Opinion | 2 December 2021

Safety net in danger: High price of changes to NDIS legislation

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Close up photo of a print out of the NDIS Act. There is a red pencil on top of it. Some words are crossed out. 21 is written next to the crossed out 2013.

Jessica*, 23, is working with her occupational therapist, to build the living skills she needs to move out of her parents’ home. She lives with both cerebral palsy and autism, and hoped to apply for NDIS supported independent living.

Jessica*, 23, is working with her occupational therapist, to build the living skills she needs to move out of her parents’ home. She lives with both cerebral palsy and autism, and hoped to apply for NDIS supported independent living.

On November 22, Jessica’s hopes were dashed. New supported independent living eligibility guidelines were released, effective immediately – the support is now only available to those requiring full 24/7 disability support – meaning Jessica, and thousands of others, no longer have access to an effective route to living independently with support.

Her ageing parents now worry for her future, and her mental health.

“She wants to live with other young people and work towards finding a part-time job in the future,” her mother says, “suddenly these feel unattainable”.

The NDIS, Australia’s disability safety net, currently supports over 450,000 people with permanent disability to lead an “ordinary” life. A founding principle of the scheme is to provide lifetime certainty of disability support.

If controversial changes to the legislation underpinning the NDIS pass the Federal Parliament this week, we are likely to see more cuts like this to NDIS services.

The NDIS Amendment (Participant Service Guarantee and Other Measures) Bill 2021 brings some welcome changes, such as defining NDIS decision-making timeframes. However, a recent Senate inquiry revealed concern from legal experts, and the disability community broadly, that changes will weaken the rights of people with disability.

Crucial details of support eligibility will be relegated to rules and guidelines, rather than fixed within the legislation. Rules and guidelines can be changed anytime by the minister for the NDIS, or the National Disability Insurance Agency chief executive officer.

As Dr Ben Gauntlett, Australia’s Disability Discrimination Commissioner, explained by submission to the Senate, as the NDIS rules have not yet been released, Members of Parliament are effectively voting to give the NDIA powers that remain largely unknown.

Changes to particular NDIS rule categories would also mean that state and territory governments are no longer required to agree on the rules. Inaugural chair of the NDIA, Professor Bruce Bonyhady, has described this move as undermining the national shared governance framework under which the NDIS was established. At establishment, the NDIS had full multi-partisan support, and the shared governance framework helped to ensure stability and that the scheme was above volatile party politics.

Fears that the legislation changes will further fray the disability safety net and are driven by a cost-cutting agenda are fuelled by a political narrative that frames the NDIS as a “cost blowout”. The true cost of the scheme remains the subject of debate.

However, the Productivity Commission has long maintained that NDIS cost to government does not mean a cost to the economy. Economic modelling by Per Capita published last month indicates that the NDIS leaves the Australian economy $52 billion better off, delivering $2.25 for every dollar spent.

In addition, this economic analysis estimates there will be about 10,200 jobs lost for every $1 billion cut from the NDIS. The gendered nature of care-work means that cuts to the NDIS will predominantly impact the female workforce. Meanwhile, current international policy trends, for example, in the US and UK, highlight the benefits of investing in the pandemic-era care-economy.

Occupational therapists are on the very front line of NDIS service delivery. They experience first-hand the growing burden of proof on participants to repeatedly prove permanent disability and the need for support. Valuable therapist hours that could be used to enable people with disabilities to work towards better lives, are instead being used to document disability in an increasingly complex and adversarial system.

Occupational Therapy Australia, the peak body representing occupational therapists, called for the new legislation to establish a simpler reporting and evidencing framework. Unfortunately, the proposed legislative reform represents a lost opportunity.

Jessica’s situation is one of many. And stories of individual funding cuts are prolific. For some, the “safety net” appears to have already dwindled to a tightrope, from which one could fall without warning, such as can occur through “eligibility reassessment”, a process that participants can be required to undertake at a month’s notice.

Coincidentally, this week as Parliament prepares to vote on the NDIS bill, Australia prepares to celebrate International Day of People with Disability. This event aims to challenge the way we think about disability, and to help us grow a more inclusive society. Perhaps our parliamentary representatives can ask themselves if this legislation change will really help us achieve this?

*Name and details changed to protect identity.

Muriel Cummins is a member of the Occupational Therapy Australia NDIS Taskforce.

Note: This article first appeared in The Age and Sydney Morning Herald and has been reproduced with permission from the author (thank you Muriel!).

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