This post has been contributed by Dr Allan Ardill, member of the LFC and Mr Brett Jenkins, GLS Alumnus and is based on their article ‘Navigating the Australian National Disability Insurance Scheme: A Scheme of Big Ideas and Big Challenges’ and ongoing research.
The National Disability Insurance Scheme (NDIS) has been one of Australia’s biggest public policy reforms. It was the result of a campaign by disability advocates, carers’ organisations, and service providers collaborating with senior members of the government.
The NDIS enables Australia to achieve the minimum standards required by the United Nations Convention on the Rights of Persons with Disabilities (CRPD) that would otherwise not have been possible. The NDIS replaced an inequitable, underfunded, unsustainable, inconsistent patchwork State and Territory “system” described by the Productivity Commission as “overwhelmed by the social and economic disadvantage manifest among people with a disability and their families and the inability of the current system to cope”.
Prior to the NDIS there were multiple funders and service providers focused on treating the medical and health “problems” of people with disabilities with little or no co-ordination between services, or concern for individuals as people.
The NDIS abandoned the paternalistic narrative of disability as a personal tragedy according to ableist norms, and moved away from “experts treating problems” via an allied health medical model to a system giving voice and infrastructure to individuals to decide what they need to equitably participate in society.
This necessarily involved moving away from framing disability as an economic cost to framing it as an economic and social investment.
The NDIS was designed as an actuarial system to make short-term investments that reduce long-term costs by increasing an individual’s independence and ability to participate in society.
An actuarial approach to funding aimed at financial sustainability included the establishment of a dedicated reserve fund and the creation of a quasi-market in the provision of supports.
According to the Productivity Commission, this would minimise demands on expenditure from general revenue, provide “a buffer against” any “unpredictability” and “avoid rationing” if there was ever any shortfall in funding.
The rationale behind this model was that over time, as more information became available, the NDIS would be better placed to understand the risk profile.
Despite the virtue of the NDIS it has been criticised. Amongst other reasons, Carey and Dickinson note that it does not fund advocacy for people with “mental and physical disabilities” who must “navigate a newly created service market to gain the assistance they need”. As such the NDIS lacks the measures expected under Art 12 of the CRPD to facilitate access to the scheme.
Under-spending and other issues also attracted criticisms and a 2019 government review of the NDIS observed problems regarding access and the provision of supports.
Some problems have arguably arisen because concerns about cost. While cost concerns are legitimate, the relative importance of costs should not outweigh other factors decision-makers are bound to consider.
Meanwhile, in response to these criticisms, the Minister responsible initiated consultation. However the consultation occurred over the Christmas and New Year period. This impacted the capacity for a comprehensive response from the disability community, individual organisations, and people with disability.
In short, Minister Robert’s changes would require people seeking support for their disability to be subjected to assessments by one of eight providers selected by government tender to gain access to the Scheme and on an ongoing basis while participating in the Scheme.
This is a sharp departure from the current approach of using a person’s treating doctor and therapists’ recommendations as the evidential basis for access and funding decisions.
The proposed approach has been ‘justified’ by the NDIA as resolving ‘inconsistent and inequitable access and planning decisions’.
The public response to the proposed approach changes has been critical, verging on damning, with some participants in a trial of the approach describing their experience as ‘dehumanising’.
Disability advocates have criticised the proposed change because it does not comply with the requirement for codesign required by CRPD Article 4(3).
Other concerns relate to departure from the recommendations made by the government’s 2019 Review including deficits in consultation, reframing the recommendation for assessments from ‘discretionary’ to ‘mandatory’, and additional impacts on appeal and review rights.
Arguably, the most concerning criticism of the approach has come from Bruce Bonyhady, former Chair of the board of the NDIA, who (along with Helena Sykes), in 2008 proposed the reform which ultimately led to the NDIS. Bonyhady likened the proposed approach to the disastrous “robo debt” crisis, because it would change individualised planning to “robo planning”.
This criticism throws into question the Minister’s contention that the proposed approach is consistent with the Productivity Commission’s vision for the Scheme.
Bonyhady also identified a risk that the current ‘goal and ability focus’ might be disturbed, encouraging a ‘deficit-based’ approach, requiring participants (and prospective participants) to emphasise impairment in order to ‘increase the likelihood of a sufficient resource allocation.’
The proposed approach fundamentally changes the character of the evidence relied on for reasonable and necessary decision making in the NDIS (see eg Ray and National Disability Insurance Agency  AATA 3452) and will impair the ‘information learning’ necessary to an actuarial approach.
Put another way, the recommendations of an extremely limited number of providers obtained in an exceedingly short period of time in settings unfamiliar to the participant, will inform critical funding decisions – and people subject to these assessments will have restricted rights to challenge the results.
This will not only impact the accuracy of assessment of support needs, it may also lead to an upswing in delays arising from the exclusion of the broader field of practitioners, and the construction of additional barriers for challenges to NDIA decision making.
This could lead to a swell in applications for external review by the Administrative Appeals Tribunal (AAT) in relation to decisions which rely on the un-challengeable results of an assessment.
This is made more important in the context of the forthcoming draft NDIS bill which will affect a large number of other aspects of the legislative framework.
To date the chief problems with the NDIS have been due to “a mixture of politics, implementation decisions and lack of foresight capacity”.
For example, the intervention of the Minister after the government considered a decision of the AAT was misaligned with “community expectations” of the scheme.
Carey commends the foundations for the NDIS put forward by the Productivity Commission, which “offered a considered blueprint for reform” but have been “deviated from quite significantly during implementation”.
However, the implementation and development of the NDIS are arguably going to pose greater challenges than its conception. If the NDIS is to transcend the “underfunded, unfair, fragmented, and inefficient” system it replaced to provide people with choice and certainty of access to appropriate supports, then it cannot be dominated by concern with the financial sustainability of the system or political interference.
Instead, decisions about access and supports need to be made independently of government based on human need if Australia is to meet the minimal obligations under the CRPD.
Otherwise we risk repeating history. Recall there were similar struggles over another major equitable policy reform. In the 1970s Medibank was fiercely contested by the then opposition which later abolished it after gaining office. It was however redesigned and implemented as Medicare by the next federal government in the 1980s. Could this be a repeat of public policy history?