Andrew McLachlan (SA, Deputy-President) Share this | Link to this | Hansard source

The committee is considering the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 and amendment (1) on sheet 2649 as moved by Senator Hughes.

Jordon Steele-John (WA, Australian Greens) Share this | Link to this | Hansard source

My question to the minister goes to the amendments around needs assessments as included in revised sheet PA112. In response to calls for needs assessments to consider the whole of person, the requirement that needs assessments look only at impairments relating to disability requirements or early intervention requirements has been removed. This is a positive change, but there are concerns that this doesn't translate to the plan budget.

I want to take you to the amendments, specifically. There has also been a requirement added that any method for working out a budget must take into account a variety of factors that may affect a participant's need for NDIS supports, which is also a welcome improvement, yet the method can only consider the impacts of other impairments as far as they impact the impairments that meet access requirements. This appears to be a roundabout way of retaining the primary disability effect when considering a participant's need for supports. Minister, how can this method, as described in the bill, for determining a budget based on a needs assessment take account of all factors that affect a participant's need for supports when it's still explicitly required to effectively chop a participant's disability into discrete parts?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

Given the complexity of this stuff, I may need to get some advice from time to time. The bill draws a link between impairments that meet the disability and early intervention criteria—that is, the disability criteria in accordance with section 24 and the section 25 early intervention criteria—and the supports that are provided to a participant under the NDIS, which are the supports provided in relation to section 24 and/or section 25 criteria. That link between impairments and what is funded under a participant's plan is necessary to ensure that the scheme operates as it was originally and always intended to operate. The scheme wasn't intended to fund all of the costs associated with a person's life because they have a disability. Rather, it is intended to fund the cost of disability supports that a person requires as a result of a significant or permanent disability. That is the nub of the issue. I'm happy to be taken to it more broadly, but that's essentially the purpose of those amendments.

Jordon Steele-John (WA, Australian Greens) Share this | Link to this | Hansard source

Thanks, Minister. I might take you to the specific clauses of the amendment that we are referring to here. There were many proposed amendment changes circulated, so maybe we can begin by confirming that the language, as I have it here and as was circulated, is still the current language. If we go to page 2 of sheet PA112, we've got:

(6) Schedule 1, item 36, page 26 (lines 9 and 10) …

The effect of that item is to:

… omit "relating to the participant's need for NDIS supports", substitute ", in so far as the report relates to the participant's need for NDIS supports arising from impairments in relation to which the participant meets the disability requirements or the early intervention requirements,".

Is that still the current wording as proposed by the government?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

I just want to clarify: were you just reading from the amendment sheet?

Jordon Steele-John (WA, Australian Greens) Share this | Link to this | Hansard source

As I understand it to be.

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

The approach in the legislation, supported by the amendments that the government is supporting here, is that a participant's reasonable and necessary budget is calculated on the basis of their needs assessment, having regard to the impairments that meet the disability and/or early intervention requirements. It doesn't deviate from that central proposition, and that is the effect of the scheme of the legislation.

Jordon Steele-John (WA, Australian Greens) Share this | Link to this | Hansard source

Thanks, Minister. I understand, and I hear what you're saying. I'm trying to clarify for the Senate: you've moved a series of amendments to the needs assessment process and to what a needs assessment is required to capture. You've purposely inserted, in various sections, the statement 'participant's needs for NDIS supports arising from impairments in relation to which the participant meets the requirements'. The key thing that has been altered by the government is the insertion of the idea of 'arising from', whereas the previous language very tightly stuck to a concept of needs that are the direct result of the particular impairment for which the participant gained access to the scheme.

That modification that you've made in the requirement around needs assessment is partially in response to the feedback the government received from the community during the inquiry—that the language in relation to the assessment did not enable the assessment to capture the whole-of-person impact of a disability. That has been modified. What remains the same, however, is the subsequent clauses of the bill, which then determine the way in which the needs assessment is translated into a budget. Because there have been no amendments from the government in relation to the budget method also taking account of the various impacts that arise from a participant's impairments, the concern from the community is that, while the assessment may be whole-of-person, the method created and then implemented to translate that into a quanta of funding or a statement of supports remains tied to the specific individual impairment for which the participant gained access.

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

That is correct. That language, 'arising from', is a consequence of the government listening to some of the consultation in relation to these questions. It is a broad legal construct that enables a whole-of-person assessment but stays true to the NDIS review recommendation 3.4, which said:

The National Disability Insurance Agency should introduce new needs assessment processes to more consistently determine the level of need for each participant and set budgets on this basis.

It was always the intention for the needs assessment to examine all of a participant's needs arising as a result of their disability. Further amendments, the ones that you've taken me to, clarify that that is the purpose of the holistic assessment of need resulting from impairments which meet the disability or early intervention requirements. But, as you say, participant plans are funded in relation to the relationship of relevant impairments in either section 24 or section 25.

Jordon Steele-John (WA, Australian Greens) Share this | Link to this | Hansard source

The amendments allow the minister to make a legislative instrument that assesses whether a participant's disability support needs result from impairments that meet the access requirements. Considering that there is no requirement for co-design to be undertaken when developing legislative instruments such as these, how does the minister plan to design a method which will effectively translate the assessment into a plan amount that bundles disability support needs into a clear, neat package?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

I think we traversed some of this material last week—it seems like a long time ago, but it was only last week—in relation to the process that the minister intends to undertake and the co-design principles that I reported to the chamber. While the term 'co-design' is well understood in the Public Service, in the agency and amongst many of the representative organisations around the NDIS, it is not a well-understood legal term, and, to assist the minister and the agency, the department have provided a set of words on their website.

Jordon Steele-John (WA, Australian Greens) Share this | Link to this | Hansard source

The central piece of information that I'm trying to extract from the government in this moment is in relation to this—and I think this is feasibly directly drawn from your legislation. It is, in fact, a direct quote:

The following amounts specified in the reasonable and necessary budget must be worked out by applying the information in the needs assessment report for the plan—

with the substitute words from the government's amendment on the revised sheet PA112—

… in so far as the report relates to the participant's need for NDIS supports arising from impairments in relation to which the participant meets the disability requirements or the early intervention requirements—

followed by, from the legislation—

… in accordance with the method determined under subsection (2) …

That is the result of the amendments that you have brought forward today. You've created that set of requirements around the needs assessment process.

However, for 'in accordance with the method determined under subsection (2)', the government has made no amendments to this point in relation to that method which require the method to take account of impairments arising from more than one impairment. You have retained the language in the bill to this point that ties the determination of the budget to the specific impairment for which the participant gained access to the scheme. So the concern is, while the needs assessment is now slightly more whole of person, the budget method remains tied to the explicit individual impairment. If that is not the government's understanding, I welcome the opportunity for you to clarify that, but that is the concern that is in the community right now.

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

I've a couple of points in response. Firstly, as I reported last time to the chamber, upon passage of this bill—should it receive support here—it is envisaged that that process of developing the needs assessment tool will take 12 to 18 months and that current participants will be transitioned across to the new needs assessment tool over the course of a period of around five years.

The provisions that we're discussing—in essence, you are right that one of the outcomes of this legislation is that participants' plans may only be funded in relation to impairments that are consistent with, or have been assessed to, arise from sections 24 and 25. But, conceptually, this idea of a participant's holistic circumstances, the broader assessment, which includes all of their impairments, will be considered for the purpose of their plan regardless of when they first arose.

That is a significant shift from the way the scheme currently operates, where participants are not necessarily informed about the basis upon which they entered the scheme, and planning decisions can be based on information that's outdated or not aligned with their disability support needs. That assessment is taken on a holistic basis. It recognises that needs may also be impacted by factors such as where a person lives or impairments that do not meet the relevant criteria but do impact on a person's overall support needs. That assessment, in the new assessment tool developed over that period, will be applied to each individual, but, as you correctly say, the funding that forms their budget must be linked to impairments that arise under sections 24 or 25.

Jordon Steele-John (WA, Australian Greens) Share this | Link to this | Hansard source

Can I just ask you to clarify? I do hear what you're saying around the fact that the methods that we're discussing haven't been developed. There is a desire from the community, though, to understand, at least in principle, how the government intends to differentiate between relevant and irrelevant impairments, given the amendments that you have now put to the chamber. The language that you have used in item 11 schedule 1, for instance, where, at item 36 on page 29, line 18 after subsection (1), you have inserted, 'including for the purposes of assessing whether a participant's disability support needs arise from impairments in relation to which the participant meets the disability requirements or early intervention requirements'. The effect of adding the words 'arise from' is to create two types of impairments. You've got the types that arise from and then you've got the types for which they met the access criteria in the first place. The small amount of flexibility introduced by the words 'arise from' is welcomed by the community. However, there remains no clarity as to how you will differentiate between 'arise from' and the impairment for which you gained access—irrelevant and irrelevant, for the purposes of the budgetary method.

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

I'm going to try and answer this carefully, Senator, and ask my team to correct me if I'm wrong—and then I'll come back to you precisely. Subject to the needs assessment tool, which can only be developed upon passage of this bill, it will be the role of the needs assessor to determine what is funded in relation to sections 24 and 25, the impairments that a person is assessed as having, but they will be required to have regard to the holistic assessment of all a person's impairments. So it is possible and, indeed, likely that a person who might, for example, have a set of impairments that directly relate to section 24 or 25—they might have a diagnosis of autism. They may also have some ADHD impairments that sit outside of that, arguably, depending upon the person's individual circumstances. And the needs assessor will have regard to the whole of the person's impairments when determining the budget and the plan for that individual. But what is funded arises from the impairments that are assessed by the needs assessor to be consistent with section 24 or 25.

The only additional point I'd make is that it's important to say that the role of the needs assessor is not to determine the diagnosis or to do that work; their job is to apply the needs assessment tool and that framework to assessing the impairments of a person that arise from the application of section 24 or 25 and to have regard to the holistic assessment of how they impact upon the person.

Jordon Steele-John (WA, Australian Greens) Share this | Link to this | Hansard source

How will you ensure, in that case—and I do appreciate your answer there—that needs assessors are properly trained and have an understanding of how multiple disabilities intersect?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

Consistent with what I indicated the last time we met in the Senate in the committee stage, the questions about who provides the needs assessments, who the needs assessors are and the framework that they will apply are all questions that are not determined in the legislation. They must be determined consistent with the process of developing the needs assessment tool, which is work that can only be undertaken upon passage of the bill and that work will be done in a way that is transparent and consultative and engages all of the elements of the community who must be engaged in that work. When it's concluded, it will make its way back here as well as a disallowable instrument.

Jordon Steele-John (WA, Australian Greens) Share this | Link to this | Hansard source

Thank you, Minister. I'll move now to the question of NDIS supports and the definition of an NDIS support. There is currently a draft list of NDIS supports available for public consultation. Will that list be the only opportunity for the public to comment?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

That list, which was, again, the subject of some discussion in the last committee stage, is out there for consultation at the moment. I understand that that consultation period has been extended somewhat. It will need to be agreed. The minister will determine the final list that will determine what is an eligible support. It will also, after that process, come back here as a disallowable instrument. So there's not an endless process, but there is some way to go in resolving that final schedule.

Jordon Steele-John (WA, Australian Greens) Share this | Link to this | Hansard source

I'll just indicate to the chamber that I'll finish my line of questioning on this topic and then be happy to cede to other senators. Just to confirm, Minister: the question was: as to the consultation that is running at the moment. Will this be the only opportunity that the community gets to feed back on the content of the transitional list?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

There is—I hear the baby in the gallery, and I should say: you're always welcome to keep kids in here, even if they are a bit noisy. It always worries me when people take kids out because they make a little bit of noise. You're very welcome to stay, I say on behalf of the Temporary Chair.

Hollie Hughes (NSW, Liberal Party, Shadow Assistant Minister for Mental Health and Suicide Prevention) Share this | Link to this | Hansard source

Someone should be entertaining!

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

That's right! I'm doing my best, Senator Hughes, to not be entertaining, and I trust that I'm succeeding!

Senator, there is that process of consultation, as I say, that has been extended somewhat. There will also be some targeted consultation, at the conclusion of that, with disability organisations. I can come back to you in due course, if I have any further information about how that will proceed, but there will be engagement directly with disability organisations, and of course there will be consultation with the states and territories in relation to that.

Jordon Steele-John (WA, Australian Greens) Share this | Link to this | Hansard source

I have a couple more questions and then I'll pass the call around. Just to confirm, Minister: the consultation we're currently undergoing commenced on 4 August—correct?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

Yes.

Jordon Steele-John (WA, Australian Greens) Share this | Link to this | Hansard source

And it is going to conclude on 25 August at 5 pm—is that correct?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

Yes.

Jordon Steele-John (WA, Australian Greens) Share this | Link to this | Hansard source

At precisely what point in the 21-day period—we're not quite at 21 days yet, but between 4 August and where we sit today—was an easy-read version of the consultation paper made available to the public?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

On 12 August.

Jordon Steele-John (WA, Australian Greens) Share this | Link to this | Hansard source

Who developed the easy-read guide?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

I'm advised that the department engaged easy-read writers.

Jordon Steele-John (WA, Australian Greens) Share this | Link to this | Hansard source

From within the department or externally?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

I'll examine that. I don't know the answer to that, nor do my colleagues from the department here today. If there's additional information, we will provide it.

Jordon Steele-John (WA, Australian Greens) Share this | Link to this | Hansard source

I'll cede my time at this point, but if you could try to get an answer to that and come back to the chamber that would be useful.

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

Certainly.

Hollie Hughes (NSW, Liberal Party, Shadow Assistant Minister for Mental Health and Suicide Prevention) Share this | Link to this | Hansard source

I will stick with needs assessments. Following on from Senator Steele-John, I want to clarify some points. Let's start with needs assessments versus functional assessments. I don't know if anyone really understands the difference, but, for the sake of argument, Senator Steele-John and I have been working on needs assessments being more around accessing the scheme and functional assessments being once you are in the scheme. I'm looking at the advisers as well. Maybe it is the other way around? Okay, so there is a functional assessment to get access to the scheme and a needs assessment once you're in the scheme.

You would think that functional assessments would be undertaken in the majority of instances by people with younger children who have been born with a disability. They would be a majority over those who have acquired disabilities later in life. So, when it comes to functional assessments, I guess the first question to clarify is whether there has been any progression on who is going to fund functional assessments, because throughout the inquiry process that we had—all 5½ days of inquiries that we had on this significant piece of legislation—it was never mentioned that participants or aspiring participants would be paying for these assessments. It was actually put to us by the agency, by the department and by many people who appeared before us that the whole idea behind them was equity of access so that people would not be required to obtain significant numbers of reports—not only paediatric reports but psychology reports, OT reports, speech reports et cetera. Access to the scheme would be around functionality and needs. Is there scope, when it comes to the needs assessments of people who are in the scheme, for that to be covered by part of their NDIS plan, since these people would already have NDIS plans? That's part 1. When it comes to the functional assessments, if that cost is to be borne by the aspiring participant or their family, is there any modelling or anything being done to ascertain what the cost of those assessments would be?

The ABC is not a big fan of mine and normally doesn't say nice things about me, so it's exciting when the ABC writes something positive about me. I take a bit of notice. They have spoken to a number of disability groups who are calling for a pause on this legislation because not once were they advised about the costs possibly being passed on to participants or aspiring participants. So my questions are: Are those who are already participants and are receiving needs assessments able to have their needs assessments covered as part of their plan and their ongoing plan? For aspiring participants and their families, what sorts of costs are they expected to have to pay in a bid to apply to access the scheme?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

Currently, the way that the scheme works is that people—as you say, often parents—pay for the functional assessment as they enter the scheme. Those assessments are often then used in the needs assessment process, which I know you're going to take me to. The government has had a very good look at the recommendations in relation to how those are funded, but, as I indicated the last time we discussed these issues in here, the government's approach to this will be to wait until that consultation process has concluded, in order to determine how funding is allocated.

As you correctly say, once a person enters the scheme at the moment, additional assessments may well be funded from within their NDIS allocation. The government is having a close look at that whole picture, subject to the consultation process, which will determine the scope and the way that people enter the scheme and the way that those assessments are conducted both for functional and needs assessment purposes. So I'm going to be very clear: it is not appropriate for the government to determine that question until we have on the table a clear understanding that can be taken through the normal processes that government would go through in terms of its normal budget processes.

Hollie Hughes (NSW, Liberal Party, Shadow Assistant Minister for Mental Health and Suicide Prevention) Share this | Link to this | Hansard source

Minister, just to get some more clarity around this, you made reference then to functional assessments to access the scheme and that parents currently pay for that. Parents don't currently pay for a functional assessment. They pay for paediatric appointments, sessions with the occupational therapist and sessions with a psychologist, and they pay for reports from allied health or medical providers to then access the scheme. If there is a move to a functional assessment, we don't know what it's going to look like and we don't know who's going to deliver that. For example, are they disability specific or are they age specific? We don't know what those functional assessments will look like.

Will the scheme only be accessible by a functional assessment? I ask that because what I'm concerned about is what happens when parents are trying to ascertain what is going on with their child. We're not talking about kids who are born vision impaired or hearing impaired or have Down Syndrome whose disability is quite easily defined from birth. We are talking about kids that are diagnosed with profound autism—and even the kids that are diagnosed with a global developmental delay that is not a permanent and lifelong disability—and intellectual disability. Those things don't tend to be able to be diagnosed, in many cases, particularly for those at the more profound and severe end of the spectrum, at around 1½ or two years, at the very early mark. Up until around three years of age is when you're sort of capping it off—kids that are at that very profound end usually have a diagnosis. But, to get to that diagnosis, there are appointments with GPs, there are appointments maybe with maternal nurses, and there are appointments with paediatricians to try to work out what's going on. A lot of parents, first-time parents—my son was my second born, and I was just told, 'Don't worry; he's not speaking because he has got a sister who talks for him.' I think it took us four or five paediatric and psychology visits to do the assessments that were global best-practice assessments—not determined by government; determined by international bodies—to review his cognitive impairments or cognitive capabilities and his autistic traits and to look at and monitor his behaviour. So there was a significant cost outlay to get to the point of diagnosis that said he had classic autism, intellectual disability, global developmental delay—hello, hello, hello!

But we had already spent thousands and thousands of dollars in travel costs—because we were based in regional New South Wales—to Sydney to see a specialist. There were multiple specialists that were required to be seen—all of those things. After a family spends thousands and thousands of dollars in trying to ascertain what is going on with their child, diagnosed with these sorts of disabilities, is it then going to be the case that the NDIS says: 'That's great; you've been diagnosed with level 3 autism, intellectual disability, blah, blah, blah. Now, here you go—go and find someone who provides functional assessments. Go do that, pay for that, and then we'll decide whether we let you into the scheme'? Are we, in effect, in some ways, doubling the cost of what families are going to pay to access the scheme?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

Thank you. That is actually very helpful—the way that you described that—because it does lead us to more clarity around these questions, I think. I want to come back to the original point that you made about who does the assessments. It certainly is the case that, right now, there is some ambiguity about that question as people—parents or disabled people themselves—go through the journey that they go through of reaching that diagnosis. It is one of the recommendations of the review—and it's anticipated for one of the outcomes of this process—that there not be a requirement for doubling up on the functional assessment process. Indeed—I'll just check with the team—that flows through to the needs assessment process as well. After that work that has been largely privately funded, people won't be asked to shell out again for an additional process to satisfy the functional assessment in order to enter the scheme. I'll just add the qualification, though, that there may be a requirement for additional information that may arise in individual circumstances. But the principle is the one that I think you have alluded to in your question.

In terms of who does the assessments and how that tool is applied, there are questions about that that we cannot answer because the purpose of this act is, as we went backwards and forwards about a bit last week, to enable a process to be undertaken that will determine all of that. There are proper consultation processes and safeguards for the parliament in that process too, and it needs to come back here. But it commences that process, with the authority of legislation, to determine the framework that is applied. You are correct: the aspiration of the government here is to reduce costs in those kinds of undertakings, and that should have the benefit of having a positive impact not only for people who are paying for assessments now but also by not adding additional cost and duplication to the scheme.

Hollie Hughes (NSW, Liberal Party, Shadow Assistant Minister for Mental Health and Suicide Prevention) Share this | Link to this | Hansard source

For those from the department and the minister's office who are here now and anyone listening, I would implore you to, please, when looking at functional assessments, look at using tests that are already widely used by a lot of these diagnosticians. For example, do vinyl and/or a Griffiths or whatever the tests are form part of a functional assessment? Because you may actually be ticking two boxes by using the one assessment tool, rather than creating some new bespoke product, which—I'd just promise you right now; take my word for it—will be a complete disaster, because it will be some vested interest pushing a particular part of an assessment, with providers having to learn a whole new tool versus tools that they already use and apply regularly which are very consistent across the board.

This may be apparent, but I just want to get some clarity. I think we've lost the purpose of the scheme. It was designed for permanent and lifelong disability. We have seen conditions added, particularly in the early childhood stream. We have other conditions that are now part of the NDIS that are not permanent nor lifelong that are being pushed in, and that is in part because the states have vacated the field; quite often the NDIS is the only lifeboat in the ocean.

I want clarity on this. Functional assessment can show if there are developmental delays, if there is an inability to perform certain tasks. Some of those inabilities are not necessarily due to a lifelong and permanent disability. Parents out there, especially some of the mums, I know they absolutely loathe going to mothers groups and playgroups at the park. It is an overwhelming thing to hear about how all these women's children are gifted. Everyone's child is gifted. They are all so special, and, when you have a kid with special needs, it is a particularly galling place to be, when you are hearing about everyone's gifted children and there is barely a parent out there who can openly admit—you know what—that they are a great kid but they are just not the sharpest tool in the shed.

There is a great spectrum of people in the world. Some are really good at something; some are really good at something else. Not everyone is a natural-born genius. You wouldn't know that at mothers groups, but, in reality, not every child is a genius. I guess one of my concerns is that, if you end up with a functional assessment, is it going to be linked to a diagnosis? Is there still going to be a list of diagnoses that the NDIS covers? Or is it going to be more based on a skill set you have or don't have, or what you can do versus what you can't do? Will it open the door again to people who can pay for lots of expensive reports but not necessarily have a permanent and lifelong disability?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

It's the intention here, subject to the exigencies of the consultation process that will commence should the legislation clear the parliament, that there be a commonsense approach to these questions, which is what I think people in the community would broadly expect. Underneath the functional assessment process, it is not automatic that a person with a diagnosis inevitably becomes part of the scheme, because they may have a diagnosis but a functional assessment determines that it is not the kind of lifelong disability that makes one eligible for section 24 or section 25 impairments and that whole process.

It is also possible that the functional assessment may proceed absent somebody turning up with a diagnosis from a specialist or from whatever the proper diagnostic process is. A person may present with autism, for example, but it's not necessary for the functional assessment process to wait for the substantial period that may be required to determine that a particular diagnosis was made, and a functional assessment may determine that the person is eligible absent that diagnosis. So there would be a process in parallel that would occur there, but it is very much, in the spirit of your question, that a commonsense approach be applied here and that the parameters of that approach be the subject of the consultation process with the community more broadly and, as you say, with the states and territories, who have much of the responsibility here as well.

Hollie Hughes (NSW, Liberal Party, Shadow Assistant Minister for Mental Health and Suicide Prevention) Share this | Link to this | Hansard source

Just to clarify again, with someone having a functional assessment or prelude to a diagnosis, would there be some determining factor there? Again, take someone who has gone through paediatric psychology—blah, blah, blah—forms of assessments and they are diagnosed with level 3 autism or an intellectual disability et cetera—something that is clearly going to be permanent and lifelong—versus someone who probably would have been given, in the old days, a diagnosis of a global developmental delay and who should be level 1 autism under this new DSM-5 but to whom the paediatrician said: 'You know what? Let me just give you level 2, because otherwise you're not going to get access to the scheme.' However, this functional assessment has shown that their diagnosis is at the much lower end or the diagnosis or the functional capabilities are shown to be different. Would that then be used to determine whether someone goes into the early childhood stream, which would mean that, from my read of it, they would either age out of it or be required to reprove a disability? Is that person with level 3 intellectual disability able to go straight onto the disability stream so as to not have to reprove their diagnosis when they age out of early intervention?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

Without committing to the precise circumstances that you set out in the question, because people may be listening and thinking about their own circumstances and applying that to their expectations about how this might operate, that kind of commonsense approach is exactly what is envisaged to be the subject of that consultation process and that outcome. It is the kind of approach that is driving the minister's and the government's thinking about how people are able to use the functional assessment process to access the scheme; how they'll be treated and, as you say, Senator Hughes, allocated under sections 24 and 25; and what the meaning of that might be.

Hollie Hughes (NSW, Liberal Party, Shadow Assistant Minister for Mental Health and Suicide Prevention) Share this | Link to this | Hansard source

I'm happy to pass the call after this. Senator Steele-John, I'm sure you're sitting there with bated breath. I want to touch on the needs assessment before we move on. There are plenty of adults with permanent and lifelong disabilities that aren't going to change. There aren't going to be significant changes in their needs or their impairment if they're quadriplegic or they've got an intellectual disability—whatever it might be. Their needs are not going to change year to year, unless there's a significant change of circumstances, which is, of course, a different way of looking for a plan review.

But what's the assumption for how often participants on the scheme will need to undertake a needs assessment? Is there a timeframe for how long the needs assessment is relevant? Is it that your plan's for five years and your needs assessment covers you for five years? Or your plan was for five years, but your disability hasn't changed, so, when your plan review's up, you don't have to undergo another needs assessment; it's just a continuation.

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

It will be based on individuals. As you say, Senator Hughes, for a participant who's a child and whose needs are changing, their needs assessment process may be more continuous. That will be determined by the needs assessor. For the other group that you described, if we can characterise them as an adult with paraplegia or a similar condition where their circumstances aren't going to change, their plans will go for the full five years. You would expect, within the commonsense framework, that the plan going on to the next five years would be a relatively straightforward approach for people in that category. But there is, as you've indicated, Senator Hughes, a more intensive process for people whose needs are changing.

Jordon Steele-John (WA, Australian Greens) Share this | Link to this | Hansard source

Minister, what is a commonsense framework? You stated to the committee that it will be defined 'within the commonsense framework'. What were you referring to there?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

Thank you, Senator. A 'commonsense framework' is not a term that is used in the act, and it is not a term that has been applied in terms of the specific set of questions that Senator Hughes put to me. It is the intention, for example, with the consultation process that determines the needs assessment framework, for a co-design process, for a broad consultation to be undertaken and so when there are issues like, 'Is there an opportunity to reduce duplication and to reduce costs for either participants and their parents or for the scheme, or for both,' then it seems to me to be a commonsense approach and consistent with the government's objectives here to try to reduce that burden. It is a cost burden but goes beyond being a cost burden for participants and their families and the scheme.

Jordon Steele-John (WA, Australian Greens) Share this | Link to this | Hansard source

Thank you for clarifying that, Minister. I just wanted to check you weren't referring to a new term within the bill.

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

As I indicated before, I'm not a lawyer—not even really a bush lawyer—and it can be taken as a given that when I introduce a term like 'commonsense approach' it is not designed to have a legal meaning.

Jordon Steele-John (WA, Australian Greens) Share this | Link to this | Hansard source

Thanks, Minister. Returning to the process of developing the transitional rules and definitions of 'an NDIS support', after the public consultation period concludes on 25 August will there be another opportunity for the community to give further feedback on the revised lists?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

On the 25th, or following the 25th, the government will consider the feedback it's received. There will be further targeted consultation, as I indicated. It will be consistent with the operation of the scheme and with peak bodies and disability organisations, and the government will determine its approach at that point as to whether or not further consultation is required.

Jordon Steele-John (WA, Australian Greens) Share this | Link to this | Hansard source

What is the intended date for the list of NDIS supports to come into force post the passage of the legislation?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

It's envisaged that it would commence upon passage of the bill and 28 days after royal assent of the bill.

Jordon Steele-John (WA, Australian Greens) Share this | Link to this | Hansard source

Just be very clear: given the placement of the relevant section of the legislation that creates the ability to determine an NDIS support, which is section 10 of the legislation, that comes into effect on the 29th day after the passage of the legislation—correct?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

Not after passage; after royal assent.

Jordon Steele-John (WA, Australian Greens) Share this | Link to this | Hansard source

So in your previous answer when you say 'it is envisaged' that it will come into effect at that time, in fact what you intended to communicate was that 28 days after royal assent it will come into effect?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

Yes.

Jordon Steele-John (WA, Australian Greens) Share this | Link to this | Hansard source

Is it correct that participants will only be able to purchase NDIS supports after the instrument commences?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

If there is a participant who has something in their current plan that is outside the list, there are transitional arrangements to ensure that they continue to access that payment or support for the duration of the plan.

Jordon Steele-John (WA, Australian Greens) Share this | Link to this | Hansard source

So that is the case if somebody has something funded within their plan which is not determined to be an NDIS support: that's one-half of people. But, for those who are engaging in new plans or plan renewals, is it correct that participants will only be able to purchase NDIS supports after the instrument commences?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

The answer to that is, essentially, yes. If a person is currently engaging with the agency, the answer to your question is yes. There is, of course, an amendment that has been proposed that does provide for the CEO to be able to make a decision to substitute upon application. So, where there is some uncertainty, there is some room for a decision to be made by the CEO if—I just want to get the precise words here. That amendment creates a substitutions process that allows a participant to seek to substitute a support that has been declared not to be an NDIS support for one that is. That amendment responds to community feedback and concerns about the supports that will be prescribed in rules made under section 10(4) not to be NDIS supports. In practice, if a participant considers an item that is excluded from being an NDIS support will be more beneficial for them than an alternative support that is not excluded, then the participant may make an application to substitute that support.

Jordon Steele-John (WA, Australian Greens) Share this | Link to this | Hansard source

Can you clarify, in the time between the 29th day passing upon which the transitional rules come into effect and the passage of the instrument that will define what an NDIS support is, what is the intent of the government in terms of defining in that interim period what an NDIS support is? It would appear to me that there is a likelihood that there would be a gap between the 29th day and the introduction and acceptance of an instrument. During that period of time, participants who are coming into the scheme and not transitioning are under an obligation to use their funds only for an NDIS support for which there may not yet be an actual definition.

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

I think I can see the group that you're talking about. That is a narrow group of participants or potential participants who are engaging with the scheme about their plans. Those requirements would only have effect after that 28-day period has concluded. We don't anticipate that that's going to provide for any delay for participants who are engaging with the scheme today.

Jordon Steele-John (WA, Australian Greens) Share this | Link to this | Hansard source

You referred in your previous contribution to a substitution amendment. I just want to confirm that you are referring to amendment (1) on sheet SK118—is that correct?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

Yes.

Jordon Steele-John (WA, Australian Greens) Share this | Link to this | Hansard source

You are referring to that as a potential pathway through which a participant may be able to gain access to a support which is not listed as an approved NDIS support. Is that correct?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

Yes. The effect of that amendment will be that, if a participant considers that an item which is excluded from being an NDIS support would be more beneficial for them than an alternative support which is not excluded, the participant may make an application to substitute that support. The substituted support must replace one or more supports that are NDIS supports. The substituted support must also be something that still falls within the broader definition of an NDIS support and is appropriately funded by the NDIS.

That is a response to feedback. It will ensure that, while meeting the objectives, there is some flexibility for participants who have unique disability support needs while maintaining the original intention of section 10, which is to provide clear boundaries for supports that the NDIS can and cannot fund.

Jordon Steele-John (WA, Australian Greens) Share this | Link to this | Hansard source

The reading of this proposed amendment suggests an application pathway, which I think you've just referenced. Is it the government's understanding that the CEO has the power to both approve and decline the application under this amendment?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

Yes. It certainly means that the CEO will be able to determine those specified supports or substitutes for specific participants and in limited and specific circumstances and that a participant will only be able to request a substitution if it's replacing a support that is more cost effective.

In addition to that, the definition of NDIS support does make clear the constitutional basis for the new budget-setting framework recommended by the NDIS review and helps to clarify and identify the constitutional basis for the NDIS as a whole, which assists having a proper basis for decision-making and also assists participants and providers to understand what is and, we would say, always has been capable of being funded by the NDIS, having regard to the intergovernmental agreements and constitutional considerations. So, yes, you're correct. It gives the CEO the capacity to make, in those limited circumstances, appropriate arrangements, but it also clarifies and supports the decision-making and the constitutional basis for the NDIS as a whole.

Jordon Steele-John (WA, Australian Greens) Share this | Link to this | Hansard source

There is an application pathway, where the CEO is empowered to either accept or decline the application. There are a number of criteria your amendment sets out for the consideration of that application. The final criteria that you have included is:

(iv) any other conditions specified in the National Disability Insurance Scheme rules for the purposes of this subparagraph are met in relation to the support, the participant, or both.

So, in addition to the previous clauses, which you've referenced, that talk to the replacement of one or other supports, the cost of the support and whether the support would provide the same or better outcome for the participant, there is the requirement for the application to satisfy any other conditions or rules under the NDIS—correct?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

Yes, it must do. As rules are made from time to time, the CEO must have regard to the rules that are contained in the scheme, yes.

Jordon Steele-John (WA, Australian Greens) Share this | Link to this | Hansard source

Is the decision of the CEO—in relation to the application and its compliance or otherwise with rules or those other criteria—a reviewable decision for the purpose of section 99 of the act?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

No.

Jordon Steele-John (WA, Australian Greens) Share this | Link to this | Hansard source

To confirm: the application pathway exists. You will be required to satisfy those specific criteria, as well as any other rules the NDIS may seek to make—or the government may desire the NDIS to make—and, if your application is denied, you are not able to either request a review or appeal the decision.

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

To outline the circumstances that will apply here: in the event that a determination were made about what supports are provided within a participant's plan, the application, if you will, to the CEO would indeed be a form of review. It is a request to take an alternative approach to the supports that are funded within the participant's plan.

It's not within the scheme of either the legislation or this amendment that that be subject to further review. It is the case that, if the CEO determines not to provide that support that is not on the prescribed list as a substitute support, of course funding is available for the original supports that were to be the subject of that substitution, and, in light of all of that, it is not, either in the legislation or the amendment, capable of further review.

Jordon Steele-John (WA, Australian Greens) Share this | Link to this | Hansard source

So it is not capable of further review. That is the source, I would put to you, and also to the broader Senate and anybody else watching this debate, of some of the significant concerns the community have around the powers granted to the government under this legislation, to the minister of the day, in the case of the transitional arrangements, and to the minister and disability ministers, in relation to the category A determinations. The concern is that politicians do not have the expertise, or the lived experience, often, to be able to determine what is a needed and necessary support for a disabled person, because our needs are unique and determined by a combination of our impairments, the environment in which we live or the environment in which we may seek to live, or our medical or psychological experiences and conditions.

The government offers to the Senate a substitution pathway. An amendment that it proposes creates a level of flexibility for supports that are prohibited under their legislation but that nevertheless may, in an individual circumstance, be considered appropriate or needed; yet, as we have just seen in the exchange, while you may apply and while you may be guided in that application by a certain series of criteria set out in the legislation, the agency of the day and the government of the day are empowered, by even the amendment the government offers as a solution to some of these concerns, to develop and define additional rules in order to create additional criteria and barriers. When the CEO rules or makes a determination, remember: it won't be the CEO; it will be a delegate of the CEO; it will be a planner.

If anybody out there is listening and watching and thinking, 'Oh, well, at least the CEO will know what they're doing,' remember: it will be a delegate of the CEO; they're a planner; they're under KPIs; they're under pressure; they're human beings. We have all experienced the challenges of making sure that those people, who are under pressure, read the documents that are put before them in relation to determining our support needs and giving us a changed series of funding or supports. If that person considering that application for that otherwise prohibited support, which is not listed because it hasn't been captured, gets that wrong, then there is no recourse—there's not a review process.

This, I would submit to the Senate, is a basic absence of procedural justice. This is basic stuff. A citizen who is a taxpayer, contributing to public programs, and a recipient of the supports of those public programs, should have the right, if they feel like a government bureaucrat has got it wrong, to request a review and to, ultimately, if they so wish, take it to appeal. We've heard, in that exchange, that that is not an avenue granted under this legislation. I find that alarming, and so does the disability community, and that's why we're seeing an increasing number of disability organisations come forward and say, 'Whoa, hang on'—

Andrew McLachlan (SA, Deputy-President) Share this | Link to this | Hansard source

As it is now 1.30, the committee will report to the Senate.

Progress reported.