Report - NDIS · Web viewIn accordance with this legislative requirement, Disability Ministers have...

Discussion PaperIndependent Review of the Operation of the National Disability Insurance Scheme Act 2013 (Cth)

September 2015

Table of contents1. Introduction..................................................................................................12. Objects and principles...................................................................................33. Design of the legislative framework..............................................................44. Becoming a participant.................................................................................55. Participant plans...........................................................................................76. Registered providers of supports..................................................................97. Nominees....................................................................................................118. Reviewable decisions..................................................................................159. Compensation and debt recovery...............................................................1610. Governance.................................................................................................1711. Other matters.............................................................................................20Appendix A Review Terms of Reference............................................................21Appendix B Objects and principles of the NDIS Act..........................................22

Review of the Operation of the NDIS Act – September 2015 EY | i

1. Introduction 1.1 Background and contextThe Australian Government has commissioned an independent review of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act), as required under Section 208 of the NDIS Act. 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 NDIS Act and the NDIS Rules) and develop recommendations as to whether any improvements can be made to better support the objectives and principles of the NDIS Act. 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.

1.2 Purpose 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 NDIS Act that are not covered in this Discussion Paper.

1.3 Making a submission to this Discussion PaperIt 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.

Review of the Operation of the NDIS Act – September 2015 EY | 1

Written submissions to this Discussion Paper are sought by 9 October 2015. Submissions can either be emailed to [email protected] or posted to the following address:

Review of the NDIS ActErnst & YoungGPO Box 281Canberra ACT 2601

1.4 ConsentBy 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 NDIS Act. 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 www.ey.com.au.


mailto:[email protected]

2. Objects and principles Chapter 1 (pt 2) sets out the objects and principles of the NDIS Act. Key among the objects of the NDIS Act (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 NDIS Act (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 stakeholders1. 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?


3. Design of the legislative frameworkThe NDIS Act is the legislation which establishes the NDIS and the National Disability Insurance Scheme Launch Transition Agency (known as the NDIA).

The NDIS Act is relatively non-prescriptive and principles-based. For instance, a key object of the NDIS Act is that participants are provided ‘reasonable and necessary supports’. The NDIS Act 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 NDIS Act, the Commonwealth Minister may make NDIS Rules.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 NDIS Rules have the same legal force as the NDIS Act. While the NDIS Rules are not passed directly by both Houses of the Commonwealth Parliament, either House can disallow (or veto) them. There are currently 18 NDIS Rules.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 the NDIS Act and NDIS Rules, 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 stakeholders2. Does the design of the legislative framework (i.e., high level primary

legislation supported by detailed NDIS Rules) enable government to further the objects and principles of the NDIS Act?

1 Section 209 of the NDIS Act sets out the process by which the Commonwealth Minister may make NDIS Rules. This process (including the level of State and Territory approval required) varies depending on the section of the NDIS Act to which a NDIS Rule applies. 2 National Disability Insurance Scheme (Supports for Participants) Rules 2013.3 A list of the NDIS Rules can be accessed via ComLaw at: https://www.comlaw.gov.au/Series/C2013A00020/Enables. 4 NDIA (2015), ‘Operational Guidelines’, available at: http://www.ndis.gov.au/about-us/operational-guidelines.


http://www.ndis.gov.au/about-us/operational-guidelines

https://www.comlaw.gov.au/Series/C2013A00020/Enables

4. Becoming a participantTo 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 criteriaCategory Access criteriaAge requirements

► Aged under 65 when the request is made► Note: Currently there are further age restrictions in certain

jurisdictions until scheme is rolled out completelyResidence 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 RulesDisability 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.


Category Access criteriaEarly 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 stakeholders3. How well do the access criteria enable government to further the objects

and principles of the NDIS Act? 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 developmentPeople with disability should be supported to participate in and contribute to social and economic life to the extent of their abilityPeople 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.

4. How clearly defined are the access criteria?


5. What amendments could be made to the legislative framework (if any) to:a. Enhance the clarity of the access criteria?b. Improve the effectiveness and/or efficiency of the access request

process?


5. 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 NDIS Act, 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 NDIS Act 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 NDIS Act 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 NDIS Act 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 stakeholders6. 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?

7. What amendments could be made to the legislative framework (if any) to:a. Improve the effectiveness and/or efficiency of the participant planning

and assessment process (including review)?b. Ensure the NDIA has the required capacity to control costs in relation to

participant plans?

5 For more detail, see: http://www.ndis.gov.au/ilc-policy.


http://www.ndis.gov.au/ilc-policy

6. 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).

Under the NDIS Act, it is not intended that all providers will be registered with the NDIA. If a provider wants to manage a participant’s plan on behalf of the NDIA or deliver supports under a participant’s plan managed by the NDIA, they are required to be registered. Participants (or their nominee) that self-manage the supports in their plan, however, are not required to use NDIA-registered providers.

During the trial period, the NDIA is responsible for the registration of NDIS providers, while the States and Territories have agreed to maintain existing quality and safeguards arrangements. To support the transition to full scheme, the Disability Reform Council has agreed to the development of a national quality and safeguarding framework for the NDIS. A Consultation Paper on the national framework was released in February 2015.8 It canvassed a range of options relating to:

► NDIA provider registration

► Systems for handling complaints

► Ensuring staff are safe to work with participants

► Safeguards for participants who manage their own plans6 National Disability Insurance Scheme (Registered Providers of Supports) Rules 2013.7 NDIA (2015), Quarterly Report to COAG Disability Reform Council, 30 June, available at: http://www.ndis.gov.au/sites/default/files/Q4-Report-to-COAG-Disability-Reform%20Council.pdf. 8 NDIS Senior Officials Working Group for the Disability Reform Council (2015), Proposal for a National Disability Insurance Scheme Quality and Safeguarding Framework: Consultation paper, February.


http://www.ndis.gov.au/sites/default/files/Q4-Report-to-COAG-Disability-Reform%20Council.pdf

http://www.ndis.gov.au/sites/default/files/Q4-Report-to-COAG-Disability-Reform%20Council.pdf

► Reducing and eliminating restrictive practices in NDIS funded supports

Agreement is currently being sought from Commonwealth, and State and Territory Ministers to releasing the consultation report. Once agreed the report will be made publicly available. It is expected that a COAG Regulation Impact Statement will be completed and made available for consideration to Ministers in early-2016.

Questions for stakeholders8. How well does the legislative framework (including, but not limited to, the

provider registration requirements) enable government to promote innovation, quality, continuous improvement, contemporary best practice and effectiveness in the provision of supports to people with disability?

9. Do the registration requirements strike the right balance between supporting principles of choice and control, including in relation to taking reasonable risks and the rights of people with a disability to freedom from abuse, neglect and exploitation?

10. How clearly defined is the NDIA’s role in the registration of providers?

11. What amendments could be made to the legislative framework (if any) to enhance the effectiveness and/or efficiency of the provider registration process?


7. NomineesThe NDIS is based on the presumption that people with disability have capacity to make decisions which affect their own lives. The NDIS Act recognises, however, that ‘there may be circumstances where it is necessary for a person to be appointed as a nominee of a participant, and to act on behalf of, or make decisions on behalf of, a participant.’9

The NDIS Act gives force to two types of nominees:

► A plan nominee – who can undertake all activities that a participant would undertake under the NDIS, including the preparation, review or replacement of the participant’s plan, and/or the management of the funding for supports in the participant’s plan. A plan nominee, however, cannot undertake activities on behalf of a participant that may be outlined when the plan nominee is appointed.

► A correspondence nominee – who can undertake all activities that a participant would undertake, except for the preparation, review or replacement of the participant’s plan, and/or the management of the funding for supports in the participant’s plan. ‘The acts that a correspondence nominee is able to do include making requests to the Agency (for example, requests for information), and receiving notices from the Agency, on behalf of the participant.’10

Under the NDIS Act, a nominee can be appointed either at the request of the participant or at the initiative of the CEO of the NDIA. With reference to the latter, the Nominees Rules states that:

► ‘If the participant has not requested that a nominee be appointed’, the CEO is to have regard to the ‘principle that a nominee should be appointed only when necessary, as a last resort, and subject to appropriate safeguards’.

► ‘In appointing a nominee in such circumstances, the CEO will have regard to the participant’s wishes and the participant’s circumstances (including their formal and informal support networks).’ 11

The legislative framework requires that, in appointing a nominee, the CEO ‘must have regard to whether there is a person who, under a law of the Commonwealth, a State or a Territory:

a. ‘Has guardianship of the participant’OR

b. ‘Is a person appointed by a court, tribunal, board or panel (however described) who has power to make decisions for the participant and whose responsibilities in relation to the participant are relevant to the duties of a nominee’12

9 National Disability Insurance Scheme (Nominees) Rules 2013. 10 Ibid. 11 Ibid. 12 National Disability Insurance Scheme Act 2013.


The NDIS Act requires nominees ‘to ascertain the wishes of the participants and to act in a manner that promotes the personal and social wellbeing of the participant.’ 13 This requirement, however, is based on the reasonable judgment of the nominee. For instance, Section 80(3) of the NDIS Act allows nominees to refrain ‘from doing an act if, at the relevant time, the nominee reasonably believes that:

a. ‘He or she has ascertained the wishes of the participant in relation to the act

b. ‘Not doing the act promotes the personal and social wellbeing of the participant’ 14

In August 2014, the Australian Law Reform Commission (ALRC) released the Final Report from its review of equal recognition before the law and legal capacity for people with disability.15 As part of the review, the ALRC developed a Commonwealth decision-making model and national decision-making principles, which provide a foundation for supported decision-making for people with disability. The Commonwealth decision-making model is based on the twin concepts of:

► Supporters – a person appointed by a person requiring decision-making support to: (1) support them in making decisions; (2) develop their decision-making capacity; and/or (3) support them in expressing their will and preferences. ‘Where a supporter is chosen, ultimate decision-making authority remains with the person who requires decision-making support.’16

► Representatives – a person who either assists a person requiring decision-making support to make decisions or, where necessary, makes decisions on their behalf. In a situation where a person requiring decision-making supports is unable to make a decision, representatives are required to make a decision for the person based on what the person would likely want and, in the least, with consideration to the human rights relevant to the situation.

The national decision-making principles, meanwhile, are outlined in Figure 1.

13 Ibid. 14 Ibid. 15 ALRC (2014), Equality, Capacity and Disability in Commonwealth Laws, ALRC Report 124, August. 16 Ibid.


Figure 1: ALRC National Decision-Making PrinciplesPrinciple 1: The equal right to make decisionsAll adults have an equal right to make decisions that affect their lives and to have those decisions respected.Principle 2: SupportPersons who require support in decision-making must be provided with access to the support necessary for them to make, communicate and participate in decisions that affect their lives.Principle 3: Will, preferences and rightsThe will, preferences and rights of persons who may require decision-making support must direct decisions that affect their lives.Principle 4: SafeguardsLaws and legal frameworks must contain appropriate and effective safeguards in relation to interventions for persons who may require decision-making support, including to prevent abuse and undue influence.

Source: Recommendation 3–1, ALRC (2014), Equality, Capacity and Disability in Commonwealth Laws, ALRC Report 124, August.

The ALRC also made a number of recommendations regarding the treatment of decision-making under the NDIS Act, the NDIS Rules, the Social Security (Administration) Act 1999 (Cth) and the Aged Care Act 1997 (Cth). The recommendations relating to the NDIS legislative framework include:

► Amend the objects and principles of the NDIS Act to ensure consistency with the national decision-making principles.

► Amend the NDIS Act and NDIS Rules to replace ‘correspondence nominees’ with ‘supporters’, and ‘plan nominees’ with ‘representatives’.

► Amend the NDIS Act ‘to incorporate provisions dealing with the process and factors to be taken into account by the CEO of the [NDIA] in appointing representatives. These provisions should make it clear that the CEO’s powers are to be exercised as a measure of last resort, with the presumption that an existing state or territory appointee will be appointed, and with particular regard to the participant’s will, preferences and support networks.’17

► Amend the NDIS Act ‘to provide that, before exercising the power to appoint a representative, the CEO of the [NDIA] may make an application to a state or territory guardianship or administration body for the appointment of a person with comparable powers and responsibilities. The CEO may then exercise the power to appoint that person as a representative under the NDIS Act.’18

17 Ibid. 18 Ibid.


Questions for stakeholders12. How well do the nominee provisions provide choice and control to, and

protect the rights and wishes of, people with disability?13. What amendments could be made to the nominee provisions (if any) to:

a. Enhance effectiveness/and or efficiencyb. Ensure the legislative framework interacts appropriately with State and

Territory legislation?


8. Reviewable decisions Chapter 4 (pt 6) of the NDIS Act outlines what decisions made by the NDIA are reviewable decisions, and the process of administrative review. Broadly speaking, this process entails:

► The NDIA must notify each person directly affected by a reviewable decision that they can request the CEO to review the decision

► On receiving a request to review a reviewable decision, the CEO will allocate the decision to an internal reviewer. On completing the review, the internal reviewer will confirm the reviewable decision, vary the reviewable decision, or set aside the reviewable decision and substitute a new decision

► If a person is not satisfied with the outcome of internal review, they can make an application to the Administrative Appeals Tribunal (AAT) for review.

Questions for stakeholders14. What amendments could be made to the legislative framework (if any) to

enhance the effectiveness and/or efficiency of the merit review process?


9. Compensation and debt recoveryChapter 5 of the NDIS Act and the Supports for Participants – Accounting for Compensation Rules provide the basis for which the NDIS interacts with compensation payments. The broad intent of these provisions is that the NDIS should not fund supports that could be funded by compensation payments for which participants are eligible. Accordingly, the NDIS Act grants the CEO of the NDIA the power to:

► Require a participant or prospective participant to take action to obtain compensation (in situations where the participant or prospective participant is deemed entitled to compensation and not to have taken action to claim or obtain the compensation)

► Take action to claim or obtain compensation in the name of a participant or prospective participant (in the event that a participant or prospective participant does not take required actions themselves)

► Recover compensation fixed after NDIS payments have been made

► Take into account compensation, or forgone compensation, in approving a statement of participant’s supports

Chapter 7 (pt 1) of the NDIS Act provides the NDIA with debt recovery powers. The intent of these provisions is to ensure that all funding ascribed for supports under the NDIS is being used for its intended purposes and with integrity, and that all payments made by the NDIS are to people entitled to receive them. Where this does not occur, whether due to administrative or systematic fault, participant error, or intentional fraud, the NDIS Act gives the NDIA the ability to recover these costs.

Questions for stakeholders15. What amendments could be made to the legislative framework (if any) to

a. Enhance the effectiveness and/or efficiency of the compensation and/or debt recovery processes?

b. Ensure the NDIA has the required capacity to control costs in relation to the compensation and/or debt recovery processes?


10. Governance The governance arrangements of the NDIS are set out in Chapter 1 (pt 5), Chapter 6, and Chapter 7 (pt 2 and 3) of the NDIS Act, as well as through the Risk Management Rules and the Rules for the Scheme Actuary. These arrangements cover several layers of interlinked responsibility, covering multiple parties including the NDIA, the NDIS Board and Independent Advisory Council, the Commonwealth Minister, the COAG Standing Council on Disability Reform (now the COAG Disability Reform Council), and the Joint Select Committee of the Commonwealth Parliament (Figure 2).

Figure 2: NDIS governance arrangements

Source: NDIA (2015), ‘Governance’, available at: http://www.ndis.gov.au/about-us/governance.

Table 2 summarises the roles and responsibilities of key governance entities of the NDIS, as stipulated under the NDIS Act.

Table 2: Roles and responsibilities of key governance entities of the NDIS Entity DescriptionCOAG Standing Council on Disability Reform (now the COAG Disability Reform Council)

► Comprised of Treasurers and relevant Ministers from all jurisdictions.

► Primary decision-maker on NDIS policy issues (noting that some decisions are taken to COAG)

Commonwealth Minister

► Responsible for administering the NDIS legislation and the NDIA, exercising statutory powers and making the NDIS Rules (with the agreement of the States and Territories).

► Is able to delegate powers to the CEO NDIA, with the agreement of the jurisdictions.

NDIA Board ► Comprised of eight members and a Chair. Board members are required to have skills, experience or knowledge in at


Entity Descriptionleast one of the following fields: (1) the provision or use of disability services; (2) the operation of insurance schemes, compensation schemes or schemes with long-term liabilities; (3) financial management; and (4) corporate governance.

► The functions of the Board include setting the strategic direction of the NDIA, maintaining stakeholder relationships with all other governance stakeholders, and ensuring NDIA compliance with statutory requirements.

Independent Advisory Council

► Comprised of up to 12 members and a Principal Member. Council membership is determined on a representative basis. Key representation criteria include: (1) a majority of the members are people with disability; (2) at least two of the members are carers of people with disability; (3) at least one of the members is a person who has skills, experience or knowledge in relation to disability in rural or regional areas; and (4) at at least one of the members is a person who has skills, experience or knowledge in the supply of equipment, or the provision of services, to people with disability.

► The Council’s function is to provide independent advice to the Board in regards to the performance of the NDIA across a range of aspects, in which its members have experience. The Board is obligated to consider all Council advice and must report back to the Standing Council on advice received and any actions taken.

CEO ► Appointed by the Board for a specified term not longer than three years, excluding the first CEO who was to be appointed by the Minister.

► Responsible for the day-to-day administration of the Agency and delegated most of the administrative powers in the legislation, such as making decisions on access requests, participant plans, and funded supports.

► The CEO is able to delegate any or all of their powers under the legislation to officers of the NDIA.

Scheme Actuary ► Nominated by the Board. There is no limit on the duration of a person’s nomination as Scheme Actuary.

► Must be a Fellow of The Institute of Actuaries of Australia. The Scheme Actuary cannot be the same person as the Reviewing Actuary.

► Among other things, responsible for assessing the financial sustainability of the NDIS.

Reviewing Actuary ► Nominated by the Board for a specified term not longer than three years.

► Must be a Fellow of The Institute of Actuaries of Australia. The Reviewing Actuary cannot be the same person as the Scheme Actuary.

► Among other things, responsible for reviewing and reporting to the Board on actuarial reports and advice


Entity Descriptionreceived by the Board.


The governance arrangements of the NDIS reflect the federal nature of the Scheme. While the Commonwealth Minister plays a key decision-making role in the NDIS, he or she is required in many instances (e.g., Board and Council appointments and the making of NDIS Rules) to first secure agreement from the States and Territories before making a decision.

The NDIS Act also establishes the functions of the NDIA. Key among these functions are:

► To deliver the NDIS so as to:

► Support the independence, and social and economic participation, of people with disability

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

► Ensure that the decisions and preferences of people with disability are respected and given appropriate priority

► Promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and inclusion in the mainstream community

► Ensure that a reasonable balance is achieved between safety and the right of people with disability to choose to participate in activities involving risk

► To manage, and to advise and report on, the financial sustainability of the NDIS

► To develop and enhance the disability sector, including by facilitating innovation, research and contemporary best practice in the sector

► To build community awareness of disabilities and the social contributors to disabilities

► To collect, analyse and exchange data about disabilities and the supports (including early intervention supports) for people with disability

► To undertake research relating to disabilities, the supports (including early intervention supports) for people with disability and the social contributors to disabilities

Questions for stakeholders16. How well do the governance arrangements enable government to further

the objects and principles of the NDIS Act?17. What amendments could be made to the legislative framework (if any) to

enhance the effectiveness and/or efficiency of the NDIS’s administration?


11. Other mattersThis review encompasses all aspects of the NDIS legislative framework. Accordingly, if you have any issue or comments to raise in respect to areas not covered by this paper, you are nonetheless invited to submit them. This discussion paper focuses on what appear to be key areas of interest and contention, but is by no means intended to be an exhaustive collection of all existing issues surrounding the legislative framework.

Questions for stakeholders18. Are there any other aspects of the NDIS legislative framework that you

believe are impacting on:a. Government’s ability to further the objects and principles of the

NDIS Act?b. The efficiency of the NDIS’s administration?c. The capacity of the NDIA to control costs?d. Other legislation, including State and Territory legislation?e. The effectiveness of information sharing between the NDIA, jurisdictions

and providers?


Appendix A Review Terms of ReferenceThe terms of reference of this review, as agreed by Ministers, require that the review consider:

1. The operation of the NDIS Act in furthering its Objectives and Principles

2. If the NDIS Act can be simplified

3. If the NDIS Act can be amended to increase the efficiency of the NDIS’s administration, including providing greater clarity around access requirements

4. If the NDIS Act can be amended to ensure that NDIA has the required capacity to control costs

5. Whether parts of the NDIS Act could be refined, removed or replaced for the purposes of more effective regulation (including de-regulation where appropriate)

6. If the NDIS Act can be amended to ensure it interacts appropriately with other legislation, including State and Territory legislation

7. Any interim or final recommendations for legislative change from other reviews

8. Any other matter relevant to the general operation of the NDIS Act


Appendix B Objects and principles of the NDIS Act

Objects The objects of the NDIS Act are to:

a. In conjunction with other laws, 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)

b. Provide for the National Disability Insurance Scheme in Australia

c. Support the independence and social and economic participation of people with disability

d. Provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme launch

e. Enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports

f. Facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability

g. Promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the mainstream community

h. Raise community awareness of the issues that affect the social and economic participation of people with disability, and facilitate greater community inclusion of people with disability

i. In conjunction with other laws, give effect to certain obligations that Australia has as a party to:

i. The International Covenant on Civil and Political Rights done at New York on 16 December 1966 ([1980] ATS 23)

ii. The International Covenant on Economic, Social and Cultural Rights done at New York on 16 December 1966 ([1976] ATS 5)

iii. The Convention on the Rights of the Child done at New York on 20 November 1989 ([1991] ATS 4)

iv. The Convention on the Elimination of All Forms of Discrimination Against Women done at New York on 18 December 1979 ([1983] ATS 9)

v. The International Convention on the Elimination of All Forms of Racial Discrimination done at New York on 21 December 1965 ([1975] ATS 40)

General principles guiding actions under the NDIS Act1. People with disability have the same right as other members of Australian

society to realise their potential for physical, social, emotional and intellectual development.


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

3. 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.

4. 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.

5. People with disability should be supported to receive reasonable and necessary supports, including early intervention supports.

6. People with disability have the same right as other members of Australian society to respect for their worth and dignity and to live free from abuse, neglect and exploitation.

7. People with disability have the same right as other members of Australian society to pursue any grievance.

8. 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.

9. People with disability should be supported in all their dealings and communications with the Agency so that their capacity to exercise choice and control is maximised in a way that is appropriate to their circumstances and cultural needs.

10. People with disability should have their privacy and dignity respected.

11. Reasonable and necessary supports for people with disability should:

a. Support people with disability to pursue their goals and maximise their independence

b. Support people with disability to live independently and to be included in the community as fully participating citizens

c. Develop and support the capacity of people with disability to undertake activities that enable them to participate in the mainstream community and in employment

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

13. The role of advocacy in representing the interests of people with disability is to be acknowledged and respected, recognising that advocacy supports people with disability by:

a. Promoting their independence and social and economic participation

b. Promoting choice and control in the pursuit of their goals and the planning and delivery of their supports


c. Maximising independent lifestyles of people with disability and their full inclusion in the mainstream community

14. People with disability should be supported to receive supports outside the National Disability Insurance Scheme, and be assisted to coordinate these supports with the supports provided under the National Disability Insurance Scheme.

15. Innovation, quality, continuous improvement, contemporary best practice and effectiveness in the provision of supports to people with disability are to be promoted.

16. Positive personal and social development of people with disability, including children and young people, is to be promoted.

17. It is the intention of the Parliament that the Ministerial Council, the Minister, the Board, the CEO and any other person or body is to perform functions and exercise powers under this Act in accordance with these principles, having regard to:

a. The progressive implementation of the National Disability Insurance Scheme

b. The need to ensure the financial sustainability of the National Disability Insurance Scheme

General principles guiding actions of people who may do acts or things on behalf of othersIt is the intention of the Parliament that, if this Act requires or permits an act or thing to be done by or in relation to a person with disability by another person, the act or thing is to be done, so far as practicable, in accordance with both the general principles set out in Section 4 and the following principles:

a. People with disability should be involved in decision making processes that affect them, and where possible make decisions for themselves

b. People with disability should be encouraged to engage in the life of the community

c. The judgements and decisions that people with disability would have made for themselves should be taken into account

d. The cultural and linguistic circumstances, and the gender, of people with disability should be taken into account

e. The supportive relationships, friendships and connections with others of people with disability should be recognised

f. If the person with disability is a child—the best interests of the child are paramount, and full consideration should be given to the need to:

i. Protect the child from harm

ii. Promote the child’s development


iii. Strengthen, preserve and promote positive relationships between the child and the child’s parents, family members and other people who are significant in the life of the child


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