Funding for Multiple Disabilities

It won’t surprise many readers that people live with multiple disabilities. But when a person requests funds for a support related to a disability not listed on the access request form or in the NDIS system, the NDIS can be unnecessarily difficult. 

People concerned with the sustainability of the NDIS would hope that the government is only funding the things it should be funding. These people might ask, “If a person only met the access criteria for autism, why should the NDIA fund supports relating to their arthritis?”.  

To explore why there’s confusion about this question and get to the heart of the NDIA’s position on this, we munch on NDIS Operational Guidelines, the Act, the Rules, and a decision at the Administrative Appeals Tribunal (AAT).

Why this matters

The answer to this question is important for a few reasons. If NDIS-eligible people don’t receive supports from the NDIS for their disabilities, they are unlikely to obtain support from anywhere else. Adding another bureaucratic hoop for a cohort tired of report-collecting to jump through could result in people just giving up on supports that could meaningfully improve their social and economic participation and quality of life. People are asked to spend big on reports trying to prove that conditions and/or impairments that weren’t listed at access are indeed significant, permanent, and worthy of support, ultimately making the NDIS less sustainable.

Policy

On a page called Fair Supports for your Disability Needs, the NDIA’s Operational Guidelines say, “We will apply the NDIS funding criteria based on the impairments that would meet our Access criteria”. It then says a new access request form isn’t needed whenever the person wants the NDIA to consider other impairments, but the NDIA may ask for more evidence.

These guidelines do not, however, spell out

• what part of the legislation requires or empowers planners to ask for more evidence relating to access when building a plan for someone

• how and when a planner makes this access decision during a planning meeting (note that delegates usually are trained in either planning or access decisions, not both)

The guideline ends with a claim that this policy makes the NDIS fair and sustainable.

Legislation

Where there’s a conflict, the NDIS Act trumps NDIA policy (The Growing Space has a great explainer here). It’s time to dive into what the legislation says about this question. To do this, it’s often helpful to look at AAT matters, where independent legal minds look at how the NDIS Act, Rules, and Operational Guidelines interact to decide whether the NDIA got a decision right. In 2021, the AAT made just such a decision in McLaughlin and NDIA. The decision lists several reasons why a person can seek supports for impairments not listed at access. Let’s take a look at those.

Reason 1 – The legislation doesn’t require it

Disability is not defined in the NDIS Act, and section 24 leaves room for the possibility that multiple impairments can form a person’s disability. Rule 5.1(b) simply states that a support will not be funded if it is not related to the participant’s disability. Before the word “disability” in this rule, there is no reference to “primary”, “permanent”, “substantial”, “sole”, or “direct”, and “listed at access” does not follow that word. The parties at the AAT, including the NDIA, concluded that “the term disability in rule 5.1(b) is not limited to the particular impairments which qualified a person for access to the NDIS under the disability requirements in s 24” (McLaughlin 2021: 43). If the people who wrote the NDIS Act meant for planners to consider section 24 when considering which reasonable and necessary supports to fund in section 34, they would have stated that in the act, according to the AAT decision.

Reason 2 – It’s not always possible to link impairment to support need

The NDIA’s Operational Guidelines on this matter become unstable when they suggest that it will consider supports relating to impairments that would meet the access criteria. According to the reasoning in McLaughlin, it is impossible to conclusively match need to impairment. Deputy President Gary Humphries, who wrote the decision, borrows the participant’s words to explain why: “it is to be expected that a person’s impairments may interact with each other and/or that a given support may relate to more than one impairment. … Medicine is not advanced enough, and people are too complex, to be able to conclusively attribute specific impairments to specific conditions or causes” (McLaughlin 2021: 60). But this separation and linking of support to impairments listed at access is exactly the kind of mental gymnastics planners must perform when building plans in line with the NDIA’s Operational Guidelines.

Reason 3 – Not all people have impairments listed accurately

Finally, the NDIA’s Operational Guidelines are unconvincing when considering participants without primary or secondary disabilities listed in the system. Because the NDIS was rolled out so quickly, some people entered the NDIS through state and territory programs; they did not need to go through section 24 or section 25 of the act. It is thus possible that a sizable chunk of this cohort don’t have diagnostic information about their disability or disabilities. It’s possible to be on the NDIS without a diagnosis – again, this section of the act deals mainly with impairment. To distinguish eligible supports based on impairment listed at access may lead to disadvantaging this group.

Other uses for ranking disabilities

Looking at how the NDIA relies on the separation and ranking of disabilities helps us understand other parts of the planning process. Since the beginning of the Scheme, the NDIA’s forms and IT systems have separated and ranked disabilities. The NDIA’s Customer Relationship Management system and Access Request Forms, for example, ask for a person’s disabilities, separating a “primary” or “main” disability from “secondary” or “other” disabilities. The order of these listed disabilities can have an impact a person’s plan. Let me explain quickly how the sausage is made in the planning process.

TSP

There’s a hidden calculator built into the NDIA’s system called Typical Support Package (TSP). This is a dollar figure created by an algorithm. The NDIA feeds a person’s data, including primary disability (cha ching), functional scores, region, and a few other factors, into the algorithm. The computer coughs up a dollar amount based on averages from other Scheme participants with similar features. This TSP then acts as a target for the planner. if the planner builds a plan that is a certain percentage higher than the TSP, the plan and the reasons for the larger-than-TSP plan have to be submitted to NDIA management for approval. This system rewards participants who have all their disabilities listed on the NDIS system in the right order, because certain disabilities will trigger higher TSPs.

Tips for a more holistic NDIS plan

There are some things people can do to achieve planning outcomes that deal with all of their support needs.

• Any professional commenting on functional capacity and/or recommending supports should consider all the impairments that make up someone’s disability, not just the ones listed at access

• People should be willing to quote or send the planner a copy of the McLaughlin matter

• The planner should be asked which disability or disabilities are listed in which order, and whether the top disability is the one that triggers a higher TSP. This may feel strange, but because of how the system is built, it could make it easier for a planner to justify a higher plan

• For a support to be funded, the request still needs to be supported by evidence to meet section 34 of the NDIS Act, along with the Rules, regardless of what impairment or disability is listed in the NDIS system

• If a person believes that the NDIA has not evaluated the need for a support using this argument, consider asking for an internal or external review of the decision.

Dividing bodies and minds into bits that neatly fit primary or secondary categories, access forms, and algorithms must be draining – or even disabling. Bodies are diverse and uniquely interconnected and should be treated as such during planning meetings. Now the goal is to build NDIS systems that celebrate and support diversity.