Chapter 4
Becoming a participant
4.1
The NDIS is a scheme designed around individuals with disability, and
clauses 18 to 30 set out the process by which someone enters (and leaves) the
scheme. These clauses include the eligibility requirements, which were the
subject of much of the discussion among stakeholders.
4.2
Clauses 18, 19 and 20 establish a system for people to request to
participate in the NDIS. Clause 20 sets a deadline of 21 days for the CEO of
the agency to, at a minimum, take some key steps in the process of determining
whether the applicant meets the eligibility criteria.
4.3
Clause 21 establishes the framework under which a person's eligibility
to be a participant in the NDIS is assessed. It has three elements. The first
subclause defines a set of conditions governing access to the NDIS. If someone
meets those criteria, then the person has the right to be part of the NDIS. The
second subclause is intended to ensure that some people already receiving
disability supports under existing programs will be able to access the NDIS,
even though they might not meet some of the criteria (for example if they are
over 65 but already receiving support). The third subclause states that, if the
CEO fails to act within the 21 days set out in clause 20, then the applicant is
determined to not have met the access criteria. This particular subclause
caused some disquiet amongst stakeholders.
4.4
An overarching concern of advocacy organisations and people with
disability was that the bill would not create an entitlement for those meeting
certain criteria. As such, it would not be consistent with the rights-based
approach endorsed by the government, and agreed with by this committee (see
chapter 2 of this report).
4.5
DANA for example argued that:
At no stage in the draft Bill is there the legislative
formulation that we have come to expect with genuine entitlements. In other
entitlement-based legislation (e.g., Social Security Act 1991) we see the
consistent use of “A person is qualified for [pension, benefit] if the person
has [description of eligibility criteria].[1]
4.6
An example of the construction of eligibility in the Social Security
Act 1991 is for the age pension:
(1) A person is qualified for an age pension if the person
has reached pension age and any of the following applies:
(a) the person has 10 years qualifying Australian residence;
(b) the person has a qualifying residence exemption for an
age pension;
(c) the person was receiving a widow B pension, a widow
allowance, a mature age allowance or a partner allowance, immediately before
reaching that age;
(d) if the person reached pension age before 20 March
1997—the person was receiving a widow B pension, a widow allowance or a partner
allowance, immediately before 20 March 1997.[2]
4.7
A related suggestion made by Developmental Disability Council of WA and
People with Disabilities WA was that the legislation should 'have a notion of
manifest eligibility, such as exists for the Disability Support Pension'.[3]
4.8
The committee agrees that the construction of eligibility used in the
bill is slightly different to that in some other legislation such as the Social
Security Act. Determining whether someone has a disability that is causing a
significant impairment, or whether they would benefit from early intervention,
is not always as straightforward as determining a person's birthdate. However,
the committee nevertheless believes that the bill does create a right of access
to the NDIS for those who meet the criteria. Specifically:
- Clause 18 gives anyone the right to make an access request;
- Clause 20 gives the CEO no discretion about whether to consider a
request: all requests must be responded to;
- Clause 21 states that a person meets the access criteria provided
that they satisfy certain eligibility requirements; and
- Clause 28 states that a person becomes a participant once the CEO
is satisfied that a person meets the requirements: there is no discretion for
the CEO to decline access, if the criteria are met.
4.9
In other words, the agency's only role in these clauses is to determine
whether the person meets the access criteria: they are not rationing places in
a capped program, and they have no discretion about the decision whether a
person can participate.
4.10
While this creates a rights-based framework for access, the
appropriateness of that framework hinges on the application of the access
requirements set out in clauses 22 to 25, and some of the methods for
determining eligibility set out in clauses 26 and 27. The remainder of this chapter
examines these issues.
The effect of deeming a decision to have been made
4.11
In describing the bill above, the committee noted the process under subclause
21(3), whereby if the CEO does not take action on an access request within 21
days, the prospective participant is deemed to not meet the access criteria.
4.12
This clause caused some concern. The department gave a valuable
explanation of why this clause would be of benefit of prospective participants:
This is actually protection for participants. I know it does
not feel like that when you read it. What it means is that, if the CEO fails to
make a decision in 21 days, if there were not this provision, it would put a
person into limbo and they would not have a decision to appeal against. This
clarifies that, if the CEO does not get his or her act together and make a
decision, the person is not in limbo. They are protected by the fact that they
act says a decision has in fact been made and they have something to appeal
against. If you did not have this one in place, you would be putting
participants at risk. I know it does not feel like that when you read it cold,
but this is a really important protection to make sure people are not in a
black space where the CEO has not made a decision, they do not know what is
happening and they have nothing that they can take to review court to appeal
against. So this actually helps people. We have debated internally a number of
times to see if we really need this, and each time we look at it we think it is
better and a much stronger protection for participants than the alternative.[4]
4.13
To fully understand how clause 21(3) will work, it needs to be read in
the context of clause 100(5). That later clause automatically triggers a
process of formal review of the decision (or in this case, the failure to make
a decision within the timeframe). Thus, if the assessment of someone's
application to enter the scheme has not commenced within 21 days, they get an
automatic review of the situation by someone other than the CEO.
4.14
The committee agrees that, despite the counterintuitive wording in the
bill, this is a significant positive protection for people seeking access to
the scheme, imposing a very strong incentive on the agency to act swiftly on
access requests.
Aged care or disability insurance: the age requirements
4.15
Any disability care system will need to sit alongside other care and
support policies, and there needs to be rules and policies to guide how they
interact. Foremost among these is the aged care system. Under clause 22 of the
bill, a person would only be able to access the NDIS if they made an access
request before they turned 65. At age 65 or above, people would be required to
seek support through the aged care system.
4.16
The bill contains two qualifiers to this age cut-off. The first is that
there may be additional age restrictions made under the NDIS Rules: the EM states
that these reflect the fact that 'the Commonwealth has agreed with some host
jurisdictions that the NDIS will be initially implemented in that launch site
in relation to certain age cohorts only'.[5]
Examples include SA, where the scheme will commence with the age 0–5 cohort,
and Tasmania, where it will commence by covering those aged 15–24.[6]
Thus, during the launch phase, age restrictions may be tighter than just being
under 65.
4.17
The second qualifier arises from subclause 21(2), outlined above. If a
person is 65 or over and is already receiving supports under a pre-existing
program recognised under the NDIS Rules, then their age will not preclude them
transferring across to the NDIS.[7]
4.18
The committee notes that participants do not have to exit the NDIS when
they reach 65. Once they are participants in the scheme, they may remain within
it.[8]
However, they cannot enter the disability support system for the first time
above that age.
4.19
The committee received extensive comments on the restriction of
eligibility to those who make an application below the age of 65.
4.20
Some submitters questioned whether the age cut-off was consistent with
the objectives of the scheme, and in particular with supporting the rights of
people with disabilities on a non-discriminatory basis. The submission of Futures
Alliance typified this concern, saying:
We believe that the scheme would be more equitable, create
greater equality, and be more in line with Australia's human rights obligations
if the age requirements were removed or extended significantly so as to broaden
the concept of disability and enable those who are ageing with a disability
(rather than experiencing age-related diminishment of capacity) to receive the sufficient
support for a full life. This would apply to both those people who have a
disability before the age of 65, and to those who acquire a non-aged related
disability after the age of 65.[9]
4.21
People With Disabilities Australia likewise raised the issue in the
context of an appropriate protection of rights:
Access to the NDIS must be available to anyone who legally
resides in Australia, regardless of their age or nationality. The Scheme is
premised on the recognition that all people with disability are inherently
valued and respected members of society, and are entitled to supports in order
to enjoy their rights on an equal basis as others. It is a violation of the
international human rights instruments to which Australia is a party to
discriminate on the basis of age and/or nationality...
There are many people older than 65 years who have had a
disability their whole life, and many who will acquire one through causes
unrelated to ageing (for examples, motor neurone disease or multiple
sclerosis). The aged care system in its current form cannot provide the highly
specialist disability supports required by many of those people. Moreover, the
age cut off implies that older people should not be provided with the
opportunities to exercise choice and control over their lives like their
younger counterparts, and that they deserve only generic rather than reasonable
and necessary supports to meet their needs.[10]
4.22
These concerns based on principle were complemented by other concerns
based on practice. Most were centred on the lack of suitable services in the
aged care sector for people with various medical conditions and disabilities.
4.23
Combined Pensioners and Superannuants Association of NSW pointed out
that there are 'differences in the types of assistance required by older people
and people with disabilities' and that 'aged care services...may be inappropriate
for [disabled people's] needs or simply not meet them'.[11]
David Heckendorf argued that with the average age of entry to aged care being
84, younger entrants 'will not socially fit within the aged care system. Nor
will the aged care system be equipped to provide the particular types of
services required by this group'.[12]
Polio Australia stated that 'there are no specialist Late Effects of Polio
services in the aged care sector for polio survivors aged 65 and over'.[13]
4.24
BCA argued that evidence showed the aged care system was not adequate to
the task, despite various reforms:
We are well aware that the Productivity Commission did a
parallel inquiry into aged care, and we are well aware that there is some
significant reform happening in that area, but what we would argue is that that
reform is looking at frail aged, at ageing in place and at respite and other
supports, but it is not looking at the specialist needs of people with
disability. That is not just people who are blind; that is people with a whole
host of disabilities.
I would like to quote something one of our members said to me
in one of the consultations that I ran around Australia:
When the nursing homes for the blind closed down, it was said
that all other nursing homes would cater for the blind and vision impaired
people. We have come to realise that the promises made by these nursing homes
in the end did not meet all the requirements of the blind and vision impaired
Likewise, our members are concerned that there is this
coverall that the aged-care sector will just meet their needs, but often there
is not that comprehensive understanding by aged-care providers of what it means
to be blind, what the capacity of people who are blind is and the fact that
people can be very independent with some aids, equipment, orientation and
mobility. So what we want to see is a system that a person can access.[14]
4.25
Other practical questions were raised, such as about the interaction of the
65 year age cut-off with other age-related provisions. It was pointed out that
the age at which a person will become eligible for the aged pension is set to
rise to 67 by 2023.[15]
The Productivity Commission report itself refers to the 'Aged Pension age'
rather than to the age of 65.[16]
Several groups including the Physical Disability Council of New South Wales,
queried how the age cut-off would interact with provisions in other legislation
regarding Indigenous Australians, who gain access to some pension supports at
50 rather than 65.[17]
Others argued that there are existing programs or policy guidelines relating to
aged care that do not use the age of 65 as the key criterion but other, later,
ages. These include, for example, national benchmarks and policies relating to
residential aged care.[18]
4.26
Not all inquiry participants argued against the age criterion. The
Tasmanian Government argued in favour of the age cut-off as ensuring
clarity of the boundaries between service systems. It also took the view that
it was important not to undermine the financial sustainability of the scheme.[19]
This concern is shared by the Commonwealth.[20]
The National People With Disabilities and Carer Council (NPWDCC) took the view
that there should definitely be a cut-off, though it did argue that there may
be a way to address possible service gaps through recognition of diagnoses, or
a similar mechanisms.
4.27
Several organisations, including the AFDO and BCA, recommended removal
altogether of any age restriction.[21]
More frequent were recommendations that there be some revision to the NDIS
eligibility criteria. National Seniors Australia recommended that the NDIS be
extended 'to include older Australians aged 65 and older with no significant
age-related conditions'. Polio Australia suggested that 'the NDIS age limit be
considered selectively for people whose disabilities result from various
causes', such as polio.[22]
4.28
The Australian Rehabilitation and Assistive Technology Association
(ARATA) proposed that the CEO have the ability to allow entry to those over 65
'who acquire a disability best served by the systems and services of the NDIS'.
ARATA considered that those with spinal cord or other traumatic injuries would
be likely to fit this category.[23]
Other conditions that it was suggested might benefit from some form of
discretionary rule include motor neurone disease and multiple sclerosis.[24]
Another suggestion was to extend the ‘grandfathering’ provision in paragraph 21(2)(b)
to include not only those already receiving supports but those who had already
received a relevant diagnosis, but who may not yet have accessed supports.[25]
4.29
One of the difficulties with creating exceptions to the age cut-off is
that it will inevitably be difficult to equitably and objectively determine to
whom the exception should apply. Some impairments are age-related and some are
not; even some diagnoses can be age related in some cases and not others. Discussing
vision loss, COTA explored some of these issues:
We agree that there is a correlation between vision loss and
ageing so it could be seen as a part of the ageing process. However not all
vision loss is ageing related and vision rehabilitation is a specialist service
that is not included in the current suite of aged care services but sits in the
disability service sector. If people over 65 are to be directed to the aged
care sector for assistance with vision then the services needed to be
adequately resourced to provide that service.[26]
4.30
The committee received little evidence on the cost or other implications
of extending eligibility beyond age 65. Brain Link Services drew attention to
evidence from Victorian . In Victoria, the committee was told, the system had
been reformed in 2006, so that people over 65 could access disability services.
The result was:
Victoria has not had a swathe of people over the age of 65
swamping the disability sector. If we go back to what Dr Dyson said: evidence.
If you look at what has happened at [Department of Human Services in Victoria],
the people who are accessing disability services who acquire a disability over
the age of 65, or are over 65 when they first need a disability service, are
the same groups who are getting it under 65. It is not Alzheimer's. It is not
people who are experiencing the natural effects of ageing that complicate with
disability. It is virtually the same groups.[27]
Committee view
4.31
The difficulty involved in resolving concern about the age criterion is
reflected in the diversity of recommendations that stakeholders made to address
it. It has been suggested that the Productivity Commission report proposed a
scheme for those aged under 65. The Commission's position was:
A reformed aged care system, such as that proposed recently
by the Commission in its parallel inquiry into aged care, would be a more
appropriate system for addressing disability resulting from the natural process
of ageing.[28]
4.32
It can be seen therefore that the Commission itself highlighted that not
all disability in older people is a result of 'the natural process of ageing'.
The Commission did not take a clear position on how assistance should be
provided to older Australians experiencing disability that was not age-related.
4.33
Dr Galbally of the NPWDCC pointed out that when one policy area is
reformed, as is currently proposed for disability services, it highlights any
shortcomings in other policy areas, such as aged care. NPWDCC proposed a
working group be established immediately to examine the relevant issues:
Now with the NDIS on the horizon the real deficiencies in the
age care provision have been highlighted. Our recommendation is that first
there be an immediate working group—or whatever government considers
appropriate—to look at disability and ageing, and particularly to look at areas
like assisted technology...The community focus of the NDIS, where the aim really
is to participate in community, ought to be the same for ageing. Let ageing
start that reform process. Indeed, the council will be recommending that as a
separate issue—that the age care system sets up a review of its relationship to
disability as a matter of urgency.[29]
4.34
The committee notes the NPWDCC's recommendation that:
Section 22 should be revised to allow enough flexibility to
enable the NDIS to support those people over 65 with severe and profound
disability whose disability care and support needs cannot be met by the aged
care system and/or other community service systems.[30]
4.35
The department agreed that this is a difficult area, and discussions
remain ongoing.[31]
It pointed out that the early intervention criteria under clause 25 would
capture some of the situations that were being raised by witnesses. Mr Hartland
also pointed out that the interventions don't have to be therapeutic in nature
for the person to be eligible under clause 25.[32]
The committee recognises that there are a number of significant causes of
disability, including multiple sclerosis and post-polio syndrome, for which the
application of clause 25 would be relevant. However, these people would need to
engage with the NDIS (or its predecessor schemes) for the first time prior to
turning 65.
4.36
The committee also noted the suggestion made by National Seniors
Australia and others, that a launch site be established that includes no age restriction,
to determine whether this would be an appropriate approach. The committee can
see the attraction of this option. However it notes that the NDIS sites are
'launch sites' from which the scheme is going to be expanded, not 'trial
sites', which implies they may or may not continue. The committee is concerned
that establishing an experimental launch site of this sort would present risks
to equity across the scheme in the medium term, and could undermine the
coherence of the NDIS. It would also require renegotiation of agreement between
the Commonwealth, states and territories, potentially disrupting implementation.
4.37
The committee concludes, as have others, that the most important issue
is not the eligibility criteria for the NDIS, but the adequacy and
appropriateness of service provision, whatever scheme funds that service.
Recommendation 11
4.38
The committee recommends that the government, through COAG processes, identify
mechanisms by which to provide adequate specialised disability support for
people 65 and over who have disabilities not resulting from the natural process
of ageing.
Recommendation 12
4.39
The committee recommends that, as a matter of priority, the government
develop information for communication to members of relevant stakeholder groups
about the scope for clause 25 (early intervention requirements) to address the
needs of some people ageing with conditions that may not cause impairment until
after they have turned 65.
Recommendation 13
4.40
The committee recommends that the government conduct further research
into the costs and benefits of varying the NDIS age eligibility criterion.
Developmental delay
4.41
A less obvious age restriction occurs in the bill in relation to access
to early intervention for children with developmental delay (subparagraph 25(a)(ii)).
Under clause 9, developmental delay refers to certain circumstances in a child less
than six years of age. Numerous submissions were received from families and
professionals who indicated problems with obtaining clinical diagnoses or
accessing services for their children, often indicating that problems were not
confirmed until some years after they initially raised issues with schools or
health professionals, while others expressed concern that services would cut
out at an early age, regardless of whether they might have continued to benefit
a child.
4.42
Several witness pointed out that developmental delay is often not
detected until sometime after a child enters the school system.[33]
This means it may not be identified until the child is six or seven years old. There
can also be delays where the child comes from a non-English speaking
background, and there can be similar issues if the child comes from a
humanitarian or refugee background.[34]
It was suggested that the age be raised to 'under eight' rather than six, while
the AFDO suggested there should be no age constraint, other than that
developmental delay be diagnosed in a child.[35]
Early Childhood Intervention Australia (ECIA) commented:
The definition of developmental delay raises significant
questions for ECIA regarding what happens to children once they turn six. What
will the level of supports be for these children and their families once they
turn six and will they have to transition out of the NDIS or reapply? ECIA is
concerned about what this will mean for children and families.
The diagnosis of developmental delay is very complex and
children may be classified as having a developmental delay for over a decade
without receiving a formal diagnosis. There are also significant grey areas
when determining what is deemed to be a developmental delay. This certainly
requires further research and discussion with the field by the Agency.[36]
4.43
Novita Children's Services noted the clause and believed it 'would
appear to provide the suitable criteria for access as a prospective
participant'.[37]
4.44
The department indicated that the age cut-off for developmental delay
was based on a clear existing evidence base. It pointed out that this clause is
only related to the early intervention requirements under clause 25. A child,
whether under six or not, who is demonstrating functional impairment would be
eligible to enter the scheme under clause 24. Clause 25 was designed to prevent
any service gap emerging with young children who will benefit from support but
do not meet the disability criteria of clause 24, particularly in relation to either
the availability of specific diagnoses, or the permanence of any impairment.[38]
4.45
The committee was satisfied with the department's explanation. Most of
the submissions from parents who expressed concern about this clause were all
either accessing, or seeking access, to assist children who were presenting
with symptoms, issues or diagnosed disabilities that would mean they would
potentially be considered for access under clause 24. The committee notes that
these issues can be tested in the launch sites, particularly in SA, where the
launch is focussed on children.
Residence requirements
4.46
Under subclause 23(1) of the bill, a person must be an Australian
citizen, permanent visa holder or protected special category visa holder,[39]
and also be residing in Australia, before they can be eligible for the NDIS.
Some submitters argued that this excessively restrictive, and that the
residence requirements should be constructed differently. The EDAC argued:
In terms of eligibility, we believe NDIS should be accessible
for people with disabilities who have a legal right to live and work in
Australia, not just those in possession of a permanent residency visa. This
would include asylum seekers who have been recognised as refugees but still do
not have their permanent residency.[40]
4.47
FECCA argued that the most appropriate model on which to base the
eligibility rules should be the country's other national insurance-based
scheme, Medicare. Under the Health Insurance Act 1973, Medicare benefits
are payable to Australian residents, including any person 'who is lawfully
present in Australia and whose continued presence in Australia is not subject
to any limitation as to time imposed by law'.[41]
They recommended amendment of the bill as follows:
23(1) A person meets the residence requirements if the
person:
(a) resides in Australia; and
is an Australian resident; and
(b) is one of the following:
(i) an Australian citizen;
(ii) the holder of a permanent
visa;
(iii) a special category visa
holder who is a protected SCV
holder; and
(cb) satisfies the other
requirements in relation to residence that are prescribed by the National
Disability Insurance Scheme rules.[42]
4.48
The committee asked the department why the eligibility criteria are
different to those for Medicare. The department was not able to respond
specifically on the Medicare criteria, but indicated that the government
considered advice about a range of eligibility criteria, and concluded that:
There ought to be a test of residency that reflects the costs
and value of the scheme. It is to support over a lifetime, meeting reasonable
and necessary needs and, therefore, in order to benefit from a scheme that
taxpayers will be funding, people should make these residency tests.
4.49
The committee understands the government's argument, but is not sure
that it clearly establishes a distinction between the policy rationale for the
NDIS and for Medicare.
Recommendation 14
4.50
The committee recommends that the government make a more detailed
statement setting out the underlying rationale for the approach taken to the
residency eligibility criterion.
Disability requirements
4.51
Clause 24 sets out the disability criteria for eligibility to enter the
NDIS scheme. The clause has two elements. The first sets out five criteria all
of which must be met:
-
that there is a disability;
- that the impairment is, or is likely to be, permanent;
- that the impairment causes a reduction in function, for example
in communication or mobility;
- that the impairment will 'affect the person's capacity for social
and economic participation'; and
- that support needs 'are likely to continue for the person's
lifetime'.
4.52
The second element of the clause recognises that, although the
impairment is likely to be lifelong, it may vary in intensity.
4.53
The Law Council of Australia considered that more detail around the
eligibility criteria should be in the bill. They contrasted the approach in the
bill to that in the Social Security Act for the Disability Support Pension.[43]
The Law Council's view did not appear to be widely shared.
4.54
Submitters appeared generally to be optimistic about the disability
assessment criteria and processes for the bill, though it was often noted that
their success will depend to a considerable degree on the rules and the success
of the agency. BCA commended both the 'recognition around functional impairment
and the fact that we are not looking at a medical model of disability; [and] the
fact that there is recognition of episodic needs as opposed to episodic
disability';[44]
Occupational Therapy Australia (OTA) expressed similar views.[45]
A number of advocacy organisations argued against there being a lot of detail
in these parts of the bill; for example several major submissions, including
those of the AFDO, DANA, and the NPWDCC, did not argue for more detail in the
relevant provisions.[46]
4.55
A different view was presented by the Attendant Care Industry
Association, which represents people who provide 'paid care or support services
delivered at a person’s home or in their community to assist them to remain
living in the community'.[47]
The organisation drew attention to the ICF, and how the bill did not appear to
be adopting it, despite a recommendation to that end by the Productivity
Commission:
Many submissions to the Productivity Commission identified
the International Classification of Functioning Disability and Health (ICF) as an
internationally accepted system of comprehensively identifying
disability-related need, by addressing body functions and impairments,
activities of life and participation restrictions, and the environmental factors
which enhance or impinge upon people’s ability to participate. The Productivity
Commission itself recommended (Recommendation 7.1) that the ICF should be used
to identify the supports required to address the reasonable and necessary care
and support for their life activities. The legislation has, however, has
adopted a very narrow, impairment-based eligibility approach, which may lead to
a restriction on access to the scheme to people on the basis of diagnosis, as
will the test of “permanency”.[48]
4.56
In response to questions the agency confirmed that the assessment tools
they would be utilising are part of an ICF framework and therefore 'in
accordance with the recommendation of the Productivity Commission.'[49]
However they emphasised that care must be taken not to think that this was the
only assessment that would be considered as it will be used alongside a number
of other methods:
We have an assessment tool and we have a self-reporting tool
at the front—both under development. The assessment tool for needs assessment
has been developed in cooperation or with the great assistance of the expert
working group and significant input from the states and territories.
Senator BOYCE: Can we have those tools provided to us,
please, on notice?
Mr Bowen: Yes, we can provide that to you. I would put
a caveat on it that, as a stand-alone document, it can be misread because it
looks like a functional impairment assessment. It is critical to understand
that that is not the starting or the end point; it is a tool that operates as a
decision tree used by the planner and in that overall context of a planning
conversation. This is a scheme that uses that as part of goal based planning.
It is not a functional impairment assessment scheme. But, necessarily, we do
have to assess the need for support. It is in the ICF framework, which is in
accordance with the recommendation of the Productivity Commission. As an
80-page document, it is very deceptive to look at that and say, 'There's the
agency's assessment tool.'[50]
'Permanent'
4.57
One aspect of clause 24 where the committee is concerned about the
message sent by the bill's language is the requirement that 'the impairment or
impairments are, or are likely to be, permanent'. Several individuals and
organisations expressed concern about this language, particularly in relation
to psychiatric conditions. In mental health care generally there is a strong
'recovery focus', and it also well known that some serious mental illnesses can
be highly episodic in nature. The committee notes that the bill, in clause
24(2), recognises that impairments may vary over time.
4.58
The ACT Human Rights Commission (ACTHRC) queried whether there should be
a focus on support that is long-term in nature, rather than in relation to an
impairment that is 'permanent'.[51]
DANA had a similar concern.[52]
People With Disability Australia (PWDA) drew attention to this issue in the
context of their belief that the bill more broadly should be modelled more
closely on UN Convention principles:
The convention overall talks about disability in ways that
could be quite useful for the NDIS. For instance, it uses the term 'long-term
disability' rather than 'permanent', which actually reflects the way that
disability is experienced in people's lives in a social rather than a medical
context.[53]
4.59
The NSW Mental Health Commission thought it was important that recovery
principles are part of the way the scheme operates. The Commissioner Mr Fenely
stated that he:
...will particularly be interested to monitor, firstly, how the
scheme embodies the principles of recovery and autonomy, to normalise the
expectation of recovery from mental health illness in the community—the goal
being not to simply maintain a person's existing circumstances but to support
their interest in returning to work, to family and to social life...[54]
Committee view
4.60
The committee accepts that there was general support for the overall
approach taken to the disability eligibility criterion, noting caveats about
the importance of the rules in this context. The committee noted the issue
raised about the opportunity presented by the NDIS to adopt an
internationally-agreed standard such as the ICF, and will be interested to see
how the suite of assessment tools and strategies used by the Agency, including
those that are considered part of the ICF framework, will work in practice.
4.61
The committee agrees that it would be desirable that the design of the
NDIS not work against the recovery focus that is central to mental health
objectives, nor against recovery and rehabilitation options that may open up in
the future through research and innovation.
Recommendation 15
4.62
The committee recommends that the government consult further with mental
health organisations including statutory bodies about whether clause 24 of the
bill, and related NDIS Rules, sufficiently take into account recovery
approaches and the distinction between disability support and mental health
services, to ensure the focus of the NDIS is on people with disabilities who have
long-term consequences of their impairment (which may vary in intensity).
Other eligibility criteria
People with disabilities held in
custody
4.63
The committee holds a longstanding and serious concern about detention
and management in prisons of persons with cognitive impairments, whether with or
without a current conviction. It has previously met with representatives of the
Aboriginal Disability Justice Campaign (ADJC) on this subject, and the
organisation provided evidence to the current inquiry. The cases of people with
cognitive impairments who are held indefinitely in prisons represent a
disturbing and difficult challenge for both disability and justice systems. The
ADJC believes that the majority of such people are Indigenous Australians.
4.64
The ADJC reasoned that the NDIS could make a significant difference to
these individuals—but only if they can access it:
[Aboriginal Disability Justice Campaign] is extremely
concerned about access to the NDIS for Indigenous Australians with a cognitive
impairment who are assessed as mentally impaired though the criminal justice
process or are detained in prisons and psychiatric units.
Particularly worrying is how the NDIS proposes to ensure that
Indigenous Australians who are detained in prisons and psychiatric units on
either remand or under custodial supervision order will become participants. At
this point in time there does not exist in courts, prisons and psychiatric
units, assessment processes for cognitive impairment and referral processes
into the disability services system that either divert people from prisons /
psychiatric units or provide a pathway out of prisons / psychiatric units.
The ADJC observes that there is no identified pathway for the
‘Agency’ to access people with a cognitive impairment, detained under mental impairment
legislation. The outcome of this lack of identified access means that people
with a cognitive impairment, particularly Indigenous Australians with a
cognitive impairment, many of whom are detained in prisons outside of the major
metropolitan cities will continue to be overlooked, nor provided with treatment
of significant benefit, and detained in prisons and psychiatric units
indefinitely.[55]
4.65
Victorian Legal Aid noted that there is a large prison population in the
Barwon region launch site. It indicated there should be consultation to ensure
the delivery of the NDIS within prisons, and for transition of prisoners with a
disability into the community upon release:
VLA encourages the government to give close consideration to
how the NDIS will be delivered to people serving custodial sentences and
recommends that the Agency consult with the Adult Parole Board, Corrections
Victoria, Forensicare and the Department of Human Services during the
implementation of the NDIS to ensure an integrated approach to the provision of
post-release services.[56]
4.66
The department was asked about how the NDIS scheme would apply to people
in custody. Dr Hartland responded:
Broadly, if you are in prison you may still remain a
participant but we would not be expecting to provide some supports to you, such
as support for accommodation, but there might be some things that the NDIS
should provide that are not properly provided by the prison system.[57]
Committee view
4.67
The committee again places on record its deep concern about the
treatment of people who have a disability and are being held in custodial
facilities including gaols, sometimes without a charge or a conviction. Prison
systems have been failing these people for a long time, and the committee sees
no evidence that this situation is likely to change.
Recommendation 16
4.68
The committee recommends that the government ensure that people with
disabilities who are in custody will have appropriate access to the NDIS.
Recommendation 17
4.69
The committee recommends that the Agency develop an information strategy
to ensure that people with disabilities who are in custody, their carers and their
advocates, are aware of the group's eligibility for services under the NDIS.
Professional examinations under
clause 26
4.70
Clause 26 of the bill allows the CEO request certain information or
actions for the purpose of assessing an access request. One of the things the
CEO may ask for is 'a medical, psychiatric or psychological examination
(whether or not at a particular place), and provide to the CEO the report, in
the approved form, of the person who conducts the examination'.[58]
4.71
The scope of this authority was queried by WWDA:
But, regarding the CEO being able to demand that someone have
an assessment by a doctor, psychiatrist or a psychologist; I am just thinking
about living here in Tasmania: what happens when doctors have closed their
books? What happens if you live in some sort of regional or remote location
where there is only one doctor, and what if you do not like that doctor, or
they do not like you? Or you do not want that doctor to be your assessment
person?
Ms Swift: Or you do not see your disability as something
medical and would not think to go to a doctor.
Ms Frohmader: Where is the provision within this for the use
of allied health professionals, particularly in locations where there are not
doctors, psychiatrists and psychologists? Consider the role of nurse
practitioners, for example, in Indigenous communities, and things like that.[59]
4.72
Submissions from professional associations OTA and Speech Pathology
Australia (SPA) did not raise concerns about the scope of this clause. Yet the
committee is not sure why the only examinations that can be required are
'medical, psychiatric or psychological', given the wide range of causes of
disabilities that is envisaged in clause 24(1)(a).
Recommendation 18
4.73
The committee recommends that the government revise the language
of clause 26(1)(b)(ii) to ensure that examinations can be required to be
conducted by a member of any appropriate profession.
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