NDIS reforms are still in limbo. What’s going on, and are people with disability getting enough say?

Following the release of a review into the National Disability Insurance Scheme (NDIS) late last year, reform is on the cards for the scheme in 2024.

The first step, the proposed NDIS Amendment Bill, has, however, generated political controversy and significant concerns in the disability community.

The bill had been moving forward to a final vote, but the Opposition demanded more time to study the bill. It now faces a second senate inquiry.

So why has the bill generated concern? And what issues will the new inquiry examine?

From concept to detail

In December last year the NDIS review proposed key reforms to ensure the sustainability of the scheme and improve outcomes for people with disability.

It recommended NDIS plans should shift from arguing line by line over each requested support to an overall funding amount for each participant. That global budget would be based on a standardised assessment of defined categories of needs.

This would replace the current subjective rules centred on contestable ideas of what’s reasonable. Too often the operation of these has been marred by gruelling and complex bureaucracy for people claiming support.

The review also called for state and federal governments to cooperate in improving support across the lifecycle of disability. There would be greater focus on early intervention rather than letting people languish until they meet the NDIS entry criteria, for example.

In March, the federal government introduced a bill to implement a limited number of the review’s recommendations (the NDIS Amendment Bill). I would argue three dynamics in the bill have clouded the original vision of the NDIS review.

1. An uncertain ‘method’

The bill replaces the existing test for funding with an as yet unwritten “method” for calculating budgets for individual participants. This would occur after a transition period of up to five years.

The method will be created by rules which, unlike the current approach, can be passed without the consent of the states and territories. This provoked an outcry from state premiers. NDIS participants, meanwhile, have been left wondering if the co-operation needed for effective reform will eventuate. If not, this could lead to people going without the supports they need in areas like health and education.

Other elements of the bill also risked narrowing the supports available. For example, the original definition of NDIS support did not fully reflect Australia’s obligations under the United Nations Convention on the Rights of Persons with Disabilities. That definition was removed from the bill after the Disability Discrimination Commissioner warned it risked the NDIS not being “holistically responsive” to individuals’ needs.

Further, the bill proposed using an unclear 2015 policy document – a series of bulletpoint tables – to set the interface between state and federal services. Fortunately, this was also removed from the bill as it risked disputes between governments over who was responsible for what.

Finally, the bill stated assessments would only fund needs resulting from “impairments” which meet the NDIS entry criteria. This deficit-focused language risked not fully addressing complex and overlapping disabilities and the barriers people face in society. In the past fortnight, the federal government has moved amendments to moderate this, but complexities remain.

The federal government was responsive on these issues, but only to a point. The bill does little to stop such flaws re-emerging as the rule-making process moves forward. So what protections apply at that point?

2. Ensuring co-design and oversight

If a bill is passed, rules, or “legislative instruments”, are used to fill in the detail needed to implement chosen policy. In this case, such instruments will determine fundamental issues like what supports NDIS participants receive.

But rules made through legislative instruments are subject to much more limited parliamentary oversight than primary legislation (acts). They receive accelerated and condensed examination – which will mean far less opportunity for disability organisations to be heard.

Disability representative organisations have stressed co-design and transparency are absolute essentials in the making of future rules. Co-design requires government to work in partnership with people with disability when designing policies, programs and services.

This must be protected by the bill. But the government has only consented to inserting vague assurances of consultation, which lack mechanisms for enforcement. This contrasts sharply with other countries, which regularly subject bureaucrats to enforceable consultation requirements.

Responsible government should mean more than just promising standards of behaviour. It should mean holding people accountable to them. Otherwise, what will stop future governments abandoning today’s promises?

3. Bureaucratic power

The bill comes replete with broad powers allowing the National Disability Insurance Agency (NDIA) to regulate the supports people receive or impose administrative requirements upon them. In the hands of one government these might drive a vision of quality services. Under another they could lead to damaging forms of conditionality or administrative burden.

One key area is what happens when the NDIA believes a participant has spent money in a way that’s not compliant with their plan (debt raising). While public commentary has been awash with “rorts” rhetoric, the bill leaves vital duty of care questions under-addressed.

In reality, most “rorts” are cases of abuse involving the costly non-delivery of supports to people who need them. Yet the bill fails to spell out exactly when a debt will be raised against a third party versus a participant. It should do more to protect the person with a disability who acted under duress, was misled or was the victim of abusive practices.

Trust

This bill commences a long reform process that can only succeed if it’s based on clarity, accountability and transparency. The voices and experiences of NDIS participants and their representatives are key to delivering people-centred reform.

The question is whether Australia’s political class – federal and state – is capable of living up to the trust which this bill will place in them.