Recommendation 5–5 The National Disability Insurance Scheme Act 2013 (Cth) should be amended to provide that, before exercising the power to appoint a representative, the CEO of the National Disability Insurance Agency may make an application to a state or territory guardianship or administration body for the appointment of a person with comparable powers and responsibilities. The CEO may then exercise the power to appoint that person as a representative under the NDIS Act.
5.86 Under the NDIS Act, the CEO of the NDIA must, in considering whether to appoint a nominee, have regard to whether there is a person under Commonwealth, state or territory law who ‘has guardianship of the participant’, or ‘is a person appointed by a court, tribunal, board or panel (however described) who has power to make decisions for the participant and whose responsibilities in relation to the participant are relevant to the duties of a nominee’. The Rules provide that the CEO must also have regard to
the presumption that, if the participant has a court-appointed decision-maker or a participant-appointed decision-maker, and the powers and responsibilities of that person are comparable with those of a nominee, that person should be appointed as nominee.
5.87 Further, the CEO is to ‘consult, in writing, with any court appointed decision-maker or participant-appointed decision maker in relation to any appointment’. Nominees themselves also have a duty to consult with ‘any court-appointed decision-maker or any participant-appointed decision-maker’.
5.88 As discussed in Chapter 4, one of the key difficulties in applying the Commonwealth decision-making model to the NDIS is determining how NDIS supporters and representatives interact with state and territory appointed decision-makers.
5.89 The NDIA stated that, in relation to interaction issues generally, it ‘recognises the importance of ensuring that to the greatest extent possible the NDIS operates in a way that complements other arrangements for supporting people with disability including in relation to the management of NDIS funds’.
The Agency is working collaboratively with others including state and territory guardianship and administration tribunals to address the issues raised by these and other questions. For example, the Agency has been entering into arrangements for the exchange of information, consistent with the privacy provisions of the NDIS Act, with state and territory guardianship and administration tribunals.
5.90 The interaction issues are of particular relevance given the ongoing roll-out of the NDIS. Stakeholders expressed concerns about an increase in applications for the appointment of state or territory decision-makers since the introduction of the NDIS. For example, the Australian Guardianship and Administration Council (AGAC) submitted that
the introduction of the NDIS creates a number of decision making ‘events’ and a greater degree of scrutiny of informal substitute decision-makers or supporters and leads to an increase in the number of applications under guardianship legislation. In these and other hearings there have been discussions about the increased number and complexity of decisions that will need to be made as a result of the introduction of the NDIS. AGAC anticipates a commensurate increased call on the advocacy functions of the Public Advocates and Public Guardians and on the financial management role of the Public Trustees as well as on the Tribunals.
5.91 To address concerns about the duplication of representatives, and the development of a parallel Commonwealth system of appointments, the NDIS Act should be amended to provide that, before exercising the power to appoint a representative, the CEO of the NDIA may make an application to a state or territory guardianship or administration body for the appointment of a person with comparable powers and responsibilities.
5.92 If the NDIA is to have regular recourse to state and territory guardianship and administration systems to find people suitable for appointment as representatives, this will have resource and funding implications for state and territory governments.
State and territory appointments
5.93 The NSW Government expressed concern about the ‘practical reality’ that, where a participant has no informal support network, the NDIA is managing the plan on the participant’s behalf and that ‘the decisions being made by the NDIA are in the nature of substitute decisions with no independent monitoring or scrutiny’.
5.94 The Guardianship Division of the Civil and Administrative Tribunal of NSW (NCAT) has received ‘over 85 applications for the appointment of a guardian for a person who is, or will become a participant in the NDIS’ in the Hunter Region launch site. NCAT noted that applications were made by family members or care providers who were concerned about the operation of the NDIS.
5.95 In some cases, where a participant is seen to have adequate support from informal support networks, or strong advocates, NCAT has rejected the application for guardianship. For example, in KTT, NCAT commented
The Tribunal was cautious about pre-empting the NDIA processes by making a guardianship order so that Mrs LBU was all the more likely to be appointed nominee by the NDIA.
5.96 In contrast, NCAT appointed a Public Guardian in the case of KCG, where the person did not have a friend or family member who could support her. NCAT noted:
The irony in reaching this conclusion is that a state based appointment is required for a person in Miss KCG’s circumstances to ensure that her interests in relation to a Commonwealth scheme are protected, as it seems there is no Commonwealth equivalent of a Public Guardian, a Public Advocate or other independent body who could be appointed as a nominee on her behalf.
5.97 The Office of the Public Advocate (Qld) submitted that, while there is currently a ‘presumption’ that an existing guardian would also be appointed as a nominee for a participant, this is not sufficient. Similarly, the Office of the Public Advocate (Vic) stated that, while it was expected that state and territory-appointed guardians and administrators would be appointed as nominees under the NDIS, ‘a review is required to ascertain the extent to which this is happening in practice in the launch sites’.
5.98 The ALRC understands that very few nominees have been appointed by the CEO of the NDIA, and that this may have contributed to the number of applications for guardianship being made to relevant state tribunals.
5.99 Stakeholders provided a range of opinions on how interaction issues might be dealt with. Many suggested that there should be a centralised process because, in most cases, ‘it is highly desirable that the same person should fulfil both roles’—that is, acting as plan nominee and performing guardianship roles more generally.
5.100 The OPA (Qld) submitted that it is logical to have a system of central registration and ‘the state based decision-making regimes are an obvious vehicle for this’. Tapping into the existing state based system would ensure that it ‘also connects people with an existing system of safeguards in the form of opportunities for tribunal review and oversight of Public Guardians and Trustees’. While this will ‘not provide all the safeguards needed, it helps to have people connected with an existing and substantial system’. Children with Disability Australia submitted that if a representative is to be appointed ‘other than at the participant’s initiative it should be dealt with by the relevant systems for obtaining administration or guardianship orders’.
5.101 While stakeholders agreed that it would be desirable to have one decision-maker, there were differing views on how this should be achieved. For example, the OPA (SA and Vic) suggested that one option would be for ‘the Commonwealth to cross-vest state and territory Tribunals with the power to appoint federal representatives, but this seems unnecessarily complex’.
5.102 The ALRC considers that the starting point should be that, where a representative is required, the NDIS Act should encourage the appointment of existing state or territory appointees as NDIS representatives. This may require amendment to the NDIS Act to make it more explicit that the CEO should appoint existing state appointees where possible, and the ALRC recommends elevating such provisions from the Rules and into the Act itself.
5.103 In addition, state and territory guardianship and administration legislation should be amended, if necessary, to facilitate the appointment of guardians and administrators as NDIS representatives. The OPA (SA and Vic) argued that NDIS nominee arrangements should ‘better align with state and territory appointments’:
OPA Vic, for instance, cannot at the moment play the role of NDIS nominee (as a result of the limitations of our state legislative authority, which requires amendment if we are to be able to play the role of nominee). And while there is no reason why OPA as guardian of last resort could not in theory act as a plan nominee and make decisions about goals, services and supports, clearly OPA should not take on financial management responsibilities. It appears that the NDIA can particularise the role of nominee, however we note that an equivalent administrator nominee/representative function could be devised for situations where a public trustee would be best placed to perform this role.
5.104 These comments highlight that this alignment may require state and territory legislative change. For example, at present, while a plan nominee may manage the funding for supports under the NDIS participant’s plan, this is not a role a guardian is able to undertake under some state and territory legislation, including the Guardianship and Administration Act 1986 (Vic).
5.105 In Chapter 10, the ALRC recommends that state and territory governments review laws that deal with decision-making by persons who need decision-making support by having regard to interaction with supporter and representative schemes under Commonwealth legislation.
Conflicts of duties
5.106 Another important issue concerns possible conflicts of duties where a state or territory appointee is also appointed as a representative under the NDIS Act. A person appointed by a state or territory body, such as NCAT, would have duties under state or territory legislation, as well as under the Commonwealth law.
5.107 While these duties may sometimes be interpreted as consistent, there may be times when they conflict. Most obviously, under state legislation, a guardian may have a duty to make decisions in the best interests of the person represented, while having a duty under Commonwealth legislation to ensure that the person’s own will and preferences direct the decision.
5.108 When making decisions for the purposes of Commonwealth legislation, Commonwealth legislative duties would apply, but the person may then be in breach of duties owed as a guardian under state or territory legislation making it impossible for them to continue to act in the latter role.
5.109 However, the Nominee Rules contain some recognition that state and territory appointees may have different roles and duties than those provided under the NDIS. Provisions that require a plan nominee appointed on the initiative of the CEO to act only if the participant is not capable of acting, are stated as not being intended
to affect any obligations or restrictions that impact on a plan nominee and which apply under State or Territory law (including obligations or restrictions that impact on them in their capacity as a court-appointed decision-maker or a participant-appointed decision-maker).
5.110 This rule appears to operate so that a nominee who has duties to act under state or territory legislation can continue to do so in relation to decisions under the NDIS— including acting when the participant is themselves capable of doing so—although obligations to consult and develop the capacity of the participant are not affected by the clause.
5.111 In addition, the Act itself contains a standard constitutional ‘concurrent operation’ clause providing that ‘it is the intention of the Parliament that this Act is not to apply to the exclusion of a law of a State or Territory to the extent that that law is capable of operating concurrently with this Act’. This provision also enables regulations to prescribe ‘kinds of laws of States and Territories as examples of laws’ to which concurrent operation applies.
5.112 It is not clear exactly how concurrent operation of laws might affect conflicts of duties under the NDIS, and under state and territory legislation. This is an issue that might need future clarification as the NDIS evolves.
Management of NDIS funds
5.113 Under the NDIS Act, a participant has a choice between requesting that NDIS funds be self-managed by the participant, managed by the participant’s plan nominee, a plan management provider nominated by the participant, or the NDIA. Different options can be chosen for different supports. If a plan nominee has been appointed, then funding for supports must be managed in accordance with the terms of the appointment.
5.114 There are also a number of circumstances under which a participant must not manage plan funds, including if the CEO is satisfied that management of the plan would present an ‘unreasonable risk to the participant’.
5.115 If a participant does not make a plan management request, outlining how they would like their NDIS funds managed, the funding for supports under the plan is managed by either a registered plan management provider specified by the NDIA, or the NDIA. If this occurs, the CEO of the NDIA ‘must, so far as reasonably practicable, have regard to the wishes of the participant in specifying who is to manage the funding for supports under the plan’.
5.116 QDN observed that under the NDIS
the capacity of an individual to manage their own funds is a potentially contentious issue … An individual with a disability may wish to manage their own supports, but the CEO may deem the person incapable of discharging this responsibility. These decisions may not be consistent with guardianship decisions made at a state level, and consequently the potential for appeal is high.
5.117 Where the scope of the appointment of a state or territory appointed decision-maker does not cover management of NDIS funds, a participant should be able to self-manage their funds, or to appoint a supporter or representative to support them in making decisions about fund management. Participants should also be entitled to nominate a plan management provider, or the NDIA to manage their funds.
5.118 However, where a state or territory order which covers the management of finances is in place, some stakeholders have submitted that it should not be possible for participants to self-manage NDIS funds. For example, the Financial Services Council argued that where a state or territory decision-maker has been appointed, they should ‘automatically be the person or entity responsible for managing the funding for supports’ and that ‘the NDIS should pay amounts directly to product/service providers after due consultation with the relevant appointed decision-maker’.
5.119 The preferable approach is for participants to self-manage their funding for supports to the extent they desire. One possible benefit is said to be that
the capacity to manage their own funds, also allows participants to recruit their own staff. Many people with disability identify this as being one of the most influential elements in achieving ‘choice and control’ in their lives. By facilitating a participant’s capacity to manage their own funds through the use of supported decision-making, people with disability (who in many cases will spend extended periods of time with paid support workers) will be empowered to recruit the support workers that best suit their needs. This could be the catalyst for major improvements in many aspects of a participant’s life.
5.120 The introduction of supporters and representatives under the NDIS is likely to reduce the circumstances in which a participant does not make, or is not supported to make, a plan management request. Where the NDIA does harbour concerns, safeguards such as trial periods may be used to ensure that any problems that may arise are addressed. QDN observed that this is ‘an example of how the “dignity of risk” that is much talked about, can be put into practice’.
5.121 At the same time, given the amounts of money sometimes involved, there need to be protective provisions. The ALRC does not recommend any change to the power of the CEO to refuse to allow self-management where there is an ‘unreasonable risk to the participant’. However, the ALRC suggests that the NDIS Rules, in prescribing criteria the CEO is to apply in considering whether an unreasonable risk to the participant would exist, include regard to the person’s will and preferences and decision-making support available to them.