Overview of the NDIS Legislation
Senators will today begin presiding over three days of hearings into legislation that aims to make the biggest ever cuts to the National Disability Insurance Scheme (NDIS). Australians were given just more than a fortnight to make submissions on the highly technical 113-page bill, which is accompanied by nearly 300 pages of explanatory notes. The bill was referred to the Senate for an inquiry after being introduced to the lower house.
The government has acknowledged the magnitude and speed of the changes, which have been criticized as “dangerous” by the disability community. However, it claims the changes are necessary to ensure the now-$50 billion NDIS remains sustainable for future generations.
Key Provisions of the Proposed Legislation
The draft legislation grants the NDIS minister unprecedented powers, including the ability to reduce funding for categories of support “for the purposes of ensuring financial sustainability.” This decision could apply to all participants or just a specific group. The explanatory notes indicate that the minister would first use this power to reduce the amount participants can spend from their:
- social and community participation budgets by 50 per cent (covering things such as hiring support workers to take them to the doctor or supermarket), and
- capacity building budgets by 10 per cent (covering things such as therapies).
The minister would also be able to cap the number of hours a support can be funded for, a maximum participant-to-worker ratio while delivering a support, and the amount of funding for a certain kind of support. This would apply even if it was less than the cost of the support. For example, a participant may have been approved for a certain kind of support totalling $44,000, but the $30,000 ministerial cap would then drastically limit what they could spend.
The minister would have to consider participant safety when making these decisions. The bill would also give the minister the ability to set some of the prices providers can charge for their services and expand the use of automation.
Concerns Raised by the Disability Sector
There is great anxiety across the disability sector about such a centralisation of power, especially the powers relating to the cutting of supports. Naomi Anderson, principal solicitor at Villamanta Disability Rights Legal Service, says, “It will allow this and any future minister effectively to have the PIN to the bank account for the NDIS. Anytime they need to shore up the federal budget, they could just go and strip more funding out.”
Disability Advocacy Network Australia says that would see already-stretched state and territory health, housing and education systems to “carry the consequences [of] unmet need.”
New Assessment Tool
A new assessment tool is set to govern entry to the NDIS and the reassessment of plans from 2028, aiming to ensure the scheme primarily services people with “severe” and “permanent” disability. To meet the definition of permanence, the bill says participants will need to have exhausted “all appropriate treatments” that are evidence-based, regularly used in Australia and can be expected to improve the impact of a disability.
Crucially, something could be considered an “appropriate treatment” regardless of whether someone’s “individual circumstances,” which the bill describes as including “financial circumstances and geographical location,” restricts them from accessing that treatment.
The draft legislation also proposes someone should not be able to access the NDIS if their needs could be reasonably met by another system. It specifically mentions workers’ compensation or motor accident compensation schemes, and aged care.
Automation and Decision-Making
The bill proposes enabling the National Disability Insurance Agency (NDIA), which runs the NDIS, to use computer programs to carry out various hard-to-understand, barely defined “administrative actions.” One definition of administrative action includes “making, or refusing or failing to make, a decision, or a part of a decision, under a designated provision.”
The draft legislation specifically authorises the use of computers to make “objective” decisions about the payment of a claim, such as rejecting it if it exceeds a participant’s funding limit. The minister would have the power to expand the use of automated decision-making in the future.
Parental Support and Informal Care
If passed, the bill would effectively increase the amount of support parents and other informal supports are expected to provide. It states there is a “presumption that parents are responsible for providing substantial care and support for their children,” and the NDIA will need to consider that when making decisions about NDIS funding.
“Substantial care and support” are defined as supervision, personal care, transport, emotional support and behavioural support, and “other assistance with the activities of daily living that, regardless of the child’s disability, would reasonably be expected of a parent of a child of a similar age.”
The bill says the NDIA should not fund a support if its primary purpose is reducing burden on parental time “below what is expected for children of that age” or improving household efficiency.
Changes to NDIS Rules
NDIS rules currently stipulate a support can only be granted to a participant if their need for it arises from the impairment that gave them access to the scheme. However, a note just underneath that subsection says other factors, such as where someone lives and the interplay that impairment has with other impairments, should also be considered.
This bill proposes repealing that note and changing “arises” to “arises directly” in the subsection above it. It’s a small change, but something experts say will give the agency licence to ignore a precedent set in the federal court earlier this year.
Fraud and Enforcement Powers
The legislation would strengthen the ability of the NDIA to have eyes on the flow of money and fight fraud in the scheme, something the agency has long complained it has had to rely on the Australian Federal Police to tackle.
Among other things, the bill would:
- impose fines on providers for lower-level breaches;
- force providers and participants to keep claim records for up to seven and three years respectively;
- allow the NDIA to treat wrongly claimed amounts as debts if records aren’t kept properly;
- give the NDIA entry, search and seizure powers when investigating potentially fraudulent claims;
- reduce the time someone has to make a claim from two years to 90 days; and,
- compel participants and providers to give information or appear before the NDIA on at least 14 days’ notice.
It also lays the groundwork for the upcoming expansion of mandatory provider registration, an issue that splits the disability community, to those who deliver “high-risk supports.”
What’s Next?
The inquiry into the bill will report by June 16. The government wants its changes passed as soon as possible, but it is facing opposition from the Coalition and Greens, so changes may be required to secure their support.
Both parties have expressed concern that many details about the changes appear to be left to the design of rules yet to be created or the discretion of individuals. Ms Anderson says, if passed, the true impact of the legislation may not be apparent until long into the future.
“The proposed changes are staggering and dangerous, have come with no consultation, and the community has had just on two weeks to respond to what is effectively 400 pages of material stripping away their rights,” she says.
A government spokesperson says the bill is compatible with human rights and governments need to have “more oversight over a scheme that was growing faster than Medicare, the PBS and aged care.”
“The NDIS will still be the biggest social program the government has outside of the age pension and still the centrepiece of the most comprehensive suite of supports people with disability anywhere in the world,” the spokesperson says.
