The NDIS Amendment Bill - questions and answers

NDIS reform: Interviews with Minister Shorten

General questions

Changes to definition of NDIS Support

Needs assessment

Rules and legislative instruments

New CEO powers

New planning framework

Timelines

Consultation/Co-design

The NDIS Review

Children and families

Psychosocial

Access

Foundational Supports

Quality and Safeguards

Fraud

Other matters

 

What is the purpose of these changes?

  • The Government is introducing changes to the NDIS legislation to: 
    • create the scaffolding to progress key NDIS Review recommendations. Government will do this with people with disability and the disability community. 
    • clarify the intention of existing legislation. This will improve the delivery of the Scheme now. 
  • The changes address some of the key recommendations from the 2023 independent review of the NDIS. 
  • The reforms are designed to:
    • make the NDIS more about people 
    • ensure every NDIS dollar gets to those who the Scheme was created for. 
  • The new Rules will be implemented in stages. This will happen while other key reforms, like the development and implementation of foundational supports, are made.

How will people with disability be affected by these changes?

  • The legislative changes will ensure a better experience for all Australians with disability, their families and carers.
  • The changes will make it clearer for people with disability to know:
    • whether they are eligible for the NDIS
    • if they are better supported by another system.
  • They will support a better early intervention pathway for: 
    • people with psychosocial disability
    • children under 9 years old who have developmental delay or disability.
  • The changes will also create the basis for a new way of setting budgets. This will give participants greater flexibility and clarity around their funding and how they can use it.

Why is this legislative change needed?

  • The changes address some of the key recommendations from the 2023 independent review of the NDIS. 
  • Many of the ways the Scheme works are embedded in law. These are called NDIS legislation and Rules.
  • The legislation needs to be changed to enable some of the improvements proposed by the NDIS Review.
  • We also need changes to the legislation to allow Government to make new Rules. We need these new Rules to change how the Scheme operates. 
  • The goal is to make better decisions that are fair, transparent and consistent.

Are changes being made to choice and control? 

  • Choice and control is one of the founding principles of the NDIS. That won’t change. It puts participants at the centre of decision-making about their needs and supports. None of the changes in this Bill will change this fundamental principle. 
  • Changes to the NDIS legislation and Rules will make things more transparent. They will help participants make better decisions. 
  • The Rules will also provide participants with:
    • greater flexibility about how they use their NDIS funding to meet their disability-related support needs.
    • better support aligned to the reason they entered the Scheme.
  • Changes to Rules will ensure participants have greater certainty when engaging with the NDIA. 
  • Participants will have more choice and control of their supports with a flexible budget. This aims to lead to higher rates of social and economic participation for people with disability in their communities.  

What immediate impacts will there be for participants?

  • Many changes in this Bill rely on further Rules being made and/or Ministerial determinations. A Ministerial determination is like a Rule. We will consult with states and territories on Ministerial determinations. The Rules and Ministerial determinations will be developed over time with the disability community. The legislation that is dependent on Ministerial determinations or Rules will have no immediate impact for participants. 
  • Some changes will come into effect immediately (28 days from Royal Assent). There changes are about restoring the Scheme to its original intent. The Bill clarifies:
    • that the NDIA will have to tell participants if they have met access to the Scheme based on the disability or early intervention requirements, or both. This is important for when the early intervention pathway is developed; 
    • what disability-related supports participants can use their NDIS funding for, as set out in the current NDIS Rules and the Applied Principles and Tables of Support (APTOS). This is an agreement between states and territories and the NDIA about responsibilities;
    • participants need to provide information to the NDIA, if asked, as part of an eligibility reassessment process;
    • NDIS supports in a plan relate to the impairment(s) that meet the access requirements;
    • that plan management types can be changed where there is financial risk to the participant, or the plan nominee, child representative or plan manager has not spent NDIS amounts on ‘NDIS supports’; and 
    • there is a strengthened obligation for participants to remain within their funding limit. This change will only come into effect when a ministerial determination is made. 
  • These changes mean participants will receive the right services from the right service system.  
  • The quality and safety improvements will also commence immediately (28 days from Royal Assent). This will make it easier for the Commission to use its compliance and enforcement powers under the Act.

Can a participant only receive funding for impairments that meet the access requirements?New

  • The amount of funding a participant receives under their plan is not linked to the access decision. Funding depends on the participant’s impairments that meet the requirements of section 24 and/or section 25 at the time of the planning decision. This ensures that funding meets the participant’s disability needs at the time of the planning decision.
  • The introduction of a flexible budget will allow greater flexibility in how participants can spend their budget. 
  • People with disability know their own support needs best, so in line with the NDIS Review, flexible funding may be used for any NDIS supports that meet a participant’s support needs.
  • This means that a participant may use flexible funds for a range of supports they need as a result of their impairment/s, provided those supports are appropriately funded by the NDIS. 
  • Participants will no longer be constrained by line-by-line plans that specify particular supports and support intensity. 

Can I spend my NDIS budget on my impairments that don’t meet the access criteria?New

  • People with disability know their own support needs best, so flexible funding may be used for any NDIS supports that the participant requires as a result of their disability. 
  • This means that a participant may use flexible funds for a range of supports that they need as a result of their impairment/s, provided those supports are appropriately funded by the NDIS. 
  • Participants will no longer be constrained by line-by-line plans that specify particular supports and support intensity.

Does this bill prevent the government from enacting a medical model or parenting model, where the person with a disability is in charge of their life and has choice and control?New

  • This Bill does not make any changes to the objects and principles in the Act. Supporting the independence and social and economic participation of people with disability as well as enabling people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports remain key objects of the Act.

Some sections appear to limit the lengths of plans – can you explain about intervals of funding?New

  • Under the proposed Bill it suggests introducing funding periods, that would enable participants to receive funding in manageable intervals rather than all at once. For example, a participant with a five-year plan may have funding allocated in yearly periods, allowing for better budget management. This approach would enable the participant have clear guidance on their funding allocation over each period, providing effective financial management and still supporting flexibility in how they access support services.

Changes to definition of NDIS Support

Proposed new definition of NDIS support in the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024New

  • The Government has heard feedback about the proposed new definition of NDIS Supports in the Bill and is proposing to introduce parliamentary amendments, that if adopted, will replace the definition of NDIS support currently in the Bill to clarify it and make it more accessible.  

  • Here are the links to the exposure draft and supplementary explanatory memorandum.

View the Supplementary explanatory memorandum. View the Exposure draft - section 10 amendments.

Why do we need a definition of NDIS support?New

  • The definition of NDIS support serves two primary purposes:
    • It makes clear the constitutional basis for the new budget setting framework recommended by the NDIS Review, and helps to clarify and identify the constitutional basis of the NDIS as a whole.
    • Assist participants and the disability community to understand what is (and always has been) capable of being funded by the NDIS having regard to intergovernmental agreements and constitutional considerations.
  • For the sake of consistency and simplicity across the entirety of the NDIS Act, the definition has been adopted in key areas, particularly where references to supports being appropriately funded by the NDIS already exist. 

What is the new definition of NDIS support?New

  • If adopted, the proposed parliamentary amendment will replace the definition of NDIS support currently in the Bill to clarify it and make it more accessible.  
  • Instead of making reference to specific articles, the definition now requires the support to implement any of Australia’s obligations under the Convention on the Rights for People with Disability (CRPD) or fall within the relevant aspect of the social welfare power under the Constitution. 

Why wasn’t this done from the beginning?New

  • The specific articles were referenced initially because of the way the section was structured, which meant that a participant had to identify whether a particular support was an NDIS support for them. Including each of the specific articles was done to assist this process.
  • The new structure of the section requires the Minister to assess whether particular supports fall within the relevant articles of the CRPD, rather than the participant. Because of this, the specific articles no longer need to be referenced as the Minister will have awareness of all the relevant obligations under the CRPD in making the instrument without them being specified.  

Does the definition of NDIS support limit the kinds of supports the NDIS will fund?New

  • The original intention of the NDIS was to provide particular kinds of supports (‘reasonable and necessary supports’) to people with disability. This continues with the definition of NDIS supports. 
  • By inserting a definition of ‘NDIS support’, the Bill does not tighten the kinds of supports the NDIS will fund. Instead, the Bill clarifies the supports that have always been available under the NDIS to ensure certainty for participants now and into the future.  
  • This definition will include all supports capable of being funded by the NDIS, but something will only be an NDIS support for a participant if they have a need for that support as a result of their disability. 

How does section 10 work now? What are the other implications of the proposed amendment?New

  • Category A NDIS rules will set out supports and classes of supports that are or are not NDIS supports. 
  • Those supports must be appropriately funded by the NDIS. This consideration will take into account things such as intergovernmental agreements on what system is responsible for certain kinds of supports. NDIS supports must also have a constitutional basis.
  • This provides certainty and clarity for participants and the disability community, as well as NDIA delegates. It will help participants select the supports that they are able to use their NDIS funding on. 
  • It is important to understand that not every support that has a constitutional basis will be an NDIS support. Many of the supports that are covered by the CRPD are more appropriately provided by another system, such as the health or aged care systems. 
  • These new rules will be tested and designed with the disability community and states and territories.

Needs assessment

Can a participant seek a review of a needs assessment or request a new one?New

  • The needs assessment is not a separate decision. Rather it is part of the process for approving a statement of participant supports. 
  • If a participant considers that their statement of participant supports, which includes a reasonable and necessary budget, has not been determined correctly or is not adequate to meet needs, they can seek a review of the CEO’s decision to approve the statement of participant supports. 
  • Consistent with recommendations of the NDIS Review, a participant’s reasonable and necessary budget will be based on a holistic assessment of their support needs.
  • Participants can seek internal and external review of the decision to approve their statement of participant supports.
  • In certain circumstances, the decision-maker will arrange a ‘replacement’ assessment before finalising and approving the participant’s statement of participant supports. This is not a separate decision, but rather is part of the process for approving a statement of participant supports. 
    • This does not mean the entire assessment will need to be completed again, but that will depend on the information provided by the participant seeking review. 
    • If a new assessment identifies different support needs, the reasonable and necessary budget may need to be changed as part of the review.
  • At any time, as is the case now, a participant will also be able to request a reassessment or variation of their plan prior to its end date if their circumstances change.

Will a participant get to see their needs assessment?New

  • New section 32D requires the statement of participant supports to be prepared with the participant. This means that the individual will need to be provided with their needs assessment in order to participate in the process of deriving their supports. In any event, as the needs assessment is the participant’s personal information, the NDIA will be obliged to provide it to the participant under FOI and privacy law.
  • The specifics about the needs assessment and the participant experience, will be developed with the disability community through co-design and will then be set out in the rules and operational policy.
  • There is no need to specify the requirement in legislation as the section already specifies that the participant is part of the process and must therefore have access to the information.
  • Assessments will be undertaken with participants to support their understanding about what will go into the report.
  • After the needs assessment has been completed, the needs assessor will prepare an assessment report as soon as practicable.

Rules and legislative instruments

Why is the needs assessment going to be in a ministerial legislative instrument and not rules? What are the safeguards?New

  • A key safeguard in the process for use of an instrument is the process required for the making of the instrument. This process means the instrument cannot be changed or altered without following the consultation and transparency requirements of the Legislation Act 2003. 
  • Among other things, this requires consultation to be undertaken and detailed in the explanatory statement to the instrument.  The instrument itself is subject to scrutiny in the Parliament and disallowance.
  • There will be consultation with the disability community and states and territories on all of the legislative instruments, and the needs assessment tool will be based on extensive consultation with experts in a range of areas to ensure it can adequately assess the needs of all people with disability.

Does the Bill make changes to eligibility?New

  • The Bill makes no changes to eligibility for the NDIS.
  • A person can access the NDIS if they meet the disability requirements (section 24) or the early intervention requirements (section 25) or both.
  • The Rules that will be developed in consultation and co-design with the disability community will provide clarity and detail about the meaning of key concepts in the Act. 
  • For example, the Rules might tell us how to understand and measure substantially reduced functional capacity, or when an early intervention support is likely to benefit a participant. 
  • This will address current barriers to access and provide greater consistency and equity in decision-making.
  • Section 27 of the Act currently provides for rules about section 24 and section 25, the Bill does not change that, but only simplifies the way the rule-making power is explained to make it easier to understand and apply.

Will the proposed rules be safeguarded from future changes by successive governments that could result in the NDIS becoming more restrictive and without codesign input?New

  • The current NDIS Act includes a general principle that ‘people with disability are central to the National Disability Insurance Scheme and should be included in a co-design capacity’. The Bill does not change this principle in the Act.
  • The majority of Rules will be Category A Rules, meaning all states and territories need to agree on any changes and Rules are all disallowable by the Australian Parliament.

Regarding the requirement in legislation to provide needs assessment to the CEO and not to the participant or their family. Recovery good practice would always share. Will there be sharing of draft assessment reports with the subject of the report?New

  • How the needs assessment process will work, including involving the participant, will be further explored in the engagement process. The Bill does not address how these will be operationalised by the NDIS.

Does the Act still define who is eligible for the NDIS?New

  • The Act still defines who is eligible for the NDIS. This is described in the disability requirements (section 24) and the early intervention requirements (section 25).
  • It is important to be aware that the Act already allows rules to be made about section 24 and section 25. The new draft of section 27 simplifies and clarifies the existing rule-making powers.
  • Any new rules will be developed in consultation and co-design with the disability community will provide clarity and detail to these provisions in the Act. For example, the Rules might tell us how to understand and measure substantially reduced functional capacity, or when an Early Intervention support is likely to benefit a participant.

New CEO powers

Information gathering powers for eligibility assessmentsNew

(e.g., if a planner asked for your diary for the last year, would you have to hand it over?)

  • The new information gathering powers inserted by the Bill are limited to enabling the CEO to request information that is ‘reasonably necessary’ for the particular decision being made. 
  • There are no general or broad information gathering powers in the NDIS Act. All information-gathering powers, including the new ones in the Bill, are limited and specific.
  • In the context of sections 30 and 30A, this means the CEO can only request information that is reasonably necessary to deciding whether a participant continues to meet the access criteria.
  • The language of ‘reasonably necessary’ is taken from the Privacy Act 1988 which means it is a clearly defined legal concept for explaining the scope of the power to collect personal information which is consistent with other existing information gathering powers in the Act.
  • For example, it is unlikely a participant’s personal diary would be ‘reasonably necessary’ for a decision about ongoing access to the Scheme, so it would not be able to be requested under these new powers. It may be reasonable for a participant to be asked to provide a schedule of their use of particular supports. 

Powers to switch plan managementNew

  • The Bill does not significantly change the existing provisions around plan management. 
  • The change made by the Bill is to ensure a participant cannot have a particular plan management type if that would put them at risk of section 46 not being complied with (which may cause a debt to be raised against the participant). This is intended to safeguard participants.
  • This power is to be clarified in the rules which will be co-designed with the disability community and to which all states and territories need to agree. These rules will likely include criteria around the risk to the participant which will be straight forward to operationalise.

What safeguards will be in place to protect the NDIS and the disability community from the Minister or CEO potentially abusing the proposed powers introduced in the bill?New

  • The CEO of the NDIA and the Minister for the NDIS must act in accordance with the NDIS Act and other federal and state laws at all times. This Bill does not change that obligation. 
  • The majority of Rules developed will be Category A Rules, meaning all states and territories must agree to any changes proposed by the Minster or CEO. 
  • All legislative instruments, including NDIS Rules, will be subject to the requirements of the Legislation Act 2003 which, among other things, requires appropriate consultation to be undertaken. 

New planning framework

What is the new planning framework?New

  • This bill creates a new planning framework to build participant plans to include a reasonable and necessary budget, rather than identifying reasonable and necessary supports line-by-line.
  • Participants will be able to spend their budget on NDIS supports.
  • This change is to give participants more flexibility to use their plan to support their needs without applying to the NDIA for a variation or reassessment.
  • Under the new framework, participants’ reasonable and necessary budgets will be based on the outcomes of a needs assessment using a method set out in a legislative instrument (not an NDIS rule).
  • This needs assessment will be designed with the disability community and technical experts to ensure it identifies the supports the participant needs, that the NDIS is responsible for funding.
  • Participants will not move to the new framework until the needs assessment and the method for calculating the budget have been developed.
  • New framework plans will include similar elements to old framework plans including a statement of goals and aspirations and statement of participant supports. 
Reasonable and necessary budgets
  • Reasonable and necessary budgets form part of the statement of participant supports.
  • It can consist of both flexible funding and stated supports.
Flexible funding
  • Flexible funding will be available to a participant where the needs assessment report for the plan indicates the participant requires at least some NDIS supports that are not stated supports.
  • This is an amount, informed by the needs assessment, a participant may use to acquire a range of supports they need because of their impairment/s, provided those supports are appropriately funded by the NDIS. 
  • This change implements action 3.5 of the NDIS Review, to allow greater flexibility in how participants can spend their budget, with minimal exceptions.
  • This change is based on the principle that people with disability know their own support needs and are best placed to determine how to meet these needs. 
  • The inclusion of flexible funding in a plan is the default position.
  • In certain circumstances, the CEO may place restrictions on the spending of some or all of the flexible funding provided for in a reasonable and necessary budget. 
  • This will only occur where the CEO is satisfied that any of the following circumstances exist:
    • A participant is likely to suffer physical, mental or financial harms if the flexible funding was not subject to restriction.
    • A participant, their plan nominee or registered plan. management provider has not complied with the spending requirements (set out in section 46).
    • A circumstance provided by NDIS rules (category A).
  • These restrictions will only be used where a participant has a history of over-spending, non-compliance with the relevant NDIS rules, or the Agency has identified risk of harm to a participant.
Stated supports
  • A stated support is a support, or class of supports, specifically identified in a plan.
  • Funding for stated supports can only be spent on that support (or class of supports) and cannot be spent for any other purpose, including acquiring other NDIS supports.
  • A participant’s need for stated supports will be identified through the needs assessment report.
  • Category A NDIS rules will prescribe supports that are stated support for all participants or certain groups of participants. For example, high-cost assistive technology, home modifications and supported independent living may all be stated supports.
  • These rules will be co-designed with the disability community.
  • Including stated supports in participant plans is an important mechanism to ensure alternative commissioning agreements operate effectively.
  • Stated supports are also an important safeguarding mechanism for the provision of higher risk supports that need to be provided by particular providers, or in a particular manner, to protect the participant from harm.
Funding periods/intervals
  • Under new framework plans, flexible funding will be divided into funding periods, allocating the proportion of the total flexible funding within each period. Funding periods also apply to stated supports. 
  • Each period will be no more than 12 months, with each period to run consecutively.
  • This amendment ensures that funding is not spent in excess of the total budget. If funding is not spent within one plan period, it will be rolled over into the next, however not between plans.

What happens if I spend all of my budget before my plan ends?New

  • Participants will be supported to manage their budget and be able to seek a plan review or reassessment if their circumstances change.

Does this mean my plan funding will be cut?

  • The Scheme has always been set-up to make changes to a participant’s NDIS funding, as necessary. 
  • A participant’s funding may continue to go up and down in line with their support needs.
  • The Review recommended changes to planning and plan budgets. This will give participants more choice and control of their supports with a flexible budget. 
  • The Government will work in partnership with the disability community to develop the Rules for any changes to the planning process.

Are there changes to review rights under the new planning framework?New

  • Under the proposed legislation a decision to approve the statement of participant supports in a new framework plan will continue to be subject to internal and external review.
  • The new planning framework addresses the findings of the NDIS Review that heard there are a number of significant problems with the current planning framework, including that people with the same or very similar support needs too often receive different levels of funding, which undermines trust and confidence in the NDIS. Central to the new planning framework will be a comprehensive needs assessment and new method for generating a reasonable and necessary budget based on the assessment report. 
  • The methodology for how the reasonable and necessary budget is generated will only be finalised after deep engagement with the disability community and subject matter experts. This will be a transparent process to ensure the trust and confidence of the disability community. It will then be set out in a legislative instrument determined by the Minister, that will be designed to be fair and consistent and would be disallowable by the Parliament.
  • For the new planning framework, as with the old framework, a participant’s plan will primarily consist of a statement of goals and aspirations and a statement of participant supports. The statement of participant supports will include a reasonable and necessary budget, stated supports, general supports, a plan period and details of the plan management arrangements.
  • The new planning framework will allow for a much more flexible budget and so if a participant changes their goals or aspirations they will be able to apply their existing budget to meet these new goals and aspirations without needing to go back to the NDIA for approval to change individual line items in a plan or to seek a new plan. This was also a key finding from the NDIS Review.
  • It is expected that discussions with the participant will occur before the needs assessment report is finalised, to confirm that all the information on a person’s support needs has been taken into account. How this works will be part of the work done during codesign.
  • Where a participant identifies that the assessment report does not accurately reflect their needs and circumstances, they can request that a new needs assessment be conducted as part of the review application. This does not mean that the entire assessment will need to be completed again, but this will depend on the information provided by the participant seeking review. If the updated assessment identifies different support needs then this may mean that the reasonable and necessary budget is changed.
  • This means that the focus of internal and external review is on ensuring that the needs of a participant are accurately assessed and reflected in the needs assessment, in order to ensure consistent and fair decision making that will build trust and confidence in the NDIS.

Timelines

Is there a timeline for implementing the NDIS Review recommendations?

  • The NDIS Review called for a 5-year transition.
  • The proposed changes to the legislation are the start. They will enable design and testing of changes with people with disability as further improvements are made to the Scheme. 

Will this legislation make the NDIS more sustainable? 

  • The legislation will:
    • support a better participant experience and outcomes
    • and support the sustainability of the Scheme. 
  • The changes will make sure the Scheme can provide life-changing support for people with disability into the future.
  • National Cabinet set a growth target for the NDIS of 8% by 2026-27. The changes to the legislation and the new NDIS Rule will help the Scheme achieve that target.

Why is the Government making changes now?

  • In December last year, the Prime Minister, Premiers and Chief Ministers announced there would be new NDIS legislation in 2024. 
  • Many of the changes will only come into effect once the new NDIS Rules have been developed and put in place. This will be done in close consultation with the disability community and states and territories. 
  • The legislative changes will establish the power to make the new Rules, so they’re the first step.

How can the legislation be supported without knowing what the rules will be? When will we see the proposed rules and operational guidelines?New

  • The Department is working on a public roadmap to provide opportunities for consultation and engagement in the development of policy and rules outlining details of reforms.

Consultation/Co-design

What measures are you taking ensure people can participate in consultations on reforms in an accessible way?New

  • Engagement by the Department with the disability community on key NDIS Rules will start happening from July 2024 and continue throughout 2024 and 2025. This engagement will include discussion papers on DSS Engage, face-to-face workshops and roundtables, as well as online engagement.  
  • The NDIA will lead co-design, consultation and community engagement on how proposed changes will be implemented and operationalised.
  • The NDIA has been working with people with disability and their supporters through engagement and co-design to deliver the Reform for Outcomes program and will build on this work, as well as other established and new reference and advisory groups, to support engagement on these changes. 
  • Since the Government introduced proposed changes to the NDIS Act, the NDIA has been working with Disability Representative and Carer Organisations (DRCOs), our Independent Advisory Council (IAC) and Participant Reference Group (PRG) to improve their approach and confirm the next set of priority topics for co-design. 
  • We recognise the experience of living rurally and remotely provides different challenges that need to be considered in the development of these reforms. We are still developing our engagement plan and will ensure we provide appropriate opportunities for people living rurally and remotely to participate fully in consultation and co-design.

What consultation has occurred and with who?

  • The changes address some of the key recommendations from the 2023 independent review of the NDIS.
  • As part of the NDIS Review, there was deep engagement with the disability community. 
  • The disability community helped develop the Terms of Reference for the Review. This was a key step to restore the trust between the disability community and government. 
  • The Review Panel consulted broadly across Australia. They used lived experience from people with disability to inform their recommendations.
  • The Panel:
    • heard from over 10,000 people and organisations
    • received over 4,000 submissions
    • spent over 2,000 hours listening to the stories, ideas, and feedback of people with disability
    • had regular meetings with Commonwealth, state, and territory disability ministers.
  • The Panel used findings from other reviews and inquiries, like the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability.  
  • The voices of people with disability will stay at the centre of implementing the changes to the NDIS. 
  • There will be more consultation about the development of the NDIS Rules and other changes.

Why was there no public consultation on an exposure draft of this Bill?

  • The Government will keep the voices and needs of people with disability at the heart of all NDIS reforms.
  • Government spoke with people from the disability community and the NDIS Review Panel before they introduced the Bill.
  • These legislative changes are the first step. 
  • Many of the changes to the Scheme will be made through new NDIS Rules. The Government will work in partnership with the disability community to develop the Rules. 

Will changes to the NDIS be co-designed with the disability community? When will this commence and who will be involved?

  • The Government will keep the voices and needs of people with disability at the heart of all NDIS reforms.
  • The disability community have shaped the findings of the NDIS Review and the ‘Getting the NDIS Back on Track’ by sharing their:
    • thoughts
    • experiences
    • ideas
    • feedback.
  • We will design the next steps with the disability community and state and territory governments.
  • Co-design is how we get better outcomes for people with disability.
  • You can subscribe to the Department of Social Services for updates on the NDIS reforms - https://engage.dss.gov.au/subscribe-for-updates-to-the-ndis-reforms/

How can I keep up to date with this bill?New

What measures are you taking ensure people can participate in consultations on rules in an accessible way?New

When consultations open, we will:

  • Provide Auslan and Easy Read versions of documents
  • Provide different options for people to participate that might include:
    • Online and/or face to face workshops, surveys, surveys, submissions and more.

We are open to your suggestions about ways of engaging with your that would work best for you. Please email us at Enquiries@dss.gov.au

Some people with a psychological disability feel that they were not heard as part of the NDIS Review, how can you assure that we will be heard through these changes?New

  • We are very keen to provide the opportunity for everyone to have their say in a way that suits them, wherever possible. We invite you to let us know the best way to engage with people with psychological and psychosocial disability via Enquiries@dss.gov.au

How will First Nations people be involved in this process?New

  • We recognise the importance and value of First Nations voices in developing and implementing these reforms and acknowledge that engagements need to be culturally safe and appropriate. We are still developing our engagement plan and will ensure we appropriate opportunities for First Nations people to participate fully in consultation and co-design.

How will engagement work in regional, rural, and remote areas? Will we also have the ability to engage in person?New

  • We recognise the experience of living rurally and remotely provides different challenges that need to be considered in the development of these reforms. We are still developing our engagement plan and will ensure we appropriate opportunities for people living rurally and remotely to participate fully in consultation and co-design.

What will consultation look like on legislative instruments?New

The NDIS Review

Does this Bill mean the Government has agreed to the recommendations of the NDIS Review?

  • The Government is considering the recommendations of the NDIS Review. It has not yet issued a formal response.
  • This Bill responds to National Cabinet’s agreement to legislative change. It is an initial response to the NDIS Review’s findings.
  • Government will release its full response to the Review later in the year.

When will other NDIS Review recommendations (not addressed in this Bill) be pursued? 

  • Government is considering all the recommendations made by the NDIS Review. 
  • Government will release its full response to the Review later in the year.

What will be included as part of the second bill? New

  • The NDIS Review made a range of recommendations with potential implications for the NDIS Act. For example, recommendations around the powers and functions of the NDIS Quality and Safeguards Commission.
  • Future legislation will depend on Australian Government decisions around such recommendations.

The government has not formally responded to the recommendations of the NDIS Review (or DRC) how do you know that this is the way forward? New

  • The government is currently considering the findings of both the NDIS Review and the DRC to ensure that a holistic approach is taken towards improving the lives of people with disability, carers and their families.

Children and families

I am the parent of a 5-year-old child with developmental delay who is in the NDIS. Do the changes in this Bill mean my child will no longer receive support from the Scheme?

  • This Bill does not change a child’s participant status or remove their access to the NDIS.
  • There will be a new early intervention pathway for children who enter the Scheme under the early intervention requirements (s.25).
  • There will be targeted early intervention support for children. 
  • We will work with the disability community to develop the new early intervention pathway. 

What will the new early intervention pathway for children with high support needs look like?

  • We will work with the disability community to develop a new early intervention pathway.
  • When the new early intervention pathway is implemented, the supports your child receives will be tailored to their needs.

Psychosocial

How will the changes affect people with psychosocial disability’s access to the NDIS?  

  • This Bill does not change your participant status or remove your access to the NDIS.
  • We will work with the disability community to consider the recommendation in the NDIS Review about a new early intervention pathway for people with psychosocial disability.

Regarding section 27 changes, how does this build an early intervention pathway for psychosocial participants? New

  • The proposed changes to section 27 will help define certain aspects of the Act more clearly. For example, they might explain how we measure someone's reduced functional capacity or when early intervention support could help someone with psychosocial needs. We'll be developing these rules together with input from the mental health sector and disability community.

What protections are there to ensure mental health participants are not adversely affected by any changes? New

  • The design of new rules is still to occur and will involve the disability community. It is important that people who access the NDIS meet the eligibility criteria and once an NDIS participant that they inform the NDIS where there has been a change in their circumstances.
  • The NDIS may seek information from a NDIS participant from time to time, where the NDIS participant does not respond to this request, the NDIS may make further attempts to get in connect with them to better understand why they have not responded. This would assist in determining if the NDIS participant remains eligible, or in instances where the NDIS is not able to make further contact with the NDIS participant they might be existed from the NDIS.

Explanatory memorandum uses mention of alternative commissioning – is this possible for psychosocial supports? New

  • Rules could be made to use alternative commissioning for psychosocial supports, but this needs to be discussed as part of the rules engagement process.

How will it be ensured that any changes do not disproportionately affect the mental health community? New

  • The NDIA's preference is always for NDIS participants to manage their plans whenever possible. There are instances where NDIA management may be considered, several measures are in place to ensure fairness and minimal impact, especially on the mental health community.
  • Decisions regarding NDIA management are made after careful consideration of various factors, including the participant's well-being, past spending behaviour, and whether any harm—physical, mental, or financial—might result from alternative arrangements. Additionally, the process allows for flexibility, such as accommodating participants who request plan management by themselves, a nominee, or a registered plan management provider. This approach aims to strike a balance between empowering participants and ensuring responsible management of NDIS funds.

What will be the impact of provider registration for psychosocial services? New

  • The current Bill does not cover provider registration. The Government has set up a task force to gather input on this issue and develop a new regulatory model. The Taskforce will provide advice to government on the design and implementation of a graduated risk-proportionate regulatory model later this year./li>

Access

Will existing participants be removed from the NDIS under the new changes and will there be extra support in the period immediately after this?

  • The Bill does not change your participant status or remove your access to the NDIS.

Foundational Supports  

When will foundational supports be implemented? 

  • The Review sets out a 5-year implementation plan for changes to the NDIS and improvements to the broader ecosystem. 
  • Last year, National Cabinet agreed to design additional Foundational Supports. These will be jointly commissioned by the Commonwealth and the states.
  • Earlier this year, the Government announced $11.6 million to support the development of a Foundational Supports Strategy.
  • There will be a phased approach to designing and delivering foundational supports. Services are expected to will be commissioned from mid-2025, and progressively scaled to full roll out by mid-2027.
  • Foundational supports will improve access to evidence-based supports for people with disability in community settings and better connect them to the mainstream services that all Australians rely on.

Quality and Safeguards

What will the NDIS Commission do with its additional compliance powers?

  • The changes to quality and safeguarding are designed to:
    • protect people with disability against exploitation
    • combat fraud in the Scheme. 
  • These are immediate measures. They will improve the scope and powers of the Quality and Safeguards Commission. This will give Government time to consider the findings of the NDIS Review and the Disability Royal Commission.
  • The changes will help the NDIS Commission to better administer parts of its compliance and enforcement powers.    

What do the changes about quality auditors mean?

  • Quality auditors play an important role in safeguarding participants. The NDIS Quality and Safeguards Commissioner (the Commissioner) will make a Rule that means an approved quality auditor does not employ or engage a person who has a banning order. 
  • This will stop banned persons from being able to move from the NDIS market system into the role of an Approved Quality Auditor. 

Why increase the number of Commission officers with compliance powers? 

  • The Government wants to ensure when we discover bad behaviour, we can act on it. 
  • The Commissioner will have the power to delegate compliance and enforcement powers and functions to more of the skilled officers in the Commission. 
  • This will make it easier for the Commission to use its compliance and enforcement powers under the Act.

How will foundational supports for children work? Home-schooled students and students in isolated areas have not been factored into the foundational supports recommendations. How will they be supported?New

  • Where or how a child is schooled would not preclude their ability to access support.
  • Foundational supports are about bringing more disability supports into and around spaces where children live, play, and learn.

How will the blending of education and removal of “special needs schools” to stop a segregated system work?New

  • The Government recognises the complexities and diverse views demonstrated in the Royal Commission’s recommendations and commentary on education, employment and housing, particularly around segregated settings.
  • The Government is carefully considering the Royal Commission’s education recommendations, and consulting with people with disability, their families, parents and carers, and relevant stakeholder groups before commenting on individual recommendations.

How will eligibility be satisfied for foundational supports? And how would this be different to NDIS eligibility based on permanency and functional impact of disability?New

  • The Australian Government and state and territory governments have begun preliminary work to develop a shared approach to the design and implementation of Foundational Supports which will include engagement with people with disability, families, carers and the broader disability sector. Consideration is being given to the kinds of supports available under Foundational Supports and eligibility.
  • Targeted Foundational Supports are focused on people do not require the level of specialist individualised support provided as part of NDIS and are specific supports designed for specific cohorts of people with disability not in the NDIS.

Will there be formal arrangements between state and territory governments to guarantee the delivery of foundational supports?New

  • In December 2023 National Cabinet agreed the Commonwealth and the state would jointly design and fund additional Foundational Supports.
  • National Cabinet also agreed funding would be agreed through new Federation Funding Agreements.

There is confusion around section 10 of what is and isn’t a NDIS support – particularly in the mental health area round rehabilitation. What is the difference between that and recovery support?New

  • Proposed changes to section 10 seek to provide greater clarity to NDIS participants on what supports they can access through the NDIS. NDIS rules are yet to be developed, once developed this aim to provide greater clarity on what supports can be funded and would eventually replace the current APTOS.

Fraud

We have heard the Minister talking about fraud and pricing – why hasn’t this been included in the proposed Bill?

  • Cracking down on fraud remains a priority for the Australian Government. The NDIA continues to take a range of actions to detect and address fraud using existing legislation.
  • Responding to the NDIS Review’s recommendations around pricing also remains a priority. The Government expects to make further decisions about that in future. 
  • The Government announced a Fraud Fusion Taskforce (the Taskforce) in October 2022 to strengthen fraud detection and better safeguard the NDIS from serious organised crime and other fraudsters. 
  • The Taskforce allows better intelligence sharing, identification and response by the NDIA, NDIS Quality and Safeguards Commission, Services Australia, other program departments, law enforcement agencies and other regulators to fraud perpetrated by those seeking to exploit the Government’s system of social supports. 
  • It is expected that this Taskforce will, over time, reduce the amount of money lost to fraud and take criminal, regulatory and administrative action against those who seek to take advantage of NDIS participants.

Other matters

The government has not formally responded to the recommendations of the NDIS Review (or DRC) how do you know that this is the way forward?New

  • The government is currently considering the findings of both the NDIS Review and the DRC to ensure that a holistic approach is taken towards improving the lives of people with disability, carers and their families.

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