To whom it may concern,
Thank you for the opportunity to provide feedback on the draft list of NDIS Supports (the List).
The feedback on the draft list provided by National Legal Aid (NLA) has been developed in consultation with Legal Aid Commissions across the country, who have provided invaluable insights due to their work through the national NDIS Appeals Program. The Program has been funded by the Department of Social Services since 2018 and includes advice clinics and legal representation at the Administrative Appeals Tribunal (AAT). In 2022-2023 Legal Aid Commissions provided over 2,300 legal advices and over 300 legal representations as part of the Program. The following advice has been informed by this extensive experience in supporting people to appeal reviewable decisions of the National Disability Insurance Agency (NDIA) under the current NDIS arrangements.
NLA is concerned that creating a check list of NDIS Supports further frames the Scheme as disability rather than person-centred, which reinforces the overall concern regarding the draft NDIS legislation outlined in NLA’s submission to National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024. While noting that the NDIS Support List will be an interim document until a co-produced document can be developed, NLA notes that the use of an interim list sets a precedent and could influence the formation and application of the Rules.
NLA is also concerned that the List is difficult to interpret and navigate. This is particularly problematic considering many participants will need to determine what supports are NDIS Supports without any legal or other assistance, as well as the potential consequences for a participant, including debts being raised against them. In particular, the interaction between a list of NDIS supports with carve outs and a list of things that are not NDIS supports with carve outs does not provide sufficient certainty about what NDIS participants can and cannot spend their funds on. For example, it is unclear whether any support that is included in a carve out for a category in Supports that are not NDIS supports would be considered an NDIS support regardless of whether it is included in a category in Supports that are NDIS supports or not. NLA strongly recommends that a new structure for the list is considered to improve the accessibility and useability of the List.
In addition to concerns regarding the overarching structure of the List, NLA also recommends amending the List to include or improve the clarity of key concepts and definitions included in the list to:
- identify how a participant can seek clarification if a particular support meets the definition for an NDIS support, as well as a review of decisions determining whether a support meets the relevant definitions through an independent reviewer such as the AAT, particularly given the descriptors used in the List are broad, ambiguous, and consequential;
- further clarify key definitions to provide greater certainty, such as:
- more detailed definition of unlawful goods and services which are currently very broad (for example, provide clear definitions for weapon and seclusion room);
- a clearer understanding of the difference between mainstream services and NDIS supports to ensure that participants do not fall through the cracks because a needed service is deemed a mainstream service but is not accessible to them; and
- clarify the use “specialist products” (and use consistently, rather than only ‘products), possibly through a list of eligible products that is clearly identified as “examples” or “guidance” rather than an exclusive or exclusionary list used to limit options;
- include a section with frequently asked questions or common scenarios to better understand the practical application of the List;
- clarify how the List intersects with the NDIS National Disability Insurance Scheme (Supports for Participants) Rules 2013, NDIS guidelines and existing factsheets, and ensure that the List refers to these documents, including links, where relevant and use similar language and concepts; and
- clarify the intended use of the List, particularly regarding which stage of the application and/or approval process it is intended to be used, noting that it would provide limited assistance if provided alongside an individual’s approved plan.
In addition, NLA would make a number of recommendations in relation to the drafting and implementation of the List to:
- ensure that participants are not precluded from obtaining personalised supports related to their disability and support needs, particularly when the supports are evidenced based and recommended by the participants’ qualified providers, if it is not specified as an NDIS support in the List;
- increase participant choice and control by amending the list of supports that are not NDIS supports, given that it currently includes a broad range of therapy and supports available in the community and viewed as having a subjective benefit by the participant;
- clarify how exceptional circumstances may be applied to the list, for example, where a support sought is not addressed in the list but would be captured by the current legislation and is beneficial to the participant;
- ensure sufficient flexibility to address the challenges faced by participants in rural and remote communities, including a greater reliance on technology to deliver therapies and services, as well as a greater need for additional support to access the community or workforce; and
- review the implementation of the List to ensure that it is adapted to continue to meet the evolving needs of participants and accommodate new technologies and therapies etc.
NLA also recommends specific amendments to the inclusion and exclusion of supports as outlined in Attachment A.
Thank you for the opportunity to comment on the draft list, and we look forward to continuing to provide feedback on the development of the new NDIS framework and its supporting documents. Should you require further information, please contact Katherine McKernan, Executive Director, National Legal Aid on 0425 288 446 or katherine.mckernan@legalaid.nsw.gov.au.
Yours sincerely,
Louise Glanville
Chair, National Legal Aid