2.1
The committee received extensive engagement from the disability community, service providers and other stakeholders in the course of this inquiry. Evidence provided to the committee largely recognised the intent of the bill in implementing the recommendations of the 2019 review of the National Disability Insurance Scheme Act 2013 (NDIS Act) by Mr David Tune (the Tune Review) but expressed reservations about specific matters. This chapter considers the key issues raised at the public hearing and in submissions, including:
broad discretionary powers in delegated legislation;
proposed variation power under section 47A;
categorisation of NDIS Rules;
eligibility criteria for non-psychosocial disability with fluctuating or episodic impairments;
trust and consultation; and
2.2
This chapter concludes by providing the committee’s view and recommendations.
Support for the bill
2.3
Submitters acknowledged positive changes within the bill that would improve the experience of people with disability in engaging with the National Disability Insurance Scheme (NDIS). Others acknowledged the intent of the bill to implement a number of recommendations of the Tune Review. A number of aspects of the bill received widespread support across submissions, including:
clarification of the Administrative Appeals Tribunal’s jurisdiction;
implementation of the Participant Service Guarantee, including the commitment to time limits for National Disability Insurance Agency (NDIA) decisions;
implementation of the Commonwealth Ombudsman’s review of the NDIA’s performance against the Participant Service Guarantee, as well as in relation to participant experience;
improved market levers for the NDIA to intervene to remedy thin markets;
clarification of language around the different types of ‘reviews’;
improvement of the NDIS principles, including adding co-design with people with disability, and using more inclusive language; and
replacing the term ‘psychiatric condition’ with ‘psychosocial disability’.
2.4
Dr Darren O’Donovan summarised stating that ‘there’s the bones of a good bill to be passed’.
Broad discretionary powers in delegated legislation
2.5
A criticism of the bill shared by a number of inquiry participants was that the bill would vest discretionary powers in delegated legislation that these submitters posit should be incorporated into primary legislation. The effect, Dr O’Donovan described, would be that ‘the Bill in its current form implements a significant passage of power from the Federal Parliament to the executive’.
2.6
The Public Interest Advocacy Centre (PIAC) noted that ‘concerns about the overuse of delegated legislation are not new, and not unique to the NDIS’. It submitted:
This inappropriate use of delegated legislation is made more concerning by the broad discretionary power given to the CEO in the rules. These powers…embed one person – the CEO – with significant and unstructured decision-making power in respect of key aspects of a participant’s NDIS plan.
This is especially inappropriate in the context of the NDIS legislation, the object of which is to give effect to obligations under the Convention on the Rights of Persons with Disabilities and to enable people with disability to exercise choice and control in pursuit of their goals.
2.7
In this context, inquiry participants referred specifically to the proposed amendments to section 27 and the incorporation of a new subsection 47A of the NDIS Act. The former is discussed in the following paragraphs. The latter is discussed from paragraph 2.16.
2.8
Proposed subsections 27(2) and (3) would enable NDIS Rules to prescribe requirements that must be met for impairments to be considered permanent, or likely to be permanent; and to be considered to result in reduced functional capacity. Both criteria are relevant to determining whether an individual might be eligible to access the NDIS.
2.9
The PIAC outlined the current operation of NDIS Rules under section 27, noting that at present the provision:
does not permit ‘requirements’ to be specified in the rules. Rather, it provides that ‘criteria’ or ‘circumstances’ can be prescribed by the rules to guide judgments about whether a condition is likely to permanent. If a person does not meet the criteria or circumstances prescribed in the rules for permanence, it does not necessarily mean they do not meet the disability requirements under the Act – the CEO (or delegate) must still consider the requirements by reference to the legislation.
2.10
Dr O’Donovan noted that the proposed shift in language from ‘criteria’ and ‘circumstances’ to ‘requirements’ would ‘permit the insertion of rigid requirements which must be met prior to access’. He submitted:
The rules will no longer be limited to principled guidance about the performance of a statutory task. Instead, the rules will implement all or nothing requirements without which a finding of ‘likely permanent’ or ‘substantial reduction’ cannot be legally reached.
2.11
Several inquiry participants raised concerns that proposed section 27 would allow for stricter rules for accessing the NDIS than currently exist under the NDIS Act, which may preclude certain individuals from accessing the NDIS.
2.12
Maurice Blackburn Lawyers (Maurice Blackburn) expressed concern about what the impact of these changes might mean at a practical level in the decision making process:
On a more practical level, when we look at the decisions that we see coming through from planners or the people inside the agency who are assessing the eligibility criteria or the substantially reduced functional capacity requirement: unfortunately…they get it wrong. If you have a very prescriptive set of formula, you arguably reduce the ability of people to then challenge those decisions. The ability of the AAT to overturn a decision could be reduced. You're really narrowing the ability of people to potentially enter the scheme but you're also narrowing the ability of people to challenge poor decision-making, because the underlying rules become so prescriptive. There's less nuance and there's less interpretation. There might be more certainty, ultimately, but it might be a significantly reduced cohort of people who meet the criteria.
2.13
Requirements 'for accessing a scheme of this sensitivity and importance' should be incorporated in primary legislation, Dr O’Donovan argued. This view was shared by the PIAC, who described the proposed amendments as 'significant matters of policy' that 'affect the rights of individuals'. It asserted that ‘[l]aws which determine the eligibility of a person for access to the NDIS should be considered, debated and made by Parliament, not at the discretion of the Minister’.
2.14
In discussing the proposed powers under both sections 27 and 47A, inquiry participants acknowledged the good intentions of the legislation as expressed in the explanatory memorandum but questioned whether the legislation reflected that intention. Maurice Blackburn stated:
The reality is: we might all go into this with the best intentions, and the explanatory memorandum might express the best intentions, but once the power is there for a CEO to make decisions there's no guarantee that those intentions will influence future decisions. I would agree that these changes potentially grant that kind of power.
2.15
The explanatory memorandum notes that ‘prescribing definitive criteria in the NDIS Rules will provide more certainty in relation to satisfying the disability and early intervention requirements and allow for more consistent decision making’.
Proposed variation power under section 47A
2.16
While submitters generally supported the implementation of a mechanism for varying a participant’s plan as recommended by the Tune Review, a number of concerns were raised about the proposed power to allow the CEO to amend plans on its own initiative under proposed section 47A. This position was articulated by Maurice Blackburn as follows:
We are concerned that, without appropriate limitations, this power could be used to unilaterally alter the supports funded in a participant’s plan and, by extension, unilaterally define or restrict what supports will be funded across the scheme.
2.17
Ms Mary Henley-Collopy, an Expert Consultant for the NDIS with the Australian Federation of Disability Organisations (AFDO) and an NDIS Participant, articulated her concerns as a participant:
When the proposed Bill (Section 47A) states clearly that the CEO – whom has never met me - can vary my Plan at any time and without notice, I instantly become panicked and fearful. What services will I lose? How many of my support hours will be taken from me? Who will do my washing, hang, and return the clothes to my wardrobe? How often will my bed linen be changed? Who will assist with my grocery shopping and meal preparation?
I immediately question when, not if, I will require permanent care in an aged care facility. I have no desire to leave my home, my beloved pets, my friendship circle, and my independence that I have fought so very hard to maintain. This may well be forced on me if I lose my support hours and other vital assistance.
2.18
Submitters acknowledged that this provision was amended following feedback during consultation on the exposure draft to include the requirement that ‘each variation must be prepared with the participant’. However, these submitters questioned the meaning and scope of this requirement. National Disability Services submitted that:
[t]he changes made to this section, however, do not clearly articulate the limits on the CEO’s powers to vary a plan. NDS [National Disability Services] understands clearer limits may be included in Rules but as these are not available, believes the limits need to be stated in this Bill.
2.19
Several submitters argued that the power proposed in section 47A is inconsistent with, or goes beyond Recommendation 21 of the Tune Review, upon which proposed section 47A is drawn. The PIAC’s submission referred to the circumstances that the Tune Review identified (at paragraph 8.33) as being an appropriate use of the power:
(a)
if a participant changes their statement of goals and aspirations
(b)
if a participant requires crisis/emergency funding as a result of a significant change to their support needs and the CEO is satisfied that the support is reasonable and necessary
(c)
if a participant has obtained information, such as assessments and quotes, requested by the NDIA to make a decision on a particular support, and upon receipt of the information the NDIA is satisfied that the funding of the support is reasonable and necessary (for example, for assistive technology and home modifications)
(d)
if the plan contains a drafting error (e.g. a typographical error)
(e)
if, after the completion of appropriate risk assessments, plan management type is changed
(f)
for the purposes of applying or adjusting a compensation reduction amount
(g)
to add reasonable and necessary supports if the relevant statement of participant supports is under review by the AAT
(h)
upon reconciliation of an appeal made to the AAT
(i)
to implement an AAT decision that was not appealed by the parties.
2.20
Maurice Blackburn highlighted that by vesting this power in the hands of the CEO (and consequently the CEO’s delegate, the power ‘is now proposed to be used at the level of an employee as opposed to the minister, who is an elected and accountable official’. As a result, ‘[t]his reduces transparency and accountability’:
We could have a scenario where individual plans are being altered in a certain way across the scheme and other participants and the broader disability community wouldn't know about it. That does nothing to engender trust, and it does nothing to engender credibility in the scheme.
2.21
The proposed linkage between the proposed variation power in section 47A, and the reassessment power in section 48 (currently referred to as a ‘review’) was also criticised in submissions. The PIAC submitted that the proposed power under subsection 47A(4)(c), which would empower the CEO to refuse a request to vary a plan but decide to reassess it, was unnecessary. It highlighted that the CEO maintains the power to conduct an own initiative review of a participant’s plan under section 48 as presently legislated.
2.22
The Melbourne Disability Institute noted that under the current arrangements, participants are able to seek a ‘light touch’ review of their plans when seeking to make minor amendments. It suggested:
one of the problems that participants have faced is that, at times, when they have approached the agency for a light-touch review, they've been advised that, if they sought an application for a light-touch review, the whole plan would be reviewed. And, in a sense, what the new legislation does is entrench that risk because one of the outcomes of a participant seeking a plan variation is that the CEO could decide to amend the plan.
2.23
For this reason, the Melbourne Disability Institute argued that subsection 47A(4)(c) should be removed to break the link between the variation power and the power to reassess a participant’s plan:
2.24
Other participants emphasised the financial impact that changes to plans can have on service providers. National Disability Services expressed that ‘plans can be reviewed at very short notice and have significant impact both for the person, the participant, and for the provider attempting to prove those services’.
2.25
Inquiry participants asserted, however, that there is a need and a place for such a power, so long as it is limited. Dr O’Donovan explained:
A variation is like a line item review. When it's benefitting a participant, it can be quite an economical intervention, when the participant invites it via a request. The Tune list…is all about identifying what one disability advocate yesterday called the 'Thunderbirds are go' situation, which I thought was brilliant. It is basically where the CEO's own initiative should be limited to situations where we need to rush support to someone, to respond to those Friday night mobile phone calls that do happen in the scheme. In my submission, it's those situations where I see a role for an own-motion variation power.
2.26
A number of submitters asserted that limitations on the proposed variation power should be contained within the NDIS Act itself, rather than NDIS Rules. The PIAC asserted that ‘constraints regarding the CEO’s power to make plan variations under [section] 47A should not be in the rules, but in the Act’. It continued:
The circumstances in which the CEO may vary a plan on their own initiative should not be subject to administrative flexibility. The CEO already has the power to vary plans on request, and to undertake reassessments on their own initiative under s 48. These powers provide sufficient flexibility. The limited circumstances we set out above are easily definable in the legislation, without requiring technical details in the rules. Limits on the CEO’s power to vary plans on their own initiative should not be subject to change at the discretion of the Minister.
2.27
Submitters suggested various amendments to the proposed provision, including:
incorporating limitations on the power in the primary Act, rather than delegated legislation;
limiting it to the circumstances identified at paragraph 8.33 of the Tune Review;
only allowing use of the power with the consent of participant, in exceptional or emergency circumstances, or where the participant is uncontactable;
subjecting the use of the power to the internal review/external appeal processes under sections 99 and 103 of the NDIS Act; and
removing the proposed power under section 47A(4)(c) which would allow the CEO to refuse to vary a plan but to undertake a reassessment under section 48(1) instead.
2.28
In their joint submission, the Department of Social Services (DSS) and the NDIA identified that this provision addresses a concern raised in the Tune Review regarding the inability to amend a plan without requiring a whole new plan or review process. It asserted that this power ‘follows the same format as the current arrangements for plan reviews…but with additional protections for participants’.
2.29
In their appearance before the committee, DSS stated that the intention of this power is to ‘allow for minor variations…without the need for the entirety of a participant's support needs to be reassessed’. It identified that participants ‘are required to be involved in, and communicated with as part of, any process to vary their plan’. DSS advised:
As drafted in the bill, plan variation will not be used to make major changes to the support in a participant's plan. If these amendments are passed, both the NDIS Act and the rules will prescribe a discrete set of circumstances in which plan variations may be used, including where a correction is required for a minor or technical error or where a participant requires crisis or emergency funding.
…
All plan variations, as with initial plans and reviews, must still meet the requirements of the act to provide reasonable and necessary supports. All plan variation decisions will still be subject to the rights of internal review and external AAT appeal. If this amendment is not made, it will still be possible, as it is now and has been since 2013, for the NDIA to initiate an unscheduled review of a participant's plan, which may result in changes to that plan.
2.30
DSS explained that the grounds for exercising the variation power would be set out in the NDIS Act and Rules:
if the variation is a correction of a minor or technical error, [the Act] sets out a ground on which a variation might be undertaken…elsewhere it refers to circumstances prescribed by the rules. Hence, it's in the rules rather than the act, the number of ways or grounds on which this will be done.
2.31
In addition, DSS outlined that the power could only be used in accordance with the broader framework of safeguards and principles set out in the NDIS Act:
it would be required to be exercised having regard to section 31, the principles governing planning, which includes that to the extent possible it should be done at the direction of the participant. It's also subject to section 34, which sets out reasonable and necessary supports and how those are to be arrived at. It's not separate to those provisions under the [Act]. Exactly as plans currently have to meet those criteria and be done in that way, variations would also have to meet those criteria and be done in that way.
2.32
A similar position was proffered in DSS and the NDIA’s joint submission, in which the joint submitters affirmed that ‘the CEO must have regard to the principle that a participant should manage the participant’s plan to the extend that the participant wishes to do so’. In addition, the joint submitters stated that ‘[i]t is proposed that the new NDIS Plan Administration Rules will also be redrafted to more closely align with the Tune Review recommendations and prescribe limits for variations’, including those outlined in paragraph 8.33 of that review.
2.33
On the issue of whether or not a variation should be made to a participant’s plan without their consent, the joint submitters identified that ‘there may be occasions where a final funding decision is made where the participant does not agree’. In these instances, the joint submission stated that ‘the participant can be assisted with reasons for the decision and also has rights of internal and external merits review’.
2.34
Both DSS and the NDIA stressed that the proposed variation power would not vest the CEO with any more powers than those that currently exist under the current review power under section 48 of the NDIS Act:
[T]here is, in this sense, a broader power to vary somebody's plan in whole or in part—or not even in part but through a complete review. That power already exists, and there is nothing in that that I'm aware of that requires consent from the participant for that to happen. This is a more limited power being proposed to make a lesser change to a plan. It would seem strange to have no requirement for consent to make a major change to somebody's plan but to have a requirement for consent to make a minor change to the plan. Consent isn't the premise for the way planning is done in the act at the moment, and it hasn't been since the act passed the parliament in 2013. That's not to say that people aren't engaged. There is that principle that the planning should be done, as much as possible, directed by the participant. But in the final analysis it's not a matter of consent as such, and it hasn't been since the act was first passed.
Categorisation of NDIS Rules
2.35
The NDIS Act provides for NDIS Rules under section 209. Each of these rules may be categorised in the Act as requiring a certain level of cooperation from state and territory governments, as follows:
Category A rules must have unanimous agreement from the Commonwealth and each state and territory government;
Category B rules relate to an individual jurisdiction and must have the agreement of the government of that jurisdiction;
Category C rules must have the agreement from the Commonwealth and a majority of the state and territory governments; and
Category D rules require consultation with state and territory governments in the making of them.
2.36
NDIS Rules made for the purposes of the Participant Service Guarantee would be Category C rules, while the bill proposes the formulation of Category D rules under the following provisions:
section 14, which would outline when the NDIA can enter into alternative funding arrangements under section 14 to help participants access their supports in instances when the market does not respond or to assist early intervention for children under seven;
section 47A, which would set out the considerations to which the CEO must have regard in deciding whether to vary a participant’s plan; and
section 48, which would set out the considerations to which the CEO must have regard in deciding whether to reassess a participant’s plan.
2.37
Submitters raised particular concerns regarding the proposed Category D rules. The committee received evidence from a number of state and territory governments that asserted that these relate to matters of policy and funding, and should therefore be properly considered Category A rules. Furthermore, inquiry participants raised concerns that the proposed Category D rules could have the effect of vesting control of the NDIS within the Commonwealth and undermining the shared governance of the NDIS. The Western Australian Department of Communities (Communities) articulated this perspective:
These matters affect key aspects of the participants' experience under the NDIS. Communities holds concerns that excluding jurisdictions from involvement in developing these key aspects will undermine the collaborative intent and shared governance arrangements and weaken key improvements to the participant experience introduced by the bill. Consequently, Communities, on behalf of the WA government, continues to advocate for category provisions regarding plan variation, plan reassessment and provision of financial assistance from the NDIA to be set as category A rules, requiring unanimous agreement from the states and the territories. This will ensure the scheme's shared governance and provide the community with an assurance that decisions relating to the participant experience will be made jointly and not unilaterally, which was a key concern in the public debate around the previously proposed independent assessment approach.
2.38
The PIAC highlighted that NDIS Rules under the present section 48 are Category A rules, and submitted:
There is no reason why this should be changed to Category D…Rules about the circumstances in which the CEO may undertake reassessments are significant policy matters with financial implication for States and Territories. These rules may relate to the size of funding, and the allocation of funding decisions between the Commonwealth and States and Territories. It is appropriate that they remain Category A rules.
2.39
DSS noted that the Tune Review recommended that the NDIS Rules relevant to the proposed variation power be Category D rules, which arose out of discussion in the course of that review. It further noted that Category D rules still require consultation with state and territory governments:
Feedback received from states and territories during the course of the consultation on the bill was examined very closely and, indeed, much of the feedback that was provided by states and territories was reflective of feedback from other disability stakeholders. The government made amendments to the bill responding to that feedback. We work very closely with our state and territory colleagues. [The proposed Category D rules] will be subject to consultation, which is appropriate.
2.40
DSS provided some context to the recommendation in the Tune Review, stating:
When Mr Tune made the decision to make variations a category D rule it was an administrative split-off from what might otherwise be a full reassessment and that, in its nature, is administrative. So it was not a substantive change; it was just a separation of some things that might be in a variation and some things that might go to reassessment. Unlike a range of other things which could be in the rules which go to substance, these were considered administrative.
Eligibility criteria for non-psychosocial disability with fluctuating or episodic impairments
2.41
Inquiry participants welcomed the bill's proposed clarification that episodic or fluctuating impairments to which a psychosocial disability is attributable may be permanent. However, some inquiry participants questioned whether the express reference to psychosocial disability might have the effect of precluding individuals who experience fluctuating or episodic impairments as a result of a non-psychosocial disability from accessing the scheme.
This issue arises because of the different wording used for these impairments, depending on the nature of the disability – between ‘vary in intensity’ (which applies to all disabilities) and ‘episodic or fluctuating’ (which applies only to psychosocial disabilities). The use of different wording suggests a different meaning is attributable to these words, and as a consequence, psychosocial and non-psychosocial disabilities are treated differently when it comes to episodic or fluctuating impairments.
This should be amended to avoid any confusion arising given the intention is not to exclude non-psychosocial disabilities from this clarification.
2.43
It noted that ‘if the intention is that this shouldn’t be different between psychosocial and non-psychosocial, then it’s quite an easy fix in the legislation’. It added:
All you need to do is either clarify that 'episodic or fluctuating' applies to all disabilities, or, if you want to make psychosocial disability a standalone point and make that very clear—and I know colleagues in the mental health space are very keen to ensure that psychosocial disability is specifically mentioned—then you can make paragraph (a) psychosocial disability and paragraph (b) non-psychosocial disability.
2.44
In evidence before the committee, DSS identified that ‘just about all the material’ that the department received during consultations and previous feedback on episodic conditions relation to psychosocial conditions. DSS provided further context, noting that ‘there was concern that insufficient numbers of people with psychosocial disability…had entered the scheme’. It explained:
there was a view from the sector and from others that the clarification of a psychosocial disability as one that was episodic and fluctuating but could still be considered permanent was where most of the public consultation back in 2019 went.
2.45
Both in evidence at the public hearing, and in their joint submission DSS confirmed that the proposed amendments would not limit existing provisions that allow for disabilities other than a psychosocial disability to vary in intensity and to be considered permanent:
Improving access for people with psychosocial disability through recognition of the fluctuating or episodic nature of a person's condition is a positive change. It is not intended to, and does not, impact anyone else's eligibility for the scheme. This is made clear in the explanatory memorandum to this bill.
2.46
The committee was informed that NDIA is in the process of planning the requisite changes, should the legislation pass, that would need to be made to operating guidelines, standard operating procedures and training manuals for planners. The NDIA gave evidence that in those materials, it would ‘emphasise that there’s no change to the assessment criteria’ for individuals with non-psychosocial conditions that may have episodic or fluctuating characteristics. The joint submission from DSS and the NDIA identifies that ‘the NDIA will engage with stakeholders on the implementation of these changes’.
Trust and consultation
2.47
A key concern for inquiry participants was the perceived limited timeframe for consultation on this legislation, both during the four week consultation period on the exposure draft of the bill, and during this inquiry. Intertwined with this view were residual concerns that arose out of the debate about independent assessments. Ms Blanca Ramirez, Senior Research and Policy Officer at the National Ethnic Disability Alliance articulated this view:
The Government is aware of the serious undermining of confidence in the NDIA following the attempts to introduce independent assessments without co-design. In this instance, the release of a large number of documents for consultation within a short four-week period, and the referral of the Bill to the Senate Committee for an even shorter consultation period, creates barriers for engagement with the reform process, and fails to address the trust and confidence issues.
…
By us not knowing exactly what the changes are we don't have enough time, and it brings back those initial feelings of, 'Why is this happening again?' I know that the [independent assessments] aren't being addressed in this round of legislative amendments but I still have concerns that they'll take a different form in the next set because big-ticket items like reasonable and necessary supports and the [independent assessments] aren't in this raft of amendments. To me, that rings alarm bells. If the consultation period were longer and we had a chance to have a really meaningful dialogue with the minister and the NDIA then maybe some of those fears could have been allayed a little, but that isn't what's happening. That's my sense about the [independent assessments].
2.48
In this instance, commentary also considered attitudes towards co-design. While some submitters welcomed the proposal to enshrine co-design in the principles of the NDIS Act, others argued that an additional period of consultation is required to ensure that the proposed amendments could undergo a greater co-design process.
2.49
DSS emphasised that consultation and engagement regarding the measures in the bill ‘really commenced in 2019’. It explained that the exposure draft consultation process, which commenced on 9 September 2021, followed ongoing consultation since the publication of the Tune Review in 2020. It stated:
The exposure draft period was four weeks and it followed consideration of all the inputs that came through the Tune review and since that time. It was put out following engagement with state and territory disability ministers and then was put to public consultation for a period of four weeks.
2.50
DSS explained that the exposure draft consultation process included a number of workshops and information sessions, in which ‘there was the ability for people to ask questions in relation to the intention of the bill, in relation to how it would operate’ and a public submission process. It also pointed to further engagement with the Independent Advisory Council for the NDIS, the Disability Discrimination Commissioner and many stakeholders and disability representative organisations before introduction of the bill.
2.51
DSS and the NDIA also identified a number of broader engagement processes that it has pursued since the decision to not proceed with the proposal for independent assessments in July 2021, stating that the NDIA ‘has shifted its focus to a different improvement agenda’:
This includes focusing on specific cohorts, supports and service improvements to be progressed through a different approach to engagement with participants, the Independent Advisory Council (the Council) and the disability community.
The Agency and key disability community stakeholders participated in two virtual co-design workshops in September 2021. The workshops brought together 27 disability and carer representative organisations (DCROs), the Council, the department, NDIA board members and senior executives. The workshops were an opportunity to develop a constructive working relationship between the NDIA, the Council and DRCOs and to begin co-design and priority issue discussions. A joint statement by the NDIA, the Council and DCROs outlining the purpose and outcomes of the workshops was published on the NDIS website on 14 October.
The Agency is making progress on developing enriched and expanded ways to engage the sector on all aspects of Scheme development and reform. The current focus is a combined Agency and department engagement to building disability community understanding of cost drivers and underpinning assumptions in the Annual Financial Sustainability Report, as well as priorities for codesign, some of which will stem from the Bill and associated NDIS Rules. The 2021 Annual Financial Sustainability Report was released in full in early October, and is also available on the NDIS website.
Other issues
2.52
In addition to these key issues, a number of other issues were raised in evidence, including:
use of the term ‘reassessment’;
procedural fairness during a section 48 reassessment
choice and control in plan-managed funding arrangements;
NDIS Board membership; and
transitional arrangements for Western Australia.
2.53
Each are discussed briefly below.
Definition of key terms
2.54
Several submitters highlighted that a number of key terms within the bill are undefined, including:
impairments to which a psychosocial disability is attributable;
substantially reduced capacity;
a period of time that is reasonable;
reasonably available; and
2.55
Submitters raised concerns that an absence of guidelines for the definition of key terms may lead to ambiguity and inconsistency in their application. Every Australian Counts also expressed that participants are ‘worried that these terms could be used in bad faith and to their disadvantage’.
Use of the term ‘reassessment’
2.56
Submissions generally welcomed the proposal to adjust the language used in section 48 from ‘review’ to distinguish the section 48 process from reviews under section 100 of the NDIS Act. However, the National Ethnic Disability Alliance (NEDA) submitted that the term ‘reassessment’ may ‘unintentionally cause similar feelings raised by the disability sector following the introduction and subsequent departure from “independent assessments”’. NEDA suggested that alternative terminology ‘may relieve some of the anxiety and provides an opportunity to remedy the breach of trust felt by many when independent assessments were first introduced’.
2.57
Similarly, the Young People in Nursing Homes National Alliance argued that the use of the term ‘reassessment’ may raise connotations with ‘the many (re)assessments and bureaucratic decisions that affect their lives’, including aged care assessments, functional OT assessments, mobility assessments and others’. It stated that as a result of these processes:
their choices and ultimately their quality of life is tied to the decisions of others. This is debilitating for many people who value their independence and don’t want to be institutionalised. Having plan variations called ‘reassessments’ simply compounds this sense of powerlessness and reinforces for these individuals that their life is not their own. If it is needed, “plan variations” is more appropriate terminology.
Procedural fairness during a section 48 reassessment
2.58
The Melbourne Disability Institute identified that while section 48 of the NDIS Act ‘requires the CEO to notify a participant that the CEO is initiating a reassessment, there is no provision for the voice of the participant to be heard’. It submitted:
any own motion actions by the CEO under section 48 should only commence after the participant (and their plan nominee) has been notified of the specific areas of the plan which could be varied and provided with sufficient time to provide any evidence they wish to be considered during the variation process. There should then be an opportunity for the participant and their nominee to see the draft reassessment before a decision. Anything less than these opportunities would not accord with the principles of natural justice.
2.59
A similar sentiment was expressed by PIAC. It suggested that section 48 should ‘include a Category C rule-making power to set out procedural fairness requirements in the event the CEO exercises their power to reassess plans on their own initiative’.
Choice and control in plan-managed funding arrangements
2.60
Under proposed amendments to sections 43 and 44 of the NDIS Act, the bill would subject participants who elect to ‘plan manage’ their NDIS funding to the same considerations that apply when a participant seeks to ‘self-manage’.
2.61
Submitters raised concerns that these amendments would have the effect of limiting participants’ choice and control because it would may preclude access to unregistered providers. Dr O'Donovan submitted that a standard of proof around the concept of 'unreasonable risk' should be applied, adding that unreasonable risk 'should be connected to a risk of types of situations or harms to be prevented'.
2.62
AFDO identified that nearly half of NDIS participants have engaged plan management. It submitted:
access to unregistered providers is essential to having [participants’] support needs met and would be significantly and adversely impacted if they were to be forced to be plan managed by the NDIA requiring them to only use NDIS registered providers.
2.63
In their joint submission, DSS and the NDIA advised that these proposed amendments arose out of a recommendation of the Tune Review. It explained that following consultation on the exposure draft, the bill:
now clarifies the intent of these changes is to support self-management and management by a registered plan manager where unreasonable risk can be mitigated by other actions, such as choice of a different registered plan manager. Even where unreasonable risk cannot be mitigated, the Bill clarifies that self-managing participants can still manage the parts of their plan with less risk, such as purchasing consumables.
Direct payment option
2.64
Proposed section 45 would allow the NDIA to make payments to service providers directly on behalf of participants. While generally supportive of the simplification aspect of this provision, the PIAC recommended that the provision be amended to ‘clarify that participants will not be required to utilise this payment method’. The PIAC acknowledged that the explanatory memorandum indicates that it is intended that this mechanism ‘will be available as an alternative and will not prevent the use of unregistered providers by self-managed participants’. However, it suggested that the provision as drafted may not reflect this intention.
2.65
In their joint submission, DSS and the NDIA reaffirmed the position proffered in the explanatory memorandum, stating that this provision would ‘not affect the ability of participants to manage their own plans, nor their choice about whom they receive supports from, including from unregistered providers’.
Provision of reasons
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Submitters welcomed the proposed amendment to section 100(1), which would require reasons to be provided for all reviewable decision, but argued that a similar provision should be created in respect of reviews of reviewable decisions under section 100(6).
NDIS Board membership
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While submitters acknowledged the strengthened requirements for NDIA Board membership under proposed section 127(2), a number of submitters argued that the legislation should specify that 50 per cent of board membership must be occupied by people with disability.
Transitional arrangements for Western Australia
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The Western Australian Department of Communities noted that the proposed amendments in Schedule 3 may have a particular application within that jurisdiction. It stated:
Schedule 3 of the bill makes the legislation more contemporary by, for example, removing reference to trial and transition. However, WA still has a bilateral transition agreement with the Australian government, as WA only reaches full scheme in 2023. The reference to full-scheme amendments creates uncertainty about the impact of schedule 3 in WA, and this uncertainty may mean that schedule 3 is misinterpreted or applied differently in WA, contrary to the intention of the proposed amendment to remove ambiguity. It could also further reduce the NDIS's social capital, particularly in WA. Communities, on behalf of WA, continues to seek clarity as to the intended meaning of 'full scheme' and to seek assurance it will neither impact WA's transition to full scheme in 2023 nor risk, restrict or adversely affect access to the NDIS for Western Australian participants.
Matters relating to NDIS Rules
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The committee also received evidence regarding the content of the draft NDIS Rules that were released during consultation on the exposure draft, and the absence of revised rules during this committee’s inquiry. The committee acknowledges the advice provided by DSS that revised NDIS Rules would be made available prior to a vote on this bill in the Parliament. While the draft NDIS Rules have not been referred to this committee for inquiry, the committee notes the following concerns raised in evidence for the Senate’s consideration in due course:
Maurice Blackburn submitted that the draft National Disability Insurance Scheme (Becoming a Participant) Rules 2021 (Becoming a Participant Rules) propose to replicate the current Rules relating to permanency, which state that an impairment can only be considered permanent if: ‘…there are no known, available, and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment’. In its view, ‘the interpretation of “permanency” by the Agency at times is inconsistent, unfair and simply wrong, and is the source of significant disputes in both internal review and the AAT’. It stated that ‘to simply replicate the current Rules for all disabilities other than psychosocial will do nothing to improve clarity, certainty and fairness for NDIS applicants’.
People With Disability Australia raised concerns about the use of the measure of ‘substantial improvement’ under the draft Becoming a Participant Rules. It stated:
there is a real risk that by requiring people with psychosocial disability to be undergoing or have undergone appropriate treatment, and to demonstrate that the appropriate treatment has not led to ‘substantial improvement’, will lead people with psychosocial disability not accessing supports that will further disable them’.
Disability Advocacy NSW highlighted that this measure may also disadvantage people in rural, regional and remote areas where there are multiple barriers to accessing medical and mental health services.
Committee view
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The committee wishes to express its sincere gratitude to all persons that contributed to this inquiry, whether by making a submission or appearing before it at the public hearing.
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The NDIS has had and continues to have profound impacts on the lives of people with disability, their families and their carers. In implementing a number of the recommendations arising our of the Tune Review, this legislation will improve participants’ experiences in engaging with the NDIS by ensuring certainty on time frames and decision-making, while also enhancing flexibility. It will also bring the NDIS into the next stage of its maturation following the widespread rollout of the scheme across Australia.
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The intent of the bill was broadly supported by inquiry participants, as were many specific provisions. However, the committee acknowledges the concerns raised about certain provisions, including in relation to the incorporation of broad powers in delegated legislation. In this instance, the NDIS Rules provide an avenue whereby parliamentary oversight can be exercised while allowing government to appropriately respond to the complexities that might arise in providing support to participants.
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The committee notes that the proposed variation rules, which the Government has undertaken to release prior to parliamentary debate, must align with the pillars upon which the NDIS has been built and serve the principles of the NDIS Act. The committee understands the particular concerns raised by submitters about the potential impacts of section 47A in particular, but accepts that the intention of the provision is to be of benefit to participants, rather than to their detriment.
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The committee acknowledges concerns raised by submitters as to the consultation periods for this bill, but recognises that consultation and engagement on these reforms has built upon processes undertaken during the 2015 Independent Review of the NDIS Act, the 2019 Tune Review and other methods of engagement in the intervening period.
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Participants’ confidence in the NDIS is critical to its success, and the committee recognises the crucial importance of ensuring that participants feel heard and consulted in any developments or amendments to it. The committee encourages the government to continue its engagement and consultation processes with participants and other stakeholders so that the scheme may continue to serve the principles upon which it was founded. However, the committee recognises that the timely implementation of these reforms will enable participants to enjoy their beneficial impacts sooner.
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The committee recommends that the bill be passed.
Senator Wendy Askew
Chair