Dr George Taleporos

By Dr George Taleporos, Independent Chair, Every Australian Counts

There are many worrying parts of the Government’s new NDIS Bill. So many in fact, that one of the most dangerous parts has received little attention.

Section 33(2EA) allows the NDIS Minister to set across the board maximum limits on:

• how much funding can be provided for certain supports
• how often or for how long a support can be provided
• the number of workers who can support a participant.

These limits could apply to all NDIS participants or to a whole group of participants.

In other words, one Minister could make a rule that restricts essential supports across the NDIS regardless of a person’s individual  needs and circumstances.

A cap could override individual need

The NDIS is meant to provide support based on each person’s individual needs.

Under this section, the NDIA could assess a person and agree that they need a certain level of support. But a Ministerial cap could stop the person from receiving enough funding to pay for it.

This is not just a possible interpretation. The Government’s own Explanatory Memorandum gives an example.

In that example, a participant is assessed as needing 30 hours of occupational therapy, 30 hours of physiotherapy and 30 hours of speech therapy. But a Ministerial determination limits each therapy to 25 hours. The participant only receives 25 hours of each, even though their assessment says they need more.

That example reveals the real danger.

The assessment can say one thing. The cap can say another. The cap wins.

The nightmare scenarios are real

Imagine a person who needs support at all times because of breathing problems, seizures, choking risks or other complex needs.

The NDIA agrees that the support is necessary. But a Minister sets a maximum number of support hours. The person is left alone for part of the day or night.

Who carries that risk?

The participant does. Their family does. Their support workers do.

Now imagine someone who needs two workers for transfers, personal care or repositioning. A ratio cap could stop the NDIS from funding two workers.

The person might be left in bed because they cannot be moved safely. One worker may be expected to perform an unsafe transfer. Both the participant and worker could be injured.

A ratio cap could also make individual support unaffordable.

A person living safely in their own home may need one worker supporting them. If the Minister decides that support must be shared between several participants, that person may face an impossible choice.

They could try to live with unsafe gaps in support or move into a group home where shared staffing is available.

Nobody would need to formally order them to move. The funding decision could leave them with no other realistic option.

For people who have experienced violence, abuse or neglect in group settings, this risk is especially serious. Living alone with individual support may be essential for their safety. It is not simply a lifestyle choice.

A Minister focused on cutting costs could use it to restrict individual support, reduce therapy hours, remove two-worker support or make living alone financially impossible for some participants.

It gives one Minister the power to cause terrible harm across the country to disabled people.

Parliament must remove this power

Every Australian Counts supports a sustainable NDIS. But sustainability cannot be achieved by leaving people without the supports they have been assessed as needing.

Broad caps do not remove need. They shift the cost and risk onto people with disability, our families, hospitals, workers, housing services and state governments.

Every Australian Counts is calling for section 33(2EA) to be removed.

No cap should be allowed to:

• leave a person without the support they need to be safe
• remove necessary 1:1 or 2:1 support
• force a person, directly or indirectly, into a group home.
• override an individual assessment without an exemption process
• operate without reasons, evidence, review rights and proper parliamentary oversight.

This may be the least talked-about part of the Bill. It is also the most dangerous.

The Senate must not allow such a sweeping power to pass and must uphold the rights of people with disability to live safe and dignified lives by voting against this Bill.