THURSDAY, 4 JULY 2024  |   Liam Thatcher, DANA Policy Officer

Last week was a busy one in the NDIS space. The NDIS Bill that has been dominating conversation over the last couple of months had made its way over to the Senate, after passing the House of Representatives a couple of months ago. Unexpectedly, the bill did not pass and has been referred back to the same committee that spent the last couple of months reviewing the bill.

So what happened? Let’s go over some of the main amendments that have been made so far, and what we can expect over the next 6 weeks as the Senate Community Affairs Committee takes another look at the Bill.

How did we get here?

Bill Shorten introduced some significant amendments to how the NDIS would work in late March earlier this year. The Bill, among many other things, sought to implement the NDIS Review’s recommendations around ‘needs assessments’ and introduced a new definition of ‘NDIS Supports’ which would control what people’s plans could be spent on. For a more thorough break down of what is in the Bill see DSC’s excellent 2-part explainer. 

That Bill was referred to the Senate Community Affairs Committee to get the feedback of the community, who received over 200 submissions and held 3 public hearings including from DANA and Disability Representative Organisations. That committee produced a report and set of recommendations that many found superficial and disrespectful of the array of issues and complaints raised through the process. We, along with other Disability Representative Organisations, said that we would not support the Bill being passed without substantial further amendments beyond what was recommended by the Committee. 

To the surprise of many, the Liberal Party opposed the passage of the Bill and wanted it referred back to the Committee for some further consideration. Many people, including seemingly Bill Shorten, had expected the Liberal party to support the Bill which was expect to drive about $8 billion in cost savings as per the recent Federal Budget.  

The Liberal Party, particularly Holly Hughes, said that they were not convinced that there had been enough consultation and discussion about the Bill and that they in particular wanted to speak to the States and Territories and representatives from the NDIA about the Bill further. They also said in Senate debates that they intended to raise further amendments, but those have not yet been put through as they likely wait for the committee process to continue. 

The Greens had also earlier raised their concerns about the Bill, saying that they were not going to support the bill. This, combined with the unexpected opposition from the Liberals, meant that both parties were able to send the Bill back to the Community Affairs Committee for a second go. When acting together like this the Liberal Party and the Greens have the numbers to control how Bills go through the Senate.  

At this stage, the Bill is unlikely to return until after the Committee has reported and the Parliament sits again on the week of the 12th of August. The committee has asked people and organisations to submit further submissions by the 12th of July. 

Let’s run through some of the amendments that have been submitted by the government and some of the issues that are still live for the committee to look at. 

Definition of NDIS Support 

Earlier last month, the Government re-worked the section of the act that would define what ‘NDIS Supports’ would be while the Bill was in the House of Representatives. Many had criticised the previous definition, which sought to introduce parts of the Convention of Rights of People with Disability (CRPD) but did so in a piecemeal and inconsistent way. This meant that some supports, such as employment or ‘rehabilitation’ supports may not have been eligible to be used through the NDIS.

The new definition is broader to address this, but is still very reliant on the NDIS Rules to shape and guide what things can and can’t be spent with NDIS funding.

Goodbye APTOS! 

Another one of the big complaints about the new NDIS supports definition is that it would use the so-called ‘Applied Principles and Tables of Support’ (aka APTOS) will no longer be used as an interim measure while more detail NDIS rules are developed. This is a positive development, as those tables were old and outdated and did not represent how things like the health and disability systems interacted in reality.  

This, however, means that a new transitional set of rules will have to be developed and come into place. We expect further details from the government about developing those rules shortly, as they will come into effect quickly if and when the bill is passed. 

Replacement Assessments 

Another part of this first tranche of amendments was some clarification about how people might go about getting a replacement assessment if they were unhappy with how their needs assessment was undertaken. The amendments gives the government and the states the ability to make Rules that will dictate when and why a replacement needs assessment can arise for people. 

This is still a bit of an open question – we don’t yet have rules that will shape how this section looks. We stated in our submission that we would want everyone who needs one to be able to access a second opinion (without having to go through the hurdles around establishing inaccuracies or that the assessor did not conduct the assessment professionally), and while this is still a possibility this appears to be another area where the Government is intent on developing Rules after the Bill passes.  

Fortunately, an obvious issue where the needs assessment report didn’t actually need to be given to the person it’s about has been fixed, and the NDIA must give you a copy of the report as soon as they get it from the assessor.  

What happens if you don’t respond when the NDIA asks you for information? 

In response to the (admittedly quite limited) recommendations of the Committee the first time round, the Government made some additional amendments as the Bill came before the Senate last week.  

First among them was the introduction of some amendments that will shape what the NDIA has to consider when you do not comply with a request for information when making a plan or your status on the scheme. This was alarming for many as the NDIA can suspend the development of your plan or remove you from the scheme if you don’t comply with their requests. 

Now the legislation lays out what the NDIA must consider when you aren’t able to give them the information they’ve asked for. They now must consider things like whether this is the first time a person hasn’t been able to give information, whether the reason a person couldn’t respond was because they had to rely on other people to give them information (such as health reports) and some other factors. If it was reasonable for someone to not be able to respond to the NDIS for one of these reasons, those other powers will not be exercised.  

Another set of amendments also made clear that these requests for assessments when looking at a person’s membership of the scheme must only be made where there is no other reasonable means of getting that information, which will hopefully reduce the need to use these powers. We are concerned, however, that our earlier recommendation about making the decision to suspend a plan reviewable has not yet been picked up.  

Consultation Report must be provided 

Another recommendation from the Committee that has been picked up by the Government is a requirement for the Government to detail how they consulted with people and organisations when developing rules and ministerial determinations, and what those people thought about the rules that have been put forward. This was recommended in order to provide some accountability on the Government’s statements around co-design and to get the opinion of people on the record when these new rules and determinations are provided. 

The government has said that there is an ongoing obligation for them to consult with the communities affected by the Bill by way of the Legislation Act (the law that discuses how Rules are developed) and the new section mentions this, but there is no requirement within the legislation itself about how to consult with the community about these developments. The way the Legislation Act is worded also means that there are no consequences for the government if they don’t engage with the community (such as striking down those rules as invalid).  

Whole of Person 

On Tuesday this week the Government has published some further changes to the Bill which look to address the ‘whole-of-person.’ Many were concerned that the Bill would ask the NDIA to split up people’s support needs into those attached to disabilities that meet the definition of NDIS Supports. 

In amendments to these sections the Government has added a couple of notes to the sections which state that the Minister will have to consider that support needs can arise from “[impacts from] other factors, including environmental factors and impairments that do not, of themselves, meet the disability or early intervention requirements.” This opens the door for supports to be provided through the NDIS where there is a connection between a person’s eligible impairment (e.g. the disability they got access to the scheme for) and other disabilities they experience. 

These appear to be an improvement from where the Bill started as there will be a requirement on the Minister to consider this when they design how the needs assessments will work. 

But, there remains a big difficulty in how people’s set of impairments will be broken up and looked at, as well as in the process of determining what support needs arise from particular support needs. This is especially the case because there are no other clear pathways in the act for additional impairments to be listed on your file

What next? 

Some areas still outstanding our and other people and organisation’s submission include, but aren’t limited to: 

  • Other powers the NDIS has to control how your plan is managed and detailing the circumstances where a debt can be raised 
  • Draft copies of the reports written by assessors to reduce the times where a replacement assessment is necessary 
  • Making sure reports and information needed by the NDIA do not incur a cost 

We’re working on providing some further evidence to the committee  on these amendments and the things raised in our initial submission, and encourage others to make further submissions at the committee’s website.