Monique Ryan (Kooyong, Independent) Share this | Hansard source

The NDIS has transformed the lives of many people with disability around this country. When people with a disability have access to this scheme, they can enjoy independent and dignified lives. The scheme must stay. Our country depends on it. But the disability royal commission, the recent NDIS review and multiple reports of the Joint Standing Committee on the NDIS, of which I am a proud member, have been very clear that the NDIS needs significant reform. Firstly we have to ensure choice and control, and access to the reasonable and necessary supports that Australia's NDIS recipients want and deserve. But with 660,000 Australians being NDIS participants and 400,000 working in the NDIS related jobs, and with the scheme projected to cost as much as $100 billion a year by 2030, we have to critically assess the size and cost of the scheme. It is vital that we do not sacrifice flexibility and choice in the process. Cost saving will benefit us all, but it does not need to punish the vulnerable.

In the two months since this bill, the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024, was first presented to the House, I've consulted widely with constituents, the health and disability community and legal experts. It's clear that there are many aspects of this legislation and its explanatory memorandum which require revision. In the previous iteration of the NDIS, far too much was left to operational guidelines. This leaves too much to as yet unwritten rules, which will be set out later as delegated legislation. That can be an issue with any bill, but it's particularly problematic with this one given the vulnerabilities and anxieties of the disability community. These concerns are understandable given their previous experience with such things as independent assessments, the frequent attacks on the scheme in the media and the recent pushback by states and territories regarding their involvement in the provision of foundational supports for the NDIA.

This bill, the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024, is the government's first response to the landmark review of 2023, which recommended transformative changes to the planning and funding processes of the NDIS. It also suggested that important policy positions in the scheme should be enacted in law rather than in the NDIS operational guidelines. This bill details how participants will enter the scheme and how their support needs will be assessed and funded. It enacts use of a needs assessment to determine a 'reasonable and necessary' budget, built at a whole-of-person level, for participants' packages, rather than a determination line by line for each support item, as was previously done.

The bill gives power to the Minister for the National Disability Insurance Scheme to develop a new legislative instrument, the NDIS rules, which will determine exactly what sorts of supports the NDIS will fund. It gives the minister the power to set decision-making processes about disability requirements and early intervention requirements and the power to prescribe those circumstances in which a participant's eligibility for the NDIS will be assessed and those circumstances in which it may be denied. But the government has not yet released drafts of these rules or determinations, and we don't know what they're going to include. Many of the practical impacts on participants will turn on the contents of those rules and determinations. For example, the EM to this bill assures stakeholders that the disability community will be consulted prior to the legislative instruments being enacted but doesn't say how the consultation will occur. We know there needs to be a process of detailed consultation and co-design that includes all the diverse members of the disability community. Ideally, the bill should require the minister to commit to open disclosure about the process of co-design for each instrument.

We know that many of the new NDIS rules will be category A—they'll have to be agreed between the Commonwealth, the states and the territories—but it's not clear what the NDIS will fund federally and what will be provided by states and territories through so-called foundational supports. We have heard from the states and territories that details of those supports remain unclear and that many state based services have been lost in recent years, so there's real anxiety about the potential for a shortfall in service provision under these new arrangements.

The bill doesn't make clear exactly who is going to undertake the needs assessments. In the past we've seen that planners and local area coordinators are often very inconsistent in their decision-making. Those assessors are going to have to be appropriately trained and qualified professionals with relevant disability expertise, and they will have to be independent of service providers.

The community has expressed concerns that the proposed changes to eligibility and assessment processes could disproportionately impact people with psychosocial disability. It really needs assurance, as well, that all assessments and reassessments required by the NDIA will be fully funded by the scheme. The NDIS review and the parliamentary joint committee's inquiry into the capability and culture of the NDIA recommended that the NDIA assess people according to the totality of their disabilities, but, in its current form, this bill limits the needs assessment to impairments meeting either the disability requirements or the early intervention requirements. We know that at least five prior decisions of the AAT have rejected this position.

The bill also envisages the assessor linking each support need to a specific impairment, but this would, in many cases, result in the artificial exclusion of disability related needs, especially for those people who have coexisting physical and psychosocial impairments. All impairments requiring disability supports should be eligible for NDIS funding. It's particularly important that we don't disadvantage those persons who have high support needs such that they lose the ability to live independently in circumstances of their own determination.

Once the needs assessment has identified support needs, a method will be applied to quantify the reasonable and necessary budget for flexible funding and/or stated supports. The proposed new framework plans will also specify staged release of participants' funding. This could limit flexibility of access to that funding, particularly given that many participants have complex episodic and degenerative disorders. There are also concerns regarding the possibility that the plans could be suspended should the participant exhaust their funds within the stated 12-month period. Such a suspension of care could be contrary to NDIS practice standards. The requirement that certain conditions be met before funds can be accessed or used could potentially include requirements such as providing services from specified providers. This means individuals may not be able to access non-registered providers, which will be a massive problem for some people, especially those in rural and regional centres, where there are thin or no markets, and flexibility of funding is absolutely crucial to accessing support.

The bill does not currently provide for a draft plan to be provided to participants prior to its approval by the NDIS despite multiple previous reviews of the NDIS recommending that this be in place. Having an opportunity to review your draft plan and your budget will improve NDIA decision-making. It will provide an opportunity to correct oversights and errors and it will reduce the number of reviews or appeals of plans after they've taken effect. It's not negotiable that that should be in the legislation.

While we have no information as to the proposed content of the delegated legislation, the EM does say that things like holidays, household appliances and whitegoods won't qualify as NDIS supports. That might seem reasonable on first glance, but the EM should not pre-emptively rule out categories of support. The pitfalls of such an approach have been demonstrated on numerous occasions at the AAT. For example, conditions which render individuals susceptible to heat stress which could result in medical complications requiring additional health treatment should be managed by the NDIS with provision of appropriate air conditioners. That's one example, but there are many. While the NDIS should not fund holidays, NDIS recipients have a right to have holidays, like all Australians, and they may require support when they have them. Respite care should also remain funded. Equally, the rules should not prevent participants from making innovative and efficient use of their flexible funding—for example, by pooling funds for group purchases of items like adapted vehicles.

The bill establishes new powers for the CEO to request information from participants and other people. Those powers provide insufficient protections for participants. Failure to comply with requests in 90 days could give the CEO discretion to revoke participants' status. Participants failing to provide information regarding the formulation of their framework plan within 28 days could experience automatic consequences. We all know how long you can wait to see a doctor in this country. You can't punish people who can't come up with a medical opinion within 90 days unless the NDIS is prepared to accept responsibility for arranging those opinions. The magnitude of revocation of plans is potentially massive. Particularly for those people over 65 it could be disastrous. This part of the bill has to change.

The proposed powers permit the CEO to request any information which is 'reasonably necessary'. This is not well defined. Production of such information could be burdensome, it could be expensive and it could be distressing for participants. There are also significant concerns within the disability community regarding the prospect of mandatory medical assessments, particularly if these are to be undertaken by a person other than the person's treating medical professional. Under some subsections of the bill, failure to comply with requests will automatically result in significant consequences. The consequences for such noncompliance have to be made discretionary to the CEO.

The bill does not clearly explain if or how a participant can seek review if they do not agree with their needs assessment report. It does say that you can seek review of the statement of participant supports, which includes the budget, but it's not clear whether or not that review would allow challenge of the needs assessment or just the budget. If it's the latter, a budget based on an inappropriate needs assessment could not be suitably corrected on review. The bill provides for a replacement assessment, but it doesn't stipulate when one would be available or whether or not the participant would be able to request one. At a minimum, this bill should provide that a participant has the right to access a replacement assessment in relation to each NDIS plan developed for them, and the CEO should also have the discretion to arrange further assessments as appropriate. That decision by the CEO should be subjected to internal and external review.

While the proposed 'reasonable and necessary' budget is designed to allow greater flexibility in how participants spend their funding, the bill also introduces new powers enabling the NDIA to constrain or supervise participant spending. There's a real risk that the proposed changes to plan variation, reassessment and review processes will diminish participants' rights and autonomy.

There may be many reasons for why a participant hasn't been able to utilise the whole of their NDIS budget. The NDIS review suggested that there should be a more trust based approach to how participants use their budgets and that they should not be penalised for genuine mistakes or errors. The NDIA must prioritise building the capacity of participants to understand and to utilise the plans where necessary and to provide appropriate supports to facilitate this process. We need to work with NDIS participants, and not try to punish them. Restrictions on plan management should take effect only when a participant has demonstrated repeated and intentional failure to comply with necessary requirements.

The initial NDIS rollout was criticised for its emphasis on meeting short-term targets and unrealistic deadlines. This meant the plan implementation was not always aligned with the original intentions for the scheme. An independent review of the NDIS in 2013 described it as being 'like a plane that took off before it had been fully built and is being completed while it's in the air'. It's vital that we not make the same mistake again.

The Senate inquiry into this bill opened on 21 May 2024 and it won't report before 20 June. The many submissions to that inquiry have laid out very many cogent and detailed suggestions for improvement of the bill. All of those require and deserve due consideration. I continue to work with constituents, expert groups and the government on some of these amendments.

In considering this bill, I returned again and again to the desires, the dreams and the disappoints expressed by disabled members of our community when they talk about the NDIS. I thought of them and I thought of their parents, their siblings and their friends, of what we owe them and how important this legislation is. We've waited years for these vital reforms. It's absolutely necessary that we get them right, and I commit to continuing to work with the government in that respect.

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