On 9 September 2021, the Government released the long-awaited proposed changes to the NDIS Act for a short period of consultation. The package of materials produced for consultation is hefty – it includes the Amendment Bill, two new sets of NDIS Rules, two ‘amended’ NDIS rules, three ‘updated’ NDIS Rules, as well as explanatory materials for each of these documents. All up, 16 dense documents to review for consultation, which closes on 7 October 2021.
In this Explainer, we aim to summarise and analyse some of the major changes being proposed, to assist participants and advocates engage in the consultation process.
There appear to be a number of good aspects to the changes being proposed.
First, what’s not included. As promised, the Government has abandoned proposed changes relating to independent assessments. There are no changes to ‘reasonable and necessary supports’. There are no new debt recovery powers.
In fact, aside from new rule-making powers, none of the five concerning changes we wrote about in our last Explainer have been included. Future changes to the NDIS assessments and funding model will be co-designed with disability representatives.
Second, there are a number of changes that reflect recommendations from the Tune Review and should improve how the system works. These include:
- inserting timeframes into the legislation and Rules, including timeframes around access, participant plans and internal reviews;
- annual reporting by the Commonwealth Ombudsman to review the NDIA’s performance against the Participant Service Guarantee, as well as in relation to participant experience;
- clarifying the language around the different types of ‘reviews’ which was causing confusion between participants and the NDIA. The language for plan reviews will change to plan ‘variation’ (for less significant changes) or plan ‘reassessments’ (for more significant changes). The word ‘review’ is now exclusively used for internal reviews and external reviews;
- fixing the Administrative Appeals Tribunal (AAT)’s jurisdiction when it comes to reviewing plans which have been varied or replaced by new plans over the course of the appeal; and
- improvements to the NDIS principles, including adding co-design with people with disability, and using more inclusive language, such as removing moderating language (like ‘to the extent of their ability’) and amending ‘gender’ to include sex, general identity, sexual orientation and intersex status.
Concerns and areas for improvement
There are four significant changes which participants and advocates should consider in more detail. Some of these changes were not mentioned in the Tune Review, while others have adopted approaches which we think do not directly implement the Tune recommendations.
1. Plan variation without consultation
First, proposed section 47A allows participant plans to be varied without a ‘reassessment’.
This may be a positive change in as far as it allows plans to be amended or fixed where the amendments are not significant and when requested by the participant – such as where there are technical mistakes, changes to a participant’s goals and aspirations, or changes following an AAT decision.
However, s 47A also allows plans to be varied on the CEO’s own initiative, without request, consultation, or consent from the participant. This appears to be broader than the Tune recommendation and raises a number of concerns.
We see no reason why the NDIA should be able to vary plans without consultation or consent by the participant, except in rare cases of urgency where the participant cannot be consulted within a reasonable time. This is especially so because the CEO already has power to conduct reassessments on their own initiative (meaning that if a participant declines to have their plan varied, the CEO can still undertake a full reassessment if that is needed).
The CEO’s power to vary plans is also not constrained. Rule 10 of the new Plan Administration Rules sets out a non-exhaustive list of matters the CEO must consider when deciding to vary a plan on their own initiative. But these matters do not limit the CEO’s power. This leaves it open for variations like changes to funding amounts or restrictions on how funding could be used. These variations could be made without consultation with participants.
2. Changes to the ‘Becoming a Participant’ Rules
Second, changes to the Becoming a Participant Rules include new requirements for determining whether a person has a ‘permanent’ impairment or ‘substantially reduced functional capacity’ for the purposes of accessing the NDIS.
The clarification of what these phrases mean, especially in relation to psychosocial disability, is welcome. A longstanding issue has been fitting people with psychosocial disabilities into the language of ‘permanence’, especially when it comes to episodic or fluctuating impairments. While the language of ‘permanence’ remains, the clarification around what this means for psychosocial disabilities is helpful.
However, people with disability and advocates should consider the new requirements carefully.
Rule 8 of the Becoming a Participant Rules requires that, to access the NDIS, a person must be undergoing or have undergone ‘appropriate treatment’ for the purposes of ‘managing’ their condition, and that the treatment has not led to a ‘substantial improvement’ in their functional capacity after a reasonable period of time. Alternatively, there must be no ‘appropriate treatment’ ‘reasonably available’ to the person. These terms in inverted commas are not defined.
In practice, it will be the CEO and delegate considering in each instance what ‘appropriate treatment’, ‘managing’ a condition, ‘substantial improvement’ and ‘reasonably available’ means.
It would assist if the Rules provided guidance on these terms, especially given the highly personal decisions involved in medical treatment, and the subjective nature of these thresholds. ‘Appropriate treatment’ for instance, should take into account matters like a participant’s risk appetite for treatments and personal choices over medical procedures. ‘Substantial improvement’ should include subjective assessments of a person’s functional capacity. The absence of these considerations would reduce a person’s choice and control over their own health.
Similar considerations apply in rule 9(2)(b) of the Rules, which relates to non-psychosocial disabilities. This rule requires that there are no ‘known, available and appropriate evidence-based clinical, medical or other treatments’ that would be likely to lead to a person’s impairment no longer resulting in substantially reduced functional capacity. Again, the term ‘appropriate’ is vague and should include respect for bodily autonomy. ‘Other treatment’ is also vague – what non-clinical, non-medical treatment should a participant be required to undergo? Should those treatments in any case be funded under the NDIS – for example, capacity building supports?
3. Changes to Plan Management and Payment of Supports
Third, changes to plan management and payment of supports should be closely examined.
The change to plan management, under amendments to sections 43 and 44 of the Act and the Plan Management Rules, essentially impose a risk management process for participants who request to have their funding plan managed.
Under the existing rules, in considering a request for self-management or management by a nominee, the CEO must be satisfied that management of the plan in this way does not create an ‘unreasonable risk’ to the participant. This is not currently required for participants requesting their plan be managed by plan management providers.
The proposed rules bring this into alignment with the risk assessment process for self-management. This change reflects the Tune Review recommendations; however, we note that some advocates are concerned by what this change may mean. We encourage participants and advocates to consider the criteria for ‘unreasonable risk’, set out at section 10 of the proposed Plan Management Rules.
In addition to plan management, there are also proposed changes to the way in which supports are paid by the NDIA. These changes are set out in the proposed amendments to section 45 of the Act. The Government has indicated that these changes are intended to make it easier for self-managing participants to make claims, by using a ‘tap and go’ system on a smartphone app with their service provider, rather than paying out of pocket first and seeking a reimbursement.
These changes appear to be broadly sensible. However, we understand some people may be concerned by the inability for self-managed participants to opt out of this system and pay for their own supports first, or to mix-and-match their preferred payment method.
The drafting of new section 45 states that payment is to be made ‘to the person determined by the CEO’. While the Government has clarified that this change is not intended to remove the ability for self-managed participants to continue their existing payment method, the drafting does not make this clear. We would recommend a clarification to the drafting of section 45.
4. Reasons for decisions
Finally, proposed s 100(1B) and (1C) of the Act allows participants to request reasons for decisions made by the NDIA, prior to any internal review application. This is a welcome change, as it can empower individuals to understand decisions made about them at the initial stage – for example, initial decisions about access or participant plans.
However, we suggest this could be improved in two ways. First, the provision of reasons should not be on request by the participant. It should be given automatically, as a matter of course, for all participants when a decision is made about them. This is consistent with the Tune Review, which said (at [3.59]):
Providing people with disability with an explanation of a decision should be a routine operational process for the NDIA when making access, planning and plan review decisions. However, in the event this does not occur, the Participant Service Guarantee should empower the person with disability to require the NDIA provide this information in a manner that is accessible to them.
This is important as it will enable all participants to receive reasons for decisions made about them, not just those who are willing or able to go through the further process of making a request.
Second, there is no corresponding requirement for reasons to be provided once a review of the reviewable decision has been made under s 100(6). In practice, we understand that reasons are often – but not always – provided in relation to internal reviews.
We consider that a provision should be inserted to make this a legislated requirement. That is, every decision made by an NDIA reviewer must be accompanied by a statement of reasons. Again, this is consistent with the intentions of the Tune recommendation, and with good administrative decision-making principles.
The proposed changes are intended to give effect to some of the recommendations made in the Tune Review, especially those around improvements to participant experience and those which are less significant to the design of the NDIS. They do not, and should not, include more significant changes which require greater consultation and co-design.
However, there is a missed opportunity to fix a technical issue currently clogging up the AAT. The issue concerns the AAT’s jurisdiction to consider additional supports requested by the applicant during the AAT process, but which were not initially raised at the internal review stage.
Starting with the case of QDKH, different AAT members have made different decisions about whether the AAT has jurisdiction to consider this or not. In the five months since QDKH was decided, there have been ten further AAT decisions which have considered this jurisdictional point. QDKH is now awaiting hearing in the Federal Court.
This is a technical problem about what the AAT can and cannot decide about a participant’s plan on appeal. But this is not just a problem for lawyers – it has real negative impacts for participants.
In effect, if the AAT does not have jurisdiction to consider a participant’s full plan, the support requests that are not considered by the AAT will need to go back to the NDIA for a plan variation or reassessment. If the participant is still unhappy with it, they will need to go through internal review and the AAT all over again.
Fixing this issue would be consistent with the overall goals of the Tune Review in ‘removing red tape’. The easiest way to resolve this is by legislative fix, to ensure that the AAT can consider all matters concerning a participant’s plan on appeal.
The failure to do so ties up participants as well as AAT, NDIA, legal and advocacy resources in costly jurisdictional disputes that leave participants worse off.
There is also a missed opportunity to simplify the NDIS framework. While attempts have been made to simplify and modernise the drafting of some of the rules, the NDIS framework remains extremely complex, and this package of changes only adds to the complexity, with new rules and principles in disparate locations. For example, when making a decision about specialist disability accommodation (SDA) supports, the rules that need to be considered for that one decision include (at least):
- the ‘reasonable and necessary supports’ rules under ss 33 and 34 of the Act;
- the principles which underlie decision-making in the Act, including under ss 4, 5, 17A and 31;
- the Participant Service Guarantee Rules;
- the Support for Participants Rules;
- the SDA Rules; and
- the NDIA’s Operational Guidelines.
Many of these rules overlap and are not entirely consistent. This is unwieldy and makes it impossible for participants to navigate and follow the process.
Part of the reason for this complexity is the continued expansion of the NDIS Rules and the Minister’s rule-making powers. We discussed in our last Explainer, at point 5, why this is concerning. While the use of rules allows more flexibility and responsiveness as changes are required, it also gives the Minister and the NDIA more capacity to define and redefine the scope of its own power.
Participating in the consultation
While there are many positive changes in the proposed amendment package, we encourage participants and advocates to participate in the consultation process and tell the Government how these changes impact you. In particular, changes to the Becoming a Participant Rules and the Plan Management Rules will benefit from participants’ experience of what things like ‘appropriate treatment’ means to you, and whether the risk assessment process for ‘unreasonable risk’ is fair.
The deadline for submissions is 7 October 2021, and details on making a submission are here.