets paper, announcing that participants would have flexible budgets, with the NDIA funding an overall budget amount rather than line-by-line items (the Minister later announced that Personalised Budgets, along with independent assessments, would not be proceeding in the form proposed);
The publication of a guideline on 28 June 2021 for the NDIS early childhood approach;
The announcement that independent assessments in their proposed form would not proceed, in July 2021;
The announcement in July 2021 that the NDIA would be working on a framework for consultation and engagement, including ‘more robust co‑design principles’, and that disability ministers would be working with people with lived experience of disability on the co-design of a new, person-centred model (after the announcement that independent assessments would not proceed in their proposed form);
The Government extension of the NDIS Fraud Taskforce indefinitely, and the establishment of a Compliance Response team ‘to proactively identify potential non-compliance by both providers and participants through activities such as data analytics’;
The establishment of a Specialist Disability Accommodation (SDA) Finder tool to help participants find SDA vacancies across Australia, in August 2021;
Expanded financial payments from September 2021 to eligible providers supporting NDIS participants to attend COVID-19 vaccination appointments;
The establishment of a new Participant Engagement Panel, announced September 2021, consisting of ’28 organisations with demonstrated connection to people with disability…so that participants can take part in co-design, consultation and engagement opportunities’;
The announcement that the former Early Childhood Early Intervention (ECEI) approach will be renamed to the ‘early childhood approach’, with the release of a new operational guideline; and
The NDIA announced it is building a new participant portal to replace the ‘myplace’ portal.
2.4
Western Australia's transition to the NDIS is due to be completed by 30 June 2023.
Changes to the NDIS Act and NDIS Rules
National Disability Insurance Scheme Amendment (Improving Supports for At Risk Participants) Bill 2021
2.5
On October 2021, the Commonwealth Parliament passed amendments to the National Disability Insurance Scheme Act 2013 (NDIS Act). These amendments concerned the NDIS Quality and Safeguarding Commission's ability and powers to ban providers and how the Commission should deal with reportable incidents, following the death of Ms Ann Marie Smith.
2.6
The bill addressed 6 of the 10 recommendations from the review conducted by the Hon Alan Robertson SC, into issues relating to Ms Smith's death, the Independent review of the adequacy of the regulation of the supports and services provided to Ms Ann-Marie Smith, an NDIS participant, who died on 6 April 2020 (the Robertson Review). The bill makes amendments to the Act in relation to:
information sharing, including to lower the threshold with which information can be shared and used by the NDIA and the Commission;
broadening the scope of persons who may be subject to a banning order
National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021
2.7
The National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021 (the bill) was introduced to the House of Representatives on 28 October 2021.
2.8
The bill seeks to legislate the Participant Service Guarantee and implement 14 recommendations made in the 2019 Review of the NDIS Act, conducted by Mr David Tune AO PSM (the Tune Review).
2.9
The bill seeks to address many of the issues identified in recent reviews of the NDIS Act and improve the experience and outcomes of people with disability engaging with the NDIS by:
enshrining the Participant Service Guarantee that will legislate timeframes and engagement principles for how the NDIA undertakes key administrative processes;
simplifying administrative processes in relation to making changes to a participant’s plan;
reducing the administrative burden felt by participants and their families and carers;
clarifying eligibility criteria for people with psychosocial disability; and
providing a simplified payments design to allow the NDIS to make direct payments on behalf of participants.
2.10
The Department of Social Services (DSS) conducted a process of public consultation on the bill, and the associated changes to the NDIS Rules, and released a report on the feedback it received in October 2021.
2.11
The bill was referred to the Senate Community Affairs Legislations Committee for inquiry and report by 25 November 2021.
2.12
The committee is aware that concerns about the timeframes allowed for consultation on this bill were raised by NDIS participants, providers, and disability representative organisations. The committee will monitor the progress of the bill through the Parliament and the implementation of the measures in the bill if it is passed and may review these measures in a future inquiry.
2.13
The committee notes that the Senate Community Affairs Legislation Committee tabled its report on the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021 on 25 November 2021.
Changes to the NDIS Rules
2.14
Related to changes proposed in National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021, the government also proposed changes to existing NDIS Rules and the introduction of two new Rules.
2.15
The government is proposing significant amendments to two existing NDIS Rules, the Plan Management Rule and the Becoming a Participant Rule:
Amendments to the Plan Management Rule relate to market intervention, psychosocial disability, and the ability of the NDIA to stipulate that participants use particular providers.
Amendments to the Becoming a Participant Rule outline requirements for participants’ impairments to be considered permanent and include separate requirements for people with psychosocial disabilities.
2.16
The newly proposed Participant Service Guarantee Rule specifies:
engagement principles and service standards for the NDIA and its Chief Executive Officer (CEO) in detail;
further timeframes for decisions to be made;
matters for the NDIA Board to report in the NDIS Quarterly Reports; and
the requirement of the Commonwealth Ombudsman to report on the NDIA’s performance against the Participant Service Guarantee.
2.17
The newly proposed Plan Administration Rule would:
set out matters to which the CEO is to have regard in deciding whether to vary a participant’s plan on the CEO’s own initiative, under proposed section 47A of the NDIS Act (which would be inserted by the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021;
set out matters to which the NDIA CEO must have regard in deciding whether to provide discretionary ancillary funding;
set out matters to which the CEO would have regard to in deciding to extend a grace period for a participant who is temporarily absent from Australia, before the participant's plan would be suspended;
clarify record keeping requirements that must be complied with by people receiving NDIS amounts; and
clarify how payments will be made.
Impact of COVID-19 on NDIS participants and their families
2.18
The COVID-19 pandemic continues to have an extraordinary and disruptive effect on all aspects of Australian society, with particularly acute effects for people with disability and their families. Key updates relating to the continuing impact of COVID-19 on people with disability, particularly regarding COVID-19 vaccinations, include:
The NDIA announced in September 2021 that as well as Commonwealth in‑reach vaccination services for residential disability services, the Government had also ‘established dedicated disability vaccination hubs with NDIS providers in the majority of states and territories for participants, workers and carers’.
On 10 November 2021 the Australian Health Protection Principal Committee (AHPPC) released a statement on mandating vaccination for disability support workers. The AHPPC recommended mandatory vaccinations for disability workers as a condition of work or entry into the home of a participant to provide NDIS supports. For supports provided under the NDIS, the AHPPC recommended that compliance would be monitored by the NDIS Quality and Safeguards Commission and state and territory governments.
2.19
The committee is conscious that other bodies are considering the impacts of the COVID-19 pandemic on NDIS participants, including:
the Senate Select Committee on COVID-19 which has taken evidence from relevant departments and disability advocacy groups;
the Senate Community Affairs Legislation Committee has considered these matters during its consideration of Senate Supplementary and Budget Estimates hearings 2021–22;
Commonwealth and state and territory ministers responsible for disability policy discussed the status of the COVID-19 vaccine roll-out to people with disability and disability workers at Disability Reform Ministers' Meetings in July and August 2021; and
the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, which on 27 September 2021, released the draft Commissioner’s report of public hearing 12: The experiences of people with disability, in the context of the Australian Government’s approach to the COVID‑19 vaccine rollout.
The work of other bodies
Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability
2.20
The Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (the Royal Commission) was established on 4 April 2019, to inquire into all forms of violence against, and abuse, neglect and exploitation of, people with disability in all settings and contexts.
2.21
The Royal Commission has released four progress reports between December 2019 and August 2021, each providing updated summaries of the work of the Royal Commission.
2.22
The Royal Commission’s most recent, fourth progress report, released in August 2021 provided updates on work the Commission has progressed relating to several key areas of interest to this committee, including:
responses to the COVID-19 pandemic, particularly the experiences of people with disability in the context of the Australian Government’s approach to the COVID-19 vaccine rollout;
the role of disability service providers;
the impacts of Commonwealth, state and territory legislation on people with disability;
experiences of people with disability accessing safe, quality and meaningful education and employment;
experiences of culturally and linguistically diverse people with disability;
experiences of Aboriginal and Torres Strait Islander people with disability;
experiences of domestic violence among women with restrictive long-term health conditions;
experiences of people with cognitive disability in the criminal justice system and education and training of health professionals in relation to people with cognitive disability;
approaches to reduce, prevent, avoid, or minimise restrictive practices on people with disability; and
attitudes in the broader community towards people with disability and the level of awareness of the rights of people with disability.
2.23
On 13 May 2021, the Australian Government granted the request of the Chair of the Royal Commission, the Honourable Ronald Sackville AO QC, to extend the term of the Royal Commission by 17-months. The final report is now due by 29 September 2023.
Independent Advisory Council
2.24
The Independent Advisory to the NDIS (the Council) provides independent advice to the NDIS Board about how the NDIA is performing its functions, either at its own initiative or at the written request of the Board. The Council’s advice draws attention to important issues affecting NDIS participants, family and carers, and considers the way in which the NDIA is addressing such issues.
2.25
The Council is comprised of 12 members who represent a wide range of disability and advocacy sectors who bring their own lived experience or expertise of disability.
2.26
In 2021, the Council produced a range of formal advice, as well as other papers, reports and submissions for the NDIA, its business areas and other external stakeholders.
Disability Reform Ministers' Meetings
2.27
Disability Reform Minister’s Meetings are held several times a year, to provide a forum for all Commonwealth, state, and territory Minsters responsible for disability policy to drive national reform in disability policy, including through the National Disability Strategy and the NDIS.
2.28
Since December 2020, five Disability Reform Ministers’ Meetings have been held. Key matters discussed in these meetings have included:
independent assessments pilots and proposed reforms;
the development and endorsement of the National Disability Strategy;
the COVID-19 vaccination roll-out and subsequent impacts on NDIS workers, participants and their families and carers;
amendments to the NDIS Act and associated NDIS Rules to legislate the Participant Service Guarantee;
implementation of the National Principles for Restrictive Practices Authorisation; and
financial performance and sustainability of the scheme.
2.29
On 9 July 2021, immediately following a Disability Reform Ministers’ Meeting, Senator the Hon Linda Reynolds CSC, Minister for the NDIS announced that independent assessments would not proceed, in line with the recommendation from the Independent Advisory Council. The Communique published following the meeting stated that:
Commonwealth, state and territory ministers had 'agreed to work in partnership with those with lived disability experience on the design of a person-centred model' which will 'deliver consistency and equity of both access and planning outcomes', and is consistent with the assessment requirements in the NDIS Act;
Ministers will undertake further work to understand actuarial modelling and 'financial matters to inform a path forward'.
2.30
A Communique released after the Disability Reform Ministers’ Meeting held on 15 October 2021 notes that the new National Disability Strategy, titled Australia’s Disability Strategy 2021-31 has been endorsed by Commonwealth and state and territory Disability Ministers and is being considered by First Ministers and the Australian Local Government Association for final endorsement. The Communique also noted that Minsters indicated a shared commitment to launch the Strategy on the International Day of People with Disability, on 3 December 2021.
2.31
As this chapter has outlined, there have been a number of new policy initiatives relating to the NDIS over the past 12 months. There has also been important work in the NDIS space by other bodies, such as the Disability Royal Commission, Independent Advisory Council and Commonwealth and state and territory disability ministers. The next chapter focuses on the work of this committee in 2021.