2019-2020-2021

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

National Disability Insurance Scheme Amendment

(Participant Service Guarantee and Other Measures) Bill 2021

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Circulated by the authority of the

Minister for the National Disability Insurance Scheme

Senator the Hon Linda Reynolds CSC

 

National Disability Insurance Scheme Amendment

(Participant Service Guarantee and Other Measures) Bill 2021

 

 

OUTLINE

 

The National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021 (the Bill) will implement significant improvements for participants, their families and carers by reducing red tape, increasing flexibility and clarifying timeframes for decision-making by providing for the Participant Service Guarantee. The Bill centres on recommendations from the 2019 Review of the National Disability Insurance Scheme Act 2013 (‘the Act’) conducted by Mr David Tune AO PSM (‘the Tune Review’). The Bill is focused on improving the experience and outcomes of people with disability engaging with the National Disability Insurance Scheme (NDIS).

 

The proposed changes will mean that people with disability are better off because the amendments to the Act made by the Bill will:

·         provide for the Participant Service Guarantee (‘the Guarantee’) that will legislate timeframes and engagement principles for how the National Disability Insurance Agency (‘Agency’) undertakes key administrative processes;

·         consistent with the recommendations of the Tune Review:

o    simplify administrative processes in relation to making changes to a participant’s plan;

o    reduce other administrative burdens for participants and their families and carers;

o    clarify eligibility criteria for people with psychosocial disability; and

·         provide a simplified payments design to allow the Agency to make direct payments on behalf of participants.

As recommended by the Tune Review, the Bill also:

·         includes amendments in response to the 2015 Independent Review of the Act conducted under section 208. These amendments, consistent with the objects of the NDIS, acknowledge that people with disability should be included in a co-design capacity, and

·         removes redundant references and rule making powers used during NDIS transition phase to ensure the Act is fit for purpose in a full scheme environment.

The amendments in this Bill reduce the administrative burden for participants, their families and carers, and strengthen the person-centred focus of the NDIS.

 

The Bill contains three Schedules. The first Schedule sets out amendments implementing the Tune Review recommendations relating to the establishment of the Guarantee. The second Schedule sets out amendments to more appropriately recognise the rights and diversity of persons with disability and to reflect the importance of their relationships with their families and carers. The third Schedule makes administrative changes removing redundant references and rule making powers used during the transition to the NDIS. More detail on each of these Schedules is provided below.

Schedule 1 - Participant Service Guarantee

 

Schedule 1 amends the Act to provide for the Guarantee, in accordance with Recommendation 25 of the Tune Review. The Tune Review identified opportunities to simplify NDIS procedures and remove legislative barriers that may adversely affect participant experiences within the NDIS. The Tune Review was informed by national consultation with people with disability, their families and carers, advocates and providers from around Australia.

 

The aim of the Guarantee is to continue to improve the experience for participants and prospective participants with the NDIS and provide increased transparency around decision-making timeframes.

 

The Guarantee will be given effect through new provisions in the Act and new dedicated Category C NDIS Rules. In recognition of the national nature of the scheme, the new NDIS Rules ensure the States and Territories are involved in determining the detail of the Guarantee. Making provision for key aspects of the Guarantee in new NDIS Rules also means there is flexibility to adjust in the future, if required, to continue to meet the needs of people receiving services under the NDIS.

 

The Guarantee contains three main parts:

 

First, the Guarantee will provide certainty for current and prospective participants by setting timeframes within which key decisions in the NDIS process must be made, including decisions about a person’s access to the NDIS and changes to participants’ plans (these are contained within the Bill but may also be amended through the NDIS Rules).

Second, the Guarantee will allow for the NDIS Rules to prescribe specific service standards for the Agency and its workforce when working with people with disability and their families and carers. The NDIS Rules will also prescribe new timeframes for decision-making, performance metrics and other matters.

 

Third, the Guarantee will also provide for the Ombudsman to monitor and report on aspects of the NDIS (this is contained in Items 1 and 55 of Schedule 1, with the NDIS Rules made under subsection 204A(1) to prescribe the matters for the Ombudsman’s report).

 

While the Tune Review highlighted that participants, their families and carers were supportive of legislating timeframes for Agency decision-making, it also cautioned against timeframes being the only measure for success. The Tune Review stressed the need for the Guarantee to strike a balance between transparent and timely processes, while maintaining quality outcomes for participants. This view was reinforced by people with disability and the disability sector during consultations on the Bill.

 

It is intended that NDIS Rules to be made by the Minister for the National Disability Insurance Scheme (‘the Minister’) that implement the Guarantee will be contained in one set of new NDIS Rules to be titled the National Disability Insurance Scheme (Participant Service Guarantee) Rules (the Guarantee Rules). The Guarantee Rules will be Category C NDIS Rules, requiring the agreement of a majority of the States and Territories and the Commonwealth (Item 60). All NDIS Rules are disallowable legislative instruments and are therefore subject to Parliamentary scrutiny.

 

The proposed form of the Guarantee in Category C NDIS Rules gives effect to the recommendations of the Tune Review and the overall policy of ensuring the NDIS delivers consistent, effective, and high-quality experiences for those who engage with the scheme across Australia.

 

Schedule 1 gives effect to key findings in Chapter 8 of the Tune Review to provide more flexibility for participants to request, and for the Agency to make quick changes to plans, through a plan variation (see Item 23). This will make it easier and faster for participants to have their plan adjusted in appropriate circumstances, without needing to go through a full plan review.

 

Schedule 1 extends the timeframe from 28 days to 90 days for prospective participants to comply with requests for further information from the Agency (see Items 11-12) and to ensure people receive reasons for reviewable decisions (see Item 40).

 

Schedule 1 clarifies that in the circumstances where the Administrative Appeals Tribunal (AAT) is reviewing either the statement of participant supports, or variation of a participant’s plan relating to the statement of participant supports, any later decision by the Agency will be included in the AAT’s review. Similarly, any internal review of the same types of matters will include any such later decision by the Agency (Items 45-47). This will ensure that any later review will examine the totality of the participant’s plan, assisting both the participant and any review body.

 

The policy intention behind these amendments is to substantially improve the experience of current and prospective NDIS participants.

 

Schedule 1 also makes amendments that are not related to individual participants. Schedule 1 amends the timeframe for the Agency to report to the Ministerial Council under Chapter 6 of the Act and to allow the NDIS Rules to specify that the report must include certain information (Item 51). Schedule 1 also broadens the scope of the rule-making provisions in Chapter 7 to provide for the Guarantee and other matters.

 

Schedule 2 - Flexibility measures

 

Schedule 2 amends chapters 3 and 4 of the Act to better recognise the rights and diversity of people with disability and to improve the experience of NDIS participants, including by:

·         strengthening the objects and principles of the Act to acknowledge the central role of people with disability in co-design and the need to recognise and respect the relationship between people with disability and their families and carers (Items 1-6, 10, 12, 15);

·         giving the Agency more flexibility to support participants and their families to access NDIS supports, and help children with disability get access to early intervention supports (Item 11);

·         clarifying the eligibility criteria for persons with psychosocial disability (Items 16-24);

·         giving more protection to participants who want to use a registered plan management provider; and

·         providing for a simplified payments design to allow the NDIA to make direct payments on behalf of participants (Items 36-37).

 

Importantly, Schedule 2 specifies the principles underlying the Chief Executive Officer’s (CEO) functions and powers (Items 12-15). These include not only the principles relating to the participation of people with disability set out under section 17A of the Act, but also the general principles guiding actions under the Act which are set out under section 4 and which focus on the rights of people with disability. This will ensure that the CEO is legally required to have regard to these principles when taking action or exercising powers, meaning these principles are required to underpin all actions the CEO and the CEO’s delegates take. Schedule 2 also ensures the Minister must have regard to the objects and principles of the Act when making NDIS Rules, and to balance these against the need to ensure the existing requirement to consider the financial sustainability of the NDIS (Item 52).

 

Schedule 2 also provides for a number of governance and administrative issues.

 

Significantly, the members of the Board of the Agency will be required to either be persons with disability or have lived experience with disability or have specified skills, experience or knowledge relevant to the Board’s operations (Items 46 to 48). Schedule 2 also clarifies the conditions of appointment of the Principal Member of the Independent Advisory Council (Items 49-50).

 

Administrative issues that are addressed by Schedule 2 include providing for the approval of forms under new section 9A (Item 8), requirements for acquittal of NDIS payments made to persons other than participants (Items 36 and 37) and recognising changes in terminology associated with persons who are ‘insolvent under administration’ or whose court-appointed guardians have been removed (Item 44).

 

A further administrative change relates to removing references to the ‘collection’ of protected information (Items 41 to 43). While on its face this change is seemingly important, it is, in fact, a purely administrative issue to remove incorrect drafting. It is not legally possible for information to be ‘protected information’ under the Act until such time as it has been ‘collected’ and therefore these provisions are not needed.

 

Further matters may be prescribed by the NDIS Rules in relation to direct funding (Item 11), provide clarity on the existing requirements that must be satisfied for an impairment to be considered permanent or likely to be permanent (Item 24), matters that must not be managed by a participant in relation to funding for supports (Item 33), who may be paid an amount in respect of a participant’s plan (and that an amount may not be payable until a bank account is nominated) and the retention of records (Item 37).

 

 

Schedule 3 - Full scheme amendments

 

Schedule 3 makes administrative changes removing redundant references and rule making powers used during transition to make sure the law is up to date. The amendments to definitions in Chapter 1 of the Act and to Chapters, 3, 4 and 6 remove references to the trial and transition phases of the NDIS which are no longer relevant because the NDIS is available across all of Australia. These changes will have no practical effect on participants or on the operation of the Act.

 

The Schedule implements Recommendation 27A of the Tune Review that the Act and NDIS Rules be amended to remove trial and transition provisions.

 

On commencement in July 2013, the Act established a legislative framework for the Agency to launch and operate the NDIS in five sites across Australia. Consequently, the Act contains provisions that state the NDIS is progressive in nature and uses language to reflect that the NDIS would be launched in stages, and implemented progressively, through arrangements funded and governed jointly by the Commonwealth and host jurisdictions.

 

These transitional arrangements would be set out in inter-governmental agreements between the Commonwealth and host jurisdictions, including whether rollout would be by age cohort, as chosen by Tasmania and South Australia, or by geographic location, as chosen by all other jurisdictions, until there was full implementation of the NDIS across Australia.

 

The NDIS has been available across Australia and its external territories since 1 July 2020, with the last geographic rollout to Christmas Island and the Cocos (Keeling) Islands.

 

Schedule 3 also makes a number of technical amendments. These include amendments removing the ability to prescribe requirements relating to access during the transition period, which has now ended. Relevant requirements were: the timing for meeting the residency criteria (Item 19); the need to meet the age requirements (Item 21) and changes to residence requirements (Items 22-24)

 

The changes in Schedule 3 also remove redundant references to ‘registered provider of supports’ (Items 4, 16, 28, 33, 40 and 48).

 

‘Registered provider of supports’ was the term used for providers still regulated by State and Territory quality and safeguarding arrangements and not yet under the jurisdiction of the NDIS Commission. The NDIS Commission’s operations commenced at different times across the country; however, from 1 December 2020 the NDIS Commission had jurisdiction across Australia and the term is no longer required.

 

 

Financial impact statement

 

There are no significant financial impacts of this Bill.

The Australian Government has committed $2 million over 4 years from 2020-21 to enable the Commonwealth Ombudsman to monitor the Agency’s performance in delivering the Guarantee.

 

 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

The statement of compatibility with human rights appears at the end of this explanatory memorandum.

 

 

 

BACKGROUND

 

Tune Review

 

In 2019, the Australian Government committed to delivering an NDIS Participant Service Guarantee (the Guarantee) to support a positive participant experience by setting new standards for the time it takes for key steps in the NDIS process and to set service standards for the National Disability Insurance Agency (NDIA).

 

To develop the Guarantee, the Government commissioned a review of the National Disability Insurance Scheme Act 2013 (NDIS Act) to identify opportunities to make NDIS processes simpler and more straight-forward, and remove legislative barriers to positive participant and provider experiences with the NDIS.

 

The review was undertaken by an independent expert, Mr David Tune AO PSM. People with disability, family members, carers, advocates and providers from around Australia shared their experiences and ideas through community workshops, an online survey and by making submissions to the Tune Review.

 

Mr Tune delivered the review report to Government in December 2019. It made 29 recommendations to improve the participant experience and support the delivery of the Participant Service Guarantee. The Tune Review was published in January 2020.

 

The Government response to the 2019 review of the NDIS Act was released on 28 August 2020. The Government response supported, or supported in principle, all 29 recommendations made in the review report.

 

The amendments contained in this Bill will, together with amendments that will be made to the NDIS Rules, implement 14 of the 29 Tune recommendations. Not all of the Tune Review recommendations require legislative changes to be implemented. Other recommendations that are likely to require legislative changes will be considered in future, following the co-design of a new model to support access and planning.

 

2015 Independent Review

 

In addition to the Tune Review, the then Minister for Social Services commissioned Ernst & Young in 2015 to conduct an Independent Review of the Act. It was a requirement under section 208 of the Act that such a review be undertaken two years after the commencement of the NDIS. The 2015 Independent Review, commissioned by the Commonwealth Government in consultation with the State and Territory governments, made 33 recommendations to improve the operation of the Act.

 

The purpose of the review was to assess the operation of the Act, as well as to consider whether or not any amendments can be made to further the objects and principles of the Act.

 

 

The 2015 Independent Review of the Act found that there were opportunities to provide greater clarity to the legislative framework for the NDIS and provided recommendations to the then Council of Australian Governments (COAG) for consideration. Recommendations endorsed by COAG included strengthening the objects and principles of the Act, providing a more appropriate description of the purposes of funding the Agency may provide outside of participant plans to strengthen information, linkages and capacity building and addressing other technical inadequacies of the legislation.

 

Public Submission process

 

An Exposure Draft of the Bill was subject to a four week consultation period from 9 September to 7 October 2021.

 

To support the consultation process, the Department of Social Services conducted a number of information sessions to explain the proposed changes to a broad range of stakeholders including disability representatives, advocates and members of the public.

 

The key themes identified from consultation were:

 

·         support for the Participant Service Guarantee;

·         support for the concept of plan variation, but concern about the NDIA’s own motion power to vary a plan, including that a variation could happen without involving the participant;

·         concern about the default being a plan reassessment if the NDIA does not make a variation decision in the time allowed;

·         support for allowing a plan to be amended while a matter is before the Administrative Appeals Tribunal, but some concerns about how this will be operationalised;

·         support for amending the general principles to include co-design with people with disability, recognition and respect for the role of carers and the right to a diverse and sustainable market;

·         support for eligibility clarifications for people with psychosocial disability, but concern about how definitions in the relevant NDIS Rule will be applied;

·         concerns about whether changes to plan management and the risk assessment will impact a participant’s ability to use unregistered providers and therefore their choice and control;

·         support for measures to protect participants from risks to their wellbeing and poor outcomes, particularly protecting participants from conflicts of interest;

·         support for additional ability for market intervention, with the proviso that choice and control is not disempowered;

·         support for empowering participants to request reasons for reviewable decisions, but concern the onus should be on the NDIA to provide;

·         support for people with disability being on the NDIA Board but concern that the criterion ‘lived experience of disability’ would not necessarily deliver this;

·         concern about use of the term ‘reassessment’ to describe what is currently called a plan ‘review’ and that participants cannot initiate it;

·         support for enabling technology such as the new power for the NDIA to be able to pay providers directly, but concern about how it might be used;

·         concerns relating to the balance of new and amended NDIS Rules; and

·         there was concern that the four week consultation period was insufficient.

 

As a result of the consultation, a number of changes were made to the Bill, as follows:

 

·         Commencement dates (section 2 of Bill) redefined;

o    with consequential changes to application, saving and transitional provisions (Items 63-71 of Schedule 1);

·         Variation and re-assessment of plans changes (Items 19-22, 23 - inserts section 47A, 24 - inserts sections 48, 49 and 49A, 39 - amends section 99, and 41 of Schedule 1); 

·         Re-inclusion of 21 day measure for the CEO to commence facilitating the preparation of the participant’s plan under section 32 after the person becomes a participant (Item 14 of Schedule 1);

·         Giving reasons for decisions (Item 40 of Schedule 1);

·         Removing remaining references to participants ‘to the extent of their capacity’ and ‘to the extent of their ability’ (Items 13 and 14 of Schedule 2);

·         Changes to ‘managing the funding for supports’ (Items 27-29 of Schedule 2);

·         Changing to plan management arrangements under section 43 and 44 (Item 31 - amends section 43, and item 33 - amends section 44 and various cross references corrected in items 30 and 54 of Schedule 2);

·         Removing requirement re acquittal under subsection 46(1) (formerly Items 33 and 52(6) of Schedule 2 of the Exposure Draft);

·         Removing amendments to section 55 of the Act which would have enabled the CEO to obtain information from other persons in relation to matters prescribed in subsection 55(2) of the Act (formerly Item 38 of Schedule 2 of the Exposure Draft); and

·         Including additional criteria for Board appointments, that the Board collectively must possess, by adding a person with disability or a person that has lived experience with disability (Item 46 of Schedule 2).

 

 

 

NATIONAL DISABILITY INSURANCE SCHEME AMENDMENT

(PARTICIPANT SERVICE GUARANTEE AND OTHER MEASURES) BILL 2021

 

NOTES ON CLAUSES

 

Abbreviations used in this explanatory memorandum

 

·         Act means the National Disability Insurance Scheme Act 2013

·         Agency means the National Disability Insurance Agency

·         Bill means the National Disability Insurance Amendment (Participant Service Guarantee and Other Measures) Bill 2021

·         CEO means Chief Executive Officer of the Agency

·         Guarantee means the Participant Service Guarantee

·         NDIS means the National Disability Insurance Scheme

·         NDIS Commission means the NDIS Quality and Safeguards Commission

·         NDIS Rules means the National Disability Insurance Scheme Rules

·         Tune review means the Review of the National Disability Insurance Scheme Act 2013 , ‘Removing red tape and implementing the NDIS Participant Service Guarantee’, by Mr David Tune AO PSM

 

Clause 1 sets out how the new Act is to be cited - that is, as the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2021 .

 

Clause 2 provides a table setting out the commencement dates of the new Act. Sections 1 to 3 will commence on the day the Act receives the Royal Assent. Amendments relating to the Guarantee in Schedule 1 and the amendments in Schedule 3 will commence on the seventh day after the Act receives the Royal Assent. All other amendments in Schedule 1 and the amendments in Schedule 2 will commence 3 months and a day after the Act receives the Royal Assent, or on 1 April 2022, whichever is later.

 

Clause 3 provides that each Act that is specified in a Schedule is amended or repealed as set out in that Schedule, and any other item in a Schedule to the Bill has effect according to its terms.

 

 

Schedule 1 - Participant Service Guarantee

 

Summary

 

Schedule 1 amends the Act to give effect to the Guarantee. The amendments made in this Schedule to implement the Guarantee will provide certainty for current and prospective participants regarding the timeframes for decision-making, and how the Agency and its workforce will engage with, and work alongside, participants in delivering the NDIS. This Schedule also provides the Commonwealth Ombudsman with monitoring functions to report on the Agency’s performance in delivering the Guarantee.

 

Schedule 1 also gives effect to key findings of the Tune Review in Chapter 8 to improve plan reviews and enable plans to be amended without requiring a full plan review in circumstances where it is clear that the support or change to be made is reasonable and necessary. Plan reviews will be renamed as reassessments of a participant’s plan to prevent confusion with decision reviews where a participant seeks a review of a planning decision under section 99 of the Act.

 

Schedule 1 groupings

 

The Items in Schedule 1 have been grouped under the following headings, as these will allow a fuller explanation of the relevant provisions:

 

·         Amendments to definitions (Items 1-3)

·         Amendments implementing timeframes under the Guarantee (Items 4-12, 14, 16, 34-36, 38, 42 and 43, 52-54)

·         Planning processes and reasons for decision-making (Items 30 and 40)

·         Performance metrics - Quarterly report to the Ministerial Council (Items 50-51)

·         Report by Commonwealth Ombudsman (Items 1 and 55)

·         Variation and reassessment of participant plans (Items 13, 15, 17-29, 31-33, 37, 39-42, 45-49)

·         Categorisation of NDIS Rules (Items 57-62)

·         Application and Transitional Provisions (Items 63-71)

 

Amendments to definitions

 

Items 1 to 3 - Section 9

 

These Items amend section 9 to provide for the definition of the ‘ Commonwealth Ombudsman ’. The definition of ‘ review date ’ is repealed, and a new definition of ‘ reassessment date’ is inserted, recognising that the concept of a plan ‘review’ has been replaced with the concept of a plan ‘reassessment’.

 

 

Amendments implementing timeframes under the Participant Service Guarantee

 

Recommendations 25a and 25b of the Tune Review relating to the imposition of timeframes are discussed in greater detail below under the following subheadings:

·         Timeframes for handling access requests (Items 3-9 and 38)

·         Timeframes for information required by the Agency (Items 11-12 and 14)

·         Timeframes for facilitating development of a participant’s plan (Items 14 and 16)

·         Timeframes for cancellation of appointments of nominees (Items 34-36)

·         Timeframes for internal reviews (Items 42-44)

·         Other timeframes (Items 52-54)

 

Timeframes for handling access requests

 

Items 4 to 6 - Section 20 - timeframes for handling access requests

 

These items amend section 20, which currently provides that within 21 days of receiving an access request from a prospective NDIS participant, the CEO must either decide whether the prospective participant meets the access criteria or make one or more requests under section 26(1) (i.e. seeking further information, requesting an assessment or examination). These amendments will not alter the maximum period of 21 days for the CEO to do either of these things, but will allow a shorter period to be specified in the NDIS Rules. These amendments will build a greater understanding of the service delivery expectations between the Agency, participants, their families and carers and allow for the timeframe in which decisions must be made to be reduced via the NDIS Rules.

 

Item 7 - Paragraph 21(3)(a)

 

This item makes a minor amendment consequential to the changes made by items 3 to 5 relating to the timeframes for handling access requests .

 

Items 8 and 9 - Subsection 21(3) (notes 1 and 2)

 

Item 7 repeals Note 1 to subsection 21(3) which said the period for deciding an access request could be extended in NDIS Rules made under section 204. The note is no longer needed because the ability to extend this period by way of the NDIS Rules is being removed (see item 52 ). Item 8 makes a minor consequential amendment.

 

Item 10 - Subsection 26(1)

 

This item makes a minor amendment relating to a cross reference to paragraph 20(1)(b), consequential to item 5 . Importantly, it provides the link to decisions being reviewed automatically under subparagraph 101(1A)(a)(ii), in the circumstances where the CEO fails to meet the timeframe required under section 20 and the prospective participant is automatically taken not to have met the access criteria.

 

Timeframes for information required by the Agency

 

Items 11 and 12 - Paragraphs 26(2)(b) and 26(3)(b)

 

These items implement Recommendation 9 of the Tune Review that the minimum time for prospective participants to provide information requested by the Agency to support an access decision before the access request is deemed to be withdrawn should be increased from 28 to 90 days. The discretion will remain for the CEO to specify a longer period.

 

Timeframes for facilitating development of a participant’s plan

 

Item 14 - Sections 32 and 32A

 

This item, and Item 16, implement Recommendation 11 of the Tune Review that the Act should require a participant plan to be facilitated in accordance with the timeframes outlined in the Guarantee.

 

Item 14 repeals existing sections 32 and 32A which enabled separate NDIS Rules for facilitation of participant plans for people transitioning to the NDIS in each State and Territory. In practice, this provided the ability for NDIS Rules to set out arrangements for the transition of people with disability from State and Territory disability systems to the NDIS. Seven NDIS Rules were created as a result of this section. From 1 July 2020, the NDIS became available across Australia. The existing sections are no longer needed and are substituted with a new section 32.

 

New section 32 provides that the CEO is required to facilitate the preparation of a participant’s plan within 21 days of the person becoming a participant.

 

Item 16 - Subsection 33(4)

 

This item replaces current subsection 33(4) with a new subsection requiring the CEO to approve the statement of participant supports within a period worked out in accordance with the NDIS Rules, or as soon as reasonably practicable if there are no such NDIS Rules. This amendment aims to strengthen the participant-centred focus of the NDIS and provide greater clarity for participants, their families and carers in relation to when they can expect to be notified of approval of their plan.

 

Timeframes for cancellation of appointments of nominees

 

Items 34 and 35 - Subsections 89(1) and 89(3)

 

These items provide for the NDIS Rules to prescribe the time period for the CEO to comply with a request from a participant or nominee to cancel the appointment of the nominee. If there are no NDIS Rules in place, the request will need to be actioned as soon as reasonably practicable. These amendments encourage choice and control for participants in their use of nominees as well as strengthening the safeguards for participants who require a change in nominee.

 

Item 36 - Paragraph 90(3)(a)

 

This item replaces existing paragraph 90(3)(a) which provides that the CEO must decide whether to cancel the appointment of a nominee appointed on the CEO’s own initiative within 14 days after receiving a request from the participant. This item also allows the NDIS Rules to prescribe an alternate time period. This amendment aims to provide both flexibility and certainty for participants and nominees.

 

Timeframes for internal reviews

 

Item 38 - Subsection 99(1) (table item 1)

 

This item makes a minor change to ensure that access requests are ‘reviewable decisions’, following amendments made by item 3 .

 

Items 42 to 44 - Subsection 100(6)

 

These items amend section 100 to allow the NDIS Rules to prescribe the time period within which a reviewer must decide to confirm, vary or set aside a reviewable decision. These amendments aim to benefit those affected by reviewable decisions under the Act by providing certainty about time frames when seeking a review.

 

Item 43 provides that if the NDIS Rules do not prescribe a time period under paragraph 100(6A)(a), the reviewer must make the decision within 90 days of receiving a request for review, or the day after a deemed refusal of access under paragraphs 21(3)(a) or (b), whichever applies. This item will commence at the same time as the other provisions relating to the Guarantee, being the seventh day after the Royal Assent.

 

Item 44 will amend subsection 6A three months and a day after the Act receives the Royal Assent, or on 1 April 2022, whichever is later, in line with the timing for amendments to sections 47A and 48. Item 44 provides that a deemed refusal to vary a participant’s plan under subsection 47A(5), or a deemed refusal to reassess a participant’s plan under subsection 48(4), will be subject to the same timeframes as a deemed refusal of access under paragraphs 21(3)(a) or (b).

 

Other timeframes

 

Items 52 to 54 - Section 204

 

This item repeals current subsection 204(1) which allows the NDIS Rules to prescribe a longer period than set out in the Act for the CEO to make decisions or do other things. The amendment is consistent with the purpose of the Guarantee, which is designed to provide certainty and reduce waiting times for people with disability, their families and carers.

 

 

Participant Service Guarantee - qualitative elements

 

Item 56 - At the end of subsection 209(2A)

 

This item inserts new paragraphs 209(2A)(c) and (d) to enable the NDIS Rules to provide for the qualitative elements of the Guarantee intended to focus on principles-based outcomes statements supported by underpinning service standards. This approach is consistent with the structure of the NDIS Practice Standards for registered providers managed by the NDIS Commission.

 

New paragraph 209(2A)(c) enables the NDIS Rules to provide for matters relating to how the Agency, CEO, and other specified persons are to engage with participants or prospective participants.

 

New paragraph 209(2A)(d) enables the NDIS Rules to provide for matters relating to how participants or prospective participants are to engage with the Agency, CEO, and other specified persons. The NDIS Rules relating to the Guarantee setting out these and other elements will be specified as ‘Category C’ NDIS Rules in item 3 of the table in subsection 209(8) (see item 59 ). Category C NDIS Rules are made by the Minister with the agreement of a majority of the States and Territories.

 

Planning processes and reasons for decision making

 

Item 30 - before section 51

 

This item inserts new section 50J which enables NDIS Rules to prescribe the requirements the CEO must comply with when preparing a participant’s plan or for participant plans that have come into effect. For example, the NDIS Rules could prescribe timeframes for additional processes, such as the offer of a meeting after the plan is approved to discuss how the participant and their family could implement it and access their NDIS funding. The new section also enables NDIS Rules to prescribe requirements with which the CEO must comply to give effect to decisions of the Administration Appeals Tribunal (‘AAT’). It is intended that these NDIS Rules will prescribe the timeframe within which the NDIA must implement AAT decisions. These amendments aim to assist participants, their families and carers gain a greater understanding of the service delivery options they can expect from the Agency.

 

Item 40 - subsection 100(1)

 

This item implements Recommendation 25c of the Tune Review which is that as part of the Guarantee, participants and prospective participants should be able to request an explanation of an access, planning or plan review decision made by the Agency. This was intended to further strengthen the participant-centred focus of the NDIS by providing an opportunity for participants, their families and carers to gain insight into why a decision about their plan has been made.

 

This item responds to concerns raised through the consultation process by making it mandatory for the CEO to provide reasons for any reviewable decision. All persons directly affected by a reviewable decision will be given written notice, and the reasons for, any reviewable decision.

 

Automatically giving reasons for decisions will assist participants, their carers and their families to understand why a particular decision has been made in a particular way and to explain the decision. It will assist these people to determine whether or not they should seek merits review.

 

People affected by the decision will be better able to see the facts and reasoning that form the basis for the decision. They will see that the decision took into account the specific circumstances of the participant and whether they have been dealt with fairly. They will see to what extent any arguments they have put forward to the Agency have been understood or accepted in the decision. They will also be able to see whether there are gaps in the understanding of the Agency, or whether there is key evidence missing that would help them to justify their request.

 

Automatically giving reasons for decisions will also demonstrate transparency, accountability and improve the quality and consistency of decision-making within the Agency.

 

Performance metrics - Quarterly report to the Ministerial Council

 

The NDIS is overseen by a Ministerial Council, established by Part 5 of Chapter 1 of the Act. It is defined in section 9 as a body consisting of the Ministers of the Commonwealth, States and Territories, and that has been designated as having responsibility relating to the NDIS. Section 174 of the Act provides for the Board of the Agency (the Board) to report to the Ministerial Council on the operations of the Agency.

 

Item 50 - Paragraph 174(1)(b)

 

This item extends the period for the Board to provide a quarterly report to the Ministerial Council from 1 month to 42 days, allowing a short additional period for the Board to consider and report on performance of the Agency in relation to the new requirements in the Guarantee.

 

This amendment reflects the manner in which timeframes are proposed to be expressed in the Guarantee Rules (days rather than months) and extends the reporting period from approximately 4 weeks to approximately 6 weeks (or 42 days). The additional time is based on experience to date. It takes into account the time required to gather data and report on the previous quarter’s performance by the Agency, together with sufficient time for the Board to consider and comment on the Agency’s performance.

 

Item 51 - Subsections 174(3) to (4C)

 

Subsection 174(3) currently allows the Minister to make a legislative instrument prescribing the matters which must be contained in the quarterly report, and subsections 174(4) to (4C) sets out prerequisites to making that legislative instrument.

 

This item repeals subsections 174(3) to (4C), substituting a new provision allowing the Minister to specify additional information to be included in the Board’s quarterly report in NDIS Rules, instead of the current requirement for a legislative instrument needing the agreement of a majority of Ministerial Council members. This additional flexibility to require new information in the quarterly report will help increase transparency on the performance and trajectory of the NDIS and allow reporting to be more responsive to the disability sector generally, for example in response to emerging trends.

Report by the Commonwealth Ombudsman

 

Item 55 - At the end of Part 2 of Chapter 7

 

This item implements Recommendation 26 of the Tune Review that the Act be amended to clarify the Ombudsman’s power to monitor the Agency’s performance in delivering against the Guarantee. The item inserts new section 204A requiring the Commonwealth Ombudsman to report to the Minister on matters prescribed by NDIS Rules for the purposes of the section. The Minister must table the report in each House of the Parliament within 15 sitting days after receiving it. This Report is separate from that of the report to the Ministerial Council and acts as an external assurance mechanism.

 

This is in addition to the Commonwealth Ombudsman‘s powers under the Ombudsman Act 1976 , which the Ombudsman may exercise as though undertaking an investigation under that Act and in dealing with the report. The exercise of those powers for the purposes of the preparation of report under section 204A is taken for all purposes to be an exercise of those powers under the Ombudsman Act 1976 . This provides various protections for the disclosure of information to the Ombudsman that may not have otherwise applied, amongst other things.

 

It is intended the NDIS Rules will prescribe the following matters:

·         collective performance against one or more of the proposed engagement principles and service standards;

·         performance against one or more of the timeframes that apply to the Agency or CEO in accordance with the timeframes prescribed as part of the Guarantee; and

·         other matters relating to the experience of participants, or prospective participants, relating to decisions by the Agency or CEO under the Act or NDIS Rules made in relation to the Guarantee.

Under its existing powers, the Commonwealth Ombudsman will have the capacity to investigate the above matters. 

 

Consultation raised concerns that this measure does not result in adequate consequences if the NDIA fails to meet or work towards improving their performance metrics. This was considered by the Tune Review which ultimately found that alternative consequences such as certain deeming provisions or financial penalties for the NDIS would pose substantial risks to the legislative framework and/or create perverse incentives for the NDIA resulting in poor quality decisions that negatively affect the participant. The Tune Review concluded that greater oversight by the Commonwealth Ombudsman was likely to be the most effective consequence because it allows for transparency, more consistent feedback and increased accountability for the Agency.

 

Variation and reassessment of plans

 

The Tune Review identified that the inability to amend a plan without creating a new plan or requiring a plan reassessment was a key frustration for participants. The amendments in this Bill address this issue by establishing a new set of options for making changes to a participants plan.

 

The changes in the Bill will allow participants to request a plan variation or reassessment whenever they need a change made to their plan.

 

This gives participants flexibility in how they use their supports and will minimise some of the stress involved with communicating all of their needs whenever a small change is required.

 

The Bill also addresses concern over the multiple meanings of the word ‘review’ in the Act which has created confusion for participants, their families and carers, as well as Agency delegates as to what kind of review is being sought at any point in time. Currently, participants can seek two types of review under the Act: a review of their plan (in accordance with section 48) and an internal review of a reviewable decision (in accordance with section 100). A third type of review is created when the participant appeals an internal review decision to the AAT.

 

Recommendation 22 of the Tune Review recommended using the term ‘reassessment’ to describe what is currently called a plan ‘review’. Instead of using ‘review’ for the process of reassessing or varying a person’s plan, either in response to a participant’s request, on the CEO’s own initiative or on a scheduled basis, the words ‘vary’ or ‘reassess’ are substituted.

 

Consultation on this issue raised concerns due to the association with Independent Assessments; however, most alternative terms were synonyms of ‘vary’ and not considered suitable.

 

Internal review of decisions needs to continue to use the word ‘review’ for reasons including matching the requirements of the AAT’s empowering legislation.

 

New options to change participant plans
	Sections	Purpose
Plan Variation	New s47A	Allows for minor changes to a participants plan.
Plan Reassessment	New s48	A major change of a participants plan requiring replacement of a plan after consideration by the Agency.
Reviewable decision	Existing s99	Allows either internal review of a specified decision to be initiated by the participant, or, following internal review, for the decision to be reviewed by the AAT.

 

Variation of a participant’s plan

 

Item 19 - Subsection 37(2)

 

This item repeals subsection 37(2) to remove the existing prohibition on varying a participant’s plan.

 

 

Item 23 - After section 47

 

Item 23 implements Recommendations 20 and 21 of the Tune Review that the Act be amended to provide new powers to make NDIS Rules giving the Agency the ability to amend a plan in appropriate circumstances and specifying the matters the Agency must consider when deciding whether to undertake an unscheduled plan review.

 

Currently, if a plan needs to be amended, the only mechanism by which to do this is to replace the plan or create a new plan after a review of the full plan. The Tune Review identified that the inability to amend a plan without creating a new plan or requiring a plan reassessment was a key frustration for participants. These amendments address this frustration to improve the administration of the NDIS, and deliver improved participant experiences to complement the intent of the Guarantee.

 

This item inserts new section 47A which enables the CEO to vary a participant’s plan (except the participant’s statements of goals and aspirations), without requiring a plan reassessment to be undertaken, or a new plan to be created. The CEO will have the power to vary a participant’s plan either on the CEO’s own initiative or at the participant’s request, but in either case the participant must be involved in the variation. The intention is that any variation will be for the benefit of the participant.

 

The purpose of a plan variation is to make minor or technical changes to a participant’s plan or in circumstances prescribed in the relevant NDIS Rules. Typically, this would occur where the variation does not require a reduction or significant increase to the level of NDIS funding. An example of a variation on the CEO’s own initiative would be to correct a technical mistake by the Agency found after the plan had been agreed.

 

Other examples under which a plan variation may be appropriate include:

·         if a participant requires crisis/emergency funding as a result of a significant change to their supports;

·         if the participant requests a change to the type of plan management and after an appropriate risk assessment; 

·         a minor change in supports; or

·         to implement an AAT decision.

 

Example 1 - participant requested variation:

 

Justen is an NDIS participant who works as a casual employee at the local community health centre two days a week. Justen would like to transition to part-time employment, for three days a week, with longer hours, but is worried he does not have enough funding in his NDIS plan for the change. Justen requested a plan variation for increased supports. The CEO decided to vary Justen’s plan to include the increased supports. As the date for a plan reassessment was quite close and Justen had indicated all was otherwise going well with his plan, the CEO also varied Justen’s plan by pushing out the time for a reassessment for another two years.

 

Plan variations made it possible for Justen to make this change and reset the date for his next reassessment without having to undergo an entire reassessment of his plan

 

Example 2 - NDIA initiated variation:

 

Emily is an NDIS participant living in shared accommodation. There is an attendant available 24 hours each day, as Emily and her housemates require high levels of personal care.

The NDIA becomes aware that the shared accommodation provider is insolvent and intends to cease trading, potentially leaving Emily homeless. As there is no alternate appropriate accommodation readily available, the NDIA makes contact with Emily about a plan variation for additional temporary supports for her personal care and housing until new suitable accommodation is found. This plan variation enabled a quick response to a crisis situation. Even though the variation was NDIA initiated, Emily was required to be involved in the variation.

 

A reassessment will be required under new section 48, where:

·         a participant has undergone a significant change in circumstances requiring a change in the level of support they need, or

·         a participant otherwise requires significant additional funding to a range of existing supports.

 

A variation may be different from the one requested by the participant however each variation must be prepared with the participant. This means these new provisions should be read in conjunction with new requirements for transparency under the Guarantee.

 

In varying a plan, the CEO must have regard to the participant’s statement of goals and aspirations, relevant assessments conducted in relation to the participant and be satisfied by any supports provided and that they are reasonable and necessary. The CEO must also have regard to any applicable NDIS Rules, that the participant should manage their own plan to the extent they wish, and the operation and effectiveness of any previous plans.

 

If a participant requests a variation of their plan, the CEO will be required to make a decision within 21 days:

a)    to vary the plan; or

b)    not to vary the plan and not to reassess the new plan under subsection 48(1); or

c)     not to vary the plan but to reassess the plan under new subsection 48(1) instead; or

d)    inform the participant that the CEO requires further time to decide whether or not the plan needs to be varied.

 

The requirement for the CEO to action a request by a participant within a maximum of 21 days will provide greater certainty to a participant who has requested a variation of their plan. NDIS Rules for this purpose will be Category C NDIS Rules (see item   61 ).

 

If the CEO requires further time to decide whether or not the plan needs to be varied, the CEO must make a decision to vary the plan or not with a period worked out in accordance with the NDIS Rules, or if no NDIS Rules apply then as soon as reasonably practicable. Any timeframe set out in the NDIS Rules needs to be reasonable to ensure that the timeframe does not unduly delay variation of a participant’s plan. 

 

If the CEO does not make a decision on whether to vary, reassess or take further time to decide on a plan at a participant’s request within the applicable timeframe, the CEO will be taken to have decided not to vary or reassess the plan.

 

In deciding whether to vary a participant’s plan, the CEO will be required to have regard to matters that are set out in the NDIS Rules. The matters set out in the NDIS Rules will assist in clarifying when a variation or reassessment of a participant’s plan should occur. These NDIS Rules will be Category D NDIS Rules, requiring the Commonwealth to consult with all States and Territories prior to making or amending the NDIS Rules (see item 62 and subsection 209(8)). The Rules will subsequently be subject to Parliamentary scrutiny, including a disallowance period before both Houses.

 

If the CEO makes a decision to vary a plan upon the request of a participant, the CEO will be required to vary the plan within 21 days unless the CEO informs the participant under section 47A(4)(d) that further time is required to decide whether or not the plan needs to be varied. If the participant is informed that more time is required, the timeframe for the variation decision under section 47A(8) will be in accordance with the NDIS Rules. If there are no such NDIS Rules, the CEO must vary the plan as soon as reasonably practicable having regard to any information or reports required pursuant to section 50. NDIS Rules for this purpose will be Category C NDIS Rules (see item 61 ), as the prescribed time frame will be contained in the Guarantee Rules.

 

A plan variation will take effect on the day specified in the notice of variation, which must not be earlier than the day the variation is made. The Agency will be required to give a participant a copy of the varied plan within seven days of the variation taking effect, but as a participant must be involved in a plan variation, no variation can occur without a participant’s prior knowledge.

 

Reassessment of a participant’s plan

 

Item 24 - Sections 48 and 49

 

This item repeals sections 48 and 49, and substitutes new sections 48, 49 and 49A. The current section 49 becomes redundant as a result of the amendments to section 48.

 

To assist with addressing delays in CEO decision-making concerning reassessments, and to clarify how the process operates, section 48 will be replaced. A key change in new section 48 is to replace the word ‘review’ with ‘reassessment.’ This will avoid confusion with a review of a decision.

 

New section 48 continues the existing power which allows the CEO to review a participant’s plan at any time, either on the CEO’s own initiative or on the request of the participant. This reflects the change in reference from review to reassessment to provide increased clarity for participants. 

 

If the participant requests a reassessment of their plan, the CEO must decide, within 21 days, whether the plan needs to be varied under new subsection 47A(1), reassessed, or not to conduct a reassessment (meaning that the plan will not be changed or replaced with a new one).

 

New NDIS Rules will set out matters to which the CEO will be required to have regard in deciding whether to conduct a reassessment of a participant’s plan. This will ensure consistency in decision-making about whether to reassess or vary a plan, now there is an ability to vary parts of a plan as well as reassess the whole plan. These NDIS Rules will be Category D NDIS Rules, requiring the Commonwealth to consult with the States and Territories before they can be made (see subsection 209(8) and item 62 ). The Rules will subsequently be subject to Parliamentary scrutiny, including a disallowance period before both Houses.

 

The Rules will require the CEO to consider a broad range of circumstances for the benefit of participants when making reassessments. If the CEO conducts a reassessment, the CEO will be required to complete the reassessment, and either vary the plan pursuant to new section 47A, or, as in the existing section 49, prepare a new plan in accordance with Division 2 of the Act, including approving a statement of participant supports in the new plan.

 

The improvement made by these provisions is that new section 48 enables the CEO greater options to either vary or prepare a new plan dependent on the reassessment, which allows for a more tailored response to the needs of the participant. Under the previous section 49, upon conducting a plan review, the CEO was only able to facilitate the preparation of a new plan.

 

A reassessment will need to be done within the timeframe worked out in accordance with the NDIS Rules. If there are no such NDIS Rules, the CEO will be required to complete the reassessment as soon as reasonably practicable having regard to any information or reports required pursuant to section 50 of the Act. NDIS Rules for this purpose will be Category C NDIS Rules (see item 61 ), as the prescribed time frame will be contained in the Guarantee Rules. Category C NDIS Rules require agreement by the Commonwealth, and a majority of the States and Territories before they can be made (see subsection 209(8)).

 

NDIS Rules will be able to prescribe the period (if any) before which the CEO must commence the reassessment of the participant’s plan prior to a reassessment date. Rules for this purpose will be Category C NDIS Rules (see item 61 ), as the prescribed time frame will be contained in the Guarantee Rules. Category C NDIS Rules require agreement by the Commonwealth, and a majority of the States and Territories before they can be made (see subsection 209(8)).

 

New section 49 requires the CEO to complete a reassessment of the plan and either vary it or prepare a new plan with the participant. The plan must be varied or replaced and approved before the plan reassessment date.

 

The CEO must start the reassessment of the plan before the period worked out in accordance with the NDIS Rules. New section 49 is substantially similar to the existing paragraph 48(5) in the Act and ensures that participant’s plans are regularly reassessed. This ensures the plan continues to meet the participant’s needs. It also provides certainty to the participant about when the plan will be reassessed which supports the participant to obtain any information they wish to provide in relation to supports they need.

 

New section 49A requires the CEO to conduct a reassessment of a participant’s plan in any circumstances identified in the plan and is consistent with existing subsection 48(5).

 

Example 1: Rick is a participant who has recently had a plan reassessment. As Rick has a goal to move out of the family home with some friends, his new plan includes a reassessment of the plan if Rick finds suitable alternate accommodation. Nine months after Rick’s plan is approved, Rick secures a rental with his friends and notifies the NDIA so the specified reassessment can commence in accordance with section 49A. However, before the reassessment commences the rental falls through after the property is sold. The NDIA CEO decides not to reassess Rick’s plan in this case.

 

Example 2: Amahl is a participant and her scheduled plan reassessment date is coming up. Amahl is contacted by the NDIA to schedule a planning meeting. At the meeting, it becomes clear that the supports in Amahl’s plan are meeting her needs, but she has a new goal to learn to drive and needs a small change to her supports. The NDIA CEO decides to vary Amahl’s plan under section 47A to include her new goal, the additional support and a new date for her next reassessment.

 

Example 3: Bruce is a participant with complex needs. After a fall, Bruce is hospitalised and due to the impact of the fall Bruce will need significant additional supports to resume independent living. The NDIA is notified of Bruce’s change of circumstances. The NDIA CEO decides to reassess Bruce’s plan to ensure that his new plan supports his needs following hospital discharge.

 

Consequential amendments due to items 22 and 23

 

Items 13 (section 31), 15 (paragraph 33(2)(c)), 17 (subsection 36(3) (note)), 25-29 (section 50), 31 (paragraph 55(2)(d)), 32 (subsection 78(1), 33 (subsection 79(1) and 37 (paragraph 96(2)(b)) implement Recommendation 22 of the Tune Review that the Act be amended to remove the duplicate use of the word ‘review’. The amendments made by these items replace the word ‘review’ with ‘vary or reassess’.

 

Item 18 - At the end of subsection 37(1)

 

This item adds a note to the end of subsection 37(1) of the Act to alert a reader that Division 4 deals with varying and replacing plans.

 

Item 20 - Paragraph 41(2)(c)

 

This item amends paragraph 41(2)(c) to provide that during a period of plan suspension, the participant is not entitled to make a request under new subsection 47A(2) for a variation of the plan or under subsection 48(2) for a reassessment of the plan. This is consequential to item 23 which makes amendments to allow a plan to be varied under section 47A and item 24 which makes amendments to allow a plan to be reassessed under section 48, 49 or 49A.

 

Item 21 - Division 4 of Part 2 of Chapter 3 (heading)

 

This item replaces the heading of this Division of the Act to reflect the flexibility to vary plans provided by new section 47A contained in item 23 .

 

Item 22 - Subsection 47(1) (note)

 

This item repeals the note at subsection 47(1) and substitutes two new notes referring to requests a participant may make to vary a plan, and the decision the CEO may make to vary or reassess a plan by way of sections 47A and 48 respectively.

 

Item 39 - Subsection 99(1) (table item 6)

 

This item inserts new items 6, 6A, 6B and 6C in the table of reviewable decisions in subsection 99(1) to provide for reviewable decisions made under sections 47A and 48. These provide that a decision by the CEO to vary a participant’s plan, or a decision not to vary or reassess a plan, is reviewable. A person affected by the decision may seek internal merits review of such a decision, and make a subsequent application to the AAT for external review if they feel the issue has not been resolved by internal merits review.

 

Item 41 - Subparagraph 100(1A)(a)(ii) and Paragraph 100(5)(b)

 

This item omits references to subsection 48(2) which, as amended by Item 24, no longer relates to review of decisions under section 100. Instead, this item substitutes a reference to subsections 47A(5) and 48(4) as these subsections provide for automatic decisions where the CEO fails to meet the statutory timeframes set out in subsection 47A(4) or 48(3). In these circumstances, the decisions will be reviewed automatically under subparagraph 101(1A)(a)(ii).

 

Effect of later decisions before review is completed

 

In essence, Items 45 to 49 provide for anybody reviewing a decision on its merits to have the ability to take into account decisions which are made while the review is underway. Current section 101 provides that if a decision is varied when a review of the decision has been sought, the review of decision is a request to review the varied decision. In the case of a review of a decision to approve a statement of participant supports in a plan, this has not been available, because a statement of participant supports could not be varied, and a new plan needed to be prepared instead. New section 47A will allow the variation of such a statement. Section 101 of the Act is then amended to ensure that where a review has been sought of a statement of participant supports, and that statement is varied prior to the completion of the review, then the review is of the statement of participant supports as varied.

 

Under these circumstances a participant is also free to withdraw their request for review if they are satisfied with the variation or no longer wish to proceed with the review. This will improve participant experience and support the direction of AAT resources by ensuring that the participant and AAT do not have to continue with the review where the participant is satisfied with the variation.

 

Item 45 - Section 101 (heading)

 

This item substitutes a new heading for section 101.

 

Item 46 - Section 101

 

This item makes a minor amendment consequential to the amendments made by item 47 .

 

Item 47 - At the end of section 101

This item inserts new subsection 101(2) which will apply if a participant makes a request for review of a decision to approve a statement of participant supports, or a decision to vary a statement of participant supports.

 

If, prior to the review decision being made, the CEO varies the plan in a way that changes the statement of participant supports, then the request for review is also taken to be a request for review of the decision to make that variation.

 

If, prior to the review decision being made, a new plan for the participant comes into effect, then the request for review is also taken to be a request for review of the decision to approve the statement of participant supports in the new plan.

 

Item 48 - Section 103

 

This item makes a minor amendment consequential to the amendment made by item 49 .

 

Item 49 - At the end of section 103 (after the note)

 

This item implements Recommendation 23 of the Tune Review that the Act be amended to clarify the AAT’s jurisdiction, including the power for a plan to be amended while a matter is before the AAT. The item inserts new subsection 103(2), which applies where an application is made to the AAT for review of a decision made by a reviewer relating to a statement of participant supports in a participant’s plan.

If, before a decision on the review is made, the CEO varies the plan and the variation is a change to the statement of supports, then the application is also taken to be an application for review of the decision to make a variation.

 

If, before a decision on review is made, a new plan for the participant comes into effect, then the application is also taken to be an application for review of the decision to approve the statement of participant supports in the new plan.

 

Categorisation of NDIS Rules

 

Item 60 - Subsection 209(8) (table item 3)

 

This item repeals the existing item 3 in the table of NDIS Rules in section 209 and substitutes a new item with the effect that all new rule-making provisions in Schedule 1 in relation to the Guarantee provided for by this Bill will be Category C NDIS Rules. Category C NDIS Rules require the agreement of the Commonwealth and a majority of the States and Territories.

 

This Item commences on the seventh day after the Act receives the Royal Assent, meaning that NDIS Rules relating to the Guarantee can commence with the other elements of the Guarantee.

 

Items 57 to 59 - Subsection 209(8) (table items 1 and 2)

 

These items make minor technical amendments to subsection 209(8) consequential to item 60 .

 

Item 61 - Subsection 209(8) table item 3)

Like item 60 , this item repeals item 3 in the table of NDIS Rules in section 209. However, item 61 will commence 3 months and a day after the Act receives the Royal Assent, or on 1 April 2022, whichever is later. This aligns the commencement of NDIS Rules made for purposes other than the Guarantee. For example, NDIS Rules relating to the timeframes for plan variation and plan reassessment can only be made once the amendments to sections 47A, 48 and 49 made in items 23 and 24 of Schedule 1 commence. 

 

Item 62 - Subsection 209(8) (table item 4)

 

This item inserts new paragraphs (caa) and (cab) into table item 4, which provide that NDIS Rules made under paragraphs 47A(1)(a) and (c) and subsections 47A(6) and 48(5) will be Category D NDIS Rules. 

 

Application and transitional provisions

 

When provisions are amended, application and transitional provisions explain how the amended provisions work. Application provisions explain how the new provisions apply and how the old provisions will cease to apply. Transitional provisions modify the effect of new provisions to provide how the new provisions might affect people or circumstances to which the old NDIS Rules apply.

 

Item 63 - Application provisions—requests

 

This item sets out when the amendments in the Bill relating to access requests by participants and requests by the CEO for further information are to apply.

 

The amendments to sections 20 and 21, subsection 26(1) and item 1 of the table in subsection 99(1) apply in relation to an access request made on or after the commencement of this item. The amendments of paragraphs 26(2)(b) and (3)(b) apply in relation to a request made under subsection 26(1) on or after the commencement of this item.

 

Item 64 - Application, saving and transitional provisions—prospective participants or participants

 

This item sets out when amendments relating to prospective participants or participants are to apply, in what circumstances existing provisions continue to have effect and what amending provisions are modified to ensure a proper transition to the new legislation with amendments in the Bill.

 

The repeal of sections 32 and 32A, and substitution of new section 32, apply in relation to a person who becomes a participant on or after the commencement of this item.

The repeal and substitution of subsection 33(4) apply in relation to a participant’s plan where the CEO commences facilitating the preparation of the plan on or after the commencement of this item.

 

New paragraph 50J(a) applies to a plan approved by the CEO on or after the commencement of this item.

 

New paragraph 50J(b) applies in relation to the following:

·         a participant’s plan that is in effect immediately before the commencement of this item;

·         a participant’s plan that comes into effect on or after that commencement.

 

New paragraph 50J(c) applies in relation to decisions of the AAT that are made on or after the commencement of this item.

 

Item 65 - Application, saving and transitional provisions—prospective participants or participants - variations and reassessments

 

The amendments to sections 31, 50, 55, 78, 79 and 96 made by this Schedule apply in relation to a variation of a participant’s plan made under section 47A, or a reassessment that begins under section 48, 49 or 49A on or after the commencement of this item.

 

Sections 31, 50, 55, 78, 79 and 96, as in force immediately before the commencement of this item, continue to apply on and after that commencement in relation to a review of a participant’s plan that began under section 48 before, on or after that commencement.

 

The amendment to paragraph 33(2)(c) applies in relation to a participant’s plan where the CEO approves the statement of participant supports on or after the commencement of this item.

 

The amendments to section 37 made by this Schedule and section 47A applies in relation to the following:

·         a participant’s plan that is in effect immediately before the commencement of this item;

·         a participant’s plan that comes into effect on or after that commencement.

 

Section 48 as substituted by this Schedule applies to a reassessment that begins to be conducted on or after the commencement of this item (whether on the CEO’s own initiative or because of a request made on or after that commencement).

 

Subsections 48(1) to (3), section 49 and subsections 99(1) and 100(1A) and (5), as in force immediately before the commencement of this item, continue to apply on and after that commencement in relation to a request for a review made under subsection 48(1)before that commencement.

 

Subsections 48(4), (5) and (6) and section 49, as in force immediately before the commencement of this item, continue to apply on and after that commencement in relation to a review that began before that commencement.

 

A participant’s plan in effect immediately before the commencement of this item, with a review date on or after that commencement, has effect on and after that commencement as if that date were the plan’s reassessment date.

 

A participant’s plan in effect immediately before the commencement of this item, that specifies the circumstances in which the plan must be ‘reviewed’, has effect on and after that commencement as if those circumstances were circumstances in which the plan must be ‘reassessed’.

 

Item 66 - Application provisions—nominees

This item sets out when amendments relating to nominees are to apply.

 

The amendment of subsection 89(1) applies in relation to a request to cancel the appointment of a nominee referred to in paragraph 89(1)(b) of the Act made on or after the commencement of this item.

 

The amendment of subsection 89(3) applies in relation to a cancellation of a nominee’s appointment under that subsection on or after the commencement of this item, where the CEO was informed under paragraph 89(3)(b) on or after that commencement.

The repeal and substitution of paragraph 90(3)(a) applies in relation to a request made on or after the commencement of this item.

 

Item 67 - Application provisions—review of decisions - Effect of later decisions before review completed

 

This item sets out when amendments relating to review of decisions are to apply.

 

The amendment of subsection 100(1) made by this schedule applies in relation to a reviewable decision made on or after the commencement of this item.

 

Amended subsection 100(6) and new subsection 100(6A) apply in relation to the following:

·         a request for review that is made on or after the commencement of this item;

·         a period applicable under paragraph 21(3)(a) or (b) that ends on or after that commencement.

 

Item 68 - Application provisions - review of decisions - withdrawal of request for review

 

New paragraph 101(2)(a) applies only in relation to a request for review made on or after the commencement of this item.

 

New paragraph 103(2)(a) applies in relation to an application for review made on or after the commencement of this item.

 

 

Item 69 - Application provisions—Agency’s quarterly report

 

This item sets out when amendments relating to Quarterly Reports by the Agency to the Ministerial Council are to apply.

 

Amended section 174 applies in relation to a period ending on or after the commencement of this item.

 

Item 70 - Application provision—report by Commonwealth Ombudsman

 

New section 204A applies in relation to a financial year ending on or after the commencement of this item.

 

Item 71 - Transitional provision—time frames for decision making by persons other than the CEO

 

This item provides in relation to decision making by persons other than the CEO, that NDIS Rules made for the purposes of existing subsection 204(2) in force immediately before the commencement of this item, continue in force on and after that commencement as if they had been made for the purposes of new section 204.

Schedule 2 - Flexibility Measures

 

Schedule 2 strengthens the Act to better acknowledge the central role and rights of scheme participants and improve their experience of the NDIS.

 

In response to recommendations of the Tune Review, t his Schedule:

·         strengthens the objects and principles of the Act to include the central role of participants in co-design, their right to markets where they can exercise choice and control and the need to recognise and respect the relationship between people with disability and their families and carers;

·         updates language in relation to people with psychosocial disability in the eligibility criteria, removing reference to the medicalised terminology of ‘psychiatric condition’ and replacing this with ‘psychosocial disability’;

·         streamlines administrative processes for participants including, wherever possible, only requiring a participant (or prospective participant) to provide information once; and

·         increases clarity in relation to decisions about plan management requests and extends the risk assessment process for self-management of funding to those using registered plan management providers, acknowledging there may be similar risks inherent in engaging an unregistered provider to deliver NDIS supports or services.

 

In addition, other amendments in this Schedule enable the Agency to pay service providers directly on behalf of participants, including self-managing participants, through a new payment platform (see amended section 45). This means some self-managing participants will no longer be required to pay for supports up front and then seek reimbursement.

 

Schedule 2 also gives effect to recommendations of the 2015 Independent Review of the Act prepared in consultation with the State and Territory governments.

 

Background to the incorporation of 2015 Independent Review amendments

 

The majority of the amendments from the 2015 Independent Review are minor or technical in nature to help manage risks proactively and ensure the NDIS delivers positive outcomes for people with disability.

 

The recommendations of the 2015 Independent Review endorsed by the Commonwealth and all State and Territory governments at the time included strengthening the objects and principles of the Act; providing a more appropriate description of the purposes of funding the Agency provides outside of participant plans; strengthening Information, Linkages, and Capacity Building and other general supports for people with disability; as well as addressing other technical inadequacies of the legislation.

 

 

Recommendation 27b of the Tune Review was that the Act and NDIS Rules be amended to reflect agreed recommendations of the 2015 Independent Review. The Schedule implements changes to the Act in line with the Government’s response to the Tune Review agreeing to certain amendments recommended by the 2015 Independent Review.

 

Schedule 2 groupings

 

The Items in Schedule 2 have been grouped under the following headings, as these will allow a fuller explanation of the relevant provisions:

·         Amendments to principles (Items 1-5)

·         Importance of carers and families (Items 4, 25, 26 and 45)

·         CEO approval and publication of approved forms (Items 7 and 8)

·         Supporting participants’ access to disability supports (Items 9-11 and 53)

·         Psychosocial disability (Items 16-20)

·         NDIS Rules (Items 21, 22, 23, 24 and 52)

·         Plan management (Items 27-35)

·         Payments under the NDIS (Item 36)

·         Acquittal of NDIS amounts (Item 37)

·         Variation of participants’ plans (Items 38-40)

·         Information gathering (Items 41-43)

·         Cancellation of nominee (Item 44)

·         Board members and the Independent Advisory Council (Items 46-50)

·         Clarifying circumstances where there is no debt (Item 51)

·         Application and savings provisions (Items 54-57).

 

Amendments to principles

 

Items 1 to 5 - Section 4

 

These items amend section 4, which sets out the general principles guiding actions under the Act. For details on item 4 see the section below on Importance of carers and family. Items 1 and 2 remove moderating language referring to the capabilities of people with disability. Item 3 amends the general principles guiding actions under the Act to reinforce that people with disability are central to the NDIS, and should be included in a co-design capacity. Item 5 adds a principle to guide actions under the Act, reinforcing the importance of a diverse, sustainable and well-developed NDIS market to enable people with disability to exercise their right to choice and control in obtaining disability supports.

 

 

Item 6 - Paragraph 5(d)

 

This item amends paragraph 5(d) of the Act. Section 5 of the Act specifies the principles that must be followed when an act or thing is done in relation to a person with disability by another person. Paragraph 5(d) requires that the gender of people with disability should be recognised. Item 6 amends this by removing the word ‘gender’ and replacing it with ‘sex, gender identity, sexual orientation and intersex status’. This amendment requires the intersection between disability and sex, gender identity, sexual orientation and intersex status to be taken into account by persons that do an act or thing on behalf of others.

 

Items 12 to 15 - section 17A

 

These items amend section 17A of the Act, which sets out the principles relating to the participation of people with disability in the Scheme. Item 12 clarifies the intended role of existing section 17A of the Act by inserting a new subsection requiring the CEO to have regard to principles relating to the participation of people with disability in performing the CEO’s functions and exercising the CEO’s powers in Chapter 3. Chapter 3 relates to participants and their plans. Item 13 and item 14 remove moderating language referring to the capabilities of people with disability, consistent with item I and item 2 relating to section 4. Item 15 inserts new subsection 17A(4) making it clear that the principles in section 17A add to those in section 4, rather than detracting from them.

 

Importance of carers and family

 

These amendments specifically recognise the importance of carers and family to participants.

Item 4 - After subsection 4(12)

 

This item inserts a new subsection 4(12A) to specifically recognise and respect the relationship between people with disability and their families and carers as one of the guiding principles for administration of the Act.

 

Item 25 - After paragraph 31(c)

 

This item inserts new paragraph 31(ca) and requires, so far as is reasonable practicable, in the preparation, review and replacement of a participant’s plan, and the management of funding for supports under a participant’s plan, that the relationship between participants and their families and carers be recognised and respected.

 

Item 26 - Paragraph 31(d)

 

This item removes the words ‘where possible’ from paragraph 31(d) to give priority in the preparation, review and replacement of a participant’s plan, and the management of funding for supports under a participant’s plan, to strengthen and build the capacity of families and carers to support participants who are children.

 

 

Item 45 - At the end of paragraph 104(3)(f)

 

This item amends paragraph 104(3)(f) of the Act to allow the CEO to consider the effect of requiring a participant to take action to obtain compensation upon the participant’s carer, as well as the participant, their family or carers.

 

Section 104 of the Act sets out circumstances in which the CEO may require a person to take action to obtain compensation. This includes, at subsection (3), things the CEO must have regard to in deciding whether it is reasonable to require a participant or prospective participant to take action to claim compensation.

 

Item 43 will have the effect of requiring the CEO to consider the impact of the requirement to take action on the carer of the participant or prospective participant in deciding whether it is reasonable to require the participant or prospective participant take action. This amendment recognises the importance of the role of carers by considering the impact of requiring a participant to take action on a carer.

 

CEO approval and publication of ‘approved forms’

 

The Tune Review found many respondents had asked for an improved online experience, with the ability to download and print forms and any other documentation they may need to apply for the NDIS, including an option to upload required evidence to support Agency decision-making.

 

Item 7 - Section 9

 

This item amends section 9 of the Act by inserting a new definition of ‘approved form’. This new definition provides that an ‘approved form’ means a form approved under section 9A of the Act.

 

Item 8 - After section 9

 

This item inserts new section 9A into the Act. New section 9A enables the CEO to approve, in writing, approved forms for the purposes of a provision in the Act. It also requires the CEO to publish each approved form on the Agency’s website. This amendment will ensure that approved forms are formally approved by the CEO and publicly accessible on the Agency’s website.

 

The Act requires the following information to be in an ‘approved form’:

·         a report of an assessment requested by the CEO from a prospective participant (section 26 of the Act);

·         a report of an assessment, requested by the CEO, including a medical, psychiatric, psychological or other examination conducted by an appropriately qualified person (section 36(2) of the Act)

·         a report of an assessment requested by the CEO, for the purposes of reviewing a participant’s plan (section 50 of the Act).

 

 

Supporting participants to access disability supports

 

Items 9 to 11 - Section 14

 

These items implement Recommendation 13 of the Tune Review that the Act be amended to provide more flexibility for the Agency to fund early intervention support for children under the age of seven years outside a NDIS plan, in order to develop family capacity and ability to exercise informed choice and control, and Recommendation 27b that the Act be amended to reflect agreed recommendations arising from the 2015 Independent Review.

 

The items amend section 14 of the Act which enables the Agency to provide funding to persons or entities for specified purposes and identifies the general supports that can be funded. Amounts paid under section 14 are not ‘NDIS amounts’ for the purposes of the Act, and are not intended to be paid directly to participants (or their representatives). A person or entity receiving a payment under section 14 will become an ‘NDIS provider’ for the purposes of the Act, and will be subject to the Code of Conduct and complaints mechanism as enforced by the NDIS Quality and Safeguards Commissioner.

 

New subsection 14(2) has been added to allow the NDIA to intervene in the market, particularly where direct intervention may be required. It also allows the NDIA to provide early intervention supports for children under 7 who do not yet have an NDIS plan.

 

Item 9 - Section 14

 

This item makes a consequential amendment to section 14 to reflect that item 10 and item 11 restructure section 14 into a section consisting of subsection (1) and subsection (2).

 

Item 10 - Paragraph 14(a)

 

Recommendation 6 of the 2015 Independent Review requested greater clarity on the purposes of Information, Linkages and Capacity Building funding and other general supports for people with disability. The item does this by listing a new set of purposes for which the Agency may provide funding to build the capacity of mainstream service and community programs. These programs are to be focused on creating connections between all people with disability and the communities in which they live.

 

This item implements part of Recommendation 27b of the Tune Review that reflected recommendations from the 2015 Independent Review. This item replaces the existing paragraph 14(a) with new provisions specifying the purposes for which the Agency may provide funding. It outlines an increased scope of purposes, including:

·         enabling persons or entities to provide information in relation to disability and disability support services;

·         enabling persons or entities to provide assistance in building capacity within the community in connection with the provision of goods and services to people with disability and their families and carers;

·         enabling persons or entities to assist people with disability to realise their potential for physical, social, emotional and intellectual development; or

·         enabling persons or entities to assist people with disability, and their families and carers, to participant in social and economic life.

 

Item 11 - At the end of section 14

 

This item adds a new subsection 14(2) and subsection 14(3) to the Act. New subsection 14(2) clarifies the Agency may provide funding to a person or entity, without limiting new subsection 14(1) (inserted by item 10 ) to:

·         assist one or more participants to receive supports; and

·         assist a participant who is a child under 7 to access supports, before the child’s plan comes into effect, in relation to the child’s disability needs.

 

New paragraph 14(2)(a) will enable funding to be provided to assist participants to fully access supports in order to mitigate the impact of market challenges that may impede the participant from exercising choice and control.

 

There are three main intervention approaches to achieve a better functioning and sustainable market, and the NDIA uses the least interventionist approach necessary:

 

·         market facilitation - improves connections between providers and participants - for example in the Kimberley there were facilitated discussions with Support Coordinators to increase the delivery of Capacity Building Supports (Therapy) to the 30 participants identified with low support utilisation;

·         coordinated funding proposals (CFP) - a way for multiple participants and their support coordinators to work together to purchase services that meet the needs of their group, for example 19 participants in the Broome region requiring Orthotics and Prosthetics supports were identified as suitable to participate in the CFP; and

·         direct commissioning - allows the NDIA to organise services to be available for participants where other levers have not made an impact on the market.

 

These amendments allow the NDIA to intervene in the market through direct commissioning, contracting directly with organisations for services to be delivered for participants in areas where supports or services are otherwise not readily available.

 

New paragraph 14(2)(b) will enable funding to be provided for early intervention supports to children under seven as soon as possible.

 

This provision will allow funding to be provided to Early Childhood Early Intervention (ECEI) Partners. ECEI Partners assist families, even if not NDIS participants, to understand the potential role of the NDIS and to guide them to other appropriate supports and to offer independent advice on providers of support most suited to their needs. Funding ECEI Partners will assist families to start accessing approved early intervention supports while building their readiness to go through the planning process. Any ancillary funding for capacity building supports proposed to be provided for children under seven for the purposes set out in paragraph 14(2)(b) will cease once a plan is approved for that child.

 

Paragraph 14(2)(b) recognises that while ECEI may benefit some children under 7 prior to becoming a participant some children and their families may be ready to commence planning processes immediately. As with all funding under section 14, this funding is discretionary.

 

New subsection 14(3) provides that NDIS Rules may set out matters to which the Agency must have regard in deciding whether to provide discretionary ancillary funding under subsection 14(2) of the Act.

 

Item 53 - Subsection 209(8) (table item 4, column headed “Description”, after paragraph (a))

 

This item makes a consequential amendment to subsection 209(8) as a result of item 11. Subsection 209(8) sets out the different categories of NDIS Rules. Item 53 inserts new paragraph (aa) in subsection 209(8) at table item 4, column headed “Description” to provide that the new NDIS Rules created by new subsection 14(3), inserted by item 11 , are to be Category D Rules. Subsection 209(7) of the Act provides the Minister must not make Category D Rules unless the States and Territories have been consulted about the Rules.

 

Psychosocial disability

 

Items 16 to 20 - Sections 24 and 25.

 

These items implement Recommendation 8a of the Tune Review that the Act be amended to provide clearer guidance for the Agency in considering whether a psychosocial impairment is permanent, recognising that some conditions may be episodic or fluctuating; and Recommendation 8b that the Act be amended to remove references to ‘psychiatric conditions’ when determining eligibility and replace this term with ‘psychosocial disability’.

 

The items amend sections 24 and 25 of the Act to update the language of the Act in respect of psychosocial disability. These amendments are in keeping with best practice approaches and recognise that psychosocial disability may be broader than the classification of psychiatric conditions. These amendments recognise that a prospective participant’s psychosocial disability which is episodic or fluctuating in nature can be assessed as permanent for the purposes of NDIS access. This will not limit the existing provisions that allow for disabilities other than a psychosocial disability to vary in intensity and to be considered permanent.

 

Section 24 sets out the disability requirements for the purposes of satisfying the access criteria contained in section 21 of the Act. Subsection 21(1) provides a person meets the access criteria if the CEO is satisfied:

·         The person meets the age requirements; and

·         The person meets the residency requirements; and

·         The person meets either the disability requirements or the early intervention requirements.

 

Subsection 24(1) lists the criteria a person must satisfy to meet the disability requirements.

 

Item 16 - Paragraph 24(1)(a)

 

This item amends paragraph 24(1)(a) by removing the words ‘to one or more impairments attributable to a psychiatric condition’ from the disability requirements, substituting this with ‘the person has one or more impairments to which a psychosocial disability is attributable’.

 

Item 17 - Paragraph 24(1)(c)

This item amends paragraph 24(1)(c) by omitting the reference to substantially reduced ‘psychosocial functioning’. This removes psychosocial functioning as a separate consideration to other impairments when assessing functional capacity. Further, it clarifies that, for the purpose of whether a person meets the disability requirements, the same activities for reduced functional capacity apply to psychosocial impairments as they do for all other impairments.

 

Item 18 - At the end of section 24

 

This item inserts new subsections 24(3) and 24(4). Paragraph 24(1)(b) provides that in order to meet the disability criteria, the impairment, or impairments are, or are likely to be, permanent. Paragraph 24(1)(e) further provides that in order to meet the disability requirements, the person must be likely to require support under the NDIS for the person’s lifetime. New subsection 24(3) clarifies that for the purposes of subsection 24(1), impairment or impairments to which a psychosocial disability is attributable, and that are episodic or fluctuating, may be taken to be permanent (for the purposes of paragraph 24(1)(b)) and that the person is likely to require support under the NDIS for their lifetime (for the purposes of 24(1)(e)).

 

New subsection 24(4) provides that subsection 24(3) does not limit subsection 24(2). Subsection 24(2) provides that an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the NDIS for the person’s lifetime, despite the variation. This maintains the allowance for conditions other than a psychosocial disability, such as a physical or intellectual disability to vary in intensity from time to time and still be assessed as permanent for the purposes of NDIS access.

 

Item 19 - Subparagraph 25(1)(a)(ii)

 

This item replaces subparagraph 25(1)(a)(ii). Section 25 sets out early intervention requirements for the purposes of the access criteria contained in section 21. The effect of this amendment is that it updates the language in subparagraph 25(1)(a)(ii) to remove references to ‘one or more identified impairments that are attributable to a psychiatric condition’, and replaces it with the words ‘has one or more impairments to which a psychosocial disability is attributable and that are, or are likely to be, permanent’.

 

Item 20 - After subsection 25(1)

 

This item inserts new subsection 25(1A) which clarifies when an impairment requiring early intervention may be permanent for the purposes of subparagraph 25(1)(a)(ii). New subsection 25(1A) provides that an impairment or impairments to which a psychosocial disability is attributable and that are episodic or fluctuating may be taken to be permanent, despite the episodic or fluctuating nature of the impairments.

 

Item 23 - Paragraph 27(b)

This item makes a consequential amendment to paragraph 27(b) by omitting the words ‘or psychosocial functioning of a person in undertaking’. This amendment is consequential to item 15 , and intended to remove psychosocial function as a separate requirement of reduced functional capacity.

 

For example: Arjun is 28 years old and lives alone in an apartment in Fremantle. Arjun enjoys reading science fiction, playing sport and going to concerts with his friends. Arjun has a psychosocial disability. Due to the episodic nature of his psychosocial disability, Arjun experiences periods of wellness where he is able to do daily tasks such as cooking and cleaning. However, in episodic periods where he is unwell, Arjun has difficulty getting out of bed and does not have the capacity to undertake tasks such as cooking, cleaning, doing laundry, and finds it hard to interact with other people.

 

Due to the fluctuating nature of his disability, Arjun did not think he was eligible for the NDIS, however his current GP recommended that he apply. Arjun applied to the NDIS with supporting evidence from his GP that he has substantially reduced functional capacity which can be attributed to his psychosocial disability. The amended eligibility requirements now make it clear to prospective participants like Arjun that episodic or fluctuating impairments to which a psychosocial disability is attributable may be taken as permanent. Arjun was granted access to the Scheme.

 

NDIS Rules

 

Item 24 - At the end of section 27

 

This item inserts new subsections 27(2) and 27(3). Section 27 of the Act deals with the scope of NDIS Rules that may be prescribed in relation to disability requirements and early intervention requirements. Currently, section 27 of the Act allows the NDIS Rules to prescribe circumstances in which, or criteria to be applied in assessing specific matters outlined in the section including, for example, whether:

·         impairments are, or likely to be, permanent for the purposes of satisfying the disability requirements contained in section 24 or the early intervention requirements in section 25; or

·         impairments result in substantially reduced functional capacity for the purposes of the disability requirements contained in section 24.

 

New subsection 27(2) allows the NDIS Rules to, for the purposes of paragraph 27(1)(a), specify requirements that must be met for an impairment to be considered permanent or likely to be permanent. This power is subject to subsections 24(2) and (3), and 25(1A) of the Act.

 

New subsection 27(3) allows the NDIS Rules to, for the purposes of paragraph 27(1)(b), specify requirements that must be met for an impairment to be considered to result in substantially reduced functional capacity.

 

The effect of the amendments to section 27 is that the NDIS Rules may now prescribe requirements that must be met for impairments to be considered permanent, or likely to be permanent; and to be considered to result in reduced functional capacity. Prescribing definitive criteria in the NDIS Rules will provide more certainty in relation to satisfying the disability and early intervention requirements, and allow for more consistent decision-making.

 

Item 21 - Section 27

 

This item is a consequential amendment to facilitate the insertions made by item 23 (see above under ‘Importance of carers and family’)

 

Item 22 - Paragraph 27(a)

 

This item makes a minor technical amendment to paragraph 27(a).

 

Item 52 - Subsection 209(3)

 

This item replaces subsection 209(3) with a new provision requiring the Minister when making NDIS Rules to have regards to the objects and principles of the Act as well as to the need to ensure the financial sustainability of the NDIS. This was a recommendation from the 2015 Independent Review also supported in the Tune Review as part of Recommendation 27(b) .

 

Plan Management

 

Items 30 to 35 - Sections 43 and 44

 

These items make amendments to sections 42 and 43 regarding plan management requests a participant may make, and the resulting outcome of the request having had regard to a participant’s particular circumstances. Item 31 implements Recommendation 19 of the Tune Review that the Act be amended so a participant who requests to ‘plan manage’ their NDIS funding be subject to the same considerations that apply when a participant seeks to ‘self-manage’.

 

The options available to a participant in making a plan management request under subsection 43(1) are that the plan be managed wholly or in part by:

·         the participant, or plan nominee; or

·         a registered plan management provider nominated by the participant; or

·         the Agency.

 

Management by a registered plan management provider nominated by the participant is a form of self-management as is management by the participant themselves, or the plan nominee acting on the participant’s behalf. Plan management may also be a combination of the available options.

 

The Tune Review considered that there are potential risks for participants engaging unregistered providers through a registered plan manager without the same risk assessment that is currently required for self-managing participants. These concerns were raised on the basis that having access to an unregistered provider market, while providing greater choice over service offerings, arguably exposes participants to greater risk of abuse, neglect or exploitation. The additional protections put in place for registered providers, which are the only providers available to those who are Agency managed, are not required of unregistered providers.

 

During consultation on these amendments, concerns were raised that, if the request for plan management was assessed to pose an unreasonable risk to the participant, the entirety of a plan would revert to being agency managed.. This has been amended by requiring plans to be agency managed only to the extent that a significant risk cannot be mitigated in another way, otherwise allowing a participant to use a plan manager.

 

Item 30 - Paragraph 43(1)(c)

 

This item makes a minor amendment to paragraph 43(1)(c) to omit the words ‘a person specified by’. In practice, if a participant makes a plan management request for the Agency to manage the supports under their plan, then it will be the Agency who is specified in the request, not a ‘person specified by’ the Agency.

 

Item 31 - Subsections 43(2) to (5)

 

This item replaces subsections 43(2) to (5) with new subsections 43(2) to (7). Section 43 deals with providing choice for a participant in relation to self-manage and plan management.

 

New subsection 43(2) provides that if a participant makes a plan management request (under subsection 43(1)), then the statement of participant supports must give effect to the request, except to the extent that new subsections 43(3) to (6) apply.

 

New subsection 43(3) applies to a participant making a request to self-manage their plan (paragraph 43(3)(a)). 43(3) describes how a request for self-management is to be handled by the Agency if the participant would be subject to certain risks when self-managing. If the circumstances under subsection 44(1)(a) applies, in which a participant is insolvent under administration, the statement of participant supports must provide for the funding of supports under the plan to be wholly managed by the Agency. If circumstances under subsection 44(1)(b) applies, in which the participant’s management of the funding would present an unreasonable risk to some extent, the statements of participant supports must provide for the funding to be managed by the Agency to that same extent.

 

New subsection 43(4) applies to a participant making a request to have their plan managed by a registered plan management provider. Subsection 43(4) provides for how a request for plan management is to be handled by the Agency if the participant would be subject to unreasonable risks in doing so.

 

If the use of a particular or any registered plan manager would present an unreasonable risk to the participant to some extent, then the statement of participant supports must provide for the funding of supports to be managed by the Agency to that same extent. If an unreasonable risk manifests because of a particular provider, for example because of undue influence or a conflict of interest, the risk may be mitigated by the participant choosing another provider and that alternate registered plan manager would be able to manage the funding in the participants plan to the extent desired by the participant.

Subsections 43(3) and 43(4) allow for participant requests for self-management or plan management to be accommodated by the Agency to the extent possible considering the impact of any relevant risks listed in section 44.

 

New subsection 43(5) provides that:

a.     if a participant has a plan nominee, and

b.     subsection 44(2A) does not apply in relation to the nominee, that is, there are no circumstances in which a nominee must not manage a plan, and

c.     the terms of the nominee’s appointment deal with management of certain funding for supports under the plan,

then the participant’s statement of participant supports must provide for the funding to be managed in accordance with the terms of the nominee’s appointment.

 

New subsection 43(6) applies on the same basis as new subsection 43(5), except that there are circumstances in which a nominee must not manage a plan under subsection 44(2A). If the circumstances under subsection 44(2A)(a) applies, in which a nominee is insolvent under administration, the statement of participant supports must provide for the funding of supports under the plan to be wholly managed by the Agency. If circumstances under subsection 44(2A)(b) applies, in which the nominee’s management of the funding would present an unreasonable risk to some extent, the statements of participant supports must provide for the funding to be managed by the Agency to that same extent.

 

New subsection 43(7) provides that subsections 43(3) or 43(4) do not apply to funding to the extent that subsection 43(5) or 43(6) applies to the funding. This gives a hierarchy to plan management requests so that if a participant or a participant-req

uested registered plan management provider are unable to manage a plan due to circumstances in section 44 and they have a nominee, the nominee will be able to manage their plan, except where the nominee too falls foul of section 44. In this instance the plan will be managed by the Agency.

 

New subsection 43(8) provides that if the participant does not make a plan management request, then the default position is that the Agency must manage the funding, and this is to be reflected in the statement of participant supports.

 

Items 32 to 35 - Section 44

 

These items amend section 44, which deals with circumstances in which a participant must not manage their plan. The amendments clarify that plan management is to be treated as a form of self-management. As a result, appropriate safeguards and risk assessments apply to ensure that the participant or their nominee has the capacity and capability to ensure the management of funding delivers the maximum benefit to the participant.

These risk assessments also consider whether the use of a registered plan management provider to manage funding is appropriate when considering the participant’s circumstances, including the participant’s cognitive function and decision-making capacity.

 

Item 32 - Section 44 (heading)

 

This item inserts a new heading for section 44.

 

Item 33 - Subsections 44(1) to (2A)

 

This item replaces subsections 44(1) to (2A) with new provisions setting out circumstances in which persons must not manage the funding under a participant’s plan.

 

Subsection 44(1) provides circumstances in which the statement of participant supports must not provide for the participant to manage the funding for supports. The circumstances are:

a.     the participant is insolvent under administration; or

b.     the CEO is satisfied that the participant’s management of the funding for supports would:

                 i.         present an unreasonable risk to the participant; or

               ii.         permit the participant to manage matters that are prescribed by the NDIS Rules as matters that must not be managed by the participant.

 

New subsection 44(2) provides that a statement of participant supports must not provide that a registered plan management provider is to manage the funding for supports under the plan if the CEO is satisfied that the provider’s management of the funding would present an unreasonable risk to the participant. The NDIA will undertake a risk assessment on a request for a registered plan management provider to manage a participant’s funding. The NDIA will consider whether using a plan management provider will present an unreasonable risk to the participant. This risk assessment will consider possible risks arising from the participant using unregistered providers and whether any potential risks can be mitigated by other safeguards or strategies in the participant’s plan. These changes are based on the Tune Review and are designed to protect participants using registered plan managers from exploitation, violence or abuse.

 

The CEO (or their delegate) must be guided by the objects and principles of the NDIS Act when assessing whether the use of a registered plan manager presents an unreasonable risk to participant. This includes:

·         enabling and supporting participants to exercise choice and control including taking reasonable risks to pursue their goals and the delivery of their supports; and

·         recognising participants have the same rights as other people in Australian society to determine their own best interests, including exercising choice and control and engaging as equal partners in decisions that affect their life.

 

New subsection 44(2A) provides circumstances in which the statement of participant supports must not provide for the plan nominee to manage the funding for supports. The circumstances are similar to those in subsection 44(1) except that consideration is undertaken in respect of the plan nominee, rather than in respect of the participant.

 

Item 34 - Subsection 44(3)

 

This item makes a minor consequential amendment to subsection 44(3).

 

Item 35 - After paragraph 44(3)(a)

 

This item inserts new paragraph 44(3)(aa) enabling the NDIS Rules to prescribe criteria the CEO is to apply, and matters to which the CEO is to have regard, in considering whether a registered plan management provider managing the funding for supports under the plan would present an unreasonable risk to the participant.

 

Payments made under the NDIS

 

Item 36 - Section 45

 

This item replaces section 45 with new provisions to clarify how payments are made under the NDIS scheme. The amendments will enable the Agency to pay service providers directly on behalf of participants, including self-managing participants, through a new payment platform. Enabling direct payment to providers will benefit participants in several ways, including:

 

·         Reducing the financial burden on participants with self-managed funding by paying providers of supports directly. Participants will no longer be required to fund the payment of supports up-front from their own funds before claiming payment from the NDIS as a reimbursement.

·         Reducing administrative overhead by simplifying the claiming process, compared to manually claiming for payment from the NDIS through the Participant portal or mobile app, including receipt keeping and reconciling payments.

·         Helping provide vital data to inform what services and activities appear to be most effective in helping participants achieve their goals; as well as helping to identify where market supply of services may be lacking.

 

Under the new platform, the participant will be able to have funds withdrawn from their plan and the provider paid immediately at the point of sale. Participants retain the ability to choose their supports and control over the use of their NDIS funding within the terms of their plan. All plan management types, including self-managed and agency-managed, will continue to be able to pay providers using existing mechanisms. The new direct payment system will be available as an alternative and will not prevent the use of unregistered providers by self-managed participants.

 

New subsection 45(1) provides that payments under the NDIS are to be paid to the person determined by the CEO; and either in accordance with the NDIS Rules; or if there are no such NDIS Rules, in the manner determined by the CEO.

 

New subsection 45(2) clarifies that paragraph 45(1)(b) deals with how the payments can be made - specifically with relation to timing and whether amounts are paid as instalments or lump sum payments.

 

New subsection 45(3) provides that the NDIS Rules may provide that an amount is not payable to a person until the person nominates a bank account into which the amount is to be paid.

 

For example: Sally is 32 years old, lives near Dubbo and self manages her own NDIS plan. At the moment, Sally has to use her own funds to pay for her fortnightly physiotherapy session, get a receipt from the physio, and make a claim via the myplace participant portal. In the future, Sally will be able to ‘tap and go’ at the physio using her smartphone - just like she does when she is using her private health care cover. Sally will no longer need to pay for her physiotherapy services from her own funds then claim a reimbursement back from the NDIA.

 

Sally won’t have to use her own funds, store her receipts, make manual claims or track her expenditure against her plan, instead she will be able to make claims on the go, when she receives her services and supports and track her budget in real time. For claims made through the new Point of Sale (POS) system, Sally will not need to keep years of NDIS records and receipts.

 

Items 27 to 29 - subsection 42

 

These items are consequential to the amendment to section 45 enabling the Agency to pay providers directly. These items amend section 42, as if the Agency pays providers directly, it will be possible for a person to manage funding, but not actually receive some of the funding, where it goes direct from the Agency to the provider.

 

Acquittal of NDIS amounts

 

Item 37 - At the end of section 46

 

This item enables the NDIS Rules to prescribe requirements for NDIS providers that receive NDIS amounts on behalf of participants to retain records including the retention of records for a specified period of time. By making such requirements on NDIS providers, the Scheme is able to be certain of an evidence base showing that NDIS funds are being delivered and used correctly. This also contributes to the broader set of provisions that ensure the financial sustainability and integrity of the Scheme.

 

Variation of participants’ plans

 

These items are in addition to related items in Schedule 1 dealing with plan variations.

 

 

Item 38 - Section 47 (heading)

 

This item replaces the heading to section 47.

 

Item 39 - Subsection 47(2)

 

This item replaces subsection 47(2) with new provisions providing that the participant’s plan is taken to be varied to include a changed version of a participant’s statement of goals and aspirations, should the participant give such a changed version to the CEO. This removes the concept of the plan being replaced in its entirety by a new plan (as provided under previous subsection 47(2)) when all that has changed is the participant’s statements of goals and aspirations. This will allow for a participants’ plan to be varied to include a revised statement of goals and aspirations where a participant gives the CEO a changed version of the participant’s statement of goals and aspirations. Previously, where a participant provided a revised statement, the plan had to be replaced.

 

Item 40 - Subsection 47(3)

 

This item makes a minor consequential amendment to subsection 47(3).

 

Information gathering

 

Item 41 - Subsection 60(1)

 

This item repeals subsection 60(1) of the Act authorising the collection of ‘protected information.’ This subsection is unnecessary as information is only protected information after it has been collected by the Agency.

 

Item 42 - Subsection 60(3)

 

This item makes a minor amendment consequential to the repeal of subsection 60(1).

 

Item 43 - Section 61

 

This item repeals section 61, which is an offence provision relating to existing subsection 60(1) repealed by Item 41 .

 

Section 61 made it an offence to collect protected information; however, information only becomes protected information after it has been collected and therefore section 61 had no application. Therefore, section 61 has been removed.

 

Cancellation of nominee

 

Item 44 - After subsection 90(3)

 

This item inserts new subsection 90(3A) to allow the CEO to cancel the appointment of a nominee of a participant, where the nominee had guardianship of the participant, or was otherwise appointed by a Commonwealth, State or Territory body to make decision for the participant, and the person no longer has such guardianship or the power to make such decisions.

 

Board members and the Independent Advisory Council

 

Item 46 - Subsection 127(2)

 

This item amends subsection 127(2) to include possessing disability or lived experience of disability as an additional characteristic to consider when the Minister appoints a person as a Board Member.

 

Section 127 relates to the appointment of Board members and includes, at subsection (2), that a person is only eligible for appointment as a board member where the Minister is satisfied that the person has skills in one of a number of fields, for example, the provision or use of disability services, or financial management. This amendment will add disability or lived experience with disability as a relevant characteristic for the appointment of Board members. This amendment was recommended in the 2015 Independent Review and, while out of scope of the Tune Review, the 2015 Independent Review noted it is broadly supported by governments, the Agency and the public.

 

Respondents to public consultation on this amendment expressed concern that solely inserting ‘lived experience with disability’ as a relevant characteristic might not have the result of increasing the representation of people with disability on the Board. To address this concern this provisions now also adds ‘is a person with disability’ in addition to ‘is a person that has lived experience with disability’ to section 127 to promote the representation of people with disability as well as those with lived experience disability as a relevant consideration for appointment of board members.

 

Item 47 - Subsection 127(6)

 

This item amends subsection 127(6) of the Act to omit the words ‘in the fields’ from the Minister’s consideration of the Board member’s balance of characteristics. This amendment is consequential to Item 44 as there are additional eligibility characteristics outside the list of fields in subsection 127(2).

 

Item 48 - Subsection 129(4)

 

This item makes a similar consequential amendment to subsection 129(4) of the Act to omit the words ‘in at least one of the fields’ in respect of a person’s eligibility for acting appointments, assessed in accordance with subsection 127(2) of the Act.

 

Item 49 - After subsection 147(2)

 

This item inserts new subsection 147(3) relating to the appointment of members to the Independent Advisory Council, which has a legislated function to provide advice to the Board on the way the Agency performs its functions relating to the NDIS. In order to improve communication between the Council and the Board, the new subsection provides that the Minister must not appoint a person as the Principal Member of the Independent Advisory Council unless the person is also a Board member.

 

 

Item 50 - At the end of subsection 155(2)

 

This item is consequential to the amendment made by item 49 and provides that the Minister may terminate the appointment of the Principal Member of the Advisory Council under subsection 155(2) if that person is not a Board member. This amendment was recommended in the 2015 Independent Review, and while out of scope of the Tune Review, that Review noted it is broadly supported by governments, the Agency and the public.

 

Clarifying circumstances where there is no debt

 

Item 51 - Paragraph 182(2)(c)

 

This item replaces paragraph 182(2)(c) with a new provision clarifying that an NDIS amount paid after a person’s death only becomes a debt if it was not a payment made in respect of supports provided to the participant funded under their plan before they died.

 

This will ensure that payments made to participants under their plans prior to their death will not become debts even where the service was not provided. This provides clarity and certainty as to when an amount will be a debt.

 

Application and savings provisions

 

Item 54 - Application and saving provisions—participants and prospective participants

 

This item provides for the timeframes from which amendments under Schedule 2 are to apply in respect of participants and prospective participants.

 

The amendments to sections 24 and 25 made by this Schedule ( items 16-20 ) apply in relation to the following:

·         an access request made on or after the commencement of this item;

·         an access request that was pending immediately before that commencement;

·         a revocation under section 30 of that Act made on or after that commencement.

 

The amendments to sections 43 and 44 made by this Schedule (made by items 27-35 ) apply in relation to a plan management request made on or after the commencement of this item.

 

Subsection 43(7) as substituted by this Schedule ( item 31 ), applies in relation to a participant’s plan where the CEO approves the statement of participant supports on or after the commencement of this item.

 

NDIS Rules made for the purposes of paragraph 44(2)(b) of the Act and that are in force immediately before the commencement of this item continue in force on and after that commencement as if they had been made for the purposes of subparagraph 44(1)(b)(ii) of that Act.

 

The replacement of section 45 of the Act made by this Schedule ( item 36 ) applies in relation to an amount payable under the NDIS on or after the commencement of this item.

 

The replacement of subsection 47(2) of the Act and the amendment of subsection 47(3) made by this Schedule (items 39 and 40) apply in relation to a changed version of a participant’s statement of goals and aspirations given to the CEO on or after the commencement of this item.

 

Item 55 - Application provision - nominees

 

This item provides for the application of the amendment in this Schedule relating to nominees ( item 44 ). Subsection 90(3A) of the Act, as inserted by this Schedule, applies in relation to the cancellation of the appointment of a nominee on or after the commencement of this item (whether the nominee was appointed before, on or after that commencement).

 

Item 56 - Application provisions - appointments

 

This item provides for the application of the amendments in this Schedule relating to appointments ( items 46 to 50 ). The amendments of sections 127, 129 and 147 of the Act made by this Schedule apply in relation to an appointment made on or after the commencement of this item. The amendment of section 155 made by this Schedule applies in relation to an appointment made before, on or after the commencement of this item.

 

Item 57 - Application provision - debts

 

This item provides for the application of the amendments in this Schedule relating to debts ( item 51 ). The replacement of paragraph 182(2)(c) of the Act made by this Schedule applies only in relation to payments made on or after the commencement of this item.

 

Schedule 3 — Full scheme amendments

 

This Schedule amends the Act to reflect the fact that the NDIS has now been implemented across Australia, to remove now redundant provisions and make technical amendments. The Schedule implements Recommendation 27A of the Tune Review that the Act and NDIS Rules be amended to remove trial and transition provisions.

 

Schedule 3 also makes a consequential amendment to the DisabilityCare Australia Fund Act 2013 .

 

Part 1 - Main Amendments - National Disability Insurance Scheme Act 2013

 

Schedule 3 - Part 1 groupings

The Items in Part 1 of Schedule 3 have been grouped under the following headings, as these will allow a fuller explanation of the relevant provisions:

·         Amending outdated terminology ‘National Disability Insurance Scheme launch’ (Items 1, 10-12, 18, 25-27, 39, 46, and 57);

·         Repealing references to progressive implementation of the NDIS (Items 2-3);

·         Amending outdated terminology: ‘National Disability Insurance Scheme Launch Transition Agency’ (Items 4, 6, 7, 34-37)

·         Amending outdated terminology: ‘Board of the National Disability Insurance Scheme Launch Transition Agency’ (Items 38 and 58)

·         Repealing redundant provisions (Items 5, 8-11, 13, 14, 16, 17, 19, 21, 22, 24, 30, 32, 41-43, 47, 49-51, 53, and 54)

·         Amending when a person ‘meets the access criteria’ (Items 20, 21 and 53)

·         Application and savings provisions (Items 55-61).

 

Amending outdated terminology: ‘National Disability Insurance Scheme launch’

 

Item 10 - Section 9 (definition of National Disability Insurance Scheme )

 

This item substitutes a new definition of ‘National Disability Insurance Scheme’ as the arrangements set out in Chapter 2 and 3 of the Act.

 

Item 11 - Section 9 (definition of National Disability Insurance Scheme launch )

 

This item repeals the redundant definition of ‘National Disability Insurance Scheme launch’. Together items 10 and 11 provide for a single updated definition of ‘National Disability Insurance Scheme’ in the Act.

 

 

Items 1, 12, 18, 25, 26, 27, 39, 46 are consequential amendments to items 10 and 11 , as they amend all references to ‘National Disability Insurance Scheme Launch’ in the Act by removing the word ‘launch’. In effect, all these references become ‘National Disability Insurance Scheme’ - consistent with the new definition of ‘National Disability Insurance Scheme’ inserted by item 10 (see also item 55 and item 56 below which clarify how the amendments in item 18 apply to an access request).

 

Repealing references to the progressive implementation of the NDIS

 

Item 2 - Paragraph 3(3)(a)

 

This item repeals paragraph 3(3)(a) which is now redundant since the NDIS is available across Australia.

 

Item 3 - Subsection 4(17)

 

This item replaces subsection 14(7), removing the requirement to have regard to the progressive implementation of the NDIS as this is now redundant.

 

Amending outdated terminology: ‘National Disability Insurance Scheme Launch Transition Agency’

 

Item 37 - Subsection 117(1)

 

This item replaces subsection 117(1) with a new provision specifying that the National Disability Insurance Scheme Launch Transition Agency is now to be known as the National Disability Insurance Agency.

 

Items 4, 6, 7, 34, 35 and 36 make consequential changes updating the name of the Agency throughout the Act.

 

Amending outdated terminology: Board of the National Disability Insurance Scheme Launch Transition Agency

 

Item 38 - Section 123

 

This item replaces section 123 with a new provision specifying that the ‘Board of the National Disability Insurance Scheme Launch Transition Agency’ is now to be known as the ‘Board of the National Disability Insurance Agency’. A note to the provision alerts the reader that subsection 25B(1) of the Acts Interpretation Act 1901 provides that a body whose name is altered by an Act continues in existence under the new name so that its legal identity is not affected.

 

Item 58 - Board members

 

This item provides that a member of the Board of the National Disability Insurance Scheme Launch Transition Agency continues to hold office as a member of the Board of the National Disability Insurance Agency for the balance of their term of appointment.

 

 

Repealing redundant provisions

The context of these amendments is discussed in greater detail below under the following subheadings:

·         Review of the Act (Items 5 and 49)

·         First quarterly report of the Ministerial Counsel (Item 43)

·         Transitioning staff (Items 8, 42, 54)

·         Host and participating jurisdictions (Items 9, 13, 17, 32, 50)

·         Prescribed areas (Items 4, 10, 11, 14, 19, 21, 22, 24, 51, 53)

·         Registered provider of supports (Items 16, 30)

·         First appointment of CEO (Item 41)

·         Reviewing actuary for first three years (Item 47).

 

Review of the Act

 

Item 5 - Section 8

 

This item amends the simplified outline in section 8 by removing the reference to review of the Act in Chapter 7.

 

Item 49 - Part 4 of Chapter 7

 

This item repeals Part 4 of Chapter 7 regarding review of the operation of the Act.

Jointly, items 5 and 49 remove the now redundant requirement for a review of the Act since this review has now occurred.

 

First quarterly report to the Ministerial Council

 

Item 43 - Subsection 174(5)

 

This item repeals subsection 174(5) of the Act concerning the timing of the Board’s first quarterly report for the Ministerial Council. This report is now complete hence the existing provision is redundant. The Board continues to provide quarterly reports for the Ministerial Council under paragraph 174(1)(b).

 

Transitioning of staff

 

Item 8 - Section 9 (definition of FaHCSIA agreement )

 

This item repeals the definition of ‘FaHCSIA agreement’ from section 9. This definition was applicable to staff who were reassigned from the former Department of Families and Housing, Community Services and Indigenous Affairs (FaHCSIA) to the Agency on its establishment. The Agency is now fully established, FaHCSIA no longer exists, and the FaHCSIA agreement is no longer in effect. This definition is now redundant.

 

 

Item 42 - Section 171A

 

This item repeals section 171A which provided that transitional provisions set out in Schedule 1 apply to staff of the Agency. This provision is no longer required.

 

Item 54 - Schedule 1

 

This item repeals Schedule 1 to the Act entitled ‘Transitional provisions for staff of the Agency’, which is no longer required.

 

Host and participating jurisdictions

 

The Act uses the term ‘host jurisdiction’ to designate the States and Territories in which the NDIS applied while it was being rolled out, with the included states and territories mentioned in legislative instruments made by the Minister. From 1 July 2020 the NDIS operates across Australia and all States and Territories are ‘host jurisdictions’ for the NDIS. It is no longer necessary for the states and territories to be declared by legislative instrument. Instead, the amendments below define this term in the Act.

 

Similarly, the operations of the NDIS Quality and Safeguards Commissioner were implemented progressively across Australia, with the NDIS Commission managing States and Territories from 1 December 2020. This was achieved using the defined term ‘participating jurisdiction’ with the participating jurisdictions prescribed by legislative instrument.

 

Item 9 - Section 9 (definition of host jurisdiction)

 

This item replaces the definition of ‘host jurisdiction’ in section 9 to include each of the States, the Australian Capital Territory and the Northern Territory as a host jurisdiction.

 

Item 17 - Sections 10 and 10A

 

This item repeals section 10 of the Act which is no longer needed.

 

Item 50 - Subsection 209(5)

 

This item removes the now redundant power to make NDIS Rules regarding the facilitation of the preparation of plans of participants who are identified by reference to a host jurisdiction. As the NDIS is available across Australia, NDIS Rules specific to a host jurisdiction are no longer required, but rather NDIS Rules will apply to all States and Territories.

 

Item 13 - Section 9 (definition of participating jurisdiction)

 

This item repeals the above definition from section 9 which refers to section 10A which is repealed by item 17.

 

 

Item 32 - Paragraph 73E(1)(b)

 

This item repeals paragraph 73E(1)(b) which referred to provision of supports or services to people with disability in a ‘participating jurisdiction’ (see also item 55 which clarifies the application of this amendment to applications made under section 73C of the Act).

 

Prescribed areas

 

As part of the progressive implementation of the NDIS, a person’s eligibility to participate in the NDIS was limited by a variety of factors, including their residence in a ‘prescribed area’. As the NDIS is now available across Australia, this is no longer required. Items 10, 11, 14, 19, 21, 24 and 48 remove references to ‘prescribed areas’ from the Act.

 

Item 4 - Section 8

 

This item updates the simplified outline of the Act by removing the words ‘depending on where a person with disability lives’, as a person’s eligibility to participant in the NDIS is no longer limited by their place of residence.

 

Item 52 - Subsection 209(8) (table item 2, column headed “Description”, paragraphs (ga) to (gc))

 

This item repeals the above paragraphs, removing the Minister’s now redundant power to make Category B NDIS Rules in relation to ‘prescribed areas’.

 

Item 22 - Subparagraph 23(1)(b)(iii) and item 23 - Paragraph 23(1)(c)

 

These items repeal subparagraph 23(1)(c) of the Act, which refers to other requirements prescribed by the NDIS Rules , provision for which is  repealed by items 21 and 24 .

 

Item 51 - Subsection 209(8) (table item 1, column headed “Description”, paragraph (b))

 

This item repeals the above paragraph which refers to a provision repealed by item 23 (see also item 55 which clarifies how amendments to section 21, 22 and 23 of the Act apply to access requests).

 

Registered provider of supports

 

The description ‘registered provider of supports’ was used in jurisdictions not yet subject to the oversight of the NDIS Commission. Since 1 December 2020, the NDIS Commission has had oversight across Australia and this description is therefore redundant.

 

Item 16 - Section 9 (definition of ‘registered provider of supports’)

 

This item repeals the above definition.

 

Item 30 - Part 3 of Chapter 4

 

This item repeals Part 3 of Chapter 4 of the Act which sets out provisions regarding ‘registered providers of supports’. Other references to ‘registered provider of supports’ are repealed from the Act by items 15, 28, 29, 31, 33, 40, 48 and 52 .

 

First appointment of the CEO

 

Item 41 - Subsections 160(6) to (8)

 

This item repeals the above provisions which are now redundant.

 

Items 44 and 45 make similar consequential changes.

 

Reviewing actuary for first three years

 

Item 47 - Subsection 180D(5)

 

This item repeals the above subsection which is now redundant.

 

Amending when a person ‘meets the access criteria’

 

To ensure the launch of the NDIS stayed at manageable numbers, various provisions contemplated particular arrangements being put in place with jurisdiction-specific limitations relating to age and residence. After removal of these redundant provisions the only relevant remaining flexibility for different access requirements remains at subsection 21(2), relating to transitioning persons receiving supports under a program prescribed by the NDIS Rules, generally being a program of a particular State or Territory, as amended by Item 20 below.

 

Item 20 - At the end of subsection 21(2)

 

This item adds new paragraph 21(2)(d) to the Act, enabling CEO, if not satisfied that a person meets the access criteria under subsection 21(1), to find that the person meets these criteria if the CEO is satisfied he or she meets requirements prescribed in the NDIS Rules. These will be Category B NDIS Rules requiring the agreement of the Commonwealth Minister and a host jurisdiction.

 

Item 53 - Subsection 209(8) (table item 2, column headed “Description”, paragraphs (a) to (c))

 

This item substitutes a new reference to  paragraph 21(2)(b) and adds a reference to paragraph 21(2)(d) as inserted by item 20 into the list of Category B NDIS Rules in Item 2 of subsection 209(8).

 

Item 21 - Section 22

 

This item replaces section 22 with a new provision specifying the only age requirements for participants is that they are less than 65 years of age when their access request is made. There is no change to previous NDIS policy. The ability to make NDIS Rules with different age requirements was necessary for those jurisdictions who rolled out the NDIS according to an age cohort. This is redundant now the NDIS is available across Australia.

 

Application and transitional provisions 

 

Item 55 - Application provisions

 

This item applies the following amendments to an access request made on or after the seventh day after the Act receives the Royal Assent:

·         amendments to section 8 of the Act (see item 18 )

·         amendments to section 21 of the Act (see items 19 and 20 )

·         repeal and substitution of section 22 of the Act (see item 21 )

·         amendments to section 23 of the Act (see items 22, 23, 24 ).

The repeal and substitution of subsection 33(6) of the Act (see item 28 ) applies in relation to a participant’s plan where the CEO approves the statement of participant supports on or after the seventh day after the Act receives the Royal Assent.

 

The repeal of paragraph 73E(1)(b) of the Act (see item 32 ) applies to:

·         an application made under section 73C of the Act on or after on or after the seventh day after the Act receives the Royal Assent;

·         an application made under section 73C that was pending immediately before on or after the seventh day after the Act receives the Royal Assent.

Item 56 - Pending access requests

 

This item deals with pending access requests. A request made by a person under section 18 of the Act that was pending immediately before the commencement of this item has effect on and after that commencement as if it were a request by the person to become a participant in the NDIS. This means that prospective participants are not disadvantaged if a decision on their request under section 18 of the Act has not been finalised prior to the commencement of this item.

 

Item 57 - Existing participants in the National Disability Insurance Scheme launch

 

This item provides that a person who is a participant of the National Disability Insurance Scheme launch is taken to be a participant in the National Disability Insurance Scheme. This does not limit section 29 or section 30 of the Act in relation to when a person ceases to be a participant.

 

Item 59 - Chief Executive Officer

 

This item ensures the person holding office as the CEO of the National Disability Insurance Scheme Launch Transition Agency immediately before the commencement of this item continues to hold office as the CEO of the Agency for the balance of that person’s term of appointment.

 

Item 60 - Staff

 

This Item maintains the status of staff of the Agency. A person who was a member of the staff of the National Disability Insurance Scheme Launch Transition Agency immediately before the commencement of this item continues, on and after that commencement, as a member of the staff of the Agency.

 

Item 61 - Transitional rules

 

This item enables the Minister to make transitional NDIS Rules relating to amendments in Part 1 of Schedule 3 of the Bill, with a number of restrictions, including, amongst other things, that these NDIS Rules cannot directly amend the text of the Act.

 

 

Schedule 3 Part 2—Consequential amendments - DisabilityCare Australia Fund Act 2013

 

Part 2 of Schedule 3

 

This Part makes consequential amendments to the DisabilityCare Australia Fund Act 2013 .

 

Item 62 - Section 4 (definition of National Disability Insurance Scheme Launch Transition Agency )

 

This item repeals the above provision from the DisabilityCare Australia Fund Act , which is now redundant.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

NATIONAL DISABILITY INSURANCE SCHEME (PARTICIPANT SERVICE GUARANTEE AND FULL SCHEME) BILL 2021

 

The Bill is compatible with the human rights and freedoms recognised or declared in the internal instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Overview of the Bill

 

This Bill amends the Act to enable the Minister to make NDIS Rules in a legislative instrument setting out the Participant Service Guarantee (the Guarantee) and, streamline administrative process to improve the participant experience. The Bill also amends the Act to reflect the availability of the National Disability Insurance Scheme across Australia by removing concepts related solely to launch and transition

 

The Bill gives effect to several of the recommendations of the 2019 Independent Review of the Act undertaken by Mr David Tune AO PSM (the Tune Review), including the Guarantee to provide timeframes and engagement principles for how the National Disability Insurance Agency (the Agency) undertakes key administrative processes.

 

The provisions in the Bill do not alter the fundamental principles and objectives of the Act, the NDIS as a service system, the roles and responsibilities of all governments in the governance of the scheme, or the legislated functions of the Agency in delivering the NDIS.

 

Human rights implications

 

The obligations of the Australian Government under the United Nations Convention of the Rights of Persons with Disabilities (CRPD) are delivered through a range of legislative and policy instruments at federal, state and territory levels. In this regard, it is important to note that the NDIS only gives effect to the CRPD in part. Therefore, the human rights implications of this Bill should be considered alongside the broader obligations of all Australian governments and service systems under the UNCPRD.

 

The Bill engages the following rights:

 

·         The right of children with disability to enjoy all human rights and fundamental freedoms on an equal basis with other children in Article 7 of the CRPD;

·         The right to equal recognition before the law in Article 12 of the CPRD and Article 16 of the International Covenant on Civil and Political Rights (ICCPR);

·         The right to be protected from exploitation, violence and abuse in Article 20 of the ICCPR and Article 16 of the CRPD;

·         The rights to live independently, be included in the community and participate in public life in Articles 19 and 29 of the CRPD;

·         The responsibility of the Australian Government to collect information, including statistical and research data, to formulate and implement policies to identify and address barriers faced by people with disabilities in exercising their rights in Article 31 of the CRPD.

 

Convention of the Rights of Persons with Disabilities

 

Article 3 - General Principles

 

The Bill promotes Article 3 of the CRPD by ensuring the Agency is required to work alongside people with disability in delivering the NDIS, including through the promotion of service standards, engagement principles and stipulated timeframes for the making of decisions.

 

Article 4 - General Obligations

 

The Bill promotes Article 4 of the CRPD by recognising that people with disability are central to the NDIS and should be included in a co-design capacity. Specifically, this ensures the promotion of the Australian Government’s obligation to consult with and actively involve people with disability in the development and implementation of policies and decision-making processes concerning issues relating to people with disability.

 

The Bill gives effect to the recommendations of the Tune Review, which involved national public consultation with people with disabilities, their families, carers and their representatives. The Bill has also been informed by the outcomes of a national public consultation process undertaken by the Agency from November 2020 to February 2021. A public consultation process on the Bill also provided people with disabilities an opportunity to comment on the proposed amendments, with feedback to inform how the amendments will be practically implemented.

 

Article 7 - Children with disabilities

 

The Bill promotes Article 7 by supporting the Agency to provide children with disabilities and their family access to NDIS funding to purchase early intervention supports to meet their child’s support needs.

 

Currently, many children are not able to realise the full benefits of early intervention supports because they, or their family, are not ready to undertake the planning process and therefore do not have access to best practice support early enough. The ability for the Agency to provide funding for these children in a timely manner, prior to the approval of a plan, will assist the child’s development and ensure they are provided support to pursue their goals and aspirations on an equal basis as children without disability.

 

Articles 12 and 16 - Equal recognition before the law and Freedom from exploitation, violence and abuse

 

The Bill is compatible with Article 12(2) of the CRPD by  recognising that people with disability enjoy legal capacity on an equal basis with others. The Bill removes qualifying language from the Act that derogates from this right.

 

The Bill also promotes Article 12(5) by recognising the equal right of people with disability to control their own financial affairs. Amendments in the Bill ensure that the Agency must give effect to a participant’s request to manage their NDIS funding in a particular manner. This right is limited to circumstances where the implementation of the request would not pose an unreasonable risk of harm to the participant and the participant is not bankrupt. This limitation is compatible with Article 12(4) because it is providing an effective safeguard to risk of the participant be subjected to financial exploitation, violence and abuse; a protection offered by Article 16 of the CRPD. These safeguards were included in the Bill because the Tune Review found that there were gaps in the existing safeguards for participants from financial exploitation, violence and abuse; particularly where the participant’s NDIS funding was managed by a plan manager and the participant engaged unregistered providers.

 

Articles 19 and 29 - Living independently, being included in the community and participating in public life

 

The Bill is compatible with Article 19 as it contains measures to remove obstacles and barriers that people with disability face in having access to timely supports. The Bill enables the Agency to providing funding to a person or entity to ensure people with disability and their families and carers are provided with information and support in relation to disability and connecting participants to the community. The Bill is also compatible with Article 29 as it reduces barriers to people with disability directly participating in the administration of the NDIS. The Bill includes measures to ensure that people with disability are eligible to sit on the Board of the Agency regardless of whether they hold experience in other identified fields of expertise. This measure consequently promotes Article 4 of the CRPD as well.

 

Article 21 - Freedom of expression and opinion, and access to information

 

The Bill promotes Article 21 of the CRPD by expanding the circumstances in which the Agency is required to give prospective participants and participants notice about decisions and the effect that certain decisions can have on participant plans.

 

These amendments ensure that people with disability are empowered by having access to information about them, the reasons for how decisions about them were made, and the nature of decisions the Agency may make about them in the future.

 

Article 31 - Statistics and Data Collection

 

The Bill promotes Article 31 through proposed reforms to the NDIA’s payments systems that allow the NDIA to make direct payment of funds to participants and providers, regardless of a participant’s type of plan management. These provisions will enable the Agency to collect more useful and relevant data on the types of supports participants choose to purchase with their NDIS funding. This will assist in the development of a deeper understanding of the needs of people with disability and in the stewardship of appropriate markets to meet those needs, thereby enabling the Australian Government to formulate and implement ongoing improvements to the NDIS that align with the CPRD.

 

 

Conclusion

 

The Bill reinforces the participant centred focus of the NDIS by strengthening participant’s ability to exercise informed choice and control over their disability support needs. The Bill also ensures the NDIS as a service system and that the Agency, as the agency responsible for delivering the NDIS, is accountable for effectively delivering supports to participants.

 

 

(Circulated by authority of the Minister for the National Disability Insurance Scheme,

Senator the Hon Linda Reynolds CSC)