Amendments to the NDIS Act

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UpSkill Lead, Linda Hughes, recently caught up with Julie-Anne Pho – the Summer Foundation’s Policy Manager to discuss these amendments.

The main changes are the Participant Service Guarantee (PSG) and new Plan Administrative Rules.The PSG is designed to give the participants greater confidence and clarity around what they can expect from the NDIA and provides key time frames for decisions.

The NDIA will also report to the Commonwealth Ombudsman and the Minister for the NDIS to demonstrate whether they are meeting the new PSG standards.

Yes, but whilst the PSG already existed, it was not the law, and the NDIA was not legally bound to follow them.

Yes, but there is more to it. The new Plan Administrative Rules elaborates on reassessments and variations, clarifies conflicts of interest, and updates terminology around psychosocial disabilities. These have been designed to make it easier for people with disability to access the Scheme and make changes to their plans as their needs and goals change.

The language for plan reviews has changed to plan ‘variations’ (for small changes that do not require a brand new plan) and plan ‘reassessments’ (for more significant changes which result in a brand new plan). Plan ‘reviews’ now exclusively refers to internal and external reviews.The Summer Foundation has developed resources for participants and the sector to explain these changes. The explainers can be accessed here.

The PSG sets out key time frames, allows for plan variations, and legislates service standards and the annual report. The time frames are a good start, but they aren’t end-to-end and therefore not indicative of the actual time frames experienced by participants. The NDIA may stipulate for the Ombudsman Report that they have kept within all time frames, but in practice this can still mean months or years for participants being without essential housing and support.

Variations and reassessments will replace plan reviews. Plan variations are a very welcome development, allowing small and simple changes without starting a new plan.

Participants will be able to request reasons for decisions, receive draft plans, and engage with the Agency more easily. There’s emphasis on clarity and preferred means of communication, though we’re yet to see what that will mean for everyday interactions.

The Ombudsman Report will also be a valuable new resource to assess the effectiveness of the NDIS against what participants are promised. We’re not yet sure how this will work. Ideally this report should be made available to the public, and allow participants, close others and organisations an opportunity for regular consultation with the Ombudsman.

For many people, things should be more straightforward. The clarity around time frames will make it simpler to understand relevant processes and a range of timelines.

Schedule 2 of the legislation includes the biggest changes. It makes improvements to increase the flexibility of the NDIS, and reduce the administrative burden on participants, providers and the NDIA:

• The legislation makes clear that if a participant changes their statement of goals and aspirations, the plan is taken to be varied and not replaced. Plans do not have to be reassessed in full for small changes. 
• For those with a psychosocial disability that is episodic or fluctuating in nature, it will be easier for them to show they have a permanent and significant disability, meaning it will be easier for them to access the Scheme. 
• The ability of participants to access their funded supports will be improved, as the CEO of the NDIA is now able to provide funding outside of a plan for the purpose of enabling a participant to access the supports in their plan.
• The NDIA may also undertake risk assessments for those who request supports be managed by a registered plan manager, to protect against undue influence, conflicts of interests, and any harm to the participant.

The NDIA is now required to publish ‘approved forms’ to better assist with the consistency of required decision-making and to help people understand exactly what the NDIA may need. The following are required to be in an ‘approved form’:

• A report of an assessment requested by the CEO from a prospective participant
• A report of an assessment, requested by the CEO, including a medical, psychiatric, psychological or other examination conducted by an appropriately qualified person
• A report of an assessment requested by the CEO, for the purposes of reviewing a participant’s plan

When the disability sector was invited to consult on the draft Bill in 2021, there were many concerns about the CEO of the NDIA being given too much power, which may lead to unjust cuts to participants’ plans. The draft Bill gave the CEO the authority to initiate plan reviews at their own discretion, and the CEO can reject a participant’s request for a review without needing to formally give an outcome or reasons for the decision. When the Bill subsequently went to Parliament in March 2022, amendments were made to provide limits to the CEO’s power. These amendments restrict CEO-initiated variations to several prescribed examples (e.g. variations to the management of funding for supports), and require the variations to be in line with the NDIS Rules.

However, if you look at these prescribed examples, there is still a lot of scope for the CEO to initiate a plan review whenever they want. For example, they can request the participant to undergo an assessment/examination, and then initiate a plan review based on the information contained in the resulting report.

Concerns around the CEO’s authority to reject a participant’s request for a review without giving a formal outcome or reasons for the decision have not been addressed. The legislation stipulates that if the CEO does not get back to the participant within 21 days after the participant’s request for a review, this means that the request has been rejected. The burden is then placed on the participant to follow up to get reasons and then potentially request an s100 review.

Furthermore, whilst the eligibility criteria have been amended to reinforce that impairments resulting from psychosocial disability that are episodic or fluctuating may still be regarded as permanent, the prospective participant is required to show evidence either that they have sought ‘appropriate treatment’ and this has not been enough, or ‘appropriate treatment’ is not available to them. Yet it’s unclear what ‘appropriate treatment’ is, or what ‘not available’, is or what it entails. There are also various economic, social and geographical reasons why prospective participants may not yet have access to treatment. Further amendments to the eligibility criteria were proposed when the Bill went to the Senate, to make it easier for prospective participants to prove eligibility for the NDIS. Unfortunately, these proposed amendments did not pass.

Irrespective of the time frames set out in the PSG, we’re striving to get the NDIA to make more timely decisions. Through our Down to 10 Days campaign, we are advocating to ensure Australians with disability get faster approval for the housing and supports they need. Our goal is for participants to receive funding approval within 10 days. It’s unacceptable that many participants are waiting anywhere between 145 days to 18 months for essential housing and support.