Anonymous – 28/09/2021
The drafting of new section 45 states that payment is to be made ‘to the person determined by the CEO’. While the Government has clarified that this change is not intended to remove the ability for self-managed participants to continue their existing payment method, the drafting does not make this clear. We would recommend a clarification to the drafting of section 45.
Clarification please. Per above
The proposed changes are intended to give effect to some of the recommendations made in the Tune Review, especially those around improvements to participant experience and those which are less significant to the design of the NDIS. They do not, and should not, include more significant changes which require greater consultation and co-design.
However, there is a missed opportunity to fix a technical issue currently clogging up the AAT. The issue concerns the AAT’s jurisdiction to consider additional supports requested by the applicant during the AAT process, but which were not initially raised at the internal review stage.
Starting with the case of QDKH, different AAT members have made different decisions about whether the AAT has jurisdiction to consider this or not. In the five months since QDKH was decided, there have been ten further AAT decisions which have considered this jurisdictional point. QDKH is now awaiting hearing in the Federal Court.
This is a technical problem about what the AAT can and cannot decide about a participant’s plan on appeal. But this is not just a problem for lawyers – it has real negative impacts for participants.
In effect, if the AAT does not have jurisdiction to consider a participant’s full plan, the support requests that are not considered by the AAT will need to go back to the NDIA for a plan variation or reassessment. If the participant is still unhappy with it, they will need to go through internal review and the AAT all over again.
Fixing this issue would be consistent with the overall goals of the Tune Review in ‘removing red tape’. The easiest way to resolve this is by legislative fix, to ensure that the AAT can consider all matters concerning a participant’s plan on appeal.
The failure to do so ties up participants as well as AAT, NDIA, legal and advocacy resources in costly jurisdictional disputes that leave participants worse off.
There is also a missed opportunity to simplify the NDIS framework. While attempts have been made to simplify and modernise the drafting of some of the rules, the NDIS framework remains extremely complex, and this package of changes only adds to the complexity, with new rules and principles in disparate locations. For example, when making a decision about specialist disability accommodation (SDA) supports, the rules that need to be considered for that one decision include (at least):
the ‘reasonable and necessary supports’ rules under ss 33 and 34 of the Act;
the principles which underlie decision-making in the Act, including under ss 4, 5, 17A and 31;
the Participant Service Guarantee Rules;
the Support for Participants Rules;
the SDA Rules; and
the NDIA’s Operational Guidelines.
Many of these rules overlap and are not entirely consistent. This is unwieldy and makes it impossible for participants to navigate and follow the process.