What are the top 5 big issues we can expect to see in the new NDIS legislation? We’ve all heard plenty about compulsory assessments – but what other changes to the NDIS are going to be hiding in there? Our friend Chadwick – who is a Senior Solicitor from the Public Interest Advocacy Centre – has very helpfully written an explainer to try and make it as easy as possible for people who are not experts in law to understand.
The Government is proposing reforms to the National Disability Insurance Scheme. These reforms are set to be the most significant changes to the NDIS since it was introduced. PIAC has previously written about our concerns here. Our detailed submission to the Parliamentary Joint Standing Committee on the NDIS’ inquiry into independent assessments is available here.
The Minister for the NDIS has indicated that Disability Ministers from the Commonwealth, States and Territories will meet in mid-July to discuss the proposed reforms. We anticipate a draft of the Amendment Bill to be published in the weeks following that meeting.
This Explainer sets out five key issues to be on the lookout for when the draft is released.
It is prepared based on public statements made by the Minister for the NDIS and the NDIA CEO, and the draft amendments which were leaked in March 2021.
There will no doubt be plenty of legal analysis of the Bill once it is released. We hope this Explainer allows non-lawyers to grapple with the key issues.
Introduction of mandatory independent assessments
The Minister has made clear that independent assessments will be introduced in some form, and that these assessments will be mandatory for all NDIS participants and new applicants to the Scheme. The question is what form these assessments will take. There are three key things to look for in the draft Bill in relation to independent assessments.
First, does the Bill provide any detail into how independent assessments will work? In the March 2021 draft, the words ‘independent assessment’ or ‘functional assessment’ were not used. No details were provided on the use of independent assessments. Instead, very broad wording was used to allow for ‘assessment or examination’ by a ‘person included in a class of persons made known to the prospective participant’. Some details that we would want to be addressed in the Bill include:
- Can participants submit their own evidence, alongside the independent assessment?
- If so, what weight will that evidence be given?
- What is the ‘scoring’ process to determine level of ‘functional capacity’?
The less detail there is in the Bill, the more scope and power the NDIA and Minister have to change the independent assessments process as it is introduced. This would result in less transparency and accountability in the implementation of independent assessments.
Second, when is a person exempted from undertaking an independent assessment? The March 2021 draft did not include a provision for this. Any available exemptions should be included in the legislation, otherwise the NDIA will be able to change the exemptions at any time. The legislation should also clearly set out the criteria for receiving an exemption, to ensure consistent decisions are made.
Third, are independent assessments and exemption decisions subject to review? The NDIA’s initial position was that assessments themselves and exemption decisions would not be reviewable. Only decisions made by the NDIA based on the assessments could be reviewed (for instance, decisions about access or plans). This is contrary to what was recommended in the Tune Review. Because independent assessments will be fundamental to ensuring the rights of a person to access and receive funding under the NDIS, it is important that there is a review process available to challenge incorrect or inadequate assessments.
Changes to reasonable and necessary supports and ‘personalised budgets’
In the March 2021 draft, all reference to ‘reasonable and necessary supports’ was removed. The Minister has since stated that reasonable and necessary supports will remain, but the method for determining NDIS plans will change. The new method will involve matching participants’ independent assessment results to one (or more) of 400 ‘profiles’ built by the NDIA. Each of the profiles will come with a draft budget attached, and funding will be given to the participant based on that budget.
In reality, this likely means that the right to reasonable and necessary ‘supports’ will instead be a right to a reasonable and necessary ‘budget’. That is, most participants will be given a single numeric figure for the funding provided to them. This number will be based on their independent assessment and will reflect the expected costs of a participant in similar circumstances – someone with a similar level of functional capacity and environmental context. It will no longer be based on their individual goals and support needs.
By removing the requirement to consider a participant’s individual needs, the Bill could allow the NDIA to give greater weight to internal considerations of ‘financial sustainability’ when it comes to determining the size of the participant’s funding, without informing participants about what those financial sustainability considerations are. This will depend on how the Bill is drafted.
This would be a major change to the NDIS. Changes to watch for include:
- Will details about this new process, including the 400 ‘profiles’, be included in the Bill? We anticipate they won’t be. Instead, it’s likely that the Minister will have the power to make rules about planning. This gives the Minister greater power to change the methodology. This is because rules don’t need to be debated and passed in Parliament, unlike legislation. Rules also don’t require consultation with people with disability or disability advocates. Allowing the Minister to make rules about key aspects of the NDIS process reduces transparency and accountability and makes it harder to scrutinise how the NDIA makes these decisions.
- Will the Bill specify the weight given to ‘financial sustainability’ considerations for allocating budgets? Without this detail in the Bill, the NDIA would have greater power to reduce budgets based on their internal assessment of ‘sustainability’ of the NDIS. This includes, for instance, if future governments decide to reduce the NDIS budget.
- Will there be reference to a participant’s ‘goals and aspirations’ in the new process? The current NDIS Act requires goals and aspirations to be considered in determining reasonable and necessary supports. This is important as goals underlie the participant’s social and economic participation – for example, choice and control over what the participant wants to study, or what activities they would like to partake in. The NDIA has not been clear about how the proposed new process will consider goals.
- Is there a process for finalising draft budgets? The NDIA’s position on ‘draft’ personalised budgets appears to have softened recently, from their initial proposal to only allow changes to draft budgets in exceptional circumstances.
- What will ‘reasonable and necessary supports’ look like? By moving to a ‘personalised budget’ system, the NDIA says participants will no longer need to request supports on an individual basis and will have more flexibility in deciding what to spend their funds on. If that’s so, keeping the criteria for reasonable and necessary supports may actually serve to limit This all depends on what purpose ‘reasonable and necessary supports’ serves in the new law. For example, if a participant is now allocated a budget, but can only use it to buy ‘reasonable and necessary supports’ after a discussion with their planner, this adds a hurdle for participants, limits autonomy and creates uncertainty.
- What are the avenues for review and appeal of a personalised budget? There are two things to look for here. First, has the existing right to review and appeal been changed? The NDIA has said that this will not change, and we expect that to be the case. Second, even if the right has not changed, what level of detail is provided about how personalised budgets are decided under the law? If there is limited or no detail in the Bill, including detail about the scoring process and weight given to the various factors for personalised budgets, it makes it very difficult to seek review or appeal of those decisions. This is because if the Bill does not set out how decisions are required to be made, it is hard to challenge the legal correctness of the decision.
Power to decide what’s in and what’s out of the NDIS
Under section 46C of the March 2021 draft amendments, a new power was inserted for the Minister to ban particular goods and services from being funded under the NDIS, without agreement from States and Territories. This power is designed to get around existing Court and Tribunal decisions, about what can be funded on the NDIS.
For example, the NDIA has had several legal battles with participants about funding for things like gym memberships, disability-related transports, assistance animals and air conditioners for people living with MS. On these issues the Tribunal has found that the NDIS is in fact able to fund these items in appropriate circumstances.
If this power is included in the Bill, combined with the introduction of ‘personalised budgets’, this will limit choice and control for participants. It means decisions about what may be funded and what people with disability need will be made by people without lived experience and without context – that is, by the Minister and NDIA public servants, without consideration of individual people.
Similarly, the March 2021 draft proposed tightening the early intervention pathway into the NDIS. The proposed section 25(4) would allow the NDIA to refuse early intervention access to the NDIS if the NDIA thinks early intervention support should be provided by others, like State and Territory health systems, even where that support does not exist. If this is kept in the Bill, it could result in exclusions of people with particular disability types from the NDIS.
The March 2021 draft proposed a new power to recover money spent by a participant in breach of section 46C. For example, if a participant spends their funding on a support person to assist with housework, but the Minister has determined that such services are not covered by the NDIS, they will owe a debt to the NDIA. This could include spending money on things that the NDIA says should be funded by State and Territory governments. The NDIA can then start legal proceedings to recover that debt.
There has been no public discussion of this debt recovery power since the March 2021 draft, and it is not clear whether this is still being proposed. If so, it would be extremely concerning.
This power would require participants to know when the rules are changed and when new bans on goods or services are added, to make sure they follow the rules. If they fail to keep updated, a debt could be raised against them even if they did not know about the rules. NDIS rules are already complex and difficult to follow, even for the NDIA. Many of the rules end up before the Tribunal for interpretation. The Tribunal has disagreed in many instances with the NDIA about what can be purchased under the NDIS.
Any such power is likely to disproportionately affect people from marginalised communities, who may be less likely to understand and follow complex rule changes.
The Minister’s powers
A technical but very important issue to look for is changes to the Minister’s powers. This underlies some of the other four issues identified. The terminology to look for is ‘Category D’ rules. This currently sits at section 209 of the NDIS Act.
In short, the NDIS Act allows the Minister to make rules about the administration of the NDIS. Rules dealing with key issues in the NDIS – like what can be purchased with funds – currently require unanimous or majority approval from States and Territories. They are rules that fall within ‘Category A’, ‘Category B’, or ‘Category C’.
Some rules don’t require agreement from any State or Territory, meaning the Commonwealth Minister can make or change rules even if all State and Territories disagree. These are ‘Category D’ rules.
The March 2021 draft proposed that rules around how ‘personalised budgets’ are worked out and what goods or services are not funded by the NDIS (points 2 and 3 above) would be Category D rules. This would give the Minister power to change significant parts of the NDIS without having to go through either Parliament or even State and Territory Ministers. These powers could be damaging for the Scheme and are unnecessary.
We want to give a big thank you to Chadwick and the Public Interest Advocacy Centre (PIAC) for allowing us to republish this explainer, which first appeared on the PIAC website here.
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