Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2019-2020-2021-2022
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
NATIONAL DISABILITY INSURANCE SCHEME AMENDMENT
(PARTICIPANT SERVICE GUARANTEE AND OTHER MEASURES)
BILL 2021
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be moved on behalf of the Government
Circulated by the authority of the
Acting Minister for the National Disability Insurance Scheme
Senator the Hon Anne Ruston
NATIONAL DISABILITY INSURANCE SCHEME AMENDMENT
(PARTICIPANT SERVICE GUARANTEE AND OTHER MEASURES)
BILL 2021
Amendments to be moved on behalf of the Government
OUTLINE
These amendments respond to feedback provided, including directly by key
stakeholders, by the Parliamentary Joint Committee on Human Rights and
through the Senate Community Affairs Legislation Committee in its inquiry into
the Bill.
These amendments will clarify the circumstances in which a variation to a
participant's plan may occur. Following stakeholder feedback, and to improve
certainty about when a variation can occur, these amendments will remove the
rule-making powers and instead, make provision for the circumstances in which
a variation can occur in the Act.
The amendments will provide a rule-making power to allow the Minister to set
conditions that must be satisfied when the Chief Executive Officer (CEO) of the
National Disability Insurance Agency (the Agency) is varying a participant's
plan. These Rules will be Category A Rules requiring the agreement of the
Commonwealth and all States and Territories.
These amendments remove the ability for the CEO to decide to undertake a full
reassessment of the participant's plan as a response to a request by a
participant for a variation of their plan.
Amendments to the National Disability Insurance Scheme (NDIS) access and
early intervention provisions are made to make clear on the face of the
legislation that people with disability who have episodic or fluctuating
impairments (including both psychosocial and non-psychosocial disabilities)
may be taken to have a permanent impairment for the purpose of NDIS
eligibility.
The amendments remove provisions within the Bill, which sought to increase
the scope of NDIS Rules to specify requirements that must be met for an
impairment to be considered to be permanent or likely to be permanent, or to
result in substantially reduced functional capacity under subsections 27(2) or
(3).
The amendments also designate NDIS rules in relation to the provision of
ancillary funding as Category A rules, requiring the agreement of the
Commonwealth and all States and Territories.
Financial impact statement
These amendments have no financial impact.
Human Rights Implications
The human rights impacts of the Bill were outlined in the Statement of
Compatibility with Human Rights that accompanied the Bill. These amendments
to the Bill are compatible with the human rights and freedom recognised or
declared in the international instruments listed in section 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011. This is because the amendments ensure
that any limitations on human rights are reasonable, necessary and
proportionate to achieve the legitimate objectives of the Bill to improve
participant experiences with the National Disability Insurance Scheme.
In scrutiny report 14 of 2021, the Parliamentary Joint Committee on Human
Rights (Joint Committee) considered that the objectives of improving the CEO's
ability to respond to changes in the circumstances of NDIS participants and
ensuring that plans appropriately meet the needs of people with disability may
be capable of constituting legitimate objectives for the purposes of international
human rights law.
The Joint Committee noted some questions remained as to whether the
measure was a proportionate means of achieving these objectives since much
of the detail was to be included in NDIS Rules. The Joint Committee also noted
that if the NDIS Rules clearly set out the circumstances in which the CEO may
initiate a plan variation or reassessment, this may assist to explain the
proportionality of the measure.
To provide clarity and certainty around the proportionality of the measure, the
Bill will now set out when variations to participants' plans can be made.
The amendments will further provide that NDIS Rules may prescribe conditions
the CEO must satisfy when varying a participant's plan. These rules will be
'Category A Rules'.
Under subsection 209(4) of the Act, 'Category A' NDIS Rules cannot be made
unless the Commonwealth and each State and Territory have agreed to the
making of the Rules. This process necessarily involves discussion and
negotiation between the Commonwealth and each State and Territory to ensure
the operational detail for any measure in the NDIS Rules will maximise benefits
for participants in the NDIS as a whole.
In addition, as noted in the Minister's Response to the Joint Committee, the final
version of any NDIS Rules prescribing detail for this measure will be subject to
the overarching principles in the Act that protect the welfare and interest of
people with disability.
Conclusion
The amendments are compatible with human rights because they further
strengthen and clarify limitations on the CEO's power to vary or reassess a
participant's plan on the CEO's own motion. To the extent that the measures
may limit human rights, those limitations are reasonable, necessary, and
proportionate in achieving a legitimate objective.
NATIONAL DISABILITY INSURANCE SCHEME AMENDMENT
(PARTICIPANT SERVICE GUARANTEE AND OTHER MEASURES)
BILL 2021
Amendments to be moved on behalf of the Government
NOTES ON AMENDMENTS
Amendment 1 amends the commencement provisions to reflect the omission of
Item 62 by Amendment 9.
Amendment 2 omits and substitutes new subsection 47A(1) and (1A).
Section 47A enables the CEO to vary a participant's plan (except the participant's
statements of goals and aspirations). A variation must be prepared with the participant.
As amended by this amendment, new subsection 47A(1) will provide a variation may
occur if the variation is: covered by new subsection 47A(1A) or is a correction of a
minor or technical error, and the conditions prescribed in the NDIS Rules are satisfied.
New subsection 47A(1A) will set out when variations to a participant's plan may occur.
All of these kinds of variations are based on the 2019 Review of the National Disability
Insurance Scheme Act 2013 ('the Act') conducted by Mr David Tune AO PSM ('the
Tune Review').
The table below sets out the recommendations of the Tune Review in relation to when
it should be possible to vary participants' plans and where this is provided for in the
Bill and these amendments.
Tune Review Recommendation Where recommendation is
regarding when a plan may be varied implemented
(see paragraph 8.33 of Tune Review)
a. if a participant changes their This is dealt with in proposed new
statement of goals and aspirations subsection 47(2) of the Act (see item 39
of Schedule 2 of the Bill).
b. if a participant requires See proposed new subparagraph
crisis/emergency funding as a result 47A(1A)(d)(i).
of a significant change to their
In addition, proposed new paragraph
support needs and the CEO is
47A(3)(c) will require the CEO to be
satisfied that the support is
satisfied that all supports are
reasonable and necessary
reasonable and necessary (see item 23
of Schedule 1 of the Bill).
c. if a participant has obtained See proposed new subparagraph
information, such as assessments 47A(1A)(d)(ii).
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and quotes, requested by the NDIA In addition, proposed new paragraph
to make a decision on a particular 47A(3)(c) will require the CEO to be
support, and upon receipt of the satisfied that all supports are
information the NDIA is satisfied that reasonable and necessary (see item 23
the funding of the support is of Schedule 1 of the Bill).
reasonable and necessary (for
example, for assistive technology
and home modifications)
d. A minor variation of a plan that leads See proposed new subparagraph
to an increase in funding. 47A(1A)(d)(v).
e. if the plan contains a drafting error See proposed new subparagraph
(e.g. a typographical error) 47A(1)(a)(ii).
f. if, after the completion of appropriate See proposed new paragraph
risk assessments, plan management 47A(1A)(b).
type is changed
g. for the purposes of applying or This will continue to be done through a
adjusting a compensation reduction reassessment process.
amount
h. to add reasonable and necessary This can be implemented through
supports if the relevant statement of proposed new subparagraphs
participant supports is under review 47A(1A)(d)(i), (ii) or (v) as appropriate.
by the Administrative Appeals
Tribunal (AAT)
i. upon reconciliation of an appeal This can be implemented through the
made to the AAT application of any of the paragraphs of
section 47A as appropriate.
j. to implement an AAT decision that In accordance with subsection 43(6) of
was not appealed by the parties. the Administrative Appeals Tribunal Act
1975, decisions of the AAT are taken to
be the decision of the decision maker
and are implemented as a matter of law.
In addition to the above, there are two additional bases upon which a plan may be
varied that were not explicitly recommended in the Tune Review, but are a result of
consultation and feedback from participants, their families and carers and the
broader sector, both during and subsequent to the consultation process on the Tune
Review.
Basis for variation of a plan Where it is implemented
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A change to the reassessment date of a See proposed new paragraph
plan and a consequential increase to 47A(1A)(a) and subparagraph
the funding under a plan 47A(1A)(d)(iv).
Where the statement of participant See proposed new paragraph
supports specifies that a support is to 47A(1A)(c).
be provided by a specified provider, or
in a specified manner, a plan may be
varied to specify that the support is to
be provided by another provider or in
another manner, as the case may be
Subsection 47A(1A) sets out variations that are covered for the purposes of
subparagraph 47A(1)(a)(i).
Paragraph 47A(1A)(a) provides that the CEO may vary a participant's plan where the
change is to the reassessment date of the participant's plan. For example, the CEO
may change the reassessment date if the CEO is satisfied that it is not reasonably
practicable, before the reassessment date, for the CEO to complete such a
reassessment, such as where a participant is unable to take part in a reassessment
process due to injury or illness.
Paragraph 47A(1A)(b) provides that the CEO may vary the statement of supports
included in a participant's plan in relation to the management of the funding for
supports under the plan or the management of other aspects of the plan.
Subsection 43(2) of the Act provides that if a participant makes a plan management
request (under subsection 43(1) of the Act), then the statement of participant
supports must give effect to the request, except to the extent that subsections 43(3)
to (6) of the Act apply. Subsections 43(3) and 43(6) of the Act set out the
circumstances in which a plan management request may not be given effect.
Paragraph 47A(1A)(b) allows the CEO to give effect to a plan management request
without having to conduct a full reassessment of a participant's plan. It also allows
the CEO to change the plan management type following a risk assessment
completed in accordance with section 44 of the Act, as recommended in the Tune
Review.
Paragraph 47A(1A)(c) provides that the CEO may vary a participant's plan where the
statement of participant supports specifies that a support is to be provided by a
specified provider, or in a specified manner and the change is to specify that the
support is to be provided by another provider or in another manner, as the case may
be. For example, where a specified provider ceases trading and another suitable
provider will provide the support.
Subparagraph 47A(1A)(d)(i) provides that the CEO may vary a plan if the CEO is
satisfied that the participant requires crisis or emergency funding as a result of a
significant change to their support needs.
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For example, Emily is an NDIS participant living in shared accommodation. There is
an attendant available 24 hours each day, as Emily and her housemates require high
levels of personal care. The Agency becomes aware that the shared accommodation
provider is insolvent and intends to cease trading, potentially leaving Emily
homeless. As there is no alternate appropriate accommodation readily available, the
Agency makes contact with Emily about a plan variation for additional temporary
supports for her personal care and housing until new suitable accommodation is
found. This plan variation enabled a quick response to a crisis situation. Even though
the variation was Agency initiated, the Agency was required to work with Emily to
prepare the variation.
Subparagraph 47A(1A)(d)(ii) provides that the CEO may vary the plan if, after the
plan comes into effect, the CEO receives information in response to a request that
had been made under subsection 36(2) or 50(2) of the Act in relation to the plan and
the variation relates to that information. The CEO may also vary the plan if, after the
plan comes into effect, the CEO receives information in response to a request that
had been made under subsection 50(2) of the Act in relation to the plan (other than a
request made for the purposes of varying the plan on the CEO's initiative) and the
variation relates to that information.
Section 36 of the Act provides that the CEO may request information or reports for
the purposes of preparing a statement or participant supports or deciding whether to
approve a statement of participant supports. The CEO may vary a plan in reliance on
this section where the CEO has approved a statement of participant supports, but
subsequently receives additional information that was requested under section 36 of
the Act that was not provided when the plan was approved.
For example, Piper lives in a house with three friends. During their planning meeting
Piper explains to their Local Area Coordinator that they need support with transfers
for daily activities. The planner asks the participant to have an assessment with an
occupational therapist to determine if assistive technology or home modifications
would be suitable. In the meantime, the plan is approved to include some support
workers to assist Piper with transfers. After Piper is assessed, the occupational
therapist recommends a hoist and some modifications to the bathroom. The
occupational therapist's recommendation and quotes are provided to the Agency
three months after the plan was approved. The Agency considers the
recommendations and quote and confirms the assistive technology and home
modifications are reasonable and necessary. The plan is varied to include the
assistive technology and home modification. Piper no longer needs support workers
to assist with transfers so those supports are no longer required.
Section 50 of the Act provides that the CEO may request information or reports for
the purposes of varying or reassessing a participant's plan. The CEO may vary a
plan in reliance on this section where the CEO has approved a statement of
participant supports, but subsequently receives additional information that was
requested under section 50 of the Act (except where the request was made for the
purposes of varying the plan on the CEO's initiative) that was not provided when the
plan was approved.
For example, Ruby is 25 years old and works as a paralegal part-time while
completing their law degree. Ruby is an NDIS participant with a plan in effect. Due to
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recent bushfires, Ruby's house was severely damaged and Ruby's housemates
have moved interstate. Ruby needs to stay in the area because of their work and
study. Ruby finds a new house and needs more support to clean their house and
prepare meals because they are no longer receiving this support from their
housemates. Ruby also needs their new shower modified. Ruby requests a plan
variation. The CEO is satisfied that Ruby requires crisis or emergency funding due to
a significant change in circumstances and decides to vary the plan. CEO varies the
plan to include more funded supports to assist Ruby with cleaning their house and
help with meal preparation and requests an assessment and quote for the shower
modifications. After the assessment and quote have been provided, the CEO
determines the shower modifications to be reasonable and necessary and varies the
plan again to include the shower modifications.
Subparagraph 47A(1A)(d)(iii) provides for variations to the statement of participant
supports if the variations is made for the purposes of dealing with a change to the
reassessment date of the participant's plan.
For example, Tonina is an NDIS participant who is unable to take part in a
reassessment process because she is in hospital. The CEO varies the reassessment
date in Tonina's plan to occur in two months. To ensure that Tonina has enough
funding to continue to receive supports under their NDIS plan for that period, the
CEO adds a pro rata amount to Tonina's statement of participant supports.
Subparagraph 47A(1A)(d)(iv) provides for variations that are minor variations that
result in an increase to the to the funding of supports under a participant's plan.
For example, Justen is an NDIS participant who works as a casual employee at the
local community health centre two days a week. Justen would like to transition to
part-time employment, for three days a week, with longer hours, but is worried he
does not have enough funding in his NDIS plan for the change. Justen requested a
plan variation for increased supports. The CEO decided to vary Justen's plan to
include the increased supports.
Amendments 3 to 7 in combination, amend the Bill to remove the ability of the CEO
to decide to reassess a participant's plan as the response where the participant
requests a variation.
Amendment 3 omits references to reassessing the plan under subsection 48(1) from
paragraph 47A(4)(b). This means that where a participant has requested a variation
to their plan, the CEO cannot make a decision to both refuse to vary the participant's
plan under subsection 47A(1) and to refuse to reassess the participant's plan under
subsection 48(1).
Amendment 4 omits proposed paragraph 47A(4)(c). This means that where a
participant has requested a variation to their plan, the CEO cannot make a decision to
reassess the plan under subsection 48(1) instead of refusing to vary the participant's
plan under subsection 47A(1).
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Amendment 5 omits the words 'and not to reassess the plan under subsection 48(1)'
from subsection 47A(5). Subsection 47A(5) now provides that the CEO is deemed to
have decided not to vary a participant's plan, rather than not vary and not reassess
the plan, if the CEO fails to take certain actions within 21 days of a participant
requesting a variation. The CEO must make a decision to vary or not to vary the
participant's plan, or to inform the participant that the CEO requires further time to
decide whether to vary the plan or not, within the 21 days.
Amendment 6 omits subsection 47A(7), which would have required the CEO to notify
a participant if the CEO decided not to vary a participant's plan but instead decided to
reassess the participant's plan under subsection 48(1). This amendment is
consequential to Amendment 4.
Amendment 7 removes the words 'and not to reassess the plan' from Item 6A of
section 99. In line with amendments 3-6, this amendment removes the reference to a
decision by the CEO to not vary a plan but to reassess it instead. Only decisions to
refuse to vary a plan will be reviewable decisions under section 99.
Amendment 8 provides that NDIS Rules made under paragraph 47A(1)(b),
subsection 47A(6) or subsection 48(5) are Category A NDIS Rules and require the
agreement of the Commonwealth and each State and Territory.
Paragraph 47A(1)(b) is inserted by amendment 2 and the proposed NDIS Rules will
prescribe the conditions that must be satisfied before the CEO can vary a participant's
plan. NDIS Rules made under subsection 47A(6) may set out matters to which the
CEO must have regard in deciding whether to vary a participant's plan on the CEO's
own initiative or in making a decision under subsection 47A(4) whether to vary or
reassess a participant's plan or to inform the person that the CEO requires further time
to decide whether or not the plan needs to be varied.
NDIS Rules under subsection 48(5) prescribe the matters to which the CEO must have
regard when reassessing a participant's plan.
Amendment 9 omits Item 62 of Schedule 1, which formerly provided that NDIS Rules
prescribing the circumstances in which the CEO may vary a statement of participant
supports under a participant's plan (subparagraph 47A(1)(a)(i)); the kinds of variations
that may be made by the CEO in varying a participant's plan (subparagraph
47A(1)(a)(iii)) and the matters to which the CEO must have regard when varying a
participant's plan (subsection 47A(6)) would have been Category D Rules.
Amendment 2 omits the former subparagraphs 47A(1)(a)(i) and 47A(1)(a)(iii) and so
these are unnecessary. Amendment 8 provides that NDIS Rules made under
subsection 47A(6) will be Category A NDIS Rules.
Amendment 10 omits the wording 'to which a psychological disability is attributable;
and' from subsection 24(3). New subsection 24(3) now clarifies that for the purposes
of subsection 24(1), impairments that are episodic or fluctuating may be taken to be
permanent (for the purposes of paragraph 24(1)(b)) and that the person is likely to
require support under the NDIS for their lifetime (for the purposes of paragraph
24(1)(e)). This now makes clear on the face of the legislation that in line with existing
policy, this applies to non-psychosocial and psychosocial disabilities.
6
Amendment 11 corrects cross references and removes the specific reference to
psychosocial impairments from subsection 25(1A) relating to the early intervention
requirements. Instead, it substitutes a reference to an 'impairment or impairments'.
Amendment 12 omits a technical amendment to section 27, which is no longer
required due to amendment 13 below.
Amendment 13 omits the proposed new subsections 27(2) and 27(3). These
subsections proposed to expand the scope for making NDIS Rules under section 27
to enable greater clarity.
Amendment 14 omits a reference to NDIS Rules made under subsection 14(3) in
relation to the provision of ancillary funding being Category D NDIS Rules. Instead,
NDIS Rules made under subsection 14(3) will be Category A NDIS Rules, requiring
the agreement of the Commonwealth and each State and Territory.
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