Out of Tune: Government Responds to the Tune Review

Last Friday the Government released its response to the December 2019 review of the NDIS legislation (commonly referred to as the Tune Review). And on the surface it looks oh so good. Every recommendation supported or supported-in-principle (yay!). Minister Stuart Robert was in the media touting these as the ‘most substantial changes’ ever to hit the NDIS. And goodness knows the Scheme was in dire need of some substantial changes. But then you read the details and it’s like:

The response is so full of government doublespeak and responses with no discernible relationship to the recommendation that it’s taken us a full week to even understand as much as we do. And while many of the proposed changes sound good at first, there is some serious room for error in how they are implemented.

The TL;DR (aka too long; didn’t read) version of this article is quite simple: the government’s response to the Tune Review recommendation was pretty sneaky. 

But let’s get into it, shall we? 

REASONABLE AND NECESSARY 

The principle of reasonable and necessary is the bedrock of the NDIS, so it is worth saying from the outset that any possible changes to how the criteria are implemented need to be treated with extreme caution. 

The Tune Review draws upon submissions from participants and the sector and concludes that the concept of reasonable and necessary is confusing. And they are right, the level of subjectivity required to interpret the criteria has led to inequalities in funding. The Tune Review argued that there should be more clarity and transparency with Agency decision making.

This seems a positive move, right?  More clarity.  More transparency. Tick.

What could possibly go wrong? Turns out, quite a lot. 

The danger is that by providing more clarity and transparency, the NDIA could in fact create more cut-and-dried ‘in or out’ scenarios. We risk entering a world where the decisions are not based on individual circumstances and need but rather a predetermined one size fits all approach.

The Tune Review also recommended that the government update the NDIS Rules to reflect Disability Reform Council (DRC) decisions on the boundaries between the NDIS and mainstream services. The government responded that this work is already underway. 

To be sure, the intersection between mainstream services and the NDIS has been a thorn in the Scheme’s side for a very long time. But once again, we need to be careful about developing lists of what can and what cannot be funded by the NDIS. In the world of disability, context is everything. 

The Tune Review has specifically recommended that the DRC clarify “the treatment of chronic health conditions under the NDIS.” As a person with a chronic illness which is also a disability, this sends a shiver down my spine.  

THE ADMINISTRATIVE APPEALS TRIBUNAL (AAT)

One very concerning element of the government’s response relates to the power of the AAT. The Tribunal plays an essential role in the implementation of the Scheme. It gives participants access to independent appeal and provides some much needed oversight of eligibility and funding decisions. Some highlights of the AAT’s portfolio include rulings on transport, sex work and the health interface.

The government accepted Tune Review Recommendation 23: 

“The NDIS Act is amended to clarify the Administrative Appeals Tribunal’s (AAT) jurisdiction, including the power for a plan to be amended while a matter is before the AAT.”

If you follow AAT cases you will know that jurisdiction is an issue that often comes up. It usually concerns situations where an AAT decision takes so long that the plan in question has already expired and so can’t technically be changed. This is squabbling over technicalities which is thoroughly boring (sorry, not sorry) and a waste of everyone’s time. So some clarification on these situations could do us all a world of good. 

But that’s not all. The Tune Review questioned whether the AAT should have any jurisdiction over reasonable and necessary and suggested that it’s actually up to all governments to make these decisions, not an independent tribunal. While the Government did not explicitly address this part of the recommendation in its response, it has supported the overall recommendation. And it’s no secret that they would love for the AAT to butt out.

Make no mistake: the Government is throwing down the gauntlet, and the AAT’s power to arbitrate reasonable and necessary decisions could be in danger. 

SUPPORT COORDINATION

The Tune Review recommended that the NDIA: 

“set out the factors the NDIA will consider in funding support coordination in a participant’s plan.”

This recommendation was “supported” by the government. Awesome. We need just that bit more clarity of who is eligible for this important support and, ideally, to know the criteria that planners use when making this determination. We hope the current consultations happening through the Discussion Paper will yield real clarity on the NDIA’s Support Coordination funding decisions.

PSYCHOSOCIAL DISABILITY

Accessing the NDIS with a psychosocial disability is incredibly tough, as the eligibility criteria do not lend themselves well to the reality of mental illness. For one thing, there are a million different treatments out there for psychosocial disabilities, and it is unrealistic and cruel to expect people to exhaust all of them before they can access the Scheme. Especially given that many of these treatments have significant side effects. 

The government has agreed to provide a clearer definition of permanency in a psychosocial disability context. However, until we see the definition they are proposing, we cannot know if this will be a good thing. It is entirely possible that a new definition would exclude more people from the NDIS.

The Tune Review specifically recommended that the NDIA recognises that some mental health conditions are episodic and fluctuating. There was no mention of this in the government’s response. 

NAVIGATING THE NDIS

The Tune Review suggested that the Agency put aside some additional funding to help people navigate the NDIS. The key word here is additional. While the government response supported this recommendation in principle, they went on to just list the funding they have already provided. There was nothing ‘additional’ about it. 

The status quo just ain’t good enough. Our advocacy system is overloaded, LACs are too busy with planning to support people to navigate the Scheme, and ILC grants are trying to do a big job with very little money. Thus the need for additional funding.

INDEPENDENT ASSESSMENTS

There is so much to be said about these that we dedicated a whole article to it.

OKAY, THERE IS SOME GOOD NEWS

Don’t get us wrong, there is some genuinely good news here. Including:

•  It looks like flexibility between Core and Capacity Building budgets might be back on the table. Thank goodness for that! 
• The Participant Service Guarantee might actually finally put an end to the very long waiting times that we have seen to date. While also giving people with disability more time to collect the evidence they need. 
• The government has also agreed to acknowledge the additional support that family members provide to children with disability, compared to children without disability. Hopefully, this will translate to more Core funding for people in younger age brackets (though there is no guarantee). 
• The government accepted the Tune Review recommendation to further increase the involvement of participants and families in the Support Independent Living (SIL) quote development. 

You can enjoy (lol) the full government response to the Tune Review findings here. But like we said, it can be pretty sneaky.