Can Gillard Get The NDIS Details Right?


With the political theatre of last week’s introduction of the draft NDIS legislation over, it’s time to have a closer look at what’s on the table and what happens next.

While the media obsessed over 20-year-old documents and ex-boyfriends, the details of the NDIS legislation were released on last Monday morning, amid much fanfare about this heralding a new deal for people with disability. Introducing the bill to Parliament on Thursday, the Prime Minister spoke directly about how much the NDIS would change everything for people with disabilities. The Coalition didn’t even bother to turn up.

"The risk of disability is universal, so our response must be universal," Gillard said. "The only solution is therefore a nation-wide, demand-driven system of care tailored to the needs of each individual and established on a durable, long-term basis. That can only be accomplished through the united effort of the community through the positive action of government, supported by the Australian people through our public revenues."

The legislation outlines the framework for how the NDIS will work. Eligible participants will be able to develop a plan that outlines the kinds of supports they need to participate fully in the world. Their plan will then be funded by the NDIS and people can choose to either manage the funds themselves, subject to reporting requirements, or ask the NDIS Agency to manage it for them.

The legislation has been welcome by every part of the disability sector. PWD Australia said that "A strong, sustainable NDIS is the only way all Australians with disability and their families will breathe easier and feel more confident about their futures," while the National Council on Intellectual Disability believes that "for too long people with intellectual disability and their families have not had the support from the Australian community that is their right. The NDIS presents the Australian community with the opportunity to, in a practical way, redress the many decades of neglect."

Carers Australia declared that it "is very positive about the proposed NDIS and believes it has the potential to dramatically improve the lives of many people with disability," and National Disability Services called the introduction of the NDIS "an important milestone."

The Australian Advisory Board on Autism Spectrum Disorders released a position paper (pdf) early this year that called on the NDIS to take issues related to autism into account when developing the legislation. Their Chairperson, Penny Beeston, explained to New Matilda that she "was still waiting to see what the assessment tools would be and how sensitive they would be. One role of the trials will be to test the assessment tools and we would hope there is consultation right through these trials."

Dissenting voices have been hard to find, even from those who privately have concerns. Over at the Federal Government’s NDIS forum, some fears were being expressed about the lack of clear definitions in the legislation and the impact of for-profit providers moving into the sector.

As I’ve written here before, I’ve had doubts about the ability of the NDIS to deliver on the huge expectations that have been built up around it by an ALP government desperate for a win, and a community desperate for respect for their basic human rights. Now, after looking at the legislation, I still have doubts and they have legislative section numbers attached.

The details of every stage of this process are missing. Some of the initial flaws in the legislation are that people with a disability, who may be entitled to some kind of compensation, will be forced to seek that compensation before being eligible for any kind of assistance from the NDIS. This fundamentally undermines the idea that the NDIS is for everyone and that this legislation is meant to do away with the lottery system of disability funding, depending on the nature of the disability.

There is no specific provision for any person with a disability to be on the Board of the NDIS, but instead on the Advisory Committee. The NDIS can charge fees, but it’s not clear what they will charged for. Reviews of decisions will need to go to the Administrative Appeals Tribunal, potentially incurring legal fees. The details of how people with disabilities will need to report back to the NDIS about their funding package are also scant. The NDIS is also subject to directions from the Minister, but exactly what that could involve is unclear.

The role of workers in the disability care sector is also murky. For people with disabilities who receive an individual funding package, they will be able to employ staff directly. Does this signal that disability workers will be put on individual contracts or will people with disabilities be liable for all employment related matters, such as tax, superannuation and worker safety?

The key details, that will be in the proposed NDIS rules/regulations, are missing and it’s not known when they will be released. The legislation will now go to a Senate Committee in the new year, and is expected back in Parliament in May 2013.

The initial Productivity Commission report, that prompted the development of this legislation, discussed the need to support all people with a disability, while acknowledging the real and urgent needs of those with the most severe disabilities. This legislation, in its current form, will focus on those with permanent, lifetime disabilities, rather than provide any overarching change to attitudes and facilities for all people with a disability. The Federal Government has developed a National Disability Strategy,  but the NDIS is the only part of that strategy that even has legislation on the table. There is no timeline for the implementation of the rest of the National Disability Strategy, again putting the rhetoric on a new age in disability services to the test.

By their absence last week the Federal Opposition demonstrated that they care more about petty politics than disability reform. Meanwhile, state governments, both ALP and Coalition, are moving ahead with individualised funding models (pdf) at a cracking pace. Victoria and WA have a self-directed funding model in place, as has South Australia. NSW is nearly finished consultations on "Live Life My Way" program, and Queensland is piloting a scheme called "Your Life, Your Choice".

All of these government responses to the real and urgent need for better disability services are founded in the belief that public funds are better used in a consumer/market scheme, rather than in universal service provision. Why is this one of the few public service sectors that is being pushed so hard in this direction? Education and health are provided publicly for everyone — if I want more choice over schools or doctors, then I pay privately, but as a citizen, I have the same access to the public system as everyone else does. But the services I need as a person with a disability are to be sourced from a great big marketplace that will somehow be magically fairer than a universal public provision.

The progress of the state-based schemes are a helpful indicator of some of the pitfalls of poor design and implementation. In a recent evaluation of the Victorian scheme, the government was told (pdf) it:

"Needs better risk management to support vulnerable people, and greater assurance that funds are spent appropriately. It also needs to support and develop the new marketplace in the disability services sector."

In developing their models, NSW and Queensland are learning from prior mistakes in other regions. It remains to be seen whether the federal government will do the same.

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