Anonymous – 07/10/2021

We are writing in response to the proposed changes set out in the legislative amendments [Participant Services Guarantee, and the NDIS (Plan Management) Rules]. Overall, we are very happy to see that participants and providers have been listened to in that the proposed independent assessments do not appear in the amendments.

However, we wish to raise concern of two issues in response to the proposed changes:

Specifically, we wish to raise concern about:

  1. the short time frame of less than a month (9th of September to 7th October) allowed for submissions regarding the exposure draft, and
  2. concern regarding the proposed changes to plan management [NDIS (Plan Management) Rules 2021] some of which counters the Participant Service Charter Principles

 

The short time frame of less than a month for submission counters the commitment by the NDIA to value the lived experience of disability.  It  contradicts the new Participant Services Charter principle of being respectful, acknowledging lived experience, and recognising people with disability as the experts in their lives.

Many of us who have lived experience take time to process new information, and express our views. Less than a month to read and respond to the exposure drafts, during a time in which COVID-19 has placed extra demands on everyone, is unacceptable.

As a provider, we would have liked to have a consultative group, with the opportunity for participant input, but by the time we had a chance to read and understand the changes, there was no time. Staff were too busy with reports and plan reviews to give them reasonable time to contribute.

This submission in itself is rushed, and we fear that it does not adequately cover all aspects of the proposed changes that will impact participants.

The failure to provide an adequate window of time for consultation presents a missed opportunity to properly analyse and provide well considered feedback, including the rich and valuable contributions of those who these changes will impact.

 

Secondly, we wish to raise concern of change to plan management, under amendments to sections 43 and 44 of the Act, and the Plan Management Rules, meaning that  there will be a risk management process applied to plans of people who wish to have their funding plan managed (third party independent of NDIA).

 Of significant concern is

  • the application of factors that were previously considered to pose “unreasonable risk” to people wishing to self manage their funding, now being applied to people who wish to have their funding plan managed [Section 10, NDIS (Plan Management) Rules 2021]

Although this is in line with recommendation in the Tune Review, plan management was established as an option to provide more choice and control for people who are unable to, or do not wish to self manage, but need their right to autonomy and self determination respected.

Application of some of these unnecessary factors to plan management is against the Participant Services Guarantee principle of providing services that are “empowering”.

  • We raise concern of the subjective nature of the definition of “unreasonable risk” as reason to preclude a person from accessing plan management (independently of the NDIA), and highlight how this subjectivity may be used in a way that does not respect the rights of the participant:

Specifically:

  1. The nature of supports included in a participant’s plan

The term “nature of” is subjective, and does not give participants or providers a clear explanation of their rights in regard to the sorts of supports that are considered a risk by NDIA. These supports need to be specified, and made transparent.

Failing to provide a clear explanation of what this means, counters the Participant Services Guarantee Principle of transparency.

  1. b) the vulnerability of the participant to:

(i) physical, mental or financial harm; or

(ii) exploitation; or

(iii) undue influence;

Again, this is subjective, and there are no clearly defined explanations that allow participants, families and providers to understand the rights of participants, and how “vulnerability” is defined. This counters the participant service charter principle  of being “transparent”

(c) the ability of the participant to make decisions :

Again this is vague. Impaired decision making is a part of the lives of many of us who live with disability, and in most cases this should not preclude a person from third party funding management (independent of NDIA)

  1. D) the ability of participants to manage finances;

We strongly oppose this inclusion of this in prohibitive factors. Plan management does not require a participant to manage the funding, and including this would be against the Participant Services Charter principle of being Empowering

(e) whether the participant has misapplied the funding for supports under the participant’s plan or a previous plan for the participant;

There needs to be a clear distinction between deliberate misuse of funds (for personal benefit), and accidental misuse, which should in no way impact a person’s ability to have their funding plan managed.

We raise the question of why these prohibitive factors need to be applied to plan management at all, when  people are not managing their own funding.

 

The issue of the potential exploitation by unregistered providers should be addressed as an issue of providers, not a reason to limit the rights and freedoms of people to make choices about their lives.

The concerns we raise regarding this are:

  • Many people have difficulty with managing money for various reasons that should not preclude them from the choice and control of using unregistered providers,

 

  • People who have experienced multiple system services in their past, such as homelessness services, justice, mental health services, and Child Protection  have often experienced trauma from power being taken away from them. The NDIS is all about facilitating choice and control, and a part of this is allowing people to engage providers of their choosing. For example, for a person who wants their gardening done by a female, due to a previous experience of domestic violence should be allowed to choose a non-registered provider.

The consequences of this could be significant, including unnecessarily retraumatising people who have been victims of systemic injustices.

For example, someone who has been wrongfully imprisoned, or detained involuntarily under a Mental Health Act, and who have lived in institutions may fear accessing support of their funding was agency managed

People who live in regional and remote areas often do not have a lot of choice of providers, so limiting people to be agency managed because of risk factors outlined in section 10 may potentially leave them without support, or with no choice of provider.

It is imperative that this aspect of the proposed changes (factors posing “unreasonable risk”), be reviewed, or removed entirely.

We would be happy to consult further on this issue.