:format(webp))
The new NDIS Bill introduced by the government in late March 2024 is the closest thing to a complete redesign of the NDIS in the Scheme’s history. The Senate Community Affairs Legislation Committee is conducting an Inquiry into the Bill. Late last week, after mounting pressure, the federal government announced significant changes to a centrepiece of the Bill. The Senate Committee’s Final Report is to be handed down by 20 June 2024, then the Bill will be voted on. But stay strapped in, because it’s possible that the government will make further amendments.
Today we are here to get you up to date and cover some of the responses to the controversial Bill. We’ll look at the submissions to the Inquiry, and evidence given during the two days of hearings last week. If you need more backstory on the Bill itself, we’ve written an explainer in part 1 and part 2 (but note, section 10 has changed in a big way!).
Section 10 - Definition of an NDIS Support
Section 10 of the Bill creates a new definition of what is considered an NDIS Support. It was tied loosely to some articles of the United Nations Convention on the Rights of Persons with Disability (CRPD). This drew criticism from the disability community for only using some articles, with Disability Discrimination Commissioner Rosemary Kayess describing the approach as cherry-picking human rights. The Public Interest Advocacy Centre (PIAC) also raised concerns that leaving out some human rights created uncertainty over what supports people could get funded or what people could spend their funds on. So why does all this matter? This definition of an NDIS Support will be placed into a number of different places in the existing NDIS Act, informing packages, plan flexibility, access and early intervention. Basically, the entire participant experience.
In an exciting twist in the final minutes of the Senate Committee hearing last week, the Federal Government responded to the heat and released amendments to the definition of an NDIS Support. Rather than listing specific CRPD articles, NDIS Rules can declare a support an “NDIS support” if it helps the government implement the CRPD (or other international agreements). Rules are legislative instruments that help describe how an Act should work in practice. They will be developed by the Minister to clarify what is and is not an NDIS support. Participants will no longer be required to interpret the complex law contained in the CRPD or the constitution every time they do something NDIS-related.
DSS in a media release indicated that the changes to Section 10 were designed to create the constitutional basis for the new budget setting framework and aims to clarify the constitutional basis of the NDIS as a whole.
But legal experts and community members warn that Section 10 is still not hunky dorey…yet. Until we develop the Rules, and get states to agree on them, we’re still left with a bad tool for splitting responsibility between the Commonwealth and states and territory. The Bill says that until the Rules are developed the Applied Principles Tables of Support (APTOS) will be used to determine what supports should be funded by the NDIS, and which should be funded by other services.
ATPOS is a 2015 document that outlines the division of responsibility between the NDIS and other services that deliver supports to people with disability. APTOS has long been criticised for being open to interpretation about who is responsible for what. It hasn’t been updated based on changes made within the Scheme or reshaped by AAT decisions. And the people are not happy about it being inserted into such an important piece of legislation.
As the Office of the Public Advocate of South Australia explains, “as it stands, the APTOS oversimplifies complexity and does not have a dispute resolution process for when there are disagreements between Commonwealth and state agencies about responsibility for a particular matter”. Until we have Rules, the APTOS principles will also be used in access decisions through Section 10 as a transitional measure. In recent communication, the Department of Social Services (DSS) said “the Bill makes no changes to eligibility for the NDIS”. Some submitters disagree. We’ll resist getting into the technical details, but encourage you to read National Legal Aid, PIAC and Dr. Darren O’Donovan’s submissions for more background.
Assessments and Packages
The proposed new planning process also generated a lot of feedback. The Bill empowers the government to give participants a total funding package and move away from line-by-line planning. Some submissions to the Inquiry supported this change and others didn’t. Under the proposed Bill, the NDIA will require people with disability to undergo assessment using functional assessment tools. The government says the tools will soon be designed with community and experts.
For the new framework plans (plans created after changes are implemented), a Needs Assessor will use the new co-designed tools to generate a report. Disability Advocacy Network Australia (DANA) warned, “There are no protections in the Bill to specify who would perform the needs assessment, and what their qualifications would be. There is high risk of a poor-quality needs assessment being performed by existing, unqualified NDIS representatives, and the TSP [Typical Support Package] or similar process being used to determine budget amounts”.
Other submissions focused on situations where the assessment could lead to insufficient budget amounts. National Legal Aid “consider it is critical that a participant have the opportunity to present their own information about what their needs are, and that in approving a statement of participant supports a decision-maker is not constrained by what is set out in the needs assessment report and can have regard to this additional information”. They gave examples of statements of lived experience and carer impact statements.
Reviewability
DSS said in their submission to the Inquiry that the assessment “may also be provided to the participant, allowing them to clarify any points which they think have been misunderstood by the assessor, particularly where they do not accurately reflect their needs and circumstances”. That their submission contains the word “may” here may frustrate the submitters calling for clear rights to be spelled out in law. Other submissions said that if the assessment fails to fully capture the person’s need, the package will not be sufficient, and the Bill does not state who could order a replacement assessment and under what circumstance. For many, the detail about what exactly is and isn’t reviewable is too precious to wait for the Rules.
New plans under this Bill will have a budget amount (generated by the assessment) that will appear in the Statement of Participant Supports (SOPS). The SOPS will also include how a person can manage their plan, the plan period, stated supports, and plan length. The SOPS as a whole will be reviewable. DSS claimed in their submission their approach in the bill promotes simplicity. But if someone is upset with a portion of the decision - for example, not being able to Self-Manage - the NDIA could under these powers use that review opportunity to re-determine a person’s funding. A number of submissions called for individualised review rights for each of the decisions; not all decisions smooshed together.
Impairments at Access
Under the proposed changes, budgets will only be based on the impairments that meet disability and early intervention requirements, not other impairments the person might have. DSS and the NDIA explained that this is to ensure the NDIS is only responsible for funding support for which the Scheme was originally designed. DSS noted in their submission that, although they’re only providing funding for NDIS-eligible impairments, people can spend their packages flexibly. Some submitters were concerned that without available foundational supports to meet a person’s other support needs, the budget would likely be insufficient for the participant’s whole-of-person needs.
Budget savings
The Government has announced an 8% growth target by 2026. The new legislation is set to play a key part in achieving the $14.4 billion savings projected in the recent Federal Budget. In the Committee Hearing, former NDIS Minister, Senator Linda Reynolds expressed concerns about the lack of transparent modelling to achieve these savings.
Increased Powers
Many raised concerns about the increased powers of the Minister and the CEO. Not just for the government of today, but for the government of tomorrow. In his opening statement to the Senate Committee, Administration Lawyer Dr Darren O’Donovan summarised his concerns about the increased powers as “Turning page after page, I am seeing powers—powers that we have to pin down and tidy up. If I were to sum up my technical assessment of this bill for people with disability, it invokes trust on an extraordinary level.”
In their submission, the State and Territory Premiers explain that the NDIS Bill introduces six new instances in which the Minister must or may make determinations by legislative instrument. This would allow the Minister to change important aspects of the operation of the NDIS, without consulting the states and territories. They argue that this power significantly diminishes the role of states and territories in Scheme governance and is inconsistent with principles of collaborative operation of the NDIS.
The Bill also gives the NDIA CEO expansive powers to create requirements for participants that may impact eligibility, supports, and funding. The states and territories want to see more checks and balances to ensure accountability and scrutiny over the NDIA’s decisions, calling for Category A Rules to regulate the use of those powers. Disability Representative Organisations National Coordinating Function (NCF) called for specific parameters in the Bill to constrain those powers: “We are concerned the CEO has significant discretion to override a person’s plan management preference, without this authority having clearly defined parameters”.
DSS has responded to these concerns by saying that the CEO and the Minister must act in accordance with the NDIS Act and other federal and state laws. It says the majority of Rules developed will be Category A Rules, meaning all states and territories must agree. They are also subject to the requirements of the Legislation Act 2003 which requires appropriate consultation to be undertaken.
Co-Design
Many submissions came from participants and their families who questioned why the Bill was written so fast and not thoroughly co-designed. Given that the Bill inserts 30 new rule-making powers and six new instrument-making powers, many fear that the Government is formulating the Bill on the run without considering what people with disabilities need. Some voiced frustration that the Bill was created in an extreme climate of secrecy which has refuelled mistrust of Government from the bad old days of independent assessments. Disability Discrimination Commissioner Kayess told the Committee hearing “Trust will be a necessary ingredient in getting the NDIS back on track, which begs the question, which I know others have raised, of why this bill is being pushed through when the government has not yet responded to the recommendations of the NDIS review.”
Several submissions emphasised that people with disabilities must be involved to ensure the Government is aware of unintended consequences of the legislation. Some want to see the Bill scrapped, others are open to working to amend it but very few see it as ready to go.
Australian Federation of Disability Organisation (ADFO)’s submission highlighting “While several of our Members wanted us to reject the Bill outright, most Members have asked us to work collaboratively with the Committee, and with Government, to strengthen the Bill and ensure it better-reflects the needs of current and future scheme participants.” Many submissions have called for the requirement for co-design to be written into the Bill.
During the Committee hearing, officials from DSS argued that a fast turnaround in formulating the Bill was required so that a formalised co-design process could proceed over the next financial year to interrogate the implementation of foundational supports. DSS says engagement by the Department with the disability community on key NDIS Rules will start happening from July 2024 and continue throughout 2024 and 2025. This engagement will include discussion papers on DSS Engage, face-to-face workshops and roundtables, as well as online engagement. The NDIA will lead co-design, consultation and community engagement on how proposed changes will be implemented and operationalised.
Some submitters have been sceptical about the Government’s capacity to support the sector adequately during implementation, citing the transition to PACE as an example of poor policy development.
It is still the only Lifeboat
The State and Territory Premiers joint submission argued that the pace at which the Government has sort to constrain the NDIS could undermine the vision of the NDIS Review, given the broader ecosystem is yet to be designed and defined. They say moving too fast risks creating a fragmented and disconnected service system which could result in people falling through the gaps and ending up in hospital or unsuitable settings.
The Government has been reminded to ensure history does not repeat itself in redesigning the NDIS. ADFO warns “Many of the longstanding issues that plague the scheme to-date are a result of its original implementation and rollout having been rushed due to political factors. This was acknowledged in the Review…”
However, NDIS Review Co-Chair Professor Bonyhady told the Senate Committee that “critical early reforms include timely passage of enabling legislation and rules; improved availability, quality and effectiveness of foundational supports; and reforms to the participant pathway, which need to be delivered as soon as possible.”
The Government has responded to some of these concerns, stating that the Review sets out a 5-year implementation plan for changes to the NDIS and improvements to the broader ecosystem. Last year, National Cabinet agreed to design additional foundational supports, jointly commissioned by the Commonwealth and the states. Then earlier this year, the Government announced $11.6M to develop a Foundational Supports Strategy. The Government says there will be a phased approach to designing and delivering foundational supports with services expected to be commissioned from mid-2025, and progressively scaled to full roll out by mid-2027. Minister Shorten has said disability reforms can’t wait for “some magical unicorn day” when all the details have been settled.
Response from Service Providers
Peak Body NDS is broadly supportive of the Bill. It has called for the Government to strengthen co-design, release draft Rules and determinations for public consideration, develop a Foundational Supports Statement of Intent and publish an implementation roadmap for the proposed reform agenda over the next five-year period.
The Inquiry also heard from a number of large service providers and alliances including Alliance 20 and Ability First Australia who shared their support for an NDIS reset to ensure sustainability of the Scheme. They voiced a need to return the NDIS to people for whom it was originally designed—those with significant and permanent disability, and to restore public support in the Scheme. They supported a flexible budget with stated support for things like Supported Independent Living to safeguard participants from running out of funds for essential supports. Providers also highlighted the need to review the underlying assumptions of the Disability Support Worker cost model that is used to set prices and sort assurance that the legislation won’t have unintended consequences for provider viability.
We haven’t been able to cover every opinion on the Bill. We have focused on the main amendments people want to see in the Bill. But some other things on note were that several parties commended that the NDIS Review was one of the most thorough and meaningful consultations they had experienced. Some were pleased to see a move away from access by primary diagnosis and toward so-called holistic assessments and flexible budgets. And almost everyone is onboard with foundational supports; they just want assurance that these are in place before NDIS 2.0 is fully launched. If you find it as interesting as us, deep dive into the submissions and transcripts. Just maybe give your friends and fam a warning that you might be MIA for a while.
