2.1
In December 2019, the committee tabled its interim report on planning. The report included fourteen recommendations covering the following areas:
Standardising terminology.
Plan flexibility and funding for transport.
Draft plans and joint planning.
Administrative Appeals Tribunal (AAT) reviews.
First plan approvals and complex support needs.
Children with acquired injuries and complex care needs.
2.2
The Government tabled its response to the interim report in the House of Representatives on 3 March 2020. The Government supported seven recommendations, supported five recommendations in principle, and noted two. The response noted that the committee intends to release a final report and stated that the Government ‘welcomes any further recommendations arising from that report’. The committee is grateful to the Minister for the National Disability Insurance Scheme (NDIS), the Hon Stuart Robert MP, for providing a timely response.
2.3
This chapter provides an update on the status of the committee’s recommendations, including recent policy announcements by the National Disability Insurance Agency (NDIA) and the Minister for the NDIS. Where relevant, the chapter also examines comparable recommendations arising from the 2019 Review of the National Disability Insurance Scheme Act 2013 (NDIS Act) led by David Tune AO PSM (Tune Review), and the Government’s response.
Standardised terminology
2.4
The interim report presented evidence suggesting that the NDIA was using inconsistent terminology, leading to confusion for participants and even for members of the committee. For example, members of the committee understood the term ‘planner’ to mean the NDIA delegate who has authority to make decisions for plans. However, the term is also used to refer to other individuals, particularly local area coordinators (LACs) who are involved in the planning process.
2.5
The committee was of the opinion that the NDIA needed to do more work to use standardised, clear and unambiguous terminology, in particular to clarify the distinction between LACs who are planners, NDIA officers who are planners and NDIA officers who are delegates with authority to approve plans. To this end, the committee made the following recommendations:
Recommendation 7
The committee recommends that the National Disability Insurance Agency standardise the terminology it uses to refer to persons, processes and other matters associated with the NDIS.
Recommendation 8
The committee recommends that the National Disability Insurance Agency (NDIA) clearly define key terms associated with the NDIS, and with the planning process in particular. Where a term refers to a person, organisation or other body, the committee recommends that the NDIA clearly define that entity’s role, functions, responsibilities, limitations and accountability.
2.6
The Government in its response to the interim report supported both of these recommendations, stating that the ‘NDIA is currently reviewing all communication products to ensure there is consistent, plain English language across all products and systems’. It stated that this will include, where appropriate, ‘defining an entity’s role, functions, responsibilities, limitations and accountability’.
Planner training
2.7
The interim report examined the following issues concerning the experience, expertise and qualifications of planners:
Limited understanding of the disability sector and/or lived experience of disability.
Limited understanding of particular disability types.
Lack of training or qualifications needed to deliver culturally appropriate services to Aboriginal and Torres Strait Islander participants and participants from culturally and linguistically diverse (CALD) backgrounds.
Lack of training and experience necessary to support participants facing intersectional challenges—that is, challenges arising from an individual’s other circumstances in tandem with disability, such as their location in a rural or remote area, or their cultural or linguistic background.
2.8
The committee recognised in the interim report that the NDIA had made efforts to improve the training for its staff, including training concerning different disability types and to ensure that staff are able to deliver culturally appropriate services to Aboriginal and Torres Strait Islander communities and CALD backgrounds. However, the committee suggested that the NDIA should implement additional training to ensure that planners understand the diverse experiences of NDIA participants, and made the following recommendation:
Recommendation 9
The committee recommends that the National Disability Insurance Agency (NDIA) ensure that additional training and skills development is provided to all persons involved in the planning process (particularly NDIA officers and LACs), to ensure that all such persons:
are familiar with a range of disabilities experienced by participants, and develop specialisation in particular disability areas;
are familiar with allied health expertise;
understand the specific needs of Aboriginal and Torres Strait Islander participants, and participants from culturally and linguistically diverse backgrounds, to ensure that they are able to deliver culturally appropriate services; and
receive training in domestic violence awareness.
2.9
The Government supported this recommendation and emphasised that its forthcoming Participant Service Guarantee will include standards for how the NDIA will engage with and work alongside people with disability, ‘including the need for staff to have high levels of training’. It further outlined:
The NDIA has a thorough onboarding and training program for both its internal staff and Partners in the Community...NDIA planners and Partners undertake a range of training programs prior to supporting participants. The current training includes a comprehensive new starter induction program, mandatory learning modules, and disability specific and targeted service delivery training programs. Additionally, ongoing training is provided to maintain and build the specialised skillset of planners and Partners…
The NDIA is also progressively rolling out training programs focused on disability and cultural awareness to improve the service experience for Aboriginal and Torres Strait Islander peoples, people who identify as LGBTIQA+, and people from Culturally and Linguistically Diverse (CALD) backgrounds...
In addition, the NDIA has collaborated with the Disability Advocacy Network of Australia (DANA) to raise disability awareness amongst staff and help improve the participant experience. Through DANA, the NDIA worked with groups such as Australian Autism Alliance, Prader-Willi Syndrome Australia and Down Syndrome Australia to build knowledge and real life stories…
With respect to training in domestic violence awareness and support, the NDIA has a mandatory eLearning module on Family and Gender Based Family Violence Prevention for all staff and will consider further options.
2.10
The Government acknowledged that ‘there is always room to do more’ to expand workforce knowledge and capability, and stated that the ‘views and guidance provided by the committee and other stakeholders will continue to be invaluable in assisting with this continued improvement’.
2.11
The NDIA informed the committee in answers to questions on notice received in October 2020 that it provides formal training to planners and LACs ‘through the New Starter Program, which provides an overview of planning with a particular focus on participants over the age of seven’.
2.12
A considerable amount of evidence concerned the training of planners and the impact this has on participants’ experiences navigating the NDIS. Since the interim report only briefly examined this issue, this final report outlines in greater detail the issues raised in evidence concerning planner training and expertise in Chapter 7.
Plan flexibility and funding for transport
2.13
The interim report noted concerns raised about plan funding not being flexible enough to cover, in particular, transport, with this issue arising especially because of a lack of funding for transport in general.
2.14
As outlined in the interim report, in October 2019, the Council of Australian Governments (COAG) Disability Reform Council endorsed an approach to improve transport support provided under the NDIS, including interim measures to increase transport funding for participants who are significant users of taxi subsidy schemes. The Minister for the NDIS announced ‘greater flexibility to participants in utilising their plan budgets’. The Minister also stated that the Government planned to remove the distinction between core and capacity building funding in plans from July 2020, so that participants and their families have more flexibility in how they use funding to meet their needs.
2.15
The committee welcomed these measures, but was concerned that they would not be enough to meet the transport needs of participants in the shorter term. It recommended ‘that the [NDIA] immediately implement a mechanism to allow participants to pay for transport out of core funding’.
2.16
On 3 February 2020, the Minister announced that from 1 March 2020, ‘participants will be able to flexibly use their plan’s core support funding to claim service provider costs associated with transporting participants to and from NDIS funded community-based activities’.
2.17
The Australian Government in its response to the interim report supported the committee’s recommendation and echoed the Minister’s announcement, stating that ‘the Government and the NDIA have…committed to providing greater NDIS plan flexibility between core and capacity building supports’ from 1 July 2020, with interim measures for greater flexibility available in the intervening period.
2.18
The committee examines the issue of transport again in this final report, in light of how regularly it was raised in evidence to the inquiry, in Chapter 3 and Chapter 5.
Draft plans and joint planning
2.19
The bulk of evidence provided to the inquiry expressed support for draft plans, as outlined in pages 29–33 of the interim report.
2.20
The mother of a participant outlined what, in her opinion, was the main issue with planning—that is, that participants do not meet the planners making decisions about what to fund in their plans:
The first and most problematic issue is that planners do not meet NDIS participants (or [their] representative). As such, they do not hear the whole story: to HEAR the challenges experienced by participants and their families on the day to day basis; to SEE the exhaustion and hopelessness on the carer’s face; and to EXPERIENCE what it is like to LIVE with disability day in, day out.
The LAC provides the planner with a SNAPSHOT of the day to day lives of families living and working with an NDIS participant and a SUMMARY of the challenges and needs of the person with significant disabilities.
In my experience, even when an LAC recommends to the planner that supports are ‘reasonable and necessary’, these can be knocked back by the planner. The problem here is that the LAC has the opportunity and time to develop empathy and knowledge about the participant and their representative. The planner does not!
2.21
Ms Shayna Gavin, a practising physiotherapist, reported that she had worked with a participant who was part of a draft plan trial:
I have worked with only one participant who was part of the trial to see their draft plan. It was extremely beneficial as they were able to:
- address a gap where an [assistive technology] item had been left out (which had already been trialled and applied for)
- address misunderstandings of the planner/NDIS delegate themselves and with their [allied health professionals], so that items initially rejected from the plan were included
- this saved a lengthy review process.
2.22
Some submitters argued that errors in plans, plan inconsistencies and communication issues were arising because of the NDIA relying on LACs rather than NDIA planners to carry out planning meetings. This evidence concerned the planning landscape before the introduction of the measures outlined below.
Joint planning introduced
2.23
The NDIA carried out a pilot program of joint planning meetings in South Australia (SA) from May to November 2019. The committee heard evidence from one woman, Ms Kate White, who was part of the joint planning trials, suggesting that planners had refused to negotiate or change particular sections of draft plans:
All they did was present the ‘draft’ plan. I call it a ‘draft’ in quotes because they said, ‘Do you want it?’ And I said, ‘Well, we’ve got no funding if I say no, so I have to take this.’…They gave us a draft plan—it had ‘draft’ written across it—but they refused to change anything, so it wasn’t really a draft plan…I accepted it. What choice did I really have? I could deny it and say, ‘I want you to do better’, but then I wouldn’t have had any funding for the next however many months it took, potentially.
2.24
Ms White argued that she was only presented with the plan at the time of the meeting and therefore had little time to consider what changes to it she wanted to request:
[If I had been provided the plan a week or two prior to the meeting] I could have either adjusted my expectations or had a series of questions to ask so that I could find out what I needed to prepare if not for this time then for next time and how to look at things better…I think having a look at it beforehand would make a huge difference…I really didn’t have an understanding of what changes may or may not be [allowed].
2.25
The Minister announced in November 2019 that the NDIA will ‘commence the national rollout of joint planning meetings and the provision of draft plan summaries from April 2020’. The NDIA explained to the committee that it intended to provide participants with draft plans without funded support. This would then be followed by a joint planning meeting at which funding would be discussed and any required changes made.
2.26
The NDIA reported that 223 plans were approved during the ‘soft launch’ of joint planning in SA between September and November 2019. Of these, 1.3 per cent had three requests for an unscheduled review (under section 48 of the NDIS Act) and none had requests for an internal independent review (under section 100 of the NDIS Act). This compares to 16 per cent of plans overall being subject to unscheduled plan reviews as at 30 September 2019, and 5.4 per cent of plans subject to internal independent reviews as at 30 September 2019.
2.27
A representative from the NDIA stated that joint planning sessions include consideration of draft plans, explaining that ‘the joint planning process…[is] where all the parties are in the room and they can have a look and make minor adjustments…and approve the plan on the spot’.
2.28
However, Every Australian Counts suggested that ‘the draft plan has become the unicorn of the NDIS – a magical mythical creature that everyone would love to see but so far no one has’.
2.29
Several submitters were concerned that the joint planning process will not allow participants to see final funded amounts for supports. Dr Amy Wilson argued that an important component of draft planning would be ‘the opportunity for planners to provide justifications for removal of funds from plans’. She submitted that planners ought to be held accountable and provide evidence to back up why they believe a support is not ‘reasonable and necessary’ at a particular time.
2.30
Leadership Plus suggested that draft plans should allow for modifications and variations in funding within an appropriate dollar value.
2.31
In the interim report, the committee questioned whether joint planning, by itself, would be an adequate substitute for providing participants with fully costed draft plans. The committee was of the view that participants should be given a fully costed draft plan before joint planning meetings:
Recommendation 1
The committee recommends that fully costed, detailed draft plans be made available to participants at least one week prior to their meeting with the official with the authority to approve the plan, and that at the meeting the participant have the opportunity to rectify the plan.
Government response
2.32
The Government in its response to the interim report supported this recommendation in principle. It outlined recent initiatives such as joint planning, the use of independent functional assessments in access and planning decisions and, from April 2020, draft plan summaries, provided to participants engaging in joint planning before the plan is finalised. It also noted ‘that the NDIA has a statutory requirement to determine that the costed supports are reasonable and necessary, in line with each participant’s stated goals and informal supports’.
2.33
The committee further recommended that the NDIA ensure that participants are given the opportunity to meet face-to-face with an official with authority to approve a plan before the plan is approved, not just an LAC.
2.34
The Government supported this recommendation in principle, emphasising that it will be progressively rolling out joint planning meetings nationally between participants, LACs and NDIA planners. However, it noted that some participants choose telephone or other forms of meetings, such as Skype, and argued that the NDIA ‘should not be prescriptive in this matter, due to the different needs and circumstances of participants and their choices about how they engage with the NDIA’. Face-to-face meetings at a local NDIA or LAC office, it suggested, may be difficult for some participants because of geographic remoteness.
The Tune Review
2.35
The Tune Review ‘consistently heard’ feedback arguing that the NDIA should provide participants with full draft plans, including estimated plan budgets. In other insurance systems, the Tune Review report noted, information about support offerings, including dollar values, is provided routinely to consumers—therefore, ‘it seems odd that the NDIS would be constructed differently’. The report considered that ‘it should be the ordinary expectation of the NDIA to manage the expectations of participants’ regarding funding.
2.36
The NDIA currently assigns an employee of the NDIA to participants with more intensive or complex needs to assist and guide them with planning. The Tune Review noted that 30 per cent of participants are assigned an employee of the NDIA, and around 70 per cent of participants are assigned a ‘Partner in the Community’, such as an LAC or ECEI Partner. Once the Partner in the Community has developed a plan, the plan is sent to an NDIA delegate for approval.
2.37
The Tune Review argued that this process ‘has driven a disconnect between the NDIA and participants’, who may never meet, and ‘complicated the participant experience with many…having to repeat their story unnecessarily by requesting plan reviews’ which are then undertaken by NDIA staff. In some instances, the NDIA delegate may not have met the participant or discussed changes with them prior to the plan being approved.
2.38
The Tune Review report noted that the NDIA has implemented two new processes in response to negative feedback arising from this issue:
Plan Alignment Meetings, in which the LAC and the NDIA delegate meet so that the LAC can clarify and further communicate the participant’s support needs, goals and aspirations.
Joint Planning Meetings, for participants preparing their first plans.
2.39
The Tune Review acknowledged that joint planning meetings may go some way towards resolving issues arising from the disconnect between NDIA delegates and participants. However, it also questioned whether joint planning would add ‘additional complexity and time to the participant experience’ and increase the NDIA’s administrative burden. It recommended that the NDIA trial ‘an arrangement where NDIA delegates undertake all planning related functions’, excluding participants entering the NDIS through the Early Childhood Early Intervention gateway, and compare the benefits of this approach with the roll out of joint planning.
2.40
The Government in its response to the Tune Review supported this recommendation in principle, stating that it was in the process of implementing ‘a range of reforms to improve the participant pathway, including…the delivery of Joint Planning Meetings’. It asserted that ‘the NDIA will continue to monitor the impact of these reforms on the participant experience’.
Current status
2.41
The NDIA informed the committee in answers to questions on notice in October 2020 that the national roll-out of joint planning began in March 2020 in Robina, Queensland, for new participants. However:
Further roll out of joint planning meetings is currently on hold while the NDIA focuses on maintaining critical services in response to the COVID-19 pandemic and maintaining physical distancing requirements. The NDIA continually assesses opportunities to ensure appropriate implementation arrangements for the NDIS.
2.42
The NDIA also stated that draft ‘plans include the proposed full amount of funded supports in participants’ plans. Draft plans will be provided to participants to view in their joint planning meetings’. The NDIA further advised that:
Participants…will have flexible, personalised, plan budgets. Instead of funds being split into 15 categories, there will be two categories, and most funds will be completely flexible for participants to use on the supports they need when they need them.
2.43
Mr Brett Bennett, the General Manager of Participant Experience Design at the NDIA, at the committee’s final planning hearing on 12 October 2020, advised that the NDIA would be returning to rolling out plan summaries and draft plans once its workforce transitioned away from COVID-19 work:
As we start to transition our workforce away from the COVID work that’s really critical, and we normalise that, we’ll be looking to roll those out. The planned summary statement is not a complicated piece for us. The draft plan one has a little bit more ICT work…that we’ll need to do early into the new year.
Plan gaps
2.44
The interim report examined evidence concerning gaps which occur where a plan ends before a scheduled plan review; where funding is exhausted before the plan review date; or where additional funding cannot be secured after a change in circumstances. Plan gaps affect both participants and providers, who may continue to provide services even though funding is about to end or has already ended. Where a plan review triggers a new plan, it may be difficult for providers to recoup funds for services delivered in the interim before the new plan begins.
2.45
During plan gaps, participants may have no services because a provider cannot afford to keep providing them in the interim. Women with Disabilities Victoria (WDV) suggested that participants’ impairments may deteriorate because of not receiving a crucial piece of equipment during the gap between plans. WDV also submitted that plan gaps may also impact on participants’ stress, anxiety, mental health and psychosocial disabilities.
2.46
The committee learned that plan gaps may be an issue for providers who have committed to providing continuous service and do not want participants to go without until a new plan is approved. Amicus Group, for example, submitted that it still had ‘tens of thousands of dollars outstanding which mostly relate to plan gaps. Some of these are now 18 months old’. Northcott noted that issues for providers arise if a customer does not inform a provider of an unscheduled plan review and the provider continues to provide services based on the previous plan’s end date, leading to errors when the provider tries to claim for supports through the provider portal.
2.47
Ms Shayna Gavin, a practising physiotherapist, reported that her practice had ‘ongoing high debt from the NDIS where we were advised in writing to continue providing a service during a plan gap as we would be reimbursed, but have not been’. As a result, the practice stopped seeing participants during plan gaps, and some families had attempted to self-fund therapy to make sure that participants were not affected.
2.48
Integra, an organisation providing plan management, asserted that participants and providers ‘often mistakenly single out Plan Managers as being responsible for issues arising from plan gaps’. It suggested that stakeholders should be notified of a plan gap, or that plans be extended in the interim.
2.49
The Housing Connection reported that the ‘NDIA has advised us not to provide services to people who have no funds in their plans’. It argued that this advice leaves cohorts of participants ‘at risk to themselves and others…To not deliver a service that places someone at risk of harm is not acceptable’.
2.50
Conversely, Speech Pathology Australia informed the committee that several speech pathologists, following the explicit advice of the NDIA, had continued to provide services to participants during plan gaps, only to be ‘told that they would not receive payment for these services because the participant has been refused a further plan/funding’.
2.51
In some instances, Vision Australia submitted, new plans will have less funding because of the need to use the new funding to pay for previous service delivery provided during a plan gap. This may be an issue for participants who self-manage their plans, whose providers may chase up payment for services with them for an extended period.
2.52
The NDIA stated that its system now automatically applies 28 days of funding in cases where a new plan has not been approved at the plan review date. It argued that because of these changes, ‘plan gaps should no longer be an ongoing issue for participants and providers’.
2.53
The committee remained concerned that an extension of 28 days may not be enough to ensure that funding remains in place until a new plan is approved, and that a plan extension may not address concerns about whether funding remains appropriate. The committee made the following recommendation:
Recommendation 10
The committee recommends—in circumstances where a new plan has not been approved at the plan review date—that:
the National Disability Insurance Agency continue to provide funding under the existing plan until the new plan is approved; and
ensure that a plan review is carried out within 45 days of the review date set out in the existing plan.
2.54
The Government supported this recommendation in principle and provided the following response:
In September 2019, the NDIA launched a new process that identifies participants with plan review dates within seven days, and, in certain circumstances, automatically extends the end date of their plan for 28 days. Where a plan is extended additional pro-rated funding is applied. This enables participants to continue to access supports until a plan review occurs and the new plan is approved.
The Government has committed to the implementation of the NDIS Participant Service Guarantee from 1 July 2020...[which] will include…timeframes for the NDIA to make decisions or undertake administrative processes, including planning, plan approval and review.
Plan reviews
2.55
The term ‘review’ in the context of the NDIS applies to three different types of reviews:
a scheduled review of a participant’s plan, carried out by the NDIA;
an internal review of a participant’s plan, carried out by the NDIA. This may include review of a reviewable decision (under section 100 of the NDIS Act, in which a participant appeals certain decisions planners have made about parts of their plans) and a change of circumstances review (under section 48 of the Act); and
an appeal of an internal review decision to the AAT
2.56
Given confusion surrounding, particularly, the first two uses of the term ‘review’, the Tune Review recommended that the NDIS Act be amended so the word ‘review’ has only one meaning.
2.57
The committee was concerned in its interim report by evidence suggesting that there may be major issues with the NDIA’s review process. Evidence outlined below covers some of these issues, including:
the NDIA discouraging participants from submitting review requests;
the timeliness of the review process;
the lack of clarity about what kind of review is needed;
the number of planner errors, leading to the need for reviews;
scheduled plan reviews taking place earlier than expected;
little change happening as a result of internal reviews; and
limited communication with participants during internal reviews.
2.58
The AEIOU Foundation suggested that some carers had reported that planners had influenced them to cease or withdraw their requests for a review. Occupational Therapy Australia informed the committee that planners had advised some participants not to ask for changes to their plans until their scheduled reviews and discouraged participants from submitting unscheduled plan review requests. Similarly, the Royal Australasian College of Physicians submitted that according to anecdotal evidence, the NDIA may be advising some participants that ‘they may be better off re-submitting’ a new access request rather than waiting for a review of a reviewable decision, which can take up to six months.
2.59
Others were concerned that there is no identified timeframe for processing plan review requests. Ms Shayna Gavin, a practising physiotherapist, reported that most of the families she knew who had applied for a review have not received a response, stating that ‘[i]t appears that the issues are left until they are due for their next planning meeting’. Healthy Minds suggested that lengthy plan delays, leading to an offer of a new plan after the original plan has expired, may be ‘allowing the NDIA to reduce its outstanding plan review statistics’.
2.60
Every Australian Counts called for greater clarity on the names for the different types of review, asking ‘[w]ho on earth thinks a “review of a reviewable decision” is a clear and simple way of explaining the need for change?’ Spinal Cord Injuries Australia suggested that participants may be confused about the types of review they should request (whether a review under section 100 of the NDIS Act, or a review under section 48). It also stated that ‘[e]ven the NDIA gets this wrong sometimes’, leading to confusion when appeals end up at the AAT.
2.61
Queensland Advocacy Incorporated (QAI) called for the NDIA to stop shifting requests for reviews of reviewable decisions (section 100 reviews) to change of circumstances reviews (section 48 reviews).
2.62
A further issue related to planner errors. Multiple submitters argued that the need for internal and AAT reviews would decrease with increased planner competency, more efforts to involve participants in the planning process, and if the NDIA were to provide participants with reasons for decisions. Multiple Sclerosis Australia reported that it knew of one NDIS participant who had had seven NDIS plans in seven months, with multiple rewrites needed so that the participant would have a correct plan with all of the services that they required. One submitter suggested that planners should be audited to check if more than 10 per cent of their plans were subject to review requests. Similarly, ADACAS Advocacy proposed that ‘the NDIA invest in systemic analysis of all reviews…to identify themes’ that could help to reduce the number and the duration of review processes. Chapter 7 of this report examines the issue of planner errors in greater detail.
2.63
Vision Australia informed the committee that some participants had scheduled plan reviews up to four months earlier than scheduled, leading to issues with plan utilisation and the risk that the NDIA will decide to cut funds on the basis of what has been utilised in the previous plan. It argued that if early plan reviews are to continue, ‘participants must have some assurance from their planning delegates that this will not prejudice their potential to access future funding’.
2.64
Maurice Blackburn Lawyers argued that plan reviews were rarely leading to change because reviewers were not carrying reviews out in an objective way:
In cases where we have been engaged to assist a client achieve a fairer and more reasonable plan, our observation is that an objective and reasoned reassessment rarely occurs.
In our experience, when the NDIA is contacted in relation to deficiencies in a client’s plan, the NDIA’s first response, by default, is to assert the original plan, or at most agree to minor adjustments to the original plan. We have experienced very few cases in which suggestions for making the draft plan fair or aligned to expert opinion are given appropriate, individual consideration by the NDIA.
The NDIA’s default mechanism and approach to the reassessment of plans, according to the experience and perceptions of our staff and clients, is to engage in stonewalling…
Only once a dispute moves past the internal review system to external review processes do we see real change.
2.65
Maurice Blackburn Lawyers suggested that internal reviews were of limited use to remedy problems in plans caused by the original planner’s lack of experience, particularly in cases of catastrophic disability and complex care needs. It argued that confusion over how to interpret the relevant legislation and associated instruments had led to ‘inconsistent application of the rules and different outcomes depending on who is making the decision at any point in time’.
2.66
Several submitters called for the NDIA to communicate with participants during the review process, and explain to participants what was missing from their original information that had led to the review. National Legal Aid called for reviewers to consider exercising powers under the NDIS Act to assist participants, including financial assistance to obtain reports.
2.67
Further areas of concerns raised about the review process included:
reviews may be experienced differently, depending on what type of disability a participant has, their circumstances and how much support they have to initiate an appeal or review;
a lack of clarity about whether persons undertaking reviews have any additional expertise, meaning that the problems created by the first planner’s lack of experience may be reproduced; and
the ability of participants to obtain additional expert evidence may be extremely limited in most cases.
2.68
When the interim report was tabled in November 2019, participants could not review part of their plan without triggering a full plan review. Once a plan came into effect, it could not be altered without being replaced by a new plan. The committee recommended the NDIS Act be amended so that participants can review part of a plan or vary a plan in appropriate circumstances.
2.69
The Government supported this recommendation in its response to the interim report, and stated that it ‘intends to introduce a new plan amendment power, as part of its response to the Tune Review of the NDIS Act’.
2.70
The interim report noted that while someone affected by a reviewable decision must ask for an internal review within three months of being notified of the relevant decision, there is no specific timeframe within which the NDIA must conduct an internal review. The committee made the following recommendations to address this area of concern:
Recommendation 4
The committee recommends that the National Disability Insurance Scheme Act 2013 be amended to require the National Disability Insurance Agency to complete an unscheduled plan review within 45 days of receiving a request from the participant.
Recommendation 5
The committee recommends that the National Disability Insurance Scheme Act 2013 be amended to require the National Disability Insurance Agency to complete internal reviews of decisions within 45 days of receiving a request to conduct the internal review.
2.71
The Government supported both of these recommendations in principle in its response to the interim report. It highlighted its commitment to implementing the NDIS Participant Service Guarantee from 1 July 2020, stating that the Guarantee will include timeframes for the NDIA to make decisions or undertake reviews. The Government also stated that it ‘intends to introduce a timeframe for internal plan reviews as part of its response to the Tune Review’.
The Tune Review
2.72
The Tune Review argued that a lack of clarity around when a support is reasonable and necessary ‘is leading to different interpretations and driving confusion and frustration for people with disability, LAC partners, NDIA delegates, tribunals and courts’. It further stated that people with disability ‘have the right to understand the reasons behind decisions the NDIA makes regarding their eligibility for the NDIS and the supports provided in their plans’.
2.73
The Tune Review outlined three major concerns with plan reviews that were highlighted in consultation feedback:
the NDIA not acknowledging participant requests for an unscheduled review;
the NDIA not keeping participants informed about the status or progress of a review; and
the review process taking too long, leading to delays for much-needed supports.
2.74
The Tune Review reported that the NDIA’s National Review Team, established in March 2019 to manage unscheduled plan review requests, was receiving an average of 1,000 participant-initiated unscheduled plan review requests each week. It called for the factors that the NDIA must consider when deciding to take an unscheduled plan review to be included in the NDIS Act, so that participants and NDIA delegates have ‘greater clarity on the circumstances in which the NDIA would ordinarily agree to conduct or initiate a plan review, enabling planners and delegates to make faster decisions’. Further, the Tune Review called for the NDIS Act to be amended so that the NDIA is able to amend a plan in certain circumstances, such as where the plan has drafting errors or where a participant needs crisis/emergency funding.
2.75
The Australian Government in its response agreed ‘that additional guidance should be provided in the legislation to simplify plan review processes’, including the matters that the NDIA would consider when deciding whether to undertake an unscheduled review. It also supported the Tune Review’s recommendation that the NDIA be able to amend plans, stating that allowing the plan to be amended without requiring a plan review or the creation of a new plan ‘would greatly improve the participant experience’.
2.76
A further point that the Tune Review report raised was the triple use of the word ‘review’, meaning a scheduled plan review, an internal review of a reviewable decision and an appeal to the AAT. The Review recommended that the NDIS Act be amended to remove the duplicate use of the word ‘review’. The Australian Government also supported this recommendation, noting that it had been agreed to ‘by the Council of Australian Governments in the context of the 2015 Review of the NDIS, and to date has not been legislated’.
2.77
The NDIA informed the committee in answers to questions on notice received in October 2020 that its dedicated Internal Review Team (IRT) ‘operates independently from other decision making areas within the Agency to enable independent governance of the internal review process’. It further stated that its internal review process includes the following:
Participants’ review rights are explained to them when their plan is approved and they are provided with the information required to request for a review of a decision if they disagree with the decision made.
The reviewing delegate undertaking the review is not the original decision maker.
The reviewer takes all reasonable steps to speak to the person who has requested the internal review to provide them with the opportunity to explain their reasons for requesting the review. The reviewer will also give the person the opportunity to explain why a different decision should be made, to provide additional information or evidence and respond to any adverse information.
The decision made as a result of an internal review is based on available evidence. The reviewer clarifies information and supports the person to seek further evidence to support reasonable and necessary criteria for a funded support where required. The reviewer may also seek technical advisory support from within the NDIA to ensure that all avenues of information gathering are utilised.
In addition to reconsidering the facts, laws and NDIA policies related to the original decision, the delegate will also consider any new information provided.
2.78
The NDIA also asserted that it ‘does not skip plan reviews’ and that it had adopted ‘a more flexible approach to plan reviews’ during the COVID-19 pandemic. This has included participant check-ins. It stated that during a participant’s next scheduled plan review meeting, planners or LACs will outline the new flexible options available to participants to review their plan, such as a new plan with the same supports, a new plan with minor changes or a full plan review. The NDIA outlined that:
If a participant is happy with their plan and it is meeting their needs, a plan renewal is processed. The NDIA is developing an ICT update to simplify this process and allow the plan to be easily renewed. There may be a small number of plans that have been allowed to go through the automated system extension, however, these are post the review conversation with the participant to establish how their plan is working. An ICT release is due in November to implement the simple plan renewal process.
2.79
Further, the NDIA informed the committee that it ‘does not shift requests for reviews of reviewable decisions (s100 reviews) to change of circumstances reviews (s48 reviews)’. If a participant lodges a request for an s100 review outside the maximum three months after a participant was told of the original decision, this may be an instance ‘where the NDIA explores other review types with the participant’. Where a participant request could fit both a section 100 review and a section 48 review, ‘the NDIA contacts the participant or their authorised representative to discuss the circumstances and the different types of reviews’.
2.80
In the final planning hearing held on 12 October 2020, the NDIA advised that it may continue processes put in place during the COVID-19 pandemic, including participant check-ins to check whether participants need a plan review, or are happy for their plans to be extended. As of October 2020, these processes were used nationally:
If a participant’s plan is working for them and their circumstances haven’t changed, they might not even need a plan review in the short term. Instead of undertaking a full-plan review, we will automatically check in with participants to see how they are going. Participants will have the opportunity to indicate if they want a full-plan review, light-touch review or a plan rollover based on their circumstances, their goals and how their plan has been working for them so far. We anticipate that, for many participants, plans will be ongoing. In cases where a full-plan review is required then the key elements from joint planning will be incorporated and retained. This includes the participant receiving a draft plan and being able to have a discussion with the delegate about the plan prior to the plan being approved. We’re also committed to establishing online planning tools so participants can develop their own plants in the portal and submit them to us for approval.
Administrative Appeals Tribunal reviews
2.81
The interim report noted that although a high number of external reviews of NDIA decisions carried out by the AAT are resolved by settlement, no information is publicly available on the outcomes of these settlements. Submitters and witnesses to the inquiry argued that publishing de-identified details of settlement outcomes would improve transparency, help the NDIA to improve its processes if common themes in decisions were obvious, and also help participants to decide whether to pursue an appeal or not.
2.82
The committee supported the suggestion that the NDIA publish settlement outcomes from external reviews taken to the AAT, provided these are published without details identifying the individuals concerned:
Recommendation 6
The committee recommends that the National Disability Insurance Agency publish settlement outcomes relating to external review by the Administrative Appeals Tribunal, in de-identified form.
2.83
The Government in its response to the interim report noted this recommendation, and provided the following explanation for its position:
Publishing Administrative Appeals Tribunal (AAT) settlement outcomes would impose a significant administrative burden on resources and would pose privacy issues, even if published in a de-identified form. Further, as AAT settlements are not precedent-setting and all cases are considered on their individual merits, publishing settlements could contribute to the misconception that the particular terms of agreement reached between the NDIA and an applicant could be generalised to other applicants with a similar disability.
2.84
Given the significant issues raised in evidence concerning AAT appeals, which appear to remain unresolved, the committee has dedicated Chapter 10 of this report to matters related to the AAT.
First plan approvals and complex support needs
2.85
The committee expressed its concern in the interim report that participants were experiencing delays in their first plans being approved. In June 2019, the Minister announced an initiative to resolve delays and backlogs for children with disability in accessing ECEI supports through the NDIS. This initiative includes a six-month, standardised interim plan for children who are likely to experience a wait time of more than 50 days between an access decision and getting a plan.
2.86
The committee recommended that similar measures be put in place for all NDIS participants:
Recommendation 11
The committee recommends, where a plan is not approved within 45 days of receipt by a National Disability Insurance Agency (NDIA) delegate, that:
the NDIA immediately approve a typical supports package (TSP) for the participant as an interim measure; and
the NDIA replace the TSP with an individualised plan no later than
45 days after the TSP is approved.
2.87
The Government noted this recommendation but argued that moving towards using TSPs ‘as a matter of course would move the NDIS away from the stated intent of an independent understanding of the individual’s goals and support needs’. It further contended that ‘there are limited efficiencies to be gained by developing initial TSP plans followed by individualised plans’ because TSP plans involve gathering information that is also used to develop an NDIS plan in the usual planning process. The Government reiterated its commitment to implementing a Participant Service Guarantee from 1 July 2020, which will include timeframes for the NDIA to make decisions.
2.88
The Minister also announced in June 2019 that children with complex support needs will immediately be streamed to an NDIA Early Childhood specialist to develop their plan and funding package.
2.89
The committee was of the opinion that all participants with complex support needs should be supported by an NDIA official, not just children:
Recommendation 12
The committee recommends that all participants with complex support needs be immediately streamed to a National Disability Insurance Agency delegate to develop their plan and appropriate funding package.
2.90
The Government supported this recommendation, noting that the NDIA has developed a new Complex Needs Pathway to give participants with complex needs ‘additional, tailored support in all aspects of their NDIS experience’. Participants in this pathway complete their planning meetings with an NDIA delegate.
Children with acquired injuries and complex care needs
2.91
The interim report outlined evidence concerning the impacts that delays in accessing the NDIS and plan approvals could have on children with complex care needs and children with acquired injuries.
2.92
The committee recommended that the NDIA develop and implement a mechanism to prioritise access decisions, plan meetings and plan approvals for children with complex needs and/or an acquired disability. Such a mechanism, the committee considered, could help this cohort avoid lengthy stays in hospital systems and ensure that they would be able to access supports as quickly as possible.
2.93
The Australian Government supported this recommendation, stating that the new Complex Needs Pathway (as outlined above) roll-out will include support for these cohorts.
2.94
The issue of delays is discussed further in Chapter 12 of this report.
Committee view
2.95
The committee notes the Australian Government’s positive responses to most of the committee’s recommendations in the interim report. In particular, the committee commends the work being undertaken to roll out joint planning, to increase funding flexibility—particularly in the context of transport—and to improve gaps and delays between plans. The recent announcement that draft plans will include budgets, with participants able to use most funds flexibly, is especially welcome.
2.96
While these reforms are needed, the committee reiterates its recommendation that participants be given a copy of fully-costed plans at least a week before a joint planning meeting so that they are able to consult with experts and reflect before the decision is made. As outlined in Chapter 6 of this report, the committee was informed that in many instances planners may be funding different supports to what experts have recommended in reports. Providing participants with fully costed plans a week before a joint planning meeting would allow participants, their families, carers or nominees the opportunity to ask the experts who made these recommendations whether these revised or new supports would be appropriate for the participant, given their individual circumstances.
2.97
While it is true that the NDIA’s recent decision to fund independent functional assessments may go some way to addressing the issue of planners making inappropriate recommendations against the advice of experts, independent assessments will not be implemented for planning for some time. In the meantime, only experts who have met with a participant more than once and developed long-term strategies of how best to address their disabilities may be aware of what supports would be most appropriate for that participant.
2.98
The committee recommends that the National Disability Insurance Agency provide fully costed, detailed draft plans to participants and their nominees at least one week prior to their meeting with an official with the authority to approve the plan.
2.99
Finally, the committee is concerned that although the Australian Government has shown its support for most of the interim report’s recommendations, implementation is absent or varies from what the committee actually recommended in some instances. The committee accepts that the COVID-19 pandemic may have delayed action and that considerable reforms are due to take place following the Australian Government’s response to the Tune Review’s recommendations. However, so long as issues remain unaddressed, the same problems will continue for NDIS participants, with the risk of participants disengaging from the NDIS and the scheme itself suffering reputational damage, despite its overall positive benefits for many Australians with disability. In particular, the committee remains concerned about the following outstanding matters, and addresses in further detail in this report:
Planner training (Chapter 7).
Delays, including those leading to plan gaps (Chapter 11).
Appeals to the AAT (Chapter 10).