Submission to the Senate Community Affairs Legislation Committee’s Second Inquiry into the NDIS Amendment (Getting the NDIS Back on Track No. 1) Bill 2024
22 July 2024
PWDA welcomed the opportunity to make this submission to the second inquiry of the Senate Community Affairs Legislation Committee Inquiry into the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Bill 2024 (referred to herein as the NDIS Amendment Bill).
This submission is intended to be read alongside our submission (submission 63) to the Committee’s first inquiry into the NDIS Amendment Bill and our supplementary submission (submission 63.1). Both submissions contain direct feedback and recommendations from our national membership of people with disability, that remain directly relevant to the Committee’s consideration of recently proposed amendments made by Government to the NDIS Amendment Bill (refer to Amendment Sheet PA110).
This submission does not aim to directly comment on the proposed Government amendments. PWDA remain steadfast in its resolve to represent the views of our diverse national membership. Instead, this submission aims to highlight the most pressing areas of concern that our members still hold, based on our ongoing consultation with our national membership since the first inquiry into the NDIS Amendment Bill.
PWDA members believe the proposed NDIS Amendment Bill still confers too much power in the National Disability Insurance Agency (NDIA) Chief Executive Officer (CEO) and NDIS Minister to determine supports that can be accessed by individuals and are concerned about the Government making decisions without the adequate involvement of people with disability.
Since the Committee’s first inquiry into this Bill, there has been much promise of co-design. To date, we have yet to see a clear plan for how people with disability, and their representative organisations, will co-design changes to the NDIS. Thus, we reiterate our call for co-design to be a requirement, in line with Recommendations 2 and 3 of our previous submission 63.
As this submission highlights, PWDA members still hold significant areas of concern about the NDIS Amendment Bill and its ability to effectively advance the rights of people with disability in seven (7) key areas.
PWDA members need these areas of concern addressed before PWDA can support the NDIS Amendment Bill. We trust highlighting these areas of concern will support the amendment process, as well as the deliberations of the Committee.
Summary of Recommendations
Recommendation 1 – Amend the Bill to ensure that the Minister is required to co-design NDIS rules and processes with people with disability and representative organisations.
Recommendation 2 – Amend the Bill to clearly ensure that all assessment tools are co-designed with people with disability and subject to transparent and independent evaluation that ensures participants rights are upheld in line with the UNCRPD. This will require comprehensive consultation and ongoing transparency on the development and implementation of assessment processes.
Recommendation 3 – Ensure that NDIS participants are not restricted to using funding on disability specific supports or NDIS registered providers, by removal of this requirement.
Recommendation 4 – Amend the Bill to include a mandatory requirement to co-design NDIS support rules with people with disability and representative organisations, with a strong focus on ensuring full representation of multiply marginalised people with disability.
Recommendation 5 – Any determination regarding supported impairments or “primary disability” made by the NDIA should be provided transparently, in close consultation with participants and their treating health professionals, and subject to independent review to ensure that the underpinning principles of choice, control and self-determination are upheld.
Recommendation 6 – Ensure that NDIS access and assessment processes embed a “whole of person” approach that considers all relevant aspects of an individual, their contextual interdependencies and environment. In doing so, PWDA strongly recommends using the lens of Social and Human Rights Models of Disability which acknowledge that disability emerges not just from impairment, but from the environment, context and culture in which a person lives
Recommendation 7 – Allow participants the option of listing more than one disability or impairment on their NDIS plan.
Recommendation 8 – Allow individuals to use their own therapist or known treating professional/s to undertake NDIA required ‘assessments.’
Recommendation 9 – NDIS processes and recommended supports must include flexibility to allow for the “whole of person” approach, allowing for the interdependent combination of impairments and circumstances to be integrated into the funding process.
Recommendation 10 – Ensure that any changes which decrease access to the NDIS are delayed until Foundational Supports are securely in place and able to meet the needs of people with disability.
Recommendation 11 – Ensure that mechanisms are put in place, through the roll out of foundational supports, which upskill mainstream services to meet the needs of people with disability.
Recommendation 12 – Implementation and development of a strong market stewardship strategy linked with this legislative reform.
Recommendation 13 – Amend the Bill to specify that NDIS participants (or prospective participants) must have the opportunity to review draft assessment reports and plans before they are finalised and sent to the NDIA CEO.
Recommendation 14 – Ensure that NDIS participants (or prospective participants) are provided with a clear and accessible means to access repeat or subsequent assessments when they are not satisfied that the initial assessment reflects their needs.
Recommendation 15 – Ensure that NDIS participants (or prospective participants) retain the ability to appeal NDIA decisions, by making the right to appeal NDIA decisions explicit in the Act.
Recommendation 16 – Include provisions in the Bill to ensure that funded advocacy is included in the definition of what constitutes a NDIS support. Subject to the previous recommendation, ensure that the Act specifies that participants (and prospective participants) can access NDIS funded advocacy for the purpose of appealing NDIS decisions.
Recommendation 17 – Remove the specified timeframe for participants to respond to the NDIA’s CEO request for information when considering the revocation of a participant’s status. Use the proposed 90 days as a guide to prompt follow-up by the NDIA to re-confirm capacity to respond with consideration of personal context and environment, rather than a hard deadline.
Recommendation 18 – Provide timing ‘holds’ for NDIS participants timeframe allowed for providing a response to requests for information to inform planning decisions. Ensure this flexibility considers wait times for appointments with relevant professionals. Use the proposed 28 days as a guide to confirm if a ‘hold’ is required, and apply flexibility based on individual circumstances, rather than a hard deadline.
Recommendation 19 – Integrate supported decision-making and communication supports at the core of response timeframes. Ensure that there are explicit accommodations and safeguards integrated into the response process, thereby reducing additional barriers to navigating the system.
Recommendation 20 – Ensure that the Bill includes safeguards to prevent participants being subject to the misuse of CEO powers regarding access, planning and plan management decisions.
Recommendation 21 – Embed the prioritisation of participant agency, choice and control throughout the Bill. Specify that the NDIA CEO must only intervene in individual plans for the purpose of preventing ‘harm’ as a last resort, after other safeguarding options which preserve participant agency have been exhausted.
Recommendation 22 – There must be clear safeguards implemented to ensure that inappropriate or punitive debt recovery actions are not possible without independent oversight, fair warning periods, and accessible review mechanisms.
Recommendation 23 – Make explicit in the legislation the circumstances under which the NDIA CEO can restrict a participant’s choice around plan management, by ensure that this specifies what constitutes “physical mental or financial harm.”