Section Or Chapter Title

Section or Chapter title

Table of contents

1.Introduction

2.Objects and principles

3.Design of the legislative framework

4.Becoming a participant

5.Participant plans

6.Registered providers of supports

7.Nominees

8.Reviewable decisions

9.Compensation and debt recovery

10.Governance

11.Other matters

Appendix A Review Terms of Reference

Appendix BObjects and principles of the NDISAct

Review of the Operation of the NDISAct – September 2015 / EY | 1

Introduction
Background and context

The Australian Government has commissioned an independent review of the National Disability Insurance Scheme Act 2013(Cth)(NDISAct), as required under Section 208 of the NDISAct. In accordance with this legislative requirement, Disability Ministers have agreed that Ernst & Young (EY) conduct the review.

The purpose of the review is to assess the operation of the legislative framework (comprising the NDISAct and the NDISRules) and develop recommendations as to whether any improvements can be made to better support the objectives and principles of the NDISAct. Appendix A outlines the Terms of Reference for the review.

It is important to note that the review:

►Is not intended to evaluate the performance of either the National Disability Insurance Scheme (NDIS) or the National Disability Insurance Agency (NDIA). Though the review will consider aspects of the NDIS and NDIA to the extent that they directly relate to, or are impacted by, the legislative framework.

►Is one of many public review processes that will allow stakeholders to comment on key aspects of the NDIS. Other notable reviews that are planned or ongoing include the Productivity Commission’s Review of Scheme Costs, the Review of the Intergovernmental Agreement and the Evaluation of the Trial of the NDIS.

1.2Purpose and scope of this Discussion Paper

Stakeholder engagement will be central to the review process. EY will rely on stakeholder feedback to inform its findings and recommendations.

This Discussion Paper forms a key component of EY’s engagement with stakeholders. Its purpose is to prompt feedback from stakeholders (through written submissions) on the key questions that the review is seeking to address.

The Discussion Paper is structured thematically; covering the key elements of legislative framework. The final section of the document provides stakeholders the opportunity to raise issues in relation to the operation of the NDISAct that are not covered in this Discussion Paper.

1.3Making a submission to this Discussion Paper

It is not expected that all stakeholders should answer all questions. Stakeholders are encouraged to answer those questions they feel are most relevant to them.Stakeholders are also welcome to provide feedback on areas relating to the NDIS legislative framework that are not covered by this Discussion Paper.

Written submissions to this Discussion Paper are sought by 9 October 2015.Submissions can either be emailed to r posted to the following address:

Review of the NDISAct

Ernst & Young

GPO Box 281

Canberra ACT 2601

1.4Consent

By providing a submission in response to this Discussion Paper you are consenting to the following terms. The information contained in your submission will be provided by EY to the Australian Government (Department of Social Services) in accordance with the terms of our engagement. The submission may also be made available to the public, unless you expressly state that certain information is confidential. You retain all intellectual property rights in your submission, but you grant to EY and DSS a royalty-free, perpetual and irrevocable licence to use, copy, reproduce, adapt and modify your submission for any purpose relating to the review of the NDISAct. If your submission contains personal information, we will comply with our obligations under the Privacy Act 1988 (Cth). A copy of our Privacy Policy Statement is available at

Objects and principles

Chapter 1 (pt 2) sets out the objects and principles of the NDISAct. Key among the objects of the NDISAct (which are listed in full in Appendix B) are:

►To give effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12)

►To provide for the NDIS in Australia

►To support the independence and social and economic participation of people with disability

►To provide reasonable and necessary supports, including early intervention supports, for participants in the NDIS launch

►To enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports

►To facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability

Key among the principles of the NDISAct (which are listed in full in Appendix B) are:

►People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development.

►People with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime.

►People with disability should be supported to participate in and contribute to social and economic life to the extent of their ability.

►People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports.

►People with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives, to the full extent of their capacity.

►The role of families, carers and other significant persons in the lives of people with disability is to be acknowledged and respected.

Questions for stakeholders

Do the Objects and Principles of the NDIS Act provide a sufficient basis for giving effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities?

Design of the legislative framework

The NDISAct is the legislation which establishes the NDIS and the National Disability Insurance Scheme Launch Transition Agency (known as the NDIA).

The NDISAct is relatively non-prescriptive and principles-based. For instance, a key object of the NDISAct is that participants are provided ‘reasonable and necessary supports’. The NDISAct does not prescribe the types of supports that would be considered ‘reasonable and necessary’ across all participants. Rather, it outlines the broad criteria that the NDIA should apply in determining what constitutes ‘reasonable and necessary supports’ in the context of individual participants.

Under the NDISAct, the Commonwealth Minister may make NDISRules.[1]These set out the more detailed operation of the NDIS. For instance, the Supports for Participants Rules provide greater detail on the ‘assessment and determination of the reasonable and necessary supports that will be funded and the general supports that will be provided for participants under the NDIS.’[2] The NDISRules have the same legal force as the NDISAct. While the NDISRules are not passed directly by both Houses of the Commonwealth Parliament, either House can disallow (or veto) them. There are currently 18NDISRules.[3]

The legislative framework of the NDIS was initially designed to balance the need to enshrine accountability mechanisms and protections in primary legislation, while giving government sufficient flexibility to develop and amend operational aspects of the NDIS (recognising the unique, evolving and complex nature of the Scheme).

The NDIA publishes Operational Guidelines. These are based on the NDIA’s interpretation of theNDISAct and NDISRules, and are intended ‘to assist the NDIA perform or exercise its functions or powers in making decisions or recommendations affecting members of the public.’[4] As interpretations of the legislative framework, the Operational Guidelines do not have legal force. Consequently, they do not fall within the scope of this review.

Questions for stakeholders

Does the design of the legislative framework (i.e., high level primary legislation supported by detailed NDISRules) enable government to further the objects and principles of the NDISAct?

Becoming a participant

To become a participant of the NDIS, a person may make an access request to the NDIA. On receiving an access request, the NDIA will then determine whether the person meets certain access criteria. These criteria include the age requirements, residence requirements and either the disability requirements or early intervention requirements outlined in Table 1.

Table 1: Summary of the access criteria

Category / Access criteria
Age requirements / ►Aged under 65 when the request is made
►Note: Currently there are further age restrictions in certain jurisdictions until scheme is rolled out completely
Residence Requirements / ►Reside in Australia
►Be an Australian citizen or hold a permanent visa or a protected special category visa
►Satisfy other requirements that are prescribed by relevant NDIS Rules
Disability requirements / ►The person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to one or more impairments attributable to a psychiatric condition.
►The impairment or impairments are, or are likely to be, permanent.
►The impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities: communication; social interaction; learning; mobility; self-care; self-management.
►The impairment or impairments affect the person’s capacity for social or economic participation.
►The person is likely to require support under the NDIS for the person’s lifetime.
Early intervention requirements / ►The person has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent; or is a child who has developmental delay.
►The CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person’s future needs for supports in relation to disability.
►The CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by: mitigating or alleviating the impact of the person’s impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; preventing the deterioration of such functional capacity; improving such functional capacity; or strengthening the sustainability of informal supports available to the person, including through building the capacity of the person’s carer.
►The early intervention support for the person is most appropriately funded through the NDIS.

Source:NDIS Act ss 21-25.

Some concerns have been publicly raised about the NDIS access criteria. These include:

►The access criteria (particularly the concepts of permanence [s.24(1)(b)] and that early intervention will reduce a person’s future needs for supports [s.25(1)(b)]) are seen by some stakeholders as not reflecting the real life experiences of mental illness or the recovery-oriented approaches of the mental health sector.

►The disability requirement that a ‘person is likely to require support under the NDIS for the person’s lifetime’ [s.24(1)(e)] is seen by some stakeholders as having questionable utility, given that an individual can be a participant of the NDIS without receiving supports funded by the NDIS.

Questions for stakeholders

How well do the access criteria enable government to further the objects and principles of the NDISAct? With particular reference to the following principles:

People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development
People with disability should be supported to participate in and contribute to social and economic life to the extent of their ability
People with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime.

How clearly defined are the access criteria?
What amendments could be made to the legislative framework (if any) to:
Enhance the clarity of the access criteria?
Improve the effectiveness and/or efficiency of the access request process?

Participant plans

Once an individual becomes a participant of the NDIS, they start the planning and assessment process. At the end of this process, participants will have a participant plan. Under Section 33 of the NDISAct, a participant plan must include:

►A statement of goals and aspirations – prepared by the participant, this specifies the goals, objectives and aspirations of the participant, and the environmental and personal context of the participant’s living.

►A statement of participant supports – prepared with the participant and approved by the NDIA, this specifies:

►The general supports (if any) that will be provided to, or in relation to, the participant

►The reasonable and necessary supports (if any) that will be funded under the NDIS

►The date by which, or the circumstances in which, the NDIA must review the plan

►The management of the funding for supports under the plan

►The management of other aspects of the plan.

As indicated above, the NDIS funds supports for participants that are deemed to be ‘reasonable and necessary’. Section 34 of the NDISAct defines a reasonable and necessary support as one that:

►Will assist the participant to pursue the goals, objectives and aspirations included in their statement of goals and aspirations

►Will assist the participant to undertake activities, so as to facilitate their social and economic participation

►Represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support

►Will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice

►Takes account of what it is reasonable to expect families, carers, informal networks and the community to provide

►Is most appropriately funded or provided through the NDIS, and is not more appropriately funded or provided through other service systems (such as the health system, the education system, etc.)

The Supports for Participants Rules provide more detail on how the concept of reasonable and necessary supports should operate in practice. In particular, these rules outline the supports that are more appropriately funded or provided through other service systems (and, as such, will not be funded or provided under the NDIS).

Division 3 of Chapter 3 of the NDISAct outlines who can be responsible for managing the funding for supports under a participant’s plan (i.e. the participant, a registered plan management provider, the NDIA or the plan nominee), and how this responsibility should be determined. Section 44 of the NDIS Act and the Plan Management Rules detail the circumstances in which participants must not manage the funding for supports under their plan to a specified extent. These are:

►If the participant is an insolvent under administration

►If the NDIA is satisfied that management of the plan to that extent would: (1) present an unreasonable risk to the participant; or (2) permit the participant to manage matters that are prescribed by the NDIS Rules.

Division 4 of Chapter 3 of the NDISAct outlines three mechanisms by which a participant’s plan can be reviewed (and potentially changed):

►The participant can request the NDIA to conduct a review of their plan (which they can do so at any time). The NDIA, however, can decide not to conduct the review

►The NDIA can initiate a review of the participant’s plan (which it can do so at any time)

►The participant’s plan can prescribe a date by when, and the circumstances in which, a review of the plan must be conducted

The Disability Reform Council recently endorsed an Information, Linkages and Capacity Building (ILC) Policy Framework.[5] ILC (formerly known as Tier 2) is the component of the NDIS that provides information, linkages and referrals to efficiently and effectively connect people with disability, their families and carers with appropriate disability, community and mainstream supports. It is intended that ILC will not only allow the NDIS to provide better outcomes for people with disability, their families and carers, but also reduce the demand for, and level of support required through, individual funding packages. Funding for ILC is authorised by Chapter 2 of the NDIS Act.

Questions for stakeholders

How well does the legislative framework’s definition of what constitutes ‘reasonable and necessary supports’ support the independence and social and economic participation of people with disability?
What amendments could be made to the legislative framework (if any) to:
Improve the effectiveness and/or efficiency of the participant planning and assessment process (including review)?
Ensure the NDIA has the required capacity to control costs in relation to participant plans?

Registered providers of supports

Any person or entity can apply to the NDIA to be a registered provider of supports (in terms of managing the funding for supports under plans and/or the provision of supports). To secure registration, a person or entity must:

►Have an Australian Business Number (ABN) and an account with a financial institution

►Make a series of declarations in relation to their compliance with the NDIA’s terms of business and other relevant legislation (e.g., employment and workplace health and safety laws)

►Submit evidence of their suitability to manage the funding for supports under plans and/or to provide supports (such as their qualifications and experience)[6]

As at June 2015, there were 1,955 providers registered with the NDIA.[7]

Under the Registered Providers of Supports Rules, registered providers are not required to report to the NDIA on a periodic basis. They are required, however, to notify the NDIA in the event of a number of prescribed outcomes (e.g., if the provider is the subject of an adverse action by a responsible authority or the provider becomes an insolvent under administration).