NDIS News & Analysis
New: NDIS Policy on Self-Management
The NDIA has just released its first ever Self-Management Policy, which aims to ensure that self-management is implemented in a more consistent, effective, and simple way. It sets out the principles that are meant to guide all decisions the NDIA makes about self-management, including thorny issues like when a self management request can be turned down and how it responds to non-compliance.
Overall, the policy is a pretty decent document that emphasises the rights of people with disability to self-manage and make decisions about their own lives. That’s why it is crucial that participants, supporters, advocates, and providers are aware of the rights that it sets out. As with anything in the NDIS, the challenge will be ensuring that the policy is properly implemented by planners and LACs. And this can only happen if the disability community is aware of the document and its contents.
Don’t get us wrong – the policy certainly isn’t perfect. But we believe there will also be self-management operational guidelines (OGs) released shortly and hope that they will provide more clarity in certain areas.
Let’s dive into what the policy says.
When a self-management request can be turned down
Self-management offers people the maximum level of flexibility when purchasing NDIS supports, so turning down a request for self-management and denying people those freedoms is a pretty big deal. The policy seems to recognise that reality, and reading between the lines gives you get the distinct impression that self-management will only be turned down as a last resort.
The NDIS Act is pretty vague on the circumstances where a self-management request can be denied. It gives the Agency the right to reject a self-management request if it poses an unreasonable risk to the participant or if the self manager is insolvent. Defining “unreasonable risk” is a highly subjective task, making it prime ground for inconsistent decision making. Another piece of legislation, the Plan-Management Rules, do provide a bit more guidance. They require the NDIA to consider if:
The participant is vulnerable to physical, mental, legal, or financial harm
The participant has limited ability to make financial decisions
That’s a bit more information, but it’s still pretty vague, so it’s good to see the policy explore how the NDIS will define physical, mental, legal, or financial harm. We can’t go into all the details here, but one example of how the policy defines mental harm is a person “persistently being denied outings and activities”. The policy also details what the NDIA is expected to consider when evaluating somebody’s ability to make financial decisions. For example, the Agency is to explore whether a person can “forecast expenditure and maintain records”. It may also look at a person’s history of self management and how effectively they have managed their funds.
Crucially, the policy emphasises that risk factors alone should not deny somebody self-management. Wherever possible, the NDIA will seek to mitigate the risks by putting safeguards in place or funding capacity building supports. The policy says that the NDIA’s response should be proportional to the risk. A rejected self-management request also should not preclude somebody from self-managing in the future.
One of the more concerning elements of the policy is the statement that the funding of capacity building supports will be considered in comparison to the “cost of engaging a [Plan Management] Provider”. We need to see more information on what this will mean in the OGs. Capacity building supports for self-management will probably cost more than plan-management in the short term, but over the course of a person’s life, that initial investment can pay large dividends. It would be penny wise and pound foolish to see self-management requests denied due solely to the cost of capacity building supports.
Safeguards on self-management
The policy gives the NDIA the power to put safeguards on self-management in place to ensure the “integrity and sustainability of the Scheme”. Presumably, this means to ensure that people don’t spend too much money or purchase supports that aren’t reasonable and necessary.
The safeguards people may experience include
Limiting the funds under self management
Frequently contacting the participant or their representative
Shortening the duration of the plan
Releasing funds at timed intervals
Having NDIA system prompts that alert them to certain risks (such over- or underspending)
Delegating the decision on whether somebody can self manage to a more senior planner
Identifying stated supports
The safeguard that raises an eyebrow is releasing funding at timed intervals. During the Independent Assessments and personalised budgets debate, people made it pretty clear they didn’t love the idea of their funds being released monthly or quarterly. Hopefully, the OGs will give us a clearer indication of what time intervals would be considered, because there’s a big difference between monthly and yearly. Further, it would be good to know how the NDIA plans to deal with expensive, one-off purchases.
Responding to non-compliance
We’ve been hearing anecdotal reports lately of self-managers having their expenditures audited, so upon getting this policy, the first thing I did was Ctrl+F “audit” to find information about how the NDIA will choose who it audits and the circumstances that might trigger an audit. Unfortunately, there was no information on this. In fact, references to auditing were pretty scant in general. Again, these are details that we hope to see in the OGs.
However, we did learn a bit more about non-compliance in the context of self-managing. The policy lists the different types of non-compliance, including:
Misuse: using plan funding not in accordance with the plan
Conflict of interest, which is only non-compliance if not declared and managed
Dishonest or barely honest behaviours (like sharp practices): this is behaviour that’s not technically illegal but is “unethical, unscrupulous, or not in the interests of participant”
Fraud: intentionally trying to benefit through deception or other means
Corruption: includes a range of criminal activities
Self-managers are also required to spend funds in accordance with their plan. This is defined as follows:
Purchasing supports that are related to the person’s functional impairments and their needs as identified in the plan
Spending at a rate consistent with the length of the plan
The Policy says that the NDIA will respond proportionately to non-compliance, including supporting people to rectify mistakes if necessary, so we can assume it is not planning to launch criminal proceedings against people who have simply misunderstood what they can purchase with their funding.
It’s important to know, however, that the decision to raise a debt against a participant is a reviewable decision under the NDIS Act. This means that if somebody believes the NDIA has incorrectly raised a debt against them, they can request an internal review and, if unhappy with that outcome, take the matter to the Administrative Appeals Tribunal (AAT). Going to the AAT is never fun, but the option does add an additional element of accountability to the process.
Nominees and child representatives
The policy also includes interesting information about the rights of plan nominees and child representatives to self-manage a plan on a participant’s behalf. Plan nominees do not necessarily have the same rights to self-management as participants, because the scope of nominees’ power is set out when they are appointed, and there might be limits on what a given nominee can do.
By contrast, child representatives do have the same rights to self-manage as participants.
Support for self-managers
One new support that the NDIA is planning to offer self managers is a Self-Management Orientation Module that will apparently cover things like the rights and responsibilities of people who are self-managing and how to negotiate some of the trickier tasks, like directly employing workers.
Before we go, just keep in mind that this new policy does not replace the NDIA Guide to Self-Management. The policy details how self management should function behind the scenes, whereas the guide offers practical tips for self managers, so you don’t have to worry about the “Can I buy it with my NDIS funding?” checklist on page 8 disappearing. Also, if there is any conflict between the policy and a piece of legislation, the legislation prevails.
If you want to read the Self-Management Policy, you can find it here.
Thank you to Sam Paior from the Growing Space and the NDIS Independent Advisory Council for technical advice on this article.