A Broken Window In A Kalgoorlie Courthouse

Quick and dirty analysis on government's eleventh hour amendments to the NDIS Amendments Bill, which they say will make this - legislation - all fine to go ahead with. 

TLDR: It won't. 

Document 1 Analysis:

Amendment 1 & 2 - Old Framework Plans

Aims to clarify definitions related to funding amounts and periods for old framework plans.

Does not substantively address concerns about the complex, potentially restrictive new framework. Older plans could still be impacted.

Risk remains of highly prescriptive funding that limits participant flexibility and choice.

Amendment 3 & 5 - NDIS Supports Definition

Refers the NDIS supports definition to new subsections 10(1) and 10(4).

Partially addresses issues raised about the poor drafting of the original section 10 definition.

However, the revised s10 in amendment 5 still poses problems in narrowing supports based on what the Commonwealth considers "appropriate", rather than individual need. Maintains a potentially restrictive approach.

Amendment 4 - Wording change to "funded under"

Minor wording change, but doesn't address broader issues with prescriptive funding.

Amendment 5 - Redefining NDIS Supports

Replaces problematic s10 with a new definition reliant on NDIS rules to declare funded supports.

Introduces concerning language that funded supports must be "appropriately funded" through NDIS.

Requires Commonwealth to be satisfied support is appropriately funded before allowing in the rules.

Limits rule-defined supports to those implementing certain international agreements or enabling sickness benefits. Concerning limitations.

Allows rules to declare a support is not funded by NDIS at all for certain groups.

Addresses some technical issues but still allows problematic narrowing of supports based on government discretion rather than individual need. Maintains a medical model.

Risks creating more disputes about what is "appropriate", similar to current debates.

Rule-making provisions lack co-design requirements and allow broad Ministerial discretion.

Amendment 6 - Stated Supports

Clarifies that rules can define stated supports by identifying a class of supports.

Does not address concerns about highly prescriptive stated supports limiting flexibility.

Amendment 7 & 8 - Replacement Assessments

Removes requirement for replacement assessment criteria to be in NDIS rules.

But then allows rules to prescribe anyway when CEO must/mustn't approve replacements.

Lacks clear, legislated protections to ensure inappropriate repeat assessments aren't forced on participants. Rules could still enable concerning practices.

Amendment 9 - Old Framework Plans

Detailed changes to how funding amounts/periods work in old plans.

Requires all old plans to have a total funding amount - concerning if used to inappropriately cap funding.

Requires old plans to group supports and assign funding amounts to each group - could be highly limiting.

Provides complex rules for rolling over unspent funds between periods.

Continues prescriptive approach to funding. Doesn't address concerns about participant flexibility/choice.

Complex system risks confusion and reduced clarity for participants.

Amendment 10-12 - Exceptional Circumstances

For new plans, prevents payments that exceed funding period amounts unless exceptional circumstances apply.

For old plans, prevents payments exceeding overall budget or category budgets, unless exceptional.

Lists situations like financial exploitation, risks to health/safety, inability to request review, where the plan budget can be exceeded.

While aiming to protect participants, may not sufficiently allow exceeding rigid budgets where genuinely needed.

Heavily focused on linking overspending to fraud/misuse, lacks nuance.

Amendment 13 - Old Plan Variations

Clarifies old plan variations must follow new budget/category rules.

Budget can only increase via specific variation type, maintaining restrictions.

Amendment 14 - Children

Allows rules about when a child can make their own NDIS decisions.

Some safeguarding value but heavily focused on limiting child agency. Needs strong co-design.

Amendment 15-16 - Technical wording changes

Renames referenced subsections but doesn't change overall effect.

In summary, while making some technical improvements, the SK113 amendments maintain an overall approach of prescriptive, rigid funding focused more on limiting spending than person-centered need and choice. The NDIS supports definition remains problematic in narrowing based on government priorities. 

There are some additional protections but they are heavily qualified. The reliance on NDIS rules lacks co-design requirements and allows broad Ministerial discretion. Many key issues raised around risks to flexibility, confusion for participants, and potential misconceptions of disability needs do not appear to be adequately resolved. More substantive changes incorporating our disability community's concerns still appear necessary.

Document 2 

4: Request for assessments and examinations

Aims to limit when the CEO can request a participant undergo an assessment or examination.

Requires the CEO to be satisfied the assessment/exam would provide information that cannot be "reasonably obtained" otherwise.

Somewhat addresses concerns about unnecessary or inappropriate assessments being demanded.

However, the "reasonably obtained" threshold is quite vague and subjective. Could still enable problematic assessment requests.

No clear provisions for a participant to challenge an assessment request they believe is unreasonable. Lacks review rights.

Amendment 5: Co-design principle

Inserts a reference to consulting people with disabilities into one section about factors the Minister must consider in making certain legislative instruments.

While acknowledging co-design in principle, it is a very limited provision.

Does not mandate co-design as a broad requirement for NDIS rule-making and implementation.

Falls well short of the enforceable co-design advocated for by Dr O'Donovan.

Unlikely to address the lack of meaningful consultation and collaboration with the disability community seen to date.

Amendment 6: Participant's report

Requires the CEO to give the participant a copy of any assessment report "as soon as practicable".

A positive inclusion that provides participants access to the information collected about them.

However, no time limit is specified, risking delays in providing the report.

Does not include any provisions for the report to be provided in accessible formats or explained to the participant. May limit their ability to understand and respond to the information.

Amendment 7-8: External review

Clarifies reviewers and the AAT have the same powers as the CEO to decide if a "replacement assessment" is needed, subject to the NDIS rules.

Provides a mechanism for the AAT to order a new assessment where appropriate, a useful safeguard.

However, remains subject to the NDIS rules, which could limit when reassessments are permitted by reviewers. The rule-making power lacks co-design requirements.

Does not appear to give participants the power to request a review or new assessment if they are unsatisfied with the original.

Reviews still can't examine the appropriateness/methodology of the actual assessment tools used, a key concern.

Overall, the PA110 amendments make some positive changes, particularly in limiting assessment requests to situations where the information can't be obtained otherwise, and providing participants copies of assessment reports. However, the improvements are relatively modest.

Key issues remain unaddressed, including:

• The lack of meaningful, enforceable co-design mechanisms in NDIS rule-making and implementation.
• The inability to review the assessment tools themselves.
• No clear provisions for participants to challenge inappropriate assessment requests or findings.
• The potential for the NDIS rules to limit when replacement assessments can be ordered by reviewers.
• No guarantees assessment reports will be prompt and accessible for participants.

While a step in the right direction, the amendments do not go far enough to address the serious concerns raised about the new assessment and planning processes. They provide some additional safeguards but with significant limitations and heavy reliance on yet-to-be-drafted NDIS rules. Issues like ensuring the assessment tools are fit-for-purpose, co-designed and independently reviewable remain unaddressed.

In light of the critical importance of appropriate assessments in determining access and funding, there remains a significant risk of the new model leading to unfair outcomes that limit essential supports for participants.