MONDAY, 20 MAY 2024

How has the NDIS Amendment (Getting the NDIS Back on Track No. 1) Bill 2024, so critically missed the mark? In our recent submission we have highlighted gaps of the legislation, including the lack of meaningful co-design with people with disability, and suggested major amendments before returning to Parliament.

A missed opportunity

The introduction of the NDIS Act (Getting the NDIS back on track) legislative amendment is a missed opportunity to work with people with disability to co-design a holistic response to the NDIS Review recommendations and must be further amended before returning to the Parliament.

When the NDIS Review final report was released, Disability Advocacy Network Australia (DANA), alongside other disability representative organisations, stated that:

“continued access to support for people with disability is necessary and non-negotiable. Any changes to how support is provided, either inside or outside the Scheme, must not lead to any gaps in the support we receive.”

In our submission to the Senate, we have highlighted these concerns, emphasising that the proposed changes could make it harder for people with disability to access the vital support they need. This is a critical issue that requires immediate attention to ensure the sustainability and effectiveness of the NDIS.

What DANA Members say

DANA sent out a survey and spoke directly with several members to get their views on the bill. Advocates across the board shared their concerns about how these changes will affect people with disability, and had particular worries about how poorly the Government had explained these changes and how the expanded powers for the NDIA to request information was likely to negatively affect people who require support to make decisions or do not have a support network.

When asked about the rules, one advocate said:

“This is a punitive approach of expecting people with disability to be equal in their ability to prove information to the scheme and comply with certain rules and requirements. Not all people have equality of access to support to make this a fair process. Equally, not all people can access an advocate or get one when requested [given the chronic lack of advocacy support and funding in the sector].”

Another member expressed concerns around the needs assessment:

“It also seems that the Assessor will have a lot of power to make decisions, and that there won’t necessarily be an opportunity for the NDIS participant to receive the outcome of the needs assessment, or to have a back and forth or meaningful conversation about their needs, which is the main issue with the way that the Agency currently develops NDIS Plans.”

The NDIS Amendment Bill must be revised

We are deeply concerned about the lack of consultation and involvement of people with disability in the development of the National Disability Insurance Scheme (NDIS) Amendment Bill. We fear that a similar approach will be taken in the implementation of the legislative instruments.

Many parts of this Bill have significant implications for how the NDIS will operate and the rights of its users. However, we are unable to fully assess the impact of these amendments because they rely on subsequent rules that will drive implementation and policy consequences. While the Australian Government and the National Disability Insurance Agency (NDIA) have discussed developing these rules in partnership with the community, none of these commitments are enshrined in the legislation. This Bill also precedes a formal response from the Government to the NDIS Review and the Disability Royal Commission.

It is imperative that this Bill be revised to incorporate meaningful co-design into the development of primary legislation and subsequent legislative instruments. Rules proposed to be implemented through legislative instruments should instead be included in primary legislation, especially regarding the introduction of needs assessment and changes to access to the Scheme.

While some changes, such as the move towards more flexible funding packages, are positive, the Bill also proposes expanded powers for the NDIA that are concerning to advocacy organisations supporting many people navigating the scheme. These include broad information request powers with disproportionate penalties for non-compliance, the introduction of APTOS principles as a stopgap for defining NDIS supports, and strictly attaching supports to impairments, which undermines the ‘whole of person’ approach and risks leaving gaps in supports for people with disability while Foundational Supports are being designed and implemented.

Our key recommendations

  • Ensure meaningful co-design with people with disability in all aspects of NDIS reform.
  • Conduct trials of proposed needs assessment and budget setting processes with full reviews and evaluations.
  • Establish regular reviews of instruments and frameworks, with evaluations tabled in Parliament.
  • Require the Joint Standing Committee on the NDIS to review the impact of needs assessment processes and report publicly.
  • Co-design the assessment process and tool with people with disability and Disability Representative Organisations.
  • Require assessors to conduct whole-of-person assessments.
  • Ensure assessors abide by a code of conduct designed with the community.
  • Remove provisions that allow for assessments to be conducted at a cost to the individual.
  • Provide copies of assessment reports to individuals as well as the NDIA.
  • Establish a process for individuals to identify errors in assessment reports.
  • Allow individuals to access a second opinion if they believe the first report is inaccurate.
  • Allow people to introduce reports or information from their support team as part of the assessment process.
  • Ensure assessments consider a person’s self-assessment and input from their support team.
  • Ensure the cost of requests for information is paid for by the Agency.
  • Involve people with disability in the design and implementation of rules for NDIS supports.
  • Preserve flexibility and breadth in the types of disability supports available.
  • Remove the application of NDIS support definition to ‘old framework’ plans.
  • Extend the timeframe to respond to requests for information relating to plan reviews.
  • Ensure suspension powers are only used as a last resort and require constructive engagement with the participant.
  • Provide direct referral to an independent disability advocate if suspension powers are considered.
  • Further detail what constitutes harm to a participant in plan management rules.
  • Remove access rule amendments from the Bill.