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National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021



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ISSN 1328-8091

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BILLS DIGEST NO. 42, 2021-22 3 FEBRUARY 2022

National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021 Kaushik Ramesh Law and Bills Digest Section Rosalind Hewett Social Policy Section

Contents

Purpose and structure of the Bill .......................................3

Commencement details ....................................................3

Background .......................................................................3

The National Disability Insurance Scheme ................. 3 2015 Review of the NDIS Act ...................................... 3

Commitment to introduce a participant service guarantee ................................................................... 4

2019 Tune Review ...................................................... 5

Consultation on Exposure Draft and release of draft NDIS rules .......................................................... 5

Draft NDIS rules ........................................................ 6

Bill introduced in context of other proposed reforms ....................................................................... 7

Committee consideration ..................................................7

Senate Community Affairs Legislation Committee ..... 7 Senate Standing Committee for the Scrutiny of Bills ............................................................................. 8

Policy position of non-government parties/independents .......................................................8

Australian Greens ....................................................... 8

Australian Labor Party ................................................ 8

Position of major interest groups ......................................9

Financial implications ...................................................... 10

Statement of Compatibility with Human Rights ............... 10

Parliamentary Joint Committee on Human Rights ... 10

Date introduced: 28 October 2021

House: House of Representatives

Portfolio: National Disability Insurance Scheme

Commencement: Details of commencement are set out at page 3 of this Bills Digest.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at January 2022.

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National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021 2

Key issues and provisions ................................................ 11

Schedule 1 ...................................................................... 11

Introduction of the Participant Service Guarantee... 11 Service standards and performance monitoring elements of the Guarantee .................................... 11

Quarterly report ................................................... 12

Commonwealth Ombudsman ............................... 13

Relevant timeframes under the Guarantee ............ 13 Access requests .................................................... 13

Request for information from the NDIA ............... 14 Development of a participant’s plan .................... 14 Cancellation of appointments of nominees .......... 14 Timeframe for internal reviews ............................ 15

Stakeholder views .................................................. 15

Variation of plans ..................................................... 15

Stakeholder views .................................................. 17

Reassessment of plans ............................................. 18

Decision making issues ............................................. 19

Stakeholder views .................................................. 19

Schedule 2 ...................................................................... 19

Amendment to general principles ............................ 20

Stakeholder views .................................................. 21

Enabling access to disability supports ...................... 21

Amendments relating to psychosocial disability ...... 23 Stakeholder views .................................................. 24

Requirements for impairments to be considered permanent ............................................................... 24

Plan Management .................................................... 24

Schedule 3 ...................................................................... 25

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National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021 3

Purpose and structure of the Bill The purpose of the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021 (the Bill) is to amend the National Disability Insurance Scheme Act 2013 (the NDIS Act or the Act) to implement a range of measures including to:

• fulfil the Government’s intention of legislating the proposed Participant Service Guarantee (the Guarantee or the proposed Guarantee) for National Disability Insurance Scheme (NDIS) participants - the relevant amendments are in Schedule 1 of the Bill

• allow for the variation of NDIS participant plans, including by permitting the Chief Executive Officer of the National Disability Insurance Agency (CEO of the NDIA or CEO) to vary a plan of their own initiative - the relevant amendments are in Schedule 1 of the Bill

• introduce so called ‘flexibility measures’ into the NDIS Act including by strengthening the objects and principles in the Act, allowing direct funding to NDIS providers and amending requirements relating to psychosocial disability - the relevant amendments are in Schedule 2 of the Bill and

• a range of technical amendments to reflect the fact that the NDIS has now been rolled out across Australia - the relevant amendments are in Schedule 3 of the Bill.

Many of the measures in the Bill, including the proposed Guarantee, implement certain recommendations from the 2019 Review of the National Disability Insurance Scheme Act 2013 conducted by David Tune AO PSM (also known as the Tune Review).1

Commencement details Amendments related to the proposed Guarantee and amendments consequential to the completed roll-out of the NDIS commence on the seventh day after Royal Assent. The remainder of amendments commence either three months and a day after Royal Assent or on 1 April 2022, whichever is later. The commencement details are set out at clause 2 of the Bill.

Background

The National Disability Insurance Scheme The NDIS provides support to people with disability, their families and carers. The NDIS represents an insurance-based approach predicated on the premise that people with disability have different support needs and should be able to exercise choice. The NDIS replaced the previous block funding system with a fee-for-service market based system and is jointly funded by the Australian, and state and territory governments. The NDIS commenced on 1 July 2013.2 The NDIS focuses on ‘participant plans’ that set out a participant’s goals as well as their funded supports.3 The NDIS is administered by the National Disability Insurance Agency (NDIA).

2015 Review of the NDIS Act The NDIS Act required an independent review of the Act to occur on the second anniversary of the commencement of the provisions relating to participants and their plans.4 In December 2015, the consultancy firm Ernst & Young published its Independent Review of the NDIS Act (the 2015

1. D Tune, Review of the National Disability Insurance Scheme Act 2013: Removing Red Tape and Implementing the NDIS Participant Service Guarantee (Tune Review), (Canberra: Department of Social Services, 2019). 2. Luke Buckmaster and Shannon Clark, The National Disability Insurance Scheme: a quick guide, Research paper series, 2018- 19, (Canberra: Parliamentary Library, 2019). For further background on the National Disability Insurance Scheme (NDIS), see

also: Luke Buckmaster and Juli Tomaras, 'National Disability Insurance Scheme Bill 2012’, Bills Digest, 72, 2012-13, (Canberra: Parliamentary Library, 2013). 3. ‘Understanding your plan ‘, National Disability Insurance Agency (NDIA), last updated 11 August 2021. 4. National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act), section 208.

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National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021 4

Review).5 The report found that broadly speaking the NDIS legislative framework was enabling the government to further the objectives and principles of the Act.6 The report however found that there were four broad areas where there could be legislative reform:

• the need to provide greater clarity on the intent of government policy and how the NDIS should be administered in practice

• the need to amend the NDIS Act to enhance the efficiency and effectiveness of NDIS administration

• scope to amend the wording of the NDIS Act (including through the introduction of new principles) so that the legislative framework better reflects government policy, the reality of the Scheme’s operation and the lived experience of people with disability and

• the need for amendments to the NDIS Act to operationalise the bilateral agreements that have been signed between the Commonwealth and the states and territories, and the recommendations from other key reviews.7

The 2015 Review made 33 recommendations in total. The Bill implements a certain number of these recommendations.8

Commitment to introduce a participant service guarantee During the 2019 federal election campaign, the Coalition committed to introduce a new NDIS Participant Service Guarantee. The Nationals Party noted:

With the NDIS transition period nearing an end, it is now also time to set up the NDIS for future success.

A re-elected Liberal and National Government will therefore introduce a new NDIS Participant Service Guarantee following the practical completion of the NDIS rollout in 2020.

The new NDIS Participant Service Guarantee will set timeframes for participants to receive an access decision (that is, a decision on whether they will be covered by the NDIS); to have their NDIS plan approved; and to have their NDIS plan review, should a participant request a review.

These new service standards will reduce the time taken for people with disability to access the NDIS, and have their plan approved and implemented.

Specific service standards will be enforced for children with disability and participants requiring specialist disability accommodation and assistive technology. This will ensure that children in need of assistance will be provided with immediate support.

The NDIA will be required to report against their performance under the new NDIS Participant Service Guarantee to the COAG Disability Reform Council.

5. Ernst & Young (EY), Independent Review of the NDIS Act December 2015, review prepared for the Minister for Social Services, (Canberra: EY, 2015). 6. EY, Independent Review, 3. 7. EY, 3-4. States and territories signed bilateral agreements with the Commonwealth to allow and support the transition to full

coverage of the NDIS. At the time of the 2015 Review, New South Wales and Victoria had signed agreements; NSW had submitted during this review process that legislative change would be required to operationalise aspects of its bilateral agreement — this gave rise to this recommendation from the 2015 Review. For further information see: EY, Independent review, 88-89. For information on the NDIS intergovernmental agreements generally, see: ‘Intergovernmental agreements’, NDIA. 8. Explanatory Memorandum, National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other

Measures) Bill 2021, 2.

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The Commonwealth Ombudsman will be given additional resources of $2 million to allow it to monitor the NDIA’s performance against the Participant Service Guarantee timeframes, and to support NDIS participants pursuing complaints about time frames they have experienced.9

2019 Tune Review In 2019, David Tune conducted a review into the NDIS Act which examined participants’ experiences of the NDIS and opportunities for improvement of the scheme (referred to in this Bills Digest as the Tune Review or the Review). The Review focussed on the Government’s commitment to legislate a Participant Service Guarantee.10 The Tune Review noted:

The Participant Service Guarantee should require the NDIA, when requested by a person with disability, to provide an explanation of an access, planning or plan review decision in an accessible format of their choice. This would be consistent with best practice administrative decision-making principles, reinforce robust planning practices, and ensure the NDIS remains accountable to the people it was designed to support.

The Participant Service Guarantee should also empower participants to be able to review and consider a full version of their draft plan before it is approved, inclusive of the estimated plan budget. The provision of a whole draft plan is an important mechanism to ensure decision-making processes are transparent and for keeping the participant at the centre of the planning process.

The timeframes in the Participant Service Guarantee should be ambitious, but achievable. They should recognise that, due to current workforce capacity and ICT constraints, business as usual timeframes may not be deliverable by the NDIA by 1 July 2020, and/or requisite changes to the NDIA’s ICT systems may not be deliverable by 1 July 2020. To provide certainty for participants, the Participant Service Guarantee should have a staged implementation, including slightly longer timeframes for the 2020-21 financial year.11

The Tune Review made 29 recommendations in total. The Government supported, or supported in principle, all 29 recommendations.12 The Bill centres on responding to recommendations from this Review.13 Where possible this Bills Digest references the relevant Tune Review recommendations implemented by the key provisions of the Bill.

Consultation on Exposure Draft and release of draft NDIS rules The Department of Social Services released an Exposure Draft of the Bill, with consultations on the Exposure Draft of the Bill taking place between 9 September 2021 and 7 October 2021, including four live briefing sessions.14 The Department’s consultation report noted that 313 submissions were received as part of this process.15 A number of changes were made to the final Bill as introduced as a result of feedback received through the consultation process - a summary of these changes can be found at page 10 of the Explanatory Memorandum to the Bill.

9. The Nationals, Our Plan To Support And Provide Opportunity For People With Disability, Nationals policy document, Election 2019, 11-12. 10. Tune, Tune Review, 17. 11. Tune, 11. 12. Australian Government, Australian Government Response to the 2019 Review of the National Disability Insurance Scheme Act

2013 report, August 2020, 2. 13. Explanatory Memorandum, National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021, 2. 14. ‘Proposed NDIS Legislative Improvements and the Participant Service Guarantee’, Department of Social Services (DSS);

‘National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Amendments) Bill 2021’, DSS. 15. DSS, Report on Public Consultation: Consultation on Proposed Changes to the National Disability Insurance Scheme contained in the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021, and

associated National Disability Insurance Scheme Rule, (Canberra: DSS, 2021), 7.

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Draft NDIS rules By way of background, subsection 209(1) of the NDIS Act provides that the Minister may, by legislative instrument, make NDIS Rules prescribing matters that are required or permitted by the NDIS Act to be prescribed by the rules.

Subsections 209(4)-(7) of the NDIS Act set out four categories of NDIS Rules:

• the Minister must not make Category A rules unless the Commonwealth and each host jurisdiction have agreed to the making of those rules

• the Minister must not, unless the host jurisdiction has agreed, make Category B rules relating to:

- an area, law or program of a host jurisdiction or - the commencement of the facilitation of the preparation of plans of participants who are identified by reference to a host jurisdiction • the Minister must not make Category C rules unless the Commonwealth and a majority of host

jurisdictions have agreed to the making of the rules and

• the Minister must not make Category D rules unless each host jurisdiction has been consulted in relation to the making of the rules.16

The substantive detail to implement many measures in the Bill will be set out in future NDIS Rules, if the Bill is enacted. Many of the rules will be Category C or Category D rules, meaning the exact manner in which the Bill will operate will be contingent on the final content of the NDIS Rules.

The Government has released Exposure Drafts of these rules as part of its consultation process which indicates how it intends the Bill to operate. These are:

• the draft National Disability Insurance Scheme (Participant Service Guarantee) Rules 2021 (draft Guarantee Rules) - this will be a new instrument

• the draft National Disability Insurance Scheme (Plan Administration) Rules 2021 (draft Plan Administration Rules) - this will be a new instrument

• the draft National Disability Insurance Scheme (Plan Management) Rules 2021 - this is an existing rule that will be revised

• the draft National Disability Insurance Scheme (Becoming a Participant) Rules 2021 (draft Becoming a Participant Rules) - this is an existing rule that will be revised

• the draft National Disability Insurance Scheme (Children) Rules 2021 - this is an existing rule that will be updated

• the draft National Disability Insurance Scheme (Nominees) Rules 2021 - this is an existing rule that will be updated and

• the draft National Disability Insurance Scheme (Specialist Disability Accommodation) Amendment (In-kind Supports) Rules 2021.17

Where possible this Digest refers to the draft rules. It should be noted that these draft rules are indicative and could change after passage of the Bill. It has been reported for example, that the NDIS Minister is already considering the redrafting of certain rules in response to stakeholder concerns.18

16. This explanation of the NDIS Rules is excerpted from: Paula Pyburne, ‘National Disability Insurance Scheme Amendment (Streamlined Governance) Bill 2019’, Bills Digest, 26, 2019-20, (Canberra: Parliamentary Library, 2019), 12-13. 17. See: ‘Proposed NDIS Legislative improvements and the Participant Service Guarantee’, DSS. 18. See for example: Dan Jervis-Bardy, 'NDIS Minister Linda Reynolds says rules to be redrafted amid backlash over participant

plans power grab', The Canberra Times, 22 November 2021.

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As legislative instruments, there will be a degree of Parliamentary oversight of the rules once tabled through the disallowance process under the Legislation Act 2003 and through assessments undertaken by the Senate Standing Committee for the Scrutiny of Delegated Legislation.

Bill introduced in context of other proposed reforms It should be noted that the Bill was introduced following the Government’s decision not to proceed with independent assessments.19 The Independent Advisory Council to the NDIS and major stakeholders have suggested that trust in the Government among the disability sector is low at present because of the widespread belief that independent assessments were designed to reduce forecasted expenditure on the scheme. Much of the scepticism from the disability sector about the Bill appears to arise from the belief that the Government intends to increase the powers of the NDIA and thereby indirectly introduce cost-cutting measures.20 For example, one hearing witness to the Senate Committee inquiry (discussed below), from the key advocacy group Every Australian Counts, argued:

Put simply, this is about trust. The actions of the government and the NDIA in their campaign for independent assessments left all of us feeling suspicious and truly exhausted. On this legislation, we've heard the minister and the agency ask us to relax and trust them again, but it's hard for our community to take … [P]eople with disability have told us that they do not trust that this bill is safe to pass.21

Committee consideration

Senate Community Affairs Legislation Committee The Bill was referred to the Senate Finance and Public Administration Legislation Committee for inquiry and report by 25 November 2021. Details of the inquiry are at the inquiry webpage. The Committee recommended that the Bill be passed.22 The Committee noted that the Bill’s intent was broadly supported by those who participated in the inquiry as were many specific provisions within the Bill.23 The Committee however did acknowledge that certain parts of the Bill raised concerns with stakeholders, including the broad powers provided for in delegated legislation.24

In relation to the concerns around the provisions relating to varying a participant’s plan (discussed below in this Bills Digest), the Committee noted:

… the proposed variation rules, which the Government has undertaken to release prior to parliamentary debate, must align with the pillars upon which the NDIS has been built and serve the principles of the NDIS Act. The committee understands the particular concerns raised by submitters about the potential impacts of section 47A in particular, but accepts that the intention of the provision is to be of benefit to participants, rather than to their detriment.25

19. For more information, see: ‘Independent assessments proposal’, NDIA. 20. Independent Advisory Council (IAC) to the NDIS, Advice: Strengthening Scheme Reforms to Access and Planning (July 2021), advice provided to the NDIA, (Canberra: IAC, 2021), 22-23. See also: Submission to the Senate Community Affairs Legislation Committee, Inquiry into the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other

Measures) Bill 2021 (the Senate Committee Inquiry) National Ethnic Disability Alliance, [Submission no. 11], 3. 21. J Cotchin (Campaign Manager, Every Australian Counts), Evidence to Senate Community Affairs Legislation Committee Inquiry into National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021, 12 November 2021, 20. 22. Senate Community Affairs Legislation Committee, National Disability Insurance Scheme Amendment (Participant Service

Guarantee and Other Measures) Bill 2021 [Provisions], (Senate Inquiry Report) (Canberra: The Senate, 2021), 34. 23. Senate Community Affairs Legislation Committee, Senate Inquiry Report, 34. 24. Senate Community Affairs Legislation Committee, Senate Inquiry Report, 34. 25. Senate Community Affairs Legislation Committee, Senate Inquiry Report, 34.

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The Committee similarly acknowledged concerns around the contracted consultation period for the Bill, but noted that the Bill built upon previous consultation processes and that timely implementation of the reforms would benefit participants.26

The Australian Greens released a dissenting report which is discussed further below in the Policy position of non-government parties/independents section of this Bills Digest.

Senate Standing Committee for the Scrutiny of Bills The Senate Standing Committee for the Scrutiny of Bills expressed concerns around the inclusion of significant matters in delegated legislation - especially in relation to the measures in Schedule 1 of the Bill.27 To this end, the Committee requested the Minister’s advice on:

• why it is considered necessary and appropriate to leave key details in relation to the implementation of the proposed Guarantee to delegated legislation and

• whether the Bill can be amended to include at least high-level guidance in relation to these matters on the face of the primary legislation.28

Policy position of non-government parties/independents

Australian Greens The Greens Senators released a dissenting report as part of the Senate Committee process.29 They discussed various concerns in their report, including the overreliance in the Bill on delegated legislation, the proposed variation and reassessment powers of the CEO with respect to participant plans, eligibility requirements and changes with respect to psychosocial disability, the short consultation period on the Bill and the need for greater co-design and representation in relation to reforms to the NDIS.

The Greens recommended that the Bill not be passed in its current form and that further consultation and ‘genuine co-design’ occur in relation to any future reforms to the NDIS.30 The Greens further recommended changes to the current Bill should the Government proceed. These are set out in full at page 42 of the Committee report - they include for example amending proposed section 47A to either remove the CEO’s powers to vary a participant’s plan or significantly limit this power, amending the NDIS Act to include all disabilities in relation to ‘episodic’ and ‘fluctuating’ qualifiers for establishing permanence, and changing the categorisation of certain NDIS rules.31

Australian Labor Party The ALP Senators also tabled a dissenting report on 2 December 2021 separate to the above Senate Committee report.32 ALP Senators noted that they ‘do not agree that the Bill is fully faithful to those recommendations or with this report’s [the Senate Committee report] finding that the Bill be passed in its current form’.33 They also disagreed with the majority report in noting that

26. Senate Community Affairs Legislation Committee, Senate Inquiry Report, 34. 27. Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest, 17, 2021, 24 November 2021, 27-30. 28. Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest, 30.

29. Australian Greens, Dissenting report, Senate Community Affairs Legislation Committee, National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021 [Provisions], (Canberra: The Senate, 2021) 35-42. 30. Senate Community Affairs Legislation Committee, Greens Dissenting Report, 41. 31. Senate Community Affairs Legislation Committee, Greens Dissenting Report, 42. 32. Australian Labor Party, Dissenting report, Senate Community Affairs Legislation Committee, National Disability Insurance

Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021 [Provisions], (Canberra: The Senate, 2021). 33. Senate Community Affairs Legislation Committee, Labor Dissenting Report, 2.

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consultation on the Bill was not sufficient.34 The ALP Senators expressed concern around the use of delegated legislation in noting that the reliance on Category D Rules (only requiring consultation with states and territories) creates a ‘blank cheque’ for the Commonwealth Government to decide who receives support and how much.35

Labor Senators recommended the Bill not be passed in its current form and that the Government engage in ‘genuine co-design and consultation’ on both the Bill and Rules before either proceed.36 They recommended the Bill be amended in almost identical terms to the recommendations in the Greens Dissenting Report.37

Position of major interest groups As part of the Senate Committee process outlined above, the Committee received 78 submissions from various stakeholders, disability peak bodies, state and territory governments and relevant employee groups. As noted above, the Senate Committee considered that there was broad support for the Bill amongst stakeholders, at least for certain aspects of the Bill::

A number of aspects of the bill received widespread support across submissions, including:

• clarification of the Administrative Appeals Tribunal’s jurisdiction;

• implementation of the Participant Service Guarantee, including the commitment to time limits for National Disability Insurance Agency (NDIA) decisions;

• implementation of the Commonwealth Ombudsman’s review of the NDIA’s performance against the Participant Service Guarantee, as well as in relation to participant experience;

• improved market levers for the NDIA to intervene to remedy thin markets;

• clarification of language around the different types of ‘reviews’;

• improvement of the NDIS principles, including adding co-design with people with disability, and using more inclusive language; and

• replacing the term ‘psychiatric condition’ with ‘psychosocial disability’.38

One controversial matter amongst stakeholders was proposed section 47A which allows the CEO of the NDIA to vary or reassess a participant’s plan of their own initiative. Some of these views are set out in the relevant part of the Key issues and provisions section of this Bills Digest.

The Committee also noted that a criticism of the Bill shared by a number of stakeholders was that the Bill makes use of broad discretionary powers in delegated legislation that should be incorporated into the Bill itself and that certain categorisations of proposed NDIS rules should be reconsidered.39

Some stakeholders argued that the consultation period for the Exposure Draft of the Bill was not sufficient, with the Office of the Public Advocate for South Australia, for example, arguing that the

34. Senate Community Affairs Legislation Committee, Labor Dissenting Report, 1. 35. Senate Community Affairs Legislation Committee, Labor Dissenting Report, 3. 36. Senate Community Affairs Legislation Committee, Labor Dissenting Report, 6. 37. Senate Community Affairs Legislation Committee, Labor Dissenting Report, 7. 38. Senate Community Affairs Legislation Committee, Senate Inquiry Report, 11-12. 39. Senate Community Affairs Legislation Committee, Senate Inquiry Report, 12. See also further discussion at pages 12-15 and

page 22 of the Senate Inquiry Report.

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‘short window for public consultation and feedback seems contradictory to the principle of co-design espoused by the Bill’.40

This Bills Digest references a selection of key stakeholder submissions in the Key issues and provisions section of this Digest, focusing on those stakeholders that commented on the measures in the Bill itself.

Financial implications The Government notes that there are no significant financial impacts with the Bill and that it 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 (the proposed role of the Commonwealth Ombudsman is discussed below in this Bills Digest).41

Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.42

Parliamentary Joint Committee on Human Rights The Parliamentary Joint Committee on Human Rights (PJCHR) considered in detail the human rights implications of the measures in the Bill that would allow the variation or reassessment of a participant’s plan (this measure is discussed further in the Key issues and provisions section below).43 The PJCHR noted that the Bill’s statement of compatibility with human rights did not address the extent to which the ability of the CEO of the NDIA to vary or reassess a participant’s plan is compatible with these rights.44

The PJCHR concluded that it had not yet formed a final view and needed more information from the Minister:

The committee notes that this bill would allow an NDIS participant's plan to either be varied or reassessed on the CEO's own initiative or on request of the participant. The matters to which the CEO must have regard in deciding whether to vary or reassess a participant's plan on their own initiative are to be set out in the NDIS rules.

The committee notes that a number of the measures in the bill would promote or facilitate the realisation of some of Australia's obligations under the Convention on the Rights of Persons with Disabilities. However, the committee notes that allowing the CEO, on their own initiative and without the participant's consent, to vary or reassess a participant's plan, engages and may limit a number of rights. In particular, where a participant's supports are reduced or adversely changed as a result of the CEO varying or reassessing the participant's plan, the measure would engage and may limit the rights to health and an adequate standard of living, as well as the rights of persons with disability, including the right to live independently and be included in the community. These rights may be subject to permissible limitations if they are shown to be reasonable, necessary and proportionate.

40. Submissions to the Senate Committee Inquiry: Office of the Public Advocate SA, [Submission no. 21], p. 3. See also, for example, Brotherhood of St Laurence, [Submission no. 44], p. 1. 41. Explanatory Memorandum, National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021, 7. 42. The Statement of Compatibility with Human Rights can be found at page 59 of the Explanatory Memorandum to the Bill. 43. Parliamentary Joint Committee on Human Rights (PJCHR), Human Rights Scrutiny Report, 13, 2021, 10 November 2021: 10-21. 44. PJCHR, Human Rights Scrutiny Report, 20.

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The committee notes that the statement of compatibility did not acknowledge that this measure may engage and limit these rights and so does not provide an assessment as to the compatibility of this measure with these rights. The committee considers there are questions as to the objective being pursued by this measure and whether it is a proportionate means of achieving this objective, particularly as much of the detail is to be included in the as yet unmade NDIS rules. [emphasis added]45

Key issues and provisions

Schedule 1

Introduction of the Participant Service Guarantee The Tune Review, as part of its terms of reference, was tasked with considering how best to implement the proposed Guarantee.46 The Tune Review recommended (at Recommendation 25) the following in relation to implementing the Guarantee, including that its details should be set out in subordinate legislation:

That the NDIS Act is amended to legislate the Participant Service Guarantee as a Category C rule, to be updated from time to time, with:

a. relevant existing timeframes for decision-making moved from the NDIS Act to the new rule

b. new timeframes for decision-making, engagement principles and performance metrics

c. prospective participants and participants being empowered to request an explanation of an access, planning or plan review decision made by the NDIA

d. participants being empowered to receive a full draft plan before it is approved by the NDIA

e. a review within two years of being enacted.47

The Department of Social Services has released an Exposure Draft of the National Disability Insurance Scheme (Participant Service Guarantee) Rules 2021 (the draft Guarantee Rules) on its website.48 While this draft is subject to change, it has been considered at various points in this Digest in relation to the measures the Government intends to implement under the proposed Guarantee.

The subordinate legislation that will implement the details of the Guarantee under the Bill will be ‘Category C rules’.49 This means that the Minister cannot make these rules unless the majority of states and territories have agreed to them.50

Service standards and performance monitoring elements of the Guarantee As noted at Recommendation 25b excerpted above, one of the recommendations of the Tune Review was that the NDIS Rules should provide for engagement principles and performance metrics as part of the Guarantee. The Bill inserts the ability for the NDIS Rules to provide for

45. PJCHR, Human Rights Scrutiny Report, 21. 46. Tune Review, 18. 47. Tune Review, 169. 48. Exposure Draft - National Disability Insurance Scheme (Participant Service Guarantee) Rules 2021 (Draft Guarantee Rules).

49. NDIS Act, subsection 209(8) as amended by item 60 of Schedule 1. 50. NDIS Act, subsection 209(6).

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engagement principles (how the NDIA and CEO engage with participants and prospective participants, and vice versa).51

The draft Guarantee Rules set out the intended ‘engagement principles’ under the proposed Guarantee at sections 5 and 6. Section 5 of the draft Guarantee Rules sets out the principles for the NDIA and CEO (and other responsible persons), this centres on five key engagement principles:

• Transparency — Participants and prospective participants have access (that is easy to understand and available in formats that meet their needs) to clear, accurate, consistent and up-to-date information about the NDIS, their plans and the funding allocated for their plans

• Responsiveness — Participants and prospective participants are supported and their independence is maximised by addressing their individual circumstances and needs

• Respect — Participants and prospective participants are valued, listened to and respected

• Empowerment — Participants and prospective participants are empowered to make access requests, navigate the NDIS system, participate in the planning process and purchase supports under their plans and

• Connectedness — Barriers are removed so that participants and prospective participants are connected to the services and supports they need.

These principles reflect those principles identified by the Tune Review as being the relevant considerations that the new Guarantee should be built around.52

These principles correspond to relevant service standards - for example the engagement principle of ‘Respect’ is tied to the service standard of treating participants/prospective participants and their families and carers with empathy, dignity and respect for their diverse experiences, values and beliefs.53 Similarly, the engagement principle of ‘Empowerment’s is tied to the service standard of requiring the NDIA and CEO to inform participants/prospective participants of their right to bring anyone they choose to help support them through the process.54

While these proposed engagement principles and service standards are detailed and are a key part of the Guarantee, they are not assured by the Bill itself (as they will be set out in a legislative instrument). As noted, the Exposure Draft is subject to change before to enactment.

Quarterly report The Bill also facilitates the Government’s intention that the Board of the NDIA will report on certain performance metrics in relation to the Guarantee to the Ministerial Council overseeing the NDIS (as part of its quarterly report).55 The provision of a quarterly report is already a requirement under the NDIS Act, with the Minister able to prescribe additional information by legislative instrument to be in this report, provided the majority of the Ministerial Council has agreed to the instrument.56

The Bill amends these provisions so that the Commonwealth Minister alone can prescribe required information in the report without the agreement of the remainder of the Ministerial Council.57 The draft Guarantee Rules sets out the detail of the information the Government intends to be in this

51. NDIS Act, proposed paragraphs 209(2A)(c)-(d) as inserted by item 56 of Schedule 1. 52. Tune Review, 11. 53. Draft Guarantee Rules, section 5, table item 3. 54. Draft Guarantee Rules, section 5, table item 4. 55. The Ministerial Council consists of the Ministers of the Commonwealth, states and territories that have been designated by

the Council of Australian Governments as having responsibilities relating to the NDIS (NDIS Act, section 9 and section 12). 56. NDIS Act, subsections 174(3)-(4C). 57. NDIS Act, section 174 as amended by item 51 of Schedule 1.

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quarterly report at section 15. The Government expects, for example, that the report should include information on:

• activities undertaken or improvements made in the period in relation to each engagement principle, and service standard (as set out in the NDIS Rules)

• the average response or decision time against each timeframe that applies to the Agency or CEO and percentage of responses or decisions made outside of this timeframe and

• the number of different types of decisions made under the NDIS Act and information on outstanding matters.58

Commonwealth Ombudsman The Tune Review recommended (at Recommendation 26) that the NDIS Act be amended to clarify the Commonwealth Ombudsman’s powers to monitor the NDIA’s performance in delivering against the Guarantee.59 The Review noted that the Ombudsman Act 1976 already provides the Ombudsman the power to monitor and investigate the NDIA in relation to its functions under the proposed Guarantee. The Review nevertheless found that there was ‘merit’ in explicitly providing for this matter in the NDIS Act.60

The Bill provides that as soon as practicable after each financial year, the Ombudsman must prepare and give to the Minister a report about some or all of the matters prescribed by the NDIS Rules. The report must be tabled in Parliament within 15 sitting days. The amendments also provide that the powers of the Ombudsman under the Ombudsman Act extend to the preparation of the report.61

Section 16 of the draft Guarantee Rules highlight the Government’s intention for the Ombudsman’s report to use the engagement principles in the Guarantee (discussed above) as the relevant performance metric to report against.

Relevant timeframes under the Guarantee A key aspect of the proposed Guarantee is the setting of timeframes for key decisions in the NDIS process - thereby providing certainty for current and prospective participants.62 The Bill mostly provides for these timeframes to be set out in the NDIS Rules. The amendments relating to timeframes implements Recommendations 25a and 25b of the Tune Review (excerpted above). The NDIA notes that since 1 July 2020, it has been measuring itself against the proposed Guarantee ahead of the proposed legislative change - it notes that these timeframes are being met 95% of the time.63 The key amendments relating to timeframes in the Bill are briefly outlined below.

Access requests Currently, access requests to the NDIS by prospective participants must be decided by the NDIA within 21 days.64 The Bill does not change this requirement but stipulates that while the NDIS Rules can provide for a shorter timeframe, the 21 day period cannot be extended.65 In effect this

58. Draft Guarantee Rules, section 15. 59. Tune Review, 170. The Commonwealth Ombudsman is established under the Ombudsman Act 1976. 60. Tune Review, 170. 61. NDIS Act, proposed section 204A as inserted by Item 55 of Schedule 1. 62. Explanatory Memorandum, National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other

Measures) Bill 2021, 3 and 12. 63. ‘Participant Service Guarantee’, NDIA, last updated 20 January 2022. 64. NDIS Act, section 20. 65. NDIS Act, proposed subsection 20(2) as inserted by item 6 of Schedule 1.

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ensures that the 21 day timeframe will generally be the maximum period to decide access requests.

Request for information from the NDIA The Tune Review recommended (at Recommendation 9) that prospective applicants be given up to 90 days to provide information requested by the NDIA to support an access decision, before it is deemed that their request has been withdrawn.66 The Review notes that the current 28 day timeframe has been highlighted as problematic through consultation - with some submissions to the Review noting that it took between two and three months to provide the requested information (such as information required from specialist health professionals).67

The Bill makes these changes in legislation so that prospective participants will have 90 days to respond to a request for information from the CEO of the NDIA.68

Development of a participant’s plan The Tune Review recommended (at Recommendation 11) that the NDIS Act be amended to reflect that a NDIS participant plan must be facilitated and approved in accordance with the timeframes outlined in the proposed Guarantee.69 The NDIS Act does not currently set a timeframe in which a plan must be approved. The Tune Review ‘heard that participants, their families and carers have experienced lengthy delays in getting their plan approved, often with no communication from the NDIA as to why or when they can expect it’.70

The Bill amends the NDIS Act so that it will be a requirement for the CEO of the NDIA to begin facilitating the preparation of the participant’s plan within 21 days of the person becoming a participant.71 The amendments to the Bill however do not create a time limit for the approval of the plan as such.

A participant’s plan is in effect when the CEO has received the participant’s statement of goals and aspirations and when the CEO has approved the statement of participant supports (the decision to approve or not must be done ‘as soon as reasonably practicable’).72 The Bill does not create a timeframe for this approval in the NDIS Act.

Instead, the Bill requires the CEO to approve the statement of participant supports within the period worked out in the NDIS Rules, or if there are no such rules, then as soon as reasonably practical.73 The draft Guarantee Rules envisages the time period to be 90 days for those aged under seven, or 56 days for other participants.74

Cancellation of appointments of nominees The NDIS Act allows for the appointment of plan nominees and correspondence nominees (as a last resort) to undertake activities on behalf of a participant.75 This appointment can be cancelled on request of the participant or where the nominee no longer wishes to be appointed. Items 34 and 35 of Schedule 1 amend the Act so that the CEO must cancel the appointment within the

66. Tune Review, 80. 67. Tune Review, 79. 68. NDIS Act, paragraphs 26(2)(b) and 26(3)(b) as amended by items 11-12 of Schedule 1. 69. Tune Review, 95. 70. Tune Review, 93. 71. NDIS Act, proposed section 32 as inserted by item 32 of Schedule 1. 72. NDIS Act, subsection 37(1) and subsection 33(4). 73. NDIS Act, proposed subsection 33(4) as inserted by item 16 of Schedule 1. 74. Draft Guarantee Rules, subsection 8(1). 75. NDIS Act, sections 86 and 87. See also: ’Guardians and nominees explained’, NDIA, last updated 8 December 2020.

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period provided for by the NDIS Rules or as soon as practical.76 Section 12 of the draft Guarantee Rules notes the Government’s intention is that this period be 14 days after the request is made by the participant or 14 days after being informed by the nominee.

Timeframe for internal reviews Currently, where a decision maker reviews a ‘reviewable decision’, they must make a decision to confirm the decision, to vary the decision or to set aside and replace the decision ‘as soon as reasonably practical’.77 Items 42-44 of Schedule 1 amend the NDIS Act so that the NDIS Rules can prescribe the relevant time period for this to occur. If no such rules exist, then the time limit becomes 90 days from when the decision maker receives a request for review or from when they have been taken to have made the decision.78 Section 14 draft Guarantee Rules reflect the Government’s current intention that the period should be limited to 60 days.

Stakeholder views During the Exposure Draft consultation process and Senate Committee Inquiry process, most stakeholders supported the Bill’s provisions concerning the proposed Guarantee, welcoming, for example, the requirement that the Commonwealth Ombudsman report on the NDIA’s performance against the Guarantee.79

However, Professor Bruce Bonyhady AM, one of the key designers of the NDIS, suggested there was ‘a significant risk’ that the NDIA would make ‘poorly considered and ill-informed decisions quickly’ to meet the timeframes set out in the proposed Guarantee.80 Other stakeholders who submitted to the consultation expressed concern that the NDIA ‘is not sufficiently resourced to meet the requirements in the guarantee’ or may not have the capacity to meet the timeframes of the proposed Guarantee.81

Variation of plans Currently, the NDIS Act does not allow the variation of a participant’s plan. A plan can only be changed where a participant changes their statement of goals and aspirations and provides this to the CEO of the NDIA.82

In other circumstances, a plan needs to be replaced rather than varied. A new participant plan can be made in circumstances including:

• when the participant requests an unscheduled plan review

• the NDIA initiates an unscheduled plan review or

• as part of a scheduled plan review - where the NDIA conducts a review of the plan by the date and under the circumstances in the plan itself.83

76. NDIS Act, subsections 89(1) and 89(3) as amended by items 34 and 35 of Schedule 1. 77. NDIS Act, subsection 100(6). 78. Proposed subsection 100(6A). 79. Submissions to Senate Committee Inquiry: see, for example: Dr Darren O’Donovan, [Submission no. 1], 9; Public Interest

Advocacy Centre, [Submission no. 2], 3; Australian Federation of Disability Organisations, [Submission no. 14], 9; Office of the Public Advocate, Qld, [Submission no. 30], 1; Allied Health Professions Australia, [Submission no. 34], 2. Submissions received for the Exposure Draft on the Proposed NDIS Legislative Improvements and the Participant Service Guarantee Consultation (the Exposure Draft Consultation): see, for example: Carers Australia, 2-3, Australian Federation of Disability Organisations, 12. 80. Submissions to the Senate Community Inquiry: Professor B Bonyhady AM, Melbourne Disability Institute, [Submission no. 10],

3.

81. Submissions received for the Exposure Draft Consultation: Queensland Advocacy Incorporated, 4; Carers Australia, 3. 82. NDIS Act, section 47. 83. NDIS Act, section 48; Tune Review, 130. See also: ‘Reviewing your plan and goals‘, NDIA, last updated 25 November 2021.

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The Tune Review noted:

… , a participant’s plan cannot be varied unless a new plan is created under Division 4 of the NDIS Act. In short, this means to make any change to the plan - including making the most minor administrative change to a plan (such as fixing a typographical error or updating the participant’s contact details) - requires the participant to undergo a full plan review. Understandably, this has caused significant frustrations for participants.

Consultation feedback indicates that participants feel this process might mean that all their plan supports could be reassessed and reduced, rather than the review being limited to the matter in contention. For this reason, a significant number of participants indicated that they, despite needing additional or new supports, are choosing not to request unscheduled reviews of their plan. Although, it should be noted the legislation currently requires the NDIA to be satisfied all supports in the plan are reasonable and necessary, regardless of the reason the review was initiated or the type of change the participant asked for.84

To this end the Review recommended (at Recommendation 21) that the NDIS Act be amended to introduce a new Category D rule making power giving the NDIA the ability to amend a plan in appropriate circumstances.85

The Bill inserts proposed section 47A (as inserted by item 23) so that a participant’s plan can be varied on request of the participant or on the CEO of the NDIA’s own initiative. The CEO can make the variation where:

• it is a change to the statement of participant supports in the circumstances prescribed by the NDIS rules

• a correction of a minor or technical error or

• of a kind prescribed by the NDIS rules.86

The relevant NDIS Rules made under proposed section 47A will be Category D NDIS Rules.87 This means that while states and territories have to be consulted on the proposed rules, they do not have to provide their consent for them to come into force.

The CEO must have regard to certain considerations, including the participant’s statement of goals and aspirations, relevant assessments conducted in relation to the participant, that the supports are reasonable and necessary,88 the principle that the participant should manage their plan to the extent that they wish as well as the operation and effectiveness of any previous plans of the participant.89 The CEO must make a decision on a request for variation within 21 days.90

As noted, the CEO can vary a plan on their own initiative. This has been a source of controversy for certain stakeholders (discussed below). The Government provides case studies on how it envisages these powers to be used in practice at pages 20-21 of the Explanatory Memorandum. The case studies indicate the Government’s hope that the powers will assist participants with positive changes to their plans without needing to go through a full plan replacement process.

84. Tune Review, 136-137. 85. Tune Review, 140. 86. NDIS Act, proposed subsection 47A(1). 87. NDIS Act, subsection 209(80, table item 4 as amended by item 62 of Schedule 1). 88. This reflects the requirements in section 34 of the NDIS Act. 89. NDIS Act, proposed subsection 47A(3). 90. NDIS Act, proposed subsection 47A(4).

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The amendments require that variations ‘must be prepared with the participant’, however the Bill is silent on explicit protections on CEO variations that could be to the detriment of participants. The Government however argues that the qualitative elements of the Guarantee will act as a safeguard:

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.91

However as discussed above, the qualitative elements of the Guarantee will be in the NDIS Rules rather than the Bill itself. Section 10 of the draft Plan Administration Rules provides guidance of sorts on the circumstances in which a CEO could exercise their discretion to vary a plan of their own initiative, including for example where the variation is minor or technical, relates to adding a particular support, increases the total funding to the plan or mitigates an immediate risk of harm to the participant.92

In contrast, the intended matters to be considered when deciding to vary a plan on the participant’s request are the same as above but are expanded to include matters such as a significant change in circumstances, to functional capacity or to degenerative conditions.93 It should be noted that these draft rules once in force, would not remove the discretion of the CEO to make a decision notwithstanding these considerations. In other words they represent relevant factors that must be considered in making a decision, rather than thresholds that must be met for a particular decision to be made.

Stakeholder views Many submitters to the Senate Committee Inquiry expressed concern about proposed section 47A, particularly that the circumstances in which the CEO of the NDIA could vary a participant’s plan would be prescribed in delegated legislation rather than the Act itself.94 These concerns included the ways in which such rules would be categorised, which would determine the level of agreement or consultation required from the states and territories. For example, the Australian Human Rights Commission argued that given the rules had not been published when the Senate Inquiry was referred, ‘Members of Parliament are being asked to give the NDIA powers that may be confined or clarified in the future’. It suggested that in these circumstances the rules should be classified as Category A rules, which would require the unanimous agreement of the states and territories, rather than Category D rules. This was echoed by other submitters, such as the WA Government.95

The Public Interest Advocacy Centre argued that proposed paragraph 47A(4)(c) should be omitted so that, if a participant requested a variation of their plan, ‘the CEO should only be able to decide to vary the plan, or not vary the plan’ and ‘not have the power to decline the plan variation and instead reassess the plan under s 48(1)’. The Public Interest Advocacy Centre took this position

91. Explanatory Memorandum, National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021, 21. 92. See also explanation at pages 10-11 of DSS, Explanation of the National Disability Insurance Scheme (Plan Administration) Rules 2021, 7 September 2021. 93. Exposure Draft - National Disability Insurance Scheme (Plan Administration) Rules 2021 (draft Plan Administration Rules)

subsection 11(3)-(4). 94. Submissions to the Senate Committee Inquiry: Maurice Blackburn Lawyers, [Submission no. 2], 3; Public Interest Advocacy Centre, [Submission no. 3], 5, 7; National Disability Services, [Submission no. 12], 3; Allied Health Professions Australia, [Submission 34], 6. 95. Submissions to the Senate Committee Inquiry: Australian Human Rights Commission, [Submission no. 58], 2-3; WA

Government, [Submission no. 7], 1. See also, for example, National Disability Services, [Submission no. 12], 3; Public Interest Advocacy Centre, [Submission no. 3], 7-8; Allied Health Professions Australia, [Submission 34], 6.

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because, it contended, a ‘participant should be able to request a plan variation without being concerned that their access to the Scheme and all of their existing supports [would be] open for reassessment’.96

It has been reported that in response to stakeholder concerns, the Government decided to amend the powers of the CEO ‘to ensure they could only be used in circumstances where a participant required crisis or emergency funding, a new “minor support” such as a piece of technology or a change to their plan reassessment date’.97 At the time of writing this Digest it is unclear whether these reported changes will involve amendments to the Bill itself or changes in the finalised Plan Administration Rules.

Reassessment of plans The Tune Review recommended that the NDIS Act be amended to remove the duplicate use of the word ‘review’ in the Act, as it has been confusing for participants.98 A table at page 19 of the Explanatory Memorandum distinguishes the meaning of ‘plan variation’, ‘plan reassessment’ and reviewable decision’. In particular, the plan review processes currently in place will be known as plan reassessments under the Bill’s amendments.

The Tune Review recommended (at Recommendation 20) that the NDIS Act be amended to introduce a new Category D rule making power that sets out the matters the NDIA must consider when deciding whether to undertake an unscheduled plan review.99 The Review noted that consultation feedback indicated that people with disability do not understand the circumstances in which they should request an unscheduled review of their plan and the things the NDIA will consider when deciding whether to conduct it. The Review noted that the same confusion applies to knowing when the NDIA might decide to initiate a review of their plan.100

The Bill replaces existing provisions to, amongst other things, clarify that the CEO must have regard to the NDIS Rules in deciding whether to conduct a reassessment of a participant’s plan on their own initiative.101 In addition, if the reassessment is requested by the participant, the CEO can consider whether to make a variation of the plan as opposed to a reassessment.102 The Government notes that this is an ‘improvement’ as the CEO will be afforded greater options which will allow ‘for a more tailored response to the needs of the participant’.103 The timeframe for decision on reassessment requests will be 21 days.104

Again the draft Plan Administration rules set out the proposed what the CEO must consider when deciding to conduct a reassessment of a participant’s plan.105 These reflect the matters that are considered by the CEO when deciding to vary a plan on the participant’s request (discussed above).

96. Submissions to the Senate Committee Inquiry: Public Interest Advocacy Centre, [Submission no. 3], 3. 97. Olivia Caisley, ‘States Told to Share the NDIS Load ’, The Australian, 25 November 2021. 98. Tune Review, 144. 99. Tune Review, 135. 100. Tune Review, 134. 101. NDIS Act, proposed paragraph 48(5)(a). See also in general amendments made by item 24 of Schedule 1. These provisions are

explained in detail (including with reference to case studies) at pages 22-24 of the Explanatory Memorandum to the Bill. 102. NDIS Act, proposed subsection 48(3). 103. Explanatory Memorandum, National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021, 23. 104. NDIS Act, proposed subsection 48(4). 105. Draft Plan Administration Rules, section 12.

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The CEO will also be required to complete a reassessment of a participant’s plan before the stipulated date in the plan, and either vary the plan as a result or prepare a new plan with the participant.106

Decision making issues The Tune Review recommended (at Recommendation 25c, excerpted in full above in this Digest) that participants and prospective participants be allowed to request reasons from the NDIS on decisions relating to access, planning or plan review.107

The Bill amends the NDIS Act to make it mandatory for the CEO to provide reasons for any reviewable decision. These decisions include for example decisions that a person does not meet the NDIS access criteria, decisions to revoke a participant’s status and decisions to approve a statement of participant supports in a plan.108 These amendments reflect changes made to the Exposure Draft in response to the consultation process - feedback had noted that reasons should be given automatically and not just on request as was originally intended.109

In addition items 45-49 of Schedule 1 make amendments to the NDIS Act to ‘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’.110 In particular, the Tune Review recommended (at

Recommendation 23) that the Administrative Appeals Tribunal’s (AAT) jurisdiction be clarified to include the power for a plan to be amended while a matter is before the AAT.111

Stakeholder views Many major stakeholders welcomed amendments that would see the AAT able to review plans that were varied or replaced by new plans after an appeal to the AAT commenced.112 However, Queensland Advocacy Incorporated called for ‘legislative clarity regarding the AAT’s jurisdiction over supports that were not originally requested or relevant at the time of the participant’s internal review application’ with the NDIA.113

Schedule 2 Schedule 2 contains amendments aimed at addressing flexibility issues with the NDIS and improving participant experience. These amendments include for example:

• amendments to allow the CEO of the NDIA to approve forms and requiring the publishing of these online - this is aimed at improving the online experience of participants, an issue that was flagged in the Tune Review114

106. NDIS Act, proposed section 49. 107. Tune Review, 169. 108. NDIS Act, section 99. 109. Explanatory Memorandum, National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other

Measures) Bill 2021, 16-17. For relevant stakeholder comments on the Exposure Draft, see for example: ‘Explainer: What are the proposed changes to the NDIS Act?’, Public Interest Advocacy Centre, last updated 20 September 2021. 110. Explanatory Memorandum, National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021, 25-26. 111. Tune Review, 150. See amendment made by item 49 of Schedule 1. 112. Submissions to the Senate Committee Inquiry: see for example, Public Interest Advocacy Centre, [Submission no. 3], 3;

National Disability Services, [Submission no. 12], 7; Australian Federation of Disability Organisations, [Submission no. 14], 9; Queensland Advocacy Incorporated, [Submission no. 24], 8; Allied Health Professions Australia, [Submission no. 34], 7. 113. Submissions to the Senate Committee Inquiry: Queensland Advocacy Incorporated, [Submission no. 24], 9. 114. See amendments made by items 7 and 8 of Schedule 2; Tune Review op. cit., p. 55. See also explanation at page 34 of the Explanatory Memorandum to the Bill.

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• amendments clarifying how payments are made under the NDIS and enabling payments to be made directly to providers115

• amendments enabling the NDIS Rules to prescribe requirements for providers that receive NDIS amounts on behalf of participants to retain records116

• including the possessing of a disability or lived experience with disability as a characteristic that the Minister can consider when deciding to appoint a member to the Board of the NDIA as well as other amendments relating to Board appointments117 and

• clarifying the circumstances around debts payable the NDIA.118

These are not discussed in detail in this Bills Digest.

Amendment to general principles The NDIS Act sets out general principles intended to guide actions under the Act.119 The Bill amends these principles in various ways. First the Bill amends the NDIS Act to remove moderating language from these guiding principles.120 Currently the relevant provisions in the NDIS Act refer to supporting people with disability to contribute to economic and social life ‘to the extent of their ability’ and the right to exercise choice and engage as equal partners ‘to the full extent of their capacity’. The Bill removes the moderating language: ‘to the extent of their ability’ and ‘to the full extent of their capacity’ from these provisions.

Significantly, the Bill also gives explicit recognition to the following principles:

• that people with disability are central to the NDIS and should be included in a co-design capacity (this was a recommendation of the 2015 Review)121

• that people with disability require access to a diverse and sustainable market for disability support in which innovation, quality, continuous improvement, contemporary best practice and effectiveness of those supports is promoted (currently the provision makes reference to the promotion to these listed factors but not to the need for market access)122 and

• the relationship between people with disability and their families and carers is to be recognised and respected.123

In relation to this last listed principle, the Bill also amends the NDIS Act so that the relationship between people with disability and their families and carers is recognised and respected as part of the preparation, review and replacement of a participant’s plan.124 The Bill will also amend the Act to allow the CEO of the NDIA to consider the effect of obtaining compensation for a personal injury on the participant’s carers.125

115. See amendments made by Items 27-29 and 36 of Schedule 2. See also explanation at pages 44-45 of the Explanatory Memorandum to the Bill. 116. See amendments made by items 37-38 of Schedule 2. See also explanation at page 45 of the Explanatory Memorandum to the Bill. 117. See amendments made by items 46-50 of Schedule 2. See also explanation at pages 47-48 of the Explanatory Memorandum

to the Bill.

118. See amendment made by item 51 of Schedule 2. See also explanation at page 48 of the Explanatory Memorandum to the Bill. 119. NDIS Act, section 4. 120. NDIS Act, subsections 4(2) and 4(8) as amended by items 1 and 2 of Schedule 2. 121. Proposed subsection 4(9A) as inserted by item 3 of Schedule 2; EY, Independent Review of the NDIS Act December 2015,

18-19.

122. Proposed subsection 4(15) as inserted by item 5 of Schedule 2. 123. Proposed subsection 4(12A) as inserted by item 4 of Schedule 2. 124. Proposed paragraph 31(ca), item 25 of Schedule 2. 125. NDIS Act, paragraph 104(3)(f) as amended by item 45 of Schedule 2.

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It remains to be seen to what degree the amended general principles will affect the administration of the NDIS in practice and whether they will guide actions differently under the NDIS Act.

Stakeholder views A number of stakeholders expressed support for the addition of the new general principles guiding actions under the Act, particularly the principle concerning co-design.126 However, the Australian Human Rights Commission and the Office of the Public Advocate SA noted that the Bill does not define ‘co-design’, with the former calling for clarity or a definition of this term.127

Allied Health Professions Australia (AHPA) stated that it did not support the amendments that repeal and replace subsection 4(15) of the Act to add market access as the key factor around which other factors are to be promoted in the provision of supports to people with disability (listed above). AHPA argued that the proposed provision to replace this subsection did not reference any need for market intervention where market gaps may exist. AHPA further argued that the relevant 2015 Review recommendation was not as market focused in its wording and that the amendment does not reflect recommendations from the Tune Review.128

Enabling access to disability supports In general, the NDIS focuses on providing individualised supports for participants. However the NDIS Act does allow for more general funding assistance to be provided to persons or entities under Chapter 2 of the Act.129 The following was noted in the 2015 review:

The key purpose of the NDIS is to provide individualised support for eligible people with permanent and significant disability, their families and carers. The NDIS, however, also plays a broader role in providing general supports to people with disability, their families and carers. This general support, which was originally called Tier 2, but is now referred to as Information, Linkages and Capacity Building (ILC) …

ILC is intended to complement the individually-funded supports available under Chapter 3 of the NDIS Act and to broaden the range of supports available to people with disability and their families, carers and communities.

The purpose of Chapter 2 is to provide the legislative foundation for ILC. As the nature and scope of ILC had not been agreed when the NDIS Act was drafted, Chapter 2 is both brief (comprising only five sections) and broad (in that its provisions are relatively wide-ranging in their application).130

Recommendation 6 of the 2015 review, which is reflected in Recommendation 27b of the Tune Review, recommended that the Information, Linkages and Capacity Building funding be provided with greater definition in the legislative framework.131

To this end, item 10 of Schedule 2 repeals the current more generalised purposes of NDIS direct funding and replaces it with the following more specific purposes:

126. Submissions to the Senate Committee Inquiry: see for example, Public Interest Advocacy Centre, [Submission no. 3], 3; Australian Federation of Disability Organisations, [Submission no. 14], 9; Australian Human Rights Commission, [Submission no. 58], 4.

127. Submissions to the Senate Committee Inquiry: Office of the Public Advocate SA, [Submission no. 21], 5; Australian Human Rights Commission, [Submission no. 58], 4. 128. Submissions to the Senate Committee Inquiry: Allied Health Professions Australia, [Submission no. 34], 8-9. 129. See in particular: NDIS Act, section 14. 130. EY, Independent Review of the NDIS Act December 2015 , 28. 131. EY, 29; Tune Review, 177.

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• enabling those persons or entities to provide information in relation to disability and disability supports and services

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

• enabling those persons or entities to assist people with disability, and their families and carers, to participate in social and economic life.132

The above amendment can be seen as a response to Recommendation 13 of the Tune Review.133 That recommendation was made in response to the need to maximise the benefits of early intervention for children - to this end the Review had recommended that:

The NDIS Act is amended to provide more flexibility for the NDIA 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.134

The amendments made by item 11 of Schedule 2 are also in part a response to this recommendation. This item amends the NDIS Act to clarify that the NDIA can provide funding to a person or entity to:

• assist one or more participants to receive supports or

• to assist a participant who is a child aged under seven to access supports, before the child’s plan comes into effect, in relation to child’s disability needs.135

The Explanatory Memorandum notes that these amendments will allow the NDIA to use the interventionist approach of ‘direct commissioning’ where necessary, contracting directly with organisations to deliver supports and services. The Explanatory Memorandum notes that the 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.136

The Bill also provides that the NDIS Rules may set out the matters that the NDIA must consider when deciding to provide this direct funding.137 The draft Plan Administration Rules sets out the Government’s intention in this regard, including mandating considerations around the urgency for participant supports, the extent to which the participant is able to exercise choice and control and best-practice approaches in relation to assisting participants of particular cultural backgrounds.138

132. NDIS Act, proposed paragraphs 14(a)-(ac). 133. See explanation at page 35 of the Explanatory Memorandum to the Bill. 134. Tune Review, 107. 135. NDIS Act, proposed subsection 14(2). 136. Explanatory Memorandum, National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other

Measures) Bill 2021, 36-37. 137. Proposed subsection 14(3). 138. Draft Plan Administration Rules, section 5.

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National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021 23

Amendments relating to psychosocial disability The NDIS Act contains provisions relating to disability requirements and early intervention requirements.139 The Bill makes various amendments to these provisions with respect to psychosocial disability. The amendments respond to the Recommendation 8 of the Tune Review which recommended that:

The NDIS Act and Rules are amended to:

a. provide clearer guidance for the NDIA in considering whether a psychosocial impairment is permanent, recognising that some conditions may be episodic or fluctuating

b. remove references to ‘psychiatric conditions’ when determining eligibility and replace with ‘psychosocial disability’.140

In response to Recommendation 8b, the Bill updates the language in the NDIS Act by replacing the references to impairments ‘attributable to a psychiatric condition’ in the Act with references to impairments ‘to which a psychosocial disability is attributable’.141 The Explanatory Memorandum notes that these changes ‘are in keeping with best practice approaches and recognise that psychosocial disability may be broader than the classification of psychiatric conditions’.142

In response to Recommendation 8a of the Tune Review, the Bill clarifies when a psychosocial condition should be considered permanent for the purposes of the NDIS. To meet the disability requirements under the NDIS Act, the relevant impairment needs to be permanent or likely to be permanent.143 Similarly, in order to meet the early intervention requirements under the NDIS Act, relevant impairments need be permanent or likely to be permanent.144

The Bill amends the relevant provisions so that a psychosocial disability that is ‘episodic or fluctuating’ is taken to be permanent for the purposes of these requirements.145 To illustrate how these amendments are intended to operate, the Explanatory Memorandum uses a case study of a person who can do certain activities during periods of wellness, but not during episodic periods where they are unwell due to their psychosocial disability - it is intended that such persons would be granted access to the NDIS.146

Currently, to meet the disability requirements under the NDIS Act, the relevant impairments must also affect either ‘functional capacity’ or ‘psychosocial functioning’ in relation to certain activities (such as social interaction, learning and mobility).147 The Bill amends this provision so that psychosocial functioning is no longer considered separately from functional capacity in relation to these matters.148 The Explanatory Memorandum further notes that the effect of the amendments is to clarify ‘that, for the purpose of whether a person meets the disability requirements, the same

139. NDIS Act, sections 24 and 25. 140. Tune Review, 76. 141. Paragraph 24(1)(a) as amended by item 16 of Schedule 2 and proposed subparagraph 25(1)(a)(ii) as inserted by item 19 of Schedule 2. 142. Explanatory Memorandum, National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other

Measures) Bill 2021, 37. 143. NDIS Act, paragraph 24(1)(b). 144. NDIS Act, paragraph 25(1). For further information on the NDIS early intervention requirements, see: ‘Access to the NDIS - Early intervention requirements’, NDIA. 145. NDIS Act, proposed subsections 24(3)-(4) and proposed subsection 25(1A). 146. See case study outlined at page 39 of the Explanatory Memorandum to the Bill. 147. NDIS Act, paragraph 24(1)(c). 148. NDIS Act, paragraph 24(1)(c), as amended by item 17 of Schedule 2.

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National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021 24

activities for reduced functional capacity apply to psychosocial impairments as they do for all other impairments’.149

Stakeholder views Most concerns raised by key stakeholders about amendments regarding psychosocial disability largely related to the draft NDIS Rules released with the Exposure Draft, and not proposed amendments to the Act itself.150 However, some called for legislation or guidelines to help interpret terms like ‘psychosocial disability’ in the Act, particularly because this cohort of potential participants may reject or not identify with the term.151

Requirements for impairments to be considered permanent Section 27 of the NDIS Act allows for the NDIS Rules to deal with the disability requirements and early intervention requirements under the NDIS Act. The Bill amends this provision so that the NDIS Rules will be able to prescribe the criteria for impairments to be considered permanent (so as to meet disability/early intervention requirements).152 Similarly, the Bill will allow NDIS Rules to be prescribed that would set out what requirements would need to be met for impairments to be considered as reducing functional capacity.153

The draft Becoming a Participant Rules detail the Government’s proposed requirements that will be set out in the NDIS Rules. This includes for example, there being no known evidence-based clinical, medical or other treatments for non-psychosocial disabilities and the requirement that the person is undergoing or has undergone appropriate treatment for managing the person’s mental, behavioural or emotional condition for psychosocial disabilities.154

Plan Management Under the NDIS Act, while all participants can choose their support providers, some participants may ask someone else to do it for them (a plan nominee); decide to manage the supports in their plan themselves (self-manage); or use a registered plan manager.155 The NDIA and the participant may also agree that the NDIA will be responsible for purchasing and managing the supports in their plan.156 ‘Plan management’ refers to where a provider supports a participant in managing the funding in their NDIS plan.157

The Tune Review noted that there are currently protections for those who choose for the NDIA to manage their plan or to manage the plan themselves. The Review notes that where the NDIA manages a plan, only registered service providers (who have been assessed as suitable) are used.158 Self-managing participants are not required to use registered providers, however the legislative framework provides for a risk assessment in deciding whether this self-management

149. Explanatory Memorandum, National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021, 38. 150. Submissions to the Senate Committee Inquiry: see for example, Maurice Blackburn Lawyers, [Submission no. 2], 6-10; Australian Psychological Society, [Submission no. 45], 2. 151. Submissions to the Senate Committee Inquiry: see for example, Mental Illness Fellowship of Australia Incorporated,

[Submission no. 4], 3. 152. NDIS Act, proposed subsection 27(2). 153. NDIS Act, proposed subsection 27(3). 154. Exposure Draft - National Disability Insurance Scheme (Becoming a Participant) Rules 2021, sections 7 and 8. 155. Tune Review, 126; NDIS Act, subsection 43(1). 156. Ibid. 157. ‘Plan management’, NDIA. 158. ‘Plan management’, NDIA.

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National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021 25

should be permitted in the first place.159 Participants who use plan management options however are not similarly protected.

The Tune Review noted:

Plan management offers the same level of choice and access to unregistered providers as self-management and it is the role of support coordinators and not plan managers to assist participants in choosing and connecting with providers. For these reasons, it is unclear why plan management is an option in its own right rather than a variation of self-management.160

To this end the Tune Review recommended (at Recommendation 19) that the NDIS Act be amended so a participant who requests to ‘plan manage’ their NDIS funding be subject to the same considerations as those who apply to self-manage.161

The Bill amends the NDIS Act to prescribe how a self-management request should be treated by the NDIA and to implement this Review recommendation.162 In effect the amendments will allow the NDIA to undertake risk assessments for participants who request their supports to be managed by a registered plan manager.163 The draft Plan Management Rules outlines the proposed factors that might give rise to unreasonable risks, noting that these are subject to change in any finalised legislative instrument.

Schedule 3 The NDIS was first introduced by the Gillard Labor Government on 1 July 2013 with the initial stages of the NDIS consisting of a trial phase known as the NDIS Launch. In effect the NDIS began to be introduced across Australia (with the exception of Western Australia) from July 2016 in a progressive fashion.164 In December 2017, it was announced that the national NDIS would be rolled out in WA. The NDIA assumed responsibility for the NDIS in that state from 1 July 2018, with delivery continuing in a staged approach in different areas across that state.165

On 1 July 2020, the then Minister for the NDIS announced that the staged geographical roll-out of the NDIS had been completed and that the NDIS was now available to all eligible Australians regardless of their location in the country.166

The amendments in Schedule 3 (titled ‘Full Scheme Amendments’) reflect the completed implementation of the NDIS - the schedule consists of the removal of redundant provisions and other technical amendments given the completion of the rollout. Examples of these changes include:

• replacing the outdated terminology of the National Disability Insurance Scheme Launch Transition Agency and related amendments167

159. ‘Plan management’, NDIA; NDIS Act, sections 43 and 44. 160. Tune Review, 127. 161. Tune Review, 128. 162. NDIS Act, sections 43-44 as amended by items 30-35. 163. See also: Submissions to the Senate Committee Inquiry: Department of Social Services and the NDIA, [Submission no. 9], 5. 164. Luke Buckmaster and Shannon Clark, The National Disability Insurance Scheme: a chronology, Research paper series, 2018-19,

(Canberra: Parliamentary Library, 2018), 2 and 7. 165. Buckmaster and Clark, 7; ‘National Disability Insurance Scheme (NDIS)’, Department of Communities (Government of Western Australia), Disability Services. 166. Stuart Robert (Minister for the National Disability Insurance Scheme), ‘Delivering the NDIS: roll-out complete across Australia

as Christmas and Cocos Islands join world-leading scheme’, media release, 1 July 2020. 167. See amendments made by items 4, 6, 7, 34-38 and 58 of Schedule 3.

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• amending the term ‘host jurisdiction’ as the NDIS has now been rolled out in all states and territories168 and

• clarifying that the age requirement for NDIS participants is that they are less than 65 years old (currently there is the ability to make NDIS Rules with different age requirements for those jurisdictions which rolled out the NDIS according to age cohort, which is now redundant).169

Further detail and explanation of the amendments in Schedule 3 is at pages 50-58 of the Explanatory Memorandum.

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168. See amendment made by item 9 of Schedule 3. 169. NDIS Act, proposed section 22.