The new, unclear test for NDIS access.
Proposed reforms to the National Disability Insurance Scheme will have profound consequences for social security recipients and risk compounding poverty in Australia.
Key parts of the Bill chase a number – a budget saving – by displacing need and delaying support. Without amendments, the reform’s austerity will fall hardest upon those in poverty, those who care and those clinging to precarious employment.
In what follows, I look at the new test at the heart of the Bill, the federal-state buck-pass that this test triggers, and the administrative burden it will impose on participants in the Scheme.
Compounding disadvantage: the new treatment requirements
As the 2023 NDIS Review found, thousands of Australians outside the NDIS have suffered without adequate health equity interventions to address their needs.
Early, targeted investment can transform needs across the life course of disability.
But the new Bill does not provide for a funded clearing house for treatments which would substantially alleviate these people’s disability. Instead, it risks stalling those in poverty in a way that compounds pressures on the social security system.
Under the new test, people with disability must prove there is no remaining “appropriate” treatment that could “materially improve, reverse or alleviate” the impacts of their “impairment” before accessing the scheme.
This risks them spending years on medical side-quests that might or might not yield any “noticeable” (the Explanatory Memorandum uses that term) improvements to their well-established and serious disability.
Under the Bill, a treatment is “appropriate” even if you can’t afford it or if it is practically impossible for you to obtain in your region.
This change will see low-SES applicants enter an already financially pressured scheme sicker and less connected to employment and community.
Rather than implementing the NDIS Review proposal to design funded upstream interventions, the Bill, in its current form, would see those on the margins drift into more serious disability.
Uncooperative federalism
This new “material” alleviation standard will trigger a sweeping withdrawal of supports without standing up alternatives.
A “treatment” isn’t necessarily something clinical. The Bill changes the law so that a treatment is anything that – to a non-negligible extent – lessens “the impacts of the impairment”.
This threatens to unleash intergovernmental buck-passing over whether functional capacity building belongs in the scheme or outside it.
Each and every marginal rehabilitation, skill acquisition or habilitation program will be contested by state and federal bureaucrats.
The failure to agree funded, foundational supports risks a wave of service retreat and familiar disclaiming of responsibility.
There are amendments to prevent this counterproductive outcome.
The Bill does allow for future deeming rules to list expected treatments, but stops these being poverty-informed.
But the failure to adequately co-design such delegated legislation has already seen Australians cast into service gaps.
We have seen the quiet insertion of “hospital in the home” risk the life of a child.
The unscrutinised coining of the phrase “crisis housing” throws people with disability onto overwhelmed mainstream services.
And such rules can’t work until a clearly unintended drafting error that risks perverse approaches – denying access where cochlear implants or chemical restraints exist – is fixed.
Also in today’s edition:
The unthinking harms of administrative burden
The risk of harm deepens when one understands the complex statutory concept of “impairment”.
In Senate estimates last week, public representatives were taken aback by an example of the National Disability Insurance Agency writing to a participant to clarify if their autism was permanent.
Their concern was reassuring and welcome. With respect, however, the exchanges also underline we have some distance to go in communicating the legislative requirements.
A person’s diagnosis or condition is not the focus of decision-making under the Act. A person with, for example, PTSD or autism must unpack this diagnosis into a series of discrete biomedical or psychosocial impairments.
Last year, a participant with four long-established diagnoses had to unpack and evidence interventions for 19 specific impairments just to get access.
Last month, a planning appeal saw the Administrative Review Tribunal identify and take in evidence 53 separate impairments.
Under this new Bill, every participant will be swept for undocumented “material alleviation” options, impairment by impairment.
Now consider that for many participants the Agency has not even recorded the broad diagnoses. For 13 years, people rolled into the NDIS without any consistent method for recording their impairments.
Read the story of Aaron – who has a severe lifelong disability – that appears on page 7 of this submission to the Senate inquiry. His representative was recently asked for medical documentation going back 34 years, and warned his funding was at stake.
I believe parliamentarians – who include some committed advocates for people with disability and social security – will act if they are shown the unwieldy, inequitable decision-making this Bill will unleash if passed unamended.
What you can pay for will shape NDIS budgets
The reforms are meant to be achieving greater “equity” and consistency.
Let’s consider the participant with limited means and a participant with substantial private wealth. Under the new Bill, all needs must now be “directly” caused by their qualifying impairments to count into the new funding algorithm.
The participant with substantial private wealth will be able to cover gap fees and access private options. They will more quickly discharge the medicalised administrative burden of documenting the “treatment” history for each and every impairment. They will be able to ensure more of their disability “counts” into the relevant funding algorithm. They will get support quicker and before they have deteriorated to the point where employment and health outcomes are beyond them.
Even when on the scheme, the poorer person will struggle on an under-scoped budget which is only directed towards the NDIS “parts” of them.
The Bill also removes the existing requirement to take into account that person’s environmental, location and health circumstances when designing a support budget for them.
This new, expansive power to separate people into their “NDIS bits” and “non-NDIS bits” will generate rampant incoherence and endanger outcomes. Like any social policy that is not sufficiently outcome-focused, it risks the Scheme entering cycles of repeated austerity.
The need for poverty-informed codesign
This is just one of the poverty-compounding elements of the Bill.
The gender equality impacts are profound, as the submission made by Women with Disability Australia indicates.
The provisions on “informal support” will displace need into social security as more carers are forced to give up work.
The provisions authorising future automation in the scheme fail to heed the lessons of Robodebt. The Bill assumes people will challenge automated errors and fight to a substituted decision. But there is no provision for collective complaints, duties to repair algorithmic inaccuracy or caseload auditing to even catch automation.
The Bill allows the raising of debts where participants fail to keep and maintain records.
It then fails to insert the recent coercive control and abuse protections into the debt waiver provisions.
The government will surely have to amend the Bill to reflect the work of Ministers Plibersek and Gallagher on that issue.
Related
Cutting foolishly, not saving wisely
The briefings will tell our leaders that “social programs” like the NDIS should be 1.6% of GDP. They should run at a comparable rate of growth to “other social programs”.
This risks reducing disability policy (21.4% of the population) – a core piece of productivity and economic infrastructure – to formless rationing disconnected from broader outcomes.
As Gunnar Myrdal warned, the roots of inequality lie in which issues get called “economic” and which get called “social”.
It is vital that a proper vision of sustainability underpins our thinking, as the Inspector-General of Aged Care, Natalie Siegel-Brown, courageously argued in a speech challenging the Department of Health, Disability and Ageing earlier this year.
Sadly, without action from our leaders, the blindness of narrow modelling is headed straight for our schools, health systems and communities.
Darren O’Donovan is a senior lecturer in administrative law at La Trobe Law School.
This article was first published on Mr O’Donovan’s Substack. Read the original article here.