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NDIS Changes

NDIS

On 30 March 2022 the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021 was passed by Parliament. The Bill will amend the National Disability Insurance Scheme Act 2013.

This Bill includes a number of changes intended to implement recommendations from the 2019 Tune Review and give effect to the 2019 Participant Service Guarantee. These include:

  • Inserting timeframes into the NDIS Act and Rules around decisions about access, participant plans and internal reviews. The timeframes are intended to improve the timeliness of decision-making and provide greater certainty for participants.
  • Clarifying the language around the different types of ‘reviews’. The language for changes to plans will now be referred to as plan ‘variation’ (for less significant changes) or plan ‘reassessment’ (for more significant changes).
  • Requiring reasons to be provided for all ‘reviewable decisions’. ‘Reviewable decisions’ are decisions that are reviewable internally by the NDIA, such as a decision that a person is not eligible for the NDIS or a decision regarding the supports the NDIA will fund. Providing reasons is intended to improve transparency, accountability and the quality of decision-making. However, there is still no requirement for reasons to be provided once an internal review decision has been made.
  • Expanding the Administrative Appeals Tribunal (AAT)’s jurisdiction to enable the AAT to review plans that have been varied or replaced by new plans during the course of proceedings. This will ensure the AAT can examine and decide upon the participant’s current circumstances.
  • Improvements to the NDIS principles including embedding the principle of co-design with scheme participants and using more inclusive language such as removing moderating language (ie, ‘to the extent of their ability’) and amending ‘gender’ to include sex, gender identity, sexual orientation and intersex status.
  • Annual reporting by the Commonwealth Ombudsman to review the NDIA’s performance against the Guarantee and in relation to participant experience. Oversight by the Commonwealth Ombudsman will assist to achieve a more transparent and accountable NDIA.

New power to ‘vary’ plans

The amended NDIS Act will allow participant plans to be varied without requiring a participant to go through a plan ‘reassessment’ process.

A plan may be varied on the request of a participant or by the NDIA’s CEO. If on the CEO’s own initiative, they must consider certain matters when deciding whether to vary a participant’s plan (s 47A(6)). These matters require the agreement of the Commonwealth and each State and Territory and will be contained in NDIS Rules (Category A rules).

As recommended in the Tune Review, there will be limited circumstances in which plans may be varied under s 47A. These circumstances include:

  • a variation to the reassessment date of the plan;
  • a variation of the statement of participant supports included in the plan:
    • in relation to plan management;
    • if the statement specifies that a support is to be provided by a specific provider or in a specific manner and the variation is to change the specific provider or manner;
    • if a participant requires crisis or emergency funding as a result of a significant change to their support needs and the CEO is satisfied that the support is reasonable and necessary;
    • if on request of the NDIA in relation to a particular support, a participant has obtained information, such as assessments or quotes, and upon receipt of the information the CEO is satisfied that funding the support is reasonable and necessary;
    • to deal with a change to the reassessment date of the plan; or
    • a minor variation that leads to an increase in funding; or
  • to correct a minor or technical error in the plan.

Eligibility for the NDIS

Clarifying the ‘permanence’ criteria

The amendments provide clarity about the ‘permanence’ criteria (sections 24(3) and 25(1A) of the NDIS Act). Now, all impairments which are episodic or fluctuating in nature may be taken to be permanent, regardless of whether the impairment is attributable to a psychosocial or non-psychosocial disability. This is a positive clarification, and reflects recommendations from the Tune Review.

New process for plan management and payment of supports

There are four ways participants can choose to manage their supports:

  • self-manage;
  • ask someone else to do it for them (a plan nominee);
  • use a plan management provider; or
  • NDIA managed.

A request for funding to be self-managed or managed by a plan nominee requires the CEO to be satisfied that management of the plan in this way does not create an ‘unreasonable risk’ to the participant. This is not currently required for participants requesting their plan to be managed by a plan management provider.

Additionally, the NDIA will now be able to pay service providers directly on behalf of participants, through a new payment platform (s 45). The new payment platform is intended to simplify the payment process for both participants and the NDIA. This means participants will no longer be required to pay for supports from their own funds before claiming a reimbursement. Although the drafting of this section is not clear, the Government’s explanatory memorandum clarifies that this change is not intended to remove the ability for self-managed participants to continue their existing payment method.

Other notable changes

Other welcome changes include:

  • The NDIA will be able to provide funding to an entity to assist participants to fully access supports or services (s 14(2)). This is intended to mitigate the impact of market challenges, particularly in areas where supports or services are not readily available. The matters which the NDIA must consider in deciding whether to provide such discretionary funding may be set out in NDIS Rules (s 14(3)). These rules will be designated Category A (s 209(8)).
  • The circumstances in which the CEO may undertake reassessments on their own initiative will be set out in NDIS Rules (s 48(5)). This is intended to ensure consistency in decision-making about whether to reassess a plan. These rules will be designated as Category A (s 209(8)), which is appropriate given the circumstances in which the CEO may undertake reassessments are significant policy matters.

The Royal Commission Interim Report

On the 30th October this year, the Interim Report of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with DisabilityInterim Report of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability was released. This 586 page document is quite long and detailed, however Jessica Quilty of DSC recently shared a summary of the report. I would like to share a little of this with you.

The Royal Commission was established on the 18th February 2019, with one of its key roles being to inquire into what governments, institutions and the community should do to report, investigate, respond to, prevent and better protect people with disability from experiencing violence, abuse, neglect and exploitation. The Royal Commission’s terms of reference were issued on 4 April 2019 after extensive consultation with people with disability and the disability sector. These terms of reference direct the Royal Commission to inquire into what should be done to promote a more inclusive society that supports the independence of people with disability and their right to live free from violence, abuse, neglect and exploitation.

While the report does contain some very confronting information and examples of the mistreatment of people living with a disability, New Haven Farm Home appreciate this piece of work and the advocacy for people living with a disability, so that Nationwide, improvements can be made and any mistreatment can be prevented.

New Haven Farm Home believes that everyone, regardless of their abilities, support needs, gender, race, ethnicity, religion or nationality, have the right to safety, inclusion and opportunities that will enable them to enhance, fulfil and demonstrate a valued role in their community. This is something that we are very passionate about as we advocate for social inclusion, respect and dignity for all people living with a disability.

The Interim Report identifies and explores in detail a number of emerging themes as particularly pertinent throughout the inquiry. These are

  • choice and control
  • attitudes towards disability
  • segregation and exclusion
  • restrictive practices
  • access to services and supports
  • advocacy and representation
  • oversight and complaints
  • funding

A series of key issues were also raised, explored and presented in the interim report. Each of these key issues have presented the Royal Commission with a list of areas they will investigate and address in order to implement improvements. Just some of the key issues discussed are listed below with a top-line summary, however, we encourage you to refer to either the full report or the 80 page summary on the Royal Commissions website.

 

Education and learning

The Commission heard of education and learning disadvantages being placed on students with a disability as well as physical, verbal and emotional violence and abuse in educational settings, including restrictive practices and pressure to medicate children to address behaviour.

The Commission heard a range of different perspectives about the best way to structure Australia’s education system, from segregated settings to inclusive education. Some advocated that segregated settings enable specialist support and adapted curricula, whilst others asserted that segregation results in higher rates of violence, abuse and neglect, both within these settings and later in life. Some organisations and academics described these settings as based on seeing disability as a deficit, which perpetuates the exclusion of people with disability throughout their education and work lives. The stories in the report clearly illustrate how foundational these earlier educational experiences are in building enduring positive relationships and inclusive communities.

 

Homes and Living

The Commission explored the importance of dignity and choice for people living with a disability. This is of particular interest and encouragement of New Haven Farm Home as we are strongly committed to person centred support meaning each individual is supported and encouraged in their life goals, aspirations and aims with choice and respect as both adults and decision makers.

The Interim Report investigates the links between people described being deprived of choice in shared supported accommodation, leading to a loss of control and autonomy and exclusion from social, economic and cultural life. The Royal Commission heard evidence that this lack of choice can also lead to residents in supported accommodation being unfortunately exposed to violence, abuse, neglect and exploitation.

 

Health

It was reported that people with disability often experience poorer health than people without disability and face significant barriers to accessing health care.

People shared their experiences of abuse that occurs, including involuntary treatment and diagnostic overshadowing. People spoke about health staff not listening to patients with disability or talking about them rather than to them. The Commission also heard of the increased difficulties experienced by people with disability in accessing health care during the COVID-19 pandemic. The Royal Commission acknowledged that whilst the quality of health care provided varies, the evidence suggests there continues to be systemic neglect of people with cognitive disability in the Australian health system and will further investigate and advocate for better care and fairness for people living with a disability in regards to health care.

 

Relationships 

The Royal Commission report finds people with disability experience higher rates of domestic and family violence than people without disability. This has been amplified during the COVID-19 pandemic, where people were more isolated and less able to report and escape domestic and family violence. The Royal Commission heard stories about children who were removed from parents with disability and adults with disability who were removed from their families when they were children. Experiences were shared by First Nations families in the context of child removal practices. These experiences are, in part, responsible for the widespread mistrust of mainstream systems by First Nations families, resulting in families being less likely to access mainstream supports and services.

 

Community participation

People with disability continue to face attitudinal, institutional, environmental and communicative barriers to community participation. People are excluded through the inaccessibility of buildings, public and private spaces and inaccessible information. The Royal Commission heard how access to information was unreliable and confusing during the COVID-19 pandemic and that many people with disability felt overlooked or left behind during the crisis. Some people with cognitive disability spoke of feeling unsafe in public spaces, such as when using public transport or negotiating hazards in public areas. The report highlights that inaccessibility takes many forms far beyond the understanding of the mainstream community.

 

Economic participation

People with disability experience high levels of socioeconomic disadvantage and are more likely to experience poverty, financial hardship and unemployment, with lower incomes and higher costs associated with living with disability. The Commission heard of experiences of physical, verbal and sexual abuse in the workplace. In some instances, when these issues were raised, they were ignored or not addressed.

The lack of meaningful work and difficulties in transitioning to open employment were also raised. In its future inquiries, the Commission will be examining the connection between poverty, unemployment and underemployment and violence, abuse, neglect and the exploitation of people with disability, as well as the effectiveness of employment policies and programs for people with disability.

 

NDIS

What the Commission has heard so far includes acknowledgement of some improvements under the NDIS, but also increased frustration that many of the intended benefits are yet to be realised. Some speakers told the Commission about the positive impacts that the NDIS had had on their lives; however, many more indicated that their experiences of the NDIS did not meet their expectations, both in its design and implementation. Some people felt that choice and control have been undone by how the NDIA acts as a ‘gatekeeper’ to how people with disability live their lives and how some providers unfortunately now see people with disability as a ‘commodity’.

 

Justice

The Royal Commission heard that people with disability are overrepresented in the criminal justice system and face a range of barriers to accessing support to protect their rights and interests. Experiences were shared of people being disbelieved when they made a report, being treated as the offender rather than the complainant and being approached by police or formally questioned inappropriately. People with cognitive or psychosocial disability are at higher risk of moving in and out of the justice system. This is often through repeated short-term prison sentences, as well as being subject to indefinite detention orders, meaning they can be held for a longer period than if they had been convicted. Further concerns were raised about the use of restrictive practices on people with cognitive disability, including the use of solitary confinement.

I realise that this has been quite a lengthy article, however, I am sure you share our appreciation of such in depth investigations being made by the Royal Commission to ensure across the board people living with a disability are treated with the same respect, dignity and appreciation as all members of our society in all aspects of their lives.

SECTOR UPDATE

I would like to share some information that was featured in a recent SIL publication:

Through a process of consultation with NDIS SIL providers, the NDIS have identified some areas of concern that have emerged in the provision of Supported Independent Living (SIL) services.

The issues identified are as follows:

  • SIL funding is not always fair and equitable with current practices relying on a subjective approach to determine what is reasonable and necessary for a participant;
  • The SIL process is administratively complex;
  • SIL costs continue to escalate.

As an immediate reaction to these identified issues, NDIS are committed to:

  • Providing stronger fairness and equity through the use of the price guide in the creation of SIL funding;
  • Reduced administrative complexity.  An example of how this will be done is through eliminating payment backlogs and offering auto-extend options;
  • Reviewing ongoing costs of the scheme along with other long term measures.

You may find some of the following statistics interesting as identified in the NDIS sector and provider consultation paper for improved outcomes for SIL participants:

  • SIL and Specialist Disability Accommodation (SDA) provide funding for NDIS participants who have some of the highest disability support needs. Currently, over 24,000 participants receive SIL.  [1]
  • This means 6% of all NDIS participants receive funding for SIL supports, which is 30% of total NDIS funding ($8.3 billion annualised).  [2]
  • There are roughly 14,000 participants who receive both SIL and SDA funding. This is 58% of the total SIL participant cohort or 93% of the total SDA participant cohort.

2019/20 Q4 COAG Report (https://www.ndis.gov.au/about-us/publications/quarterly-reports)
[1]Data rounded. NDIA, Office of the Scheme Actuary analysis, data current as at 30 June 2020
[2] NDIA, Office of the Scheme Actuary analysis, data current as at 30 June 2020

SHORT TERM ACCOMMODATION

At New Haven Farm Home we are very excited to be able to expand our services to know include Short Term Accommodation or as it is more commonly known, respite care. We are very proud to have been offering this service to clients and their families for the last 4 months.

This type of service differs from our main service in that the focus point is to provide clients with a safe, happy, relaxed, fun filled environment that provides a ‘holiday’ feel experience.

For each client who uses the service, the experience is very different, as being an entirely person centred focused organisation, each stay is tailored to the individual’s preference, from the activities they partake in, to the food they consume. At New Haven Farm Home, we have been very fortunate to have some STA clients enjoy the experience with the organisation so much that they have since become permanent clients and have moved into our SIL supports.

Whilst the deliverance of a respite service focus’ on the individual client, the provision of the service is essential for the clients support network and carers. These people work tirelessly, around the clock in order to meet the support needs of the person whom they care greatly for. The carer has little to no scope to attend to their own needs, be that medical, social or whatever form it may take. It is therefore crucial that carers have an opportunity to meet their own needs so that they can continue providing ongoing support to their client. However, in order for them to be able to do so, they require the client to be able to attend a high quality service where the carer can be confident that not only all their loved ones support needs are met but that they are comfortable, content and happy with their stay. One way in which we as an organisation support the carers of our clients is to provide them with easily accessed frequent and open communication and updates throughout the clients stay so that they have the confidence and reassurance to fully utilise their time away. We are very proud to be able to provide this service to not only our clients but their families and support networks.

‘CARE’ AND ‘SUPPORT’

Often the power of words and phrases can be under-estimated or not given appropriate levels of consideration. Within the disability sector, you may often hear words or phrases of ‘care’ verses ‘support’. Whilst on first consideration, either word may elicit positive thoughts and associations and it would be right to do so as both imply consideration and assistance to others.

By true definition, the word care means the provision of what is necessary for the health, welfare, maintenance, and protection of someone.

Alternatively, support means to provide assistance.

At New Haven Farm Home, we make a clear distinction and focus on the later term. The word ‘care’ is a very inactive word for the actual client or participant. It places the importance, dominance and actually empowers the person providing the care, whilst removing such from the person receiving it. Alternatively, the word ‘support’ is far more active for the client or participant and both implies and allows them to be the dominant factor in the relationship, making them the driving force and the decision maker of all interactions. Furthermore, it encompasses all areas and factors of a person’s life, not stopping at meeting a person’s needs but extending to likes, desires and goals. Whilst it is incredibly important that the client is the focus of the organisation’s vision and mission as well as their daily work, New Haven Farm Home extends this thinking and consequential action to its members of staff also, working at all times to support them in their work so that they may continue to provide optimal levels of support to our clients.

THE DISABILITY ROYAL COMMISSION

We do have to agree that there’s no getting around the fact that it has been a busy couple years for our sector. First, we had the NDIS and CoS roll out; then last year the Quality and Safeguards Commission comes along, and now we’ve got a Royal Commission! Although it may seem all quite stressful, it is easy to forget that we are living through some exciting and historic times for people living with a disability.

With all the changes happening in the sector, you may be forgiven for not being across all the details of the Disability Royal Commission.

The Terms of Reference for the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Disability Royal Commission) are to explore what should be done to:

• prevent, and better protect people living with disability from experiencing violence, abuse, neglect, and exploitation
• achieve best practice in reporting and investigating of, and responding to violence, abuse, neglect, and exploitation
• promote a more inclusive society that supports the independence of people living with disability and their right to live free from violence, abuse, neglect, and exploitation.

The scope of this Royal Commission is extensive, especially when you compare it to earlier inquiries.

The Hon Ronald Sackville AO QC is the Chair of the Royal Commission. Ronald is a former judge at the Federal Court of Australia and has led many public inquiries before this one. He will be supported by:

• Ms Barbara Bennett PSM. Barbara has 20 years’ experience in senior roles the public service, including at the Department of Social Services and the Department of Human Services. Her mother and daughter both live with disabilities.
• Dr Rhonda Galbally AC. Rhonda has worked in disability rights and policy for decades. She developed the National Disability and Carer Alliance. Rhonda was a board member of the NDIA and Principal Member of the Independent Advisory Council to the NDIA. Rhonda lives with a disability.
• Ms Andrea Mason OAM. Andrea is a Ngaanyatjarra and Kronie Australian woman from Western Australia. She has worked in Indigenous Affairs in a variety of roles, including as CEO of Ngaanyatjarra Pitjantjatjara Yankunytjatjara (NPY)’s Women’s Council.
• Alastair McEwin AM. In his most recent role, Alastair served as Australia’s Disability Discrimination Commissioner. He was also involved in the drafting in the UN Convention on the Rights of People with Disability (UN CRPD). Alastair has lived with a disability since birth.
• The Hon John Ryan AM. John is a former NSW state parliamentarian and served as the Shadow Minister for Disability Services. He has held various senior positions in the NSW public service, including at the Department of Family and Community Services (FACS).

The Royal Commission will be based in Brisbane, but there will be hearings across the country. It has already started collecting evidence through submissions and community forums. We can expect an interim report no later than 30 October 2020, and a final report by no later than 29 April 2022.

The Disability Royal Commission is currently accepting submissions, which can be made by phone, email, or form. Submissions are the main opportunity providers and people with disability will have share their experiences with the Royal Commission. The Commission will provide accessibility support to enable people living with a disability and their families to make a submission.

People will also be given an opportunity to make confidential submissions.
The Royal Commission will also be running community forums around the country. Times and locations will be announced shortly on the inquiry’s website.

The Royal Commission will hold public hearings. They give the Commissioners the opportunity to question and cross examine people giving evidence. Just a note that Royal Commissions have the authority to summon witnesses.

Recommendations from the Disability Royal Commission can inform how the Quality and Safeguards Commission conducts its work. It is also worth remembering that the NDIS only provides support for 10% of Australians with disability. In contrast, the Disability Royal Commission will explore violence, abuse, neglect, and or exploitation against all people with disability.

The most common function of a Royal Commission is to make policy recommendations to the government. The government can choose whether they implement these recommendations. Royal Commissions are not able to institute compensation for victims, but they can recommend that the government sets up a victim compensation fund. The Royal Commission has also the power to refer matters to the police for further criminal investigation and prosecution, if necessary.

The Disability Royal Commission is going to be a difficult and triggering time for many people. There is no doubt that it will unearth some deeply disturbing stories that will stir difficult memories. But the experience of giving evidence for the purpose of creating change can be very empowering for people who have undergone trauma, if they are given the right support.