Demystifying The NDIS
Confused about the National Disability Insurance Scheme? You’re not the only one!
Whilst it was borne from and is governed by the National Disability Insurance Scheme Act 2013, the legislation in itself, like many, if not most legislative instruments, and dare we say all, is open to interpretation. Initially, in force on 29 May 2013, it has been revised and amended 15 times over the past nine years, with the current version coming into force on 29 October 2021.
The Act’s design and purpose is to provide an overarching structure for the provisions of funded supports to people with disability. Although The Act takes a broad approach to disability due to its nature, the only commonality between NDIS Participants is that they have a permanent and significant disability. The NDIS Participants at the centre, and for whom the scheme was designed and implemented are as individual and diverse as are their functional capacities impacted by their disability.
Though it was not the intent of the lawmakers to create mischief or confusion, or at least we hope it wasn’t, the resulting NDIS rules, policies, operational guidelines and assumptions derived from The Act can be vague or contradictory due to having to suit or fit the diversity of the NDIS Participants and those advising and assisting to implement it. The understanding and application of The Act differs depending on who is reading it, and for what purpose or context.
So, let’s take a look at how the purpose of The Act is faring…
Section 3 Object of Act
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.
The CRPD is an international United Nations human rights convention with the purpose of promoting, protecting and ensuring the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity (Article 1).
As party to the CRPD, Australia is obliged to ensure it adheres to and acts in accordance with its purpose and directives. As one of the first 2o countries to sign the CRPD after it opened for signatures in March 2007, Australia ratified it on 17 July 2008 enabling it to enter into force for Australia on 16 August 2009.
Interesting fact (should you need it for Trivia Night) Australian Emeritus Professor Ron McCallum was elected to the United Nations Committee on the Rights of Persons with Disability in 2008 after which he was appointed Chairperson 2010 – 2013. The current chair, Rosemary Kayess is also Australian.
Australia’s ratification of the CRPD supported the intent of eliminating discrimination against people on the grounds of disability enshrined in the Disability Discrimination Act 1992.
Providing NDIS Funds
b) Provide for the National Disability Insurance Scheme in Australia.
The NDIS initially commenced with trials in 2013 based on location and age groups. At the completion of the trials in July 2016, the scheme began to be rolled out across Australia. It became a fully operational national scheme on 1 July 2020.
According to the 31 December 2921 Quarterly Report to disability ministers and the NDIS Data and Insights, 502,413 NDIS Participants had an approved current NDIS Plan with an average of $69,000 for supports in their NDIS Plan.
There has been much parliamentary debate and media reporting about the financial sustainability of the scheme, and with a federal election looming, we can expect to hear more. Whilst the average funding may be $69,000, as an NDIS Plan Manager, Canny Plan Management sees a broad range of funding across 1 – 3 year NDIS Plans. Not once, have we seen a plan and thought “that is too much funding”. Often after completing a funding budget breakdown, it’s more like “this will not be enough to engage the supports the NDIS Participant requires to achieve their goals.” As the nation ventures out of the restrictive COVID environment and participants are able to reengage with face to face supports the need for adequate funding is high.
NDIS Participant Support
c) Support the independence and social and economic participation of people with disability.
The purpose of the NDIS is to provide Australians with a permanent disability that significantly impacts their daily functional capacity to manage everyday activities to receive and engage in supports they need to live an ordinary life. The funding in an NDIS Participant’s plan is based around Assistance with Daily Life, Assistance with Social and Community Participation, and Capacity Building Supports to help develop or maintain an NDIS Participant’s independence and participation. The support can be in the form of support workers, activities, assistive technology and home modifications just to name a few.
Reasonable + Necessary Supports for NDIS Participants
d) Provide reasonable and necessary supports, including early intervention supports for participants in the National Disability Scheme launch.
The decision on what is reasonable and necessary for an NDIS Participant is probably the most discussed, debated, challenged and appealed element of the NDIS. The Act does not define reasonable or necessary as either single words or as a term. It relies on the common understanding of the words, but within context to the individual NDIS Participant and the disability(ies) for which they are funded. Despite no definition, reasonable and necessary as a term has its own dedicated section in The Act: section 34.
Through the initial planning and subsequent NDIS Plan reviews, the NDIS Participant is asked and consulted about their goals and the supports they will require to achieve their goals. Although the NDIS Participant is consulted, it is the National Disability Insurance Agency (NDIA) CEO or delegate who determines what is a reasonable and necessary support for the NDIS Participant in context to their goals and disability, and ultimately the funding to engage and receive said reasonable and necessary supports. In doing so, the decision-maker must be satisfied that all the following criteria are met:
- Assist the participant with pursuing the goals in their plan
- Assist the participant to undertake activities to facilitate social and economic participation
- The support represents value for money
- The support will or likely be effective and beneficial to the participant with regard to current good practice
- The support is not what would be reasonably expected to be provided by informal supports including families, carers, networks and community
- The support is not more appropriately funded through other channels such as State or Territory Services, Government departments, services or agencies
The decision-maker may be satisfied that the supports and funding are reasonable and necessary, but the NDIS Participant may think and know otherwise. This is often one of the sticking points. Who better than the NDIS Participant themself to know what is reasonable and necessary for them? The NDIS Participant has the right to request an internal review of a decision. If not satisfied with the outcome of the internal review, the NDIS Participant can apply to have the matter reviewed by the Administrative Appeals Tribunal (AAT). In a media statement released early December 2021, the National Disability Insurance Agency noted that from 2017-2018 to 30 June 2021, approximately 0.45% of NDIS Participants had made an application to the AAT. If either party, the NDIS Participant or the National Disability Insurance Agency is not satisfied with the AAT decision, either party can appeal to the Federal Court however can only be on a question of law and will be determined by the applying legal principles. The legal costs alone, we’re talking about a ballpark figure of $34.8 million could make a hefty contribution to the sustainability of the scheme, and increase funded supports rather than the National Disability Insurance Agency spending it on AAT matters.
Choice + Control to Help Manage Your Funding
e) Enable people with disability to exercise choice and control in the pursuit of their goals, and the planning and delivery of their supports.
Choice and control align with the person-centred model on which the NDIS was initially designed. it is about the NDIS Participant’s right to make their own decisions about what is important to them, and the supports they would like to receive, from whom, where and when. Choice and control is about how an NDIS Participant would like to manage their funds be it plan managed, self-managed, NDIA managed or a combination of two or all three. Choice and control is about options and choosing a provider or a support that meets needs and preferences. Choice and control is individual and it’s personal.
Choice and control, and reasonable and necessary are not mutually exclusive. There is a direct correlation. An NDIS Participant has choice and control over their NDIS Plan, but only if it is reasonable and necessary as decided by the National Disability Insurance Agency CEO or delegate.
The question is, which takes precedence choice and control or reasonable and necessary?
Understanding + Interpretation of The Act from the National Disability Insurance Agency
f) Facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability.
The Act provides for a national scheme which by the nature of being national should be consistent. However, like the determination of reasonable and necessary supports, and the right to exercise choice and control, the access, planning and funding amounts are dependent on who at the National Disability Insurance Agency is making the decision on the day based on their understanding and interpretation of The Act. Discrepancies between NDIS Plans for NDIS Participants with similarities do occur. This also applies to approvals or rejections of appeals made to the National Disability Insurance Agency.
Managing Your NDIS Following the Rules + Regulations
g) Promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community;
ga) Protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services provided under the National Disability Insurance Scheme.
The NDIS have set rules and operational guidelines for the delivery and implementation of supports to NDIS Participants. As a registered NDIS Plan Manager, Canny Plan Management complies with the NDIS Pricing Arrangements and Price Limits and offers guidance to participants and providers alike through the NDIS operational guidelines.
Providers are also monitored by the NDIS Quality and Safeguards Commission an independent agency established to improve the quality and safety of NDIS Supports and services, including regulation and audit of providers. The Commission also provides an avenue for participants to raise issues of concern.
Community Awareness for NDIS Registered Participants
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.
Over the course of its implementation and operation, the NDIS has brought to the forefront the issues and inequities experienced by people with disability and through this raised awareness and given people with disability and their advocates a voice. The recent awarding of the Australian of the Year to Dylan Alcott has ensured that the awareness of issues will have a strong platform in 2022.
More than NDIA Managed
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 in New York on 16 December 1996
(ii) The International Covenant on Economic, Social and Cultural Rights done at New Work in December 1996
(iii) The Convention of the Rights of the Child done in New York on 20 November 1989
(iv) The Convention on the Elimination of All Forms of Discrimination Against Women done in New York on 18 December 1979
(v) The International Convention on the Elimination of All Forms of Racial Discrimination done in New York on 21 December 1965
For the majority of the Conventions, Australia has been an early signatory and one of the first 20 countries to ratify in order to bring the convention into force, and by doing so, committing to the obligations that entail. Further to this, although a copyright Treaty, Australia is also a party to the Marrakesh Treaty to Facilitate Access to Publish Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled and was one of the first countries to put into action with Vision Australia, exchanging accessible book files with Canadian National Institute of the Blind on 30 September 2016 the day it came into force.
Our team at Canny Plan Management are real people, from real walks of life.
Our team have extensive experience and expertise in the disability sector. We care about you and helping you achieve your goals and aspirations and to understand your entitlements. Trust, expertise and understanding are what we believe you should be looking for when you are looking to partner with an NDIS Plan Management team, like Canny Plan Management.
Get in touch with our team to have a chat and see if we can work together as part of your support network to help you reach and achieve your goals.