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Consultation period

9 September 2021 - 10:00 am To 7 October 2021 - 11:59 pm

Implementing the recommendations of the 2019 NDIS Act review

The 2019 review of the National Disability Insurance Scheme Act 2013 (NDIS Act), undertaken by Mr David Tune AO PSM, made 29 recommendations to improve the participant experience, including new standards and processes to support the delivery of the Participant Service Guarantee.

You can read more about the 2019 review, the review’s findings and the recommendations on the Department of Social Services website.

The Commonwealth Government supports or supports-in-principle all 29 recommendations.

This guide has been prepared by the Department of Social Services to help you understand what will happen next.

How the recommendations will be implemented

To implement each of the recommendations, more work needs to be undertaken. This could include:

  • the passage of necessary amendments to the NDIS Act and its related Rules through Parliament
  • operational improvements to the way the National Disability Insurance Agency (NDIA) functions
  • work by the Commonwealth Department of Social Services
  • agreement of policy improvements through the Disability Reform Ministers Meeting
  • work to identify whether the need Mr Tune highlighted is still current, and if so, what action is required and who would be responsible for making it happen.

Table 1 below sets out broadly how the particular recommendations of the review will be implemented.

Table 1: How recommendations of the 2019 review of the NDIS Act will be implemented

How the recommendations will be implemented Recommendations Included in this guide
Through amendments to the NDIS Act and Rules Recommendations 8, 9, 11, 13 (in part), 16(b), 17, 19, 20, 21, 22, 23, 25(a)(b)(c)(d), 26 and 27 Yes
Through changes to the operations of the NDIA Recommendations 2, 4(a), 5, 10, 14, 18 and 24 No
Through work of the Commonwealth Department of Social Services Recommendations 6, 25(e) and 29 No
Through the Disability Reform Ministers Meeting Recommendations 1 and 4(c) No
Through further work to ascertain whether and how best to implement recommendations Recommendations 3, 4(b)(d)(e), 7, 12, 13 (in part), 15, 16(a) and 28 No

Fourteen of the 29 recommendations will be implemented (either wholly or partly) through changes to the NDIS Act and Rules. How these recommendations affect the legislation is described in the next section of this guide.

Twelve of the recommendations involve work of the Department of Social Services, the NDIA or the Disability Reform Ministers. To read more about how these recommendations will be implemented, please read the Australian Government response to the NDIS Act review.

Seven of the recommendations require further work to ascertain whether and how best to implement these recommendations. Some of these recommendations will be considered in future legislative amendments, following the co-design of a new model to support access and planning.

How the recommendations affect the NDIS Act and Rules

Table 2 below sets out what changes to the NDIS Act and Rules are required for each of the 14 recommendations that will be implemented through amendments to the legislation.

The Government supports all 14 of these recommendations.

Table 2: Required changes to the NDIS Act and Rules to implement each recommendation

Recommendation Affected legislation
Recommendation 8

The NDIS Act is amended to:

  1. provide clearer guidance for the NDIA in considering whether a psychosocial impairment is permanent, recognising that some conditions may be episodic or fluctuating
  2. remove references to ‘psychiatric conditions’ when determining eligibility and replace with ‘psychosocial disability’.
 8a – Proposed amendments are included in the Schedule 2 (Flexibility Measures) of the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021. See:

  • New 24(3)
  • New 25(1A)
  • New 27(2)

Proposed amendments are also included in the National Disability Insurance Scheme Amendment (Becoming a Participant) Rules 2021

8b – Proposed changes to the NDIS Act are included in Schedule 2 (Flexibility Measures) of the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021. See:

  • Amended 24(1)(a)
  • Amended 25(1)(a)(ii)
Recommendation 9

The NDIS Act is amended to give a prospective participant up to 90 days to provide information requested by the NDIA to support an access decision, before it is deemed they have withdrawn their access request.

 Proposed changes to the NDIS Act are included in Schedule 1 (Participant Service Guarantee) of the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021. See:

  • Amended 24(1)(a)
  • Amended 25(1)(a)(ii)
Recommendation 11

The NDIS Act is amended to reflect that a plan must be facilitated and approved in accordance with the timeframes outlined in the Participant Service Guarantee.

 Proposed changes to the NDIS Act are included in Schedule 1 (Participant Service Guarantee) of the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2020. See:

  • Amended 33(4)
Recommendation 13

The NDIS Act is amended to provide more flexibility for the NDIA to fund early intervention support for children under the age of seven years outside a NDIS plan, in order to develop family capacity and ability to exercise informed choice and control.

 Proposed changes to the NDIS Act are included in Schedule 2 (Flexibility Measures) of the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021. See:

  • New 14(2)(b)
Recommendation 16b

The NDIS Rules are amended to outline circumstances in which it is not appropriate for the providers of support coordination to be the provider of any other funded supports in a participant’s plan, to protect participants from provider’s conflicts of interest.

 16b – Proposed amendments are included in the National Disability Insurance Scheme Amendment (Plan Management) Rules 2021
Recommendation 17

The NDIS Rules are amended to give the NDIA more defined powers to undertake market intervention on behalf of participants.

 Proposed amendments are included in the National Disability Insurance Scheme (Plan Management) Rules 2021
Recommendation 19

The NDIS Act is amended so a participant who requests to ‘plan manage’ their NDIS funding be subject to the same considerations that apply when a participant seeks to ‘self-manage’.

 Proposed changes to the NDIS Act are included in Schedule 2 (Flexibility Measures) of the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021 . See:

  • Substituted 43(2)-(5)
  • New 43(6)-(7)
  • Substituted 44(1)-(2A)
  • Amended 44(3)
  • New 44(3)(aa)

Proposed amendments are included in the National Disability Insurance Scheme (Plan Management) Rules 2021
Recommendation 20

The NDIS Act is amended to introduce a new Category D rule-making power that sets out the matters the NDIA must consider when deciding whether to undertake an unscheduled plan review.

 Proposed changes to the NDIS Act are included in Schedule 1 (Participant Service Guarantee) of the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021. See:

  • New 47A(6)

The new National Disability Insurance Scheme (Plan Administration) Rules 2021 provides the detail of the matters the NDIA must consider when deciding whether to undertake a participant–or-CEO requested plan review
Recommendation 21

The NDIS Act is amended to introduce a new Category D rule-making power giving the NDIA the ability to amend a plan in appropriate circumstances.

 Proposed changes to the NDIS Act are included in Schedule 1 (Participant Service Guarantee) of the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021. See:

  • New 47A(6)

The new National Disability Insurance Scheme (Plan Administration) Rules 2021 provides the detail of when it would be appropriate for the NDIA to amend a plan
Recommendation 22

The NDIS Act is amended to remove the duplicate use of the word ‘review’.

 Proposed changes to the NDIS Act are included throughout Schedule 1 (Participant Service Guarantee) of the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021
Recommendation 23

The NDIS Act is amended to clarify the Administrative Appeals Tribunal’s (AAT) jurisdiction, including the power for a plan to be amended while a matter is before the AAT.

 Proposed changes to the NDIS Act are included in Schedule 1 (Participant Service Guarantee) of the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021. See:

  • New 103(2)
Recommendation 25

That the NDIS Act is amended to legislate a Participant Service Guarantee as a Category C rule, to be updated from time to time, with:

  1. new timeframes for decision-making, engagement principles and performance metrics, as set out in Chapter 10 of this report
  2. relevant existing timeframes for decision-making moved from the NDIS Act to the new rule
  3. prospective participants and participants being empowered to request an explanation of an access, planning or plan review decision made by the NDIA
  4. participants being empowered to receive a full draft plan before it is approved by the NDIA.
 Proposed changes to the NDIS Act are included throughout Schedule 1 (Participant Service Guarantee) of the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021

The new National Disability Insurance Scheme (Participant Service Guarantee) Rules 2021 give effect to the changes in the NDIS Act
Recommendation 26

The NDIS Act is amended to clarify the Commonwealth Ombudsman’s powers to monitor the NDIA’s performance in delivering against the Participant Service Guarantee.

 Proposed changes to the NDIS Act are included in Schedule 1 (Participant Service Guarantee) of the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021. See:

  • New 204A

The new National Disability Insurance Scheme (Participant Service Guarantee) Rules 2021 provides detail of what the report will contain
Recommendation 27

The NDIS Act and Rules are amended to:

  1. remove trial and transition provisions
  2. reflect agreed recommendations arising from the 2015 review of the NDIS Act
  3. reflect current best practice drafting standards, and other amendments as proposed in this report.
 27a – Proposed changes to the NDIS Act are included in Schedule 3 (Full Scheme) of the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021

27b – Proposed changes to the NDIS Act are included in Schedule 2 (Flexibility Measures) of the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021

27c – Proposed changes to the NDIS Act and Rules to reflect best practice drafting standards are being made through each Schedule to the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021 and in the NDIS Rules as revised or introduced

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