Legislating Confusion: The NDIS Amendment Report

Here's my take on the Senate Community Affairs Legislation Committee's report on the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024. As always, this is my personal view, based on my significant years of experience in this area, and doesn't reflect any organisations I may be working for or contracted to. 

Sadly, the report is deeply flawed and fails to address the serious concerns raised by the disability community. The report does not provide the rigorous analysis and critical recommendations required for legislation that will have such profound impacts on the lives of disabled people.

Lack of Genuine Co-Design
One of the most glaring shortcomings of the report is its failure to adequately address the lack of authentic co-design in the development of this bill. The Bill was created without proper collaboration with those it will impact most - the disability community. 

Disabled People's Organisations were asked to sign non-disclosure agreements and threatened with prosecution, rather than being engaged as equal partners in the design process.

The report acknowledges concerns about insufficient co-design but does not go far enough in its recommendations. Simply encouraging further co-design moving forward is not adequate. The bill should not proceed until comprehensive co-design has occurred, in line with the strong calls from the community. The NDIA and government do not even have a clearly defined co-design policy. 

The government's stated consultation efforts have been piecemeal and do not substitute for the in-depth, inclusive policy development process that is required, especially with transparency, presentation of exposure drafts, presenting the Rules along with the legislation and allowing deep and meaningful engagement - that's not just trotting out Town Hall meetings, holding focus groups, forcing people to sign NDAs and buying off as many stakeholders as possible. 

Expansion of NDIA CEO Powers
The bill grants sweeping new powers to the NDIA CEO that create serious risks for participants, but the report fails to properly scrutinise these provisions or recommend robust safeguards.

Sections 30-30A allow the CEO to request any information deemed "reasonably necessary" from a participant or revoke their participant status if the information is not provided within 90 days. There are insufficient protections to ensure these powers are not misused. Participants who are unable to understand or respond to such requests could lose critical supports and face severe harm as a result.

Remember Daniel Harris? We do. https://www.smh.com.au/politics/federal/david-harris-was-left-to-die-alone-after-his-ndis-payments-were-cut-off-20200522-p54vlv.html And any number of other participants. Look at the 'mortality exits'. The average life expectancy of an intellectually disabled woman, from preventable deaths, is 49 years of age. Now is not the time to introduce punitive cuts. 

The "reasonableness" caveat for non-compliance in Section 30(6) relies too heavily on the discretion of the CEO and does not guarantee participants will be safeguarded. The committee should have called for clear parameters around information requests, longer response timeframes, and an active case management approach to ensure participants are appropriately supported.

Yet they did not. 

The CEO's power to vary a participant's plan to an agency-managed arrangement under Section 43 is also highly problematic. Moving to agency management, where only NDIA-registered providers can be used, would be devastating for many participants, particularly in areas where such providers are scarce. However, the report simply recommends the government "further clarify" when this power will be used (recommendation 3).

This is grossly inadequate and leaves participants vulnerable to losing choice and control over their supports.

Confusing and Punitive Definition of "NDIS Supports"
The bill's new definition of "NDIS supports" in Section 10 is convoluted, overly prescriptive and risks exposing participants to financial penalties for inadvertent missteps. The complex legislative wording attempts to delineate Commonwealth/State responsibilities but only creates confusion in the process.

Section 10 unhelpfully links this unclear definition of supports to access decisions, planning, spending of funds and risk of debts for participants. The threat of a "focus on how funding has been spent (or will be spent)" contradicts NDIS Review recommendations about flexibility and a trust-based approach. It places unreasonable obligations on participants to decipher what is allowable or face serious consequences. 

We understand that there will be 'preferred providers' (aka, panel providers and block funding for some groups of supports, like aids and equipment) and that there will be 'blended payments' and 'stated supports'. Stated supports are something we're used to - they are generally used for specific items. You can't use those funds flexibly, so you don't get twenty grand's worth of other stuff if you decide not to buy that big power chair. 

But the intention behind this legislation is to have supports narrowly prescribed and defined in a world where 'reasonable and necessary' will no longer exist. A bit of housekeeping and gardening for those in one class of citizen, three quotes and a guvvy provider for the rest of us, to buy that expensive item. And remember - the aim is cost cutting. 

The committee recognises problems with the NDIS supports definition but accepts government amendments that do not resolve the fundamental issues. The "non-exhaustive list of what the NDIS will not fund" in the Explanatory Memorandum only adds to the confusion. It is not participants who need clearer spending parameters developed, but the NDIA who need to further understand what the lives of people with disability look like.

Any changes should be developed through thoughtful co-design, not punitive, one-size-fits-all restrictions.

Flawed Needs Assessment Process
The bill enables a highly problematic needs assessment process to determine participant budgets, but the report glosses over key flaws and fails to recommend essential changes. Remember the uproar over Independent Assessments? This is the same proposal, without a firmly delineated tool or any detail.

The issues people with disability and our families have and had with Independent Assessments still remain. We just haven't been given any detail about what's proposed, so it's impossible to comment. 

What do we know?

The proposed assessment framework:

• Focuses on assessing single impairments rather than a holistic view of the person and their goals and lives
• Hints at using rigid "classes" of participants to automate funding decisions
• Lacks detail on what information assessors will consider or participant involvement
• Denies participants the right to view their full assessment report
• Allows the NDIA to unilaterally request "replacement" assessments, but not participants

These design elements risk funneling participants into segregated settings and arbitrary funding levels based on opaque "classes" of participant and "typical support packages". Participants could be profoundly impacted by inaccurate assessments without warning or any real avenue for review.

The bill renders needs assessments almost entirely unreviewable. While a legislative note has been added to clarify that the Administrative Appeals Tribunal can require a replacement assessment on review, this is still a highly limited, indirect form of appeal. Assessment outcomes must be directly reviewable to ensure fairness and accountability.

However, the committee report does not recommend making assessments fully reviewable. It accepts vague assurances the tools will be co-designed in future, without mandating this in legislation. Given the gravity of the impacts on participants, the assessment process should be transparently developed and tested before any enabling provisions are passed.

Removal of Key Participant Rights and Protections
The bill strips away crucial participant rights and safeguards in several areas, but the report fails to recommend reinstating these protections.

Firstly, the changes to "reasonable and necessary" supports in Section 34 are highly concerning. Requiring supports to relate only to impairments for which the person has met NDIS access undermines a holistic, whole-of-person approach.

 Participants may be denied essential supports if the NDIA deems them unrelated to an arbitrary "primary disability", an insidious form of gatekeeping that can leave people without vital assistance.

Been following along? Now read the story of David Harris and ask how many of these categories David fell into, while slipping between the cracks. https://www.smh.com.au/politics/federal/david-harris-was-left-to-die-alone-after-his-ndis-payments-were-cut-off-20200522-p54vlv.html Let me make this clear - this Amendment Bill plans to legislate those very cracks and enshrine them in law. It plans to actively endanger us in ways we know will be harmful, damaging, and almost certainly life ending for some participants. 

I digress. 

Secondly, the bill removes distinct rights to review and appeal key decisions around NDIS access (Section 30) and supports (Section 34). Internal reviews and external appeals to the Administrative Appeals Tribunal are critical checks on NDIA decision-making. Eliminating these direct review rights erodes essential procedural fairness. The committee should have insisted these appealable decisions be retained in legislation.

Thirdly, there are no provisions in the bill to ensure NDIA requests for information or notices to participants are accessible and aligned with their communication needs. Failures to provide information in Easy Read, Auslan, plain English or participants' preferred formats could lead to them losing access or funding through no fault of their own.

Mandating accessible information provision and decision-making supports could have been a core recommendation - but the NDIA has a solid track record of failing to 'get' disability, access and inclusion. This kind of mitigation would not save a life, no matter what was enshrined in law as a safeguard. 

Overall, the bill shifts significant power to the NDIA to make decisions about participants' supports and eligibility, without sufficient oversights or obligations to ensure its processes are fair and robust. The report's failure to recommend strengthening participants' review and appeal rights in the face of this power imbalance is unacceptable.

Incompatibility with NDIS Review Intent
Though the bill purports to enable implementation of certain NDIS Review recommendations, in reality, it contradicts key aspects of the review's vision, as several submissions point out. However, the report does not adequately acknowledge or address this fundamental discord.

The review called for flexibility for participants, a trust-based approach to spending oversight, and engagement with disabled people as equal partners in major reforms. Instead, the bill imposes rigid "typical support packages", links funding to prescriptive categories of supports, and fails to enshrine co-design as a core principle.

The focus on classifying participants, restricting spending and threatening debts is utterly antithetical to the NDIA's principles of greater participant autonomy, flexibility and being able to fulfil the principles of the UNCRPD. And the only NDIS Review recommendations truly reflected are punitive or controlling ones, while those benefiting participants remain unimplemented.

If this bill was genuinely aligned with the NDIS Review's intent, it would be increasing flexibility, making spending rules simpler, giving participants more choice in managing their funds, and committing to deep co-design of operational reforms. The fact the bill does the opposite in many areas is glossed over in the committee report.

Implementation Without Essential Foundations
Legislating such significant changes to the NDIS is premature and unsafe in the absence of other critical foundations, as multiple submissions argued. However, the report does not give appropriate weight to these implementation concerns.
Key policy details around how the new planning and assessment processes will work remain opaque. Simply assuring they will be co-designed in future, as the report does, is not sufficient when dealing with rules that will drastically impact participants' supports and wellbeing.

Then there's one of the biggest issues of all. Remember that 'oasis in the desert' analogy? There was no money in the Budget for foundational supports outside the NDIS - they are still largely non-existent, despite being integral to the NDIS Review recommendations and the bill's narrowing of access. Pushing people off individualised NDIS funding before alternative systems are in place will lead to widescale gaps in support and poorer outcomes.

The bill enables immediate removal of participants while foundational supports are years away from being established. Thousands risk losing services with nowhere else to turn. The report should have called for a halt on implementing access changes until foundational supports are demonstrably ready.

As I have previously pointed out in unparliamentary language, if you put mayonnaise on a chicken shit sandwich, it will not taste like chicken. Neither will foundational supports magically appear if you summon them. They take time, consideration, and an investment approach which Australia's Disability Strategy most certainly does not offer. 

There are also critical oversights in not waiting for a comprehensive government response to the NDIS Review and the Disability Royal Commission before proceeding with legislative reform. Those responses are needed to understand the full scope of changes planned and ensure alignment. Rushing to legislate in their absence is ill-advised and irresponsible.

Unjustified Urgency and Politicisation
Despite the myriad issues identified with the bill, the report conveys a sense of unjustified urgency to pass the legislation and an overconfidence in piecemeal government amendments. It fails to substantively engage with advocates' concerns that the bill is being rushed without proper scrutiny, at the expense of disabled people's wellbeing. We are fairly sure that this is about the harmonisation of veterans, aged care and disability to save money - but ramming this into place is not the answer. 

The report references the "scaffolding" the bill provides to progress certain NDIS Review recommendations as a rationale for supporting its passage. However, it does not critically examine whether those recommended reforms are actually enabled by the bill's provisions or can be implemented safely without further detail and co-design. It takes government assurances at face value rather than engaging in robust analysis.

There are also concerning indications the committee has not properly centred the feedback and insights of the disability community in weighing the bill's impacts. The lived experience and expertise of disabled people are not foregrounded in the report as it should be.

For legislation that will impact disabled people so profoundly and personally, it is not acceptable to push forward with a bill that still contains so many risks and flaws in the name of political expediency. The report should have taken a stand that getting these reforms right is more important than arbitrary timelines.

I am yet to read the dissenting reports, but I hope there is a genuine reckoning with the very real dangers the bill presents.

Conclusion
The Senate committee report's support for the NDIS Amendment Bill to be passed, despite the wealth of evidence presented on its shortcomings, is a dereliction of duty. It fails to demand the extensive changes and safeguards needed to protect disabled people's rights, safety and wellbeing.

The report's repeated assurances the bill has been "adequately strengthened" by government amendments ring hollow in the face of the many issues that remain unaddressed. Legislation with such serious flaws and gaps should not be allowed to proceed, no matter how many small tweaks are made.

This bill is like a body which is being proposed to be surgically altered. Not just the meat of the body, but the skeleton. And to use a bad disability analogy, if you chop the NDIS off at the knees, it is never going to walk in quite the same way again. 

At its heart, this inquiry presented an opportunity for Senators to listen deeply to the disability community's expertise and ensure those voices guided any legislative reform. Instead, the report reads as a rubber stamp for the government's plans, with only tokenistic references to the concerns raised.

If the bill is passed in its current form, disabled people will be exposed to arbitrary loss of supports, funding cuts, punitive clawback provisions and unfair debt threats - can anyone say Robodebt? - and removal from the scheme without proper oversights. These outcomes are entirely foreseeable based on the evidence submitters provided. The report's failure to propose robust changes to mitigate these harms is unconscionable.

Legislation that will impact the NDIS and disabled people's lives so significantly deserves comprehensive co-design, rigorous testing of implementation issues, and a genuine commitment to preserving participant rights and choice. The Senate report spectacularly fails to deliver these essential elements.

Disabled people deserve far better than this selective and surface-level treatment of an issue so critical to their dignity, autonomy and inclusion. The Senate had an obligation to approach this inquiry with the gravity and care it warranted but fell well short of that responsibility.

NB Shout out to the psychosocial community, whose support will allegedly be replaced by endless cups of tea and peer meetings. And the allied health profession, who deluged the Senate Committee with submissions only to be told that a few 'representative' submissions would be published. We see you, sisters. Thank you for your work. <3