The NDIS

5.6          The introduction of the NDIS followed a long-standing concern about the inefficiency and inequitable nature of disability support arrangements in Australia and calls for the introduction of a new mechanism for funding support for persons with disability. The establishment of the NDIS represents a new area of Commonwealth responsibility and ‘a significant step toward addressing the deficiencies of the current disability service systems that exist across Australia, and to advancing cultural change and genuine social inclusion’.^[1]

5.7          The NDIS was designed to empower people with disability and facilitate their choice and control.^[2] With respect to decision-making, while the NDIS Act contains some provisions which facilitate supported decision-making, it ultimately retains a mechanism for substitute decision-making through the use of ‘nominees’.^[3]

5.8          While not all persons with disability are eligible for the NDIS, it represents the primary area of Commonwealth law in which the Commonwealth decision-making model should apply.

5.9          The NDIS is still in its early stages with roll-out at several trial sites. The ongoing roll-out of the NDIS and the scheduled reviews, outlined below, provide timely opportunities for implementing and evaluating a supported decision-making model.

Background

5.10       In August 2011, the Productivity Commission released its report, Disability Care and Support.^[4] The report found that ‘current disability support arrangements are inequitable, underfunded, fragmented and inefficient, and give people with a disability little choice’.^[5] The Productivity Commission recommended the establishment of a new National Disability Insurance Scheme to provide insurance cover for all Australians in the event of significant disability. It suggested that the main function of the NDIS would be to fund long-term high quality care and support for people with significant disabilities.

5.11       In response, the Council of Australian Governments (COAG) recognised the need for major reform of disability services through an NDIS. At a meeting of the Select Council on Disability Reform in October 2011, all Select Council Ministers agreed to lay the foundations for the NDIS by mid-2013.^[6] In December 2012, COAG signed an Intergovernmental Agreement for the NDIS launch.^[7] The Commonwealth and several states and territories also signed bilateral agreements confirming the operational and funding details for the roll-out of the NDIS.^[8]

5.12       In March 2013, the NDIS Act was enacted.^[9] The Act is supplemented by a number of NDIS Rules, which address the more detailed operational aspects of the scheme.^[10] There are also a number of Operational Guidelines, including about nominees and supporting participants’ decision-making.^[11] The scheme is administered by the NDIA.

5.13       Implementation of the NDIS began in July 2013 with roll-out in four trial sites—South Australia, Tasmania, the Hunter Area in New South Wales, and the Barwon area of Victoria. In July 2014, the NDIS commenced further trial sites in the Australian Capital Territory, the Barkly region of the Northern Territory, and in the Perth Hills area of Western Australia.^[12] Roll-out of the full scheme in all states and territories except Western Australia is scheduled to commence progressively from July 2016.^[13]

Reviews and evaluations

5.14       There are a number of completed, current and planned reviews of the NDIS and NDIA of potential relevance to this Inquiry, including:

• a review of the capabilities of the NDIA;^[14]
• a COAG report on cost drivers of the NDIS;^[15]
• consideration of the NDIS in the course of the National Commission of Audit;^[16]
• an evaluation of the trial of the NDIS being led by the National Institute of Labour Studies;^[17]
• an independent review of the operation of the NDIS Act;^[18]
• a review of the Intergovernmental Agreement by the Ministerial Council;^[19] and
• a KPMG interim report for the Board of the NDIA on the optimal approach to transition to the full NDIS.^[20]

5.15       A Joint Parliamentary Standing Committee on the NDIS was also established in December 2013, tasked with reviewing the implementation, administration and expenditure of the NDIS.^[21]

5.16       As many of these reviews and evaluations will be conducted following the conclusion of the ALRC’s Inquiry, the recommendations in this Report may inform their work.

Decision-making under the NDIS

5.17       Current decision-making arrangements under the NDIS Act incorporate elements of both supported and substitute decision-making, as well as informal and formal decision-making. The three key decision-making mechanisms include: autonomous decision-making by participants; informal supported decision-making; and substitute decision-making by nominees.

5.18       A person can make an access request to be a participant under the NDIS.^[22] If the person meets the access criteria, the person becomes a participant on the day the CEO of the NDIA decides that they meet the access criteria.^[23]

5.19       The main object of the NDIS Act is to ‘enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports’.^[24] The Act provides that ‘the supportive relationships, friendships and connections with others of people with disability should be recognised’.^[25]

5.20       If a person is a participant, the CEO must facilitate the preparation of a plan with them. A plan will cover, among others matters, general support to be provided to the participant, as well as any ‘reasonable and necessary’ supports that will be funded under the NDIS.^[26]

Nominees

5.21       The NDIS Act provides for a nominee scheme which is modelled largely on the existing substitute decision-making scheme under social security law. These provisions may limit the scope for autonomous decision-making by participants.

5.22       There are two types of nominees under the NDIS—‘plan nominees’ and ‘correspondence nominees’. A plan nominee may be appointed to prepare, review or replace a participant’s plan, or manage the funding for supports under the plan.^[27] The role of a correspondence nominee is narrower. A correspondence nominee may be appointed to do any other act that may be done by a participant under, or for the purposes of, the NDIS Act,^[28] but in practice is confined to making requests to the NDIA or receiving notices from the NDIA on behalf of the participant.

Appointment

5.23       The NDIS Act provides that the CEO of the NDIA may appoint a plan nominee or a correspondence nominee either at the request of the participant, or on their own initiative.^[29] The same person can be appointed as both a plan and correspondence nominee.^[30]

5.24       The National Disability Insurance Scheme (Nominee) Rules 2013 (Cth) (Nominee Rules) provide further detail about whether a nominee should be appointed, who should be appointed as a nominee, duties of nominees, and cancellation and suspension of nominees.^[31] For example, r 3.1 provides:

people with disability are presumed to have capacity to make decisions that affect their own lives. This is usually the case, and it will not be necessary to appoint a nominee where it is possible to support, and build the capacity of, participants to make their own decisions for the purposes of the NDIS.^[32]

5.25       The Nominee Rules also acknowledge that appointment of a nominee on the initiative of the CEO of the NDIA is to be a measure of last resort:

appointments of nominees will be justified only when it is not possible for participants to be assisted to make decisions for themselves. Appointments of nominees usually come about as a result of a participant requesting that a nominee be appointed.

It is only in rare and exceptional cases that the CEO will find it necessary to appoint a nominee for a participant who has not requested that an appointment be made.^[33]

5.26       In appointing a nominee, the CEO must take into consideration ‘the wishes (if any) of the participant regarding the making of the appointment’^[34] and have regard to a number of other matters.^[35] In determining whether to appoint a particular nominee, there are also a range of matters the CEO must take into account.^[36] Appointment of a nominee may be indefinite or for a particular period of time.^[37]

5.27       Where requested by the participant, the CEO must cancel the appointment of a nominee who was appointed at a participant’s request.^[38] However, where a nominee was appointed on the initiative of the CEO, the CEO may cancel the appointment, but is not obliged to do so.^[39]

Duties

5.28       Nominees owe a duty to a participant ‘to ascertain the wishes of the participant and act in a manner that promotes the personal and social wellbeing of the participant’.^[40] Nominees also have a number of other duties, including a duty to:

• consult;
• develop the capacity of the participant; and
• avoid or manage conflicts of interest.^[41]

5.29       Importantly, a plan nominee appointed on the initiative of the CEO is ‘able to do an act on behalf of the participant only if the nominee considers that the participant is not capable of doing the act’.^[42] A plan nominee appointed at the request of the participant has a duty to refrain from doing an act unless satisfied that: ‘it is not possible for the participant to do, or to be supported to do, the act himself or herself’; or it is possible, but the participant does not want to do the act himself or herself.^[43]

5.30       The ALRC understands that, in some trial sites, there have been very few appointments of plan nominees.^[44] For example, to date, no nominee appointments have been made in the NDIS trial site in NSW. As discussed below, use of the CEO’s power to appoint a nominee may manage situations where persons with disability have no natural support networks or no-one they know who can be appointed.

Reform of decision-making under the NDIS

5.31       The NDIS Act provides for supported decision-making in a manner largely consistent with the United Nations Convention on the Rights of Persons with Disabilities (CRPD) and the National Decision-Making Principles. However, some amendments will be necessary to bring the NDIS in line with the ALRC’s Commonwealth decision-making model.

5.32       First, the ALRC recommends amendment of the objects and principles provisions of the NDIS Act.

5.33       Secondly, the existing NDIS nominee scheme should be replaced with a scheme for ‘supporters’ and ‘representatives’, as described in Chapter 4. In particular, the NDIS Act, Rules and Operational Guidelines should be amended to provide a mechanism for the recognition of supporters appointed by participants and representatives. In effect, the reforms would result in the current ‘correspondence nominee’ role being subsumed by the supporter role and plan nominees being replaced by representatives.

5.34       Stakeholders highlighted the importance of ensuring that the NDIS should continue as a benchmark model for supported decision-making. For example, the Queenslanders with Disability Network (QDN) noted that

The NDIS can play a leading role in demonstrating to people with disability and their families, how supported decision-making can lead to better outcomes. This will create an expectation that will drive demand for reform in other jurisdictions to adopt a uniform supported decision-making framework.^[45]

5.35       The NDIA expressed support for the objectives of the ALRC’s proposals with regard to applying the National Decision-Making Principles and Commonwealth decision-making model, which it considered are consistent with both the objectives of the NDIS Act and the NDIA’s strategic plan.^[46]

5.36       More generally, stakeholders strongly endorsed the need for supported decision-making in the NDIS to enable participants ‘to obtain support to make and implement their own decisions’.^[47] This is likely to be of particular significance for many groups of people with disability. The Centre for Rural Regional Law and Justice and the National Rural Law and Justice Alliance emphasised, for example, the importance of supported decision-making arrangements ‘for people living in regional and rural communities, where local family and neighbourhood networks can be particularly strong and supportive’.^[48]

5.37       The application of the Commonwealth decision-making model may go some way to helping avoid the appointment of guardians and other substitute decision-makers ‘in lieu of appropriate support, assistance, information or case management’^[49] in most cases. However, as discussed below, there may still be a role for state-appointed decision-makers in instances where a person requires an NDIS representative.

5.38       The ALRC does not intend to be overly prescriptive about the mechanism for recognising supporters in the context of the NDIS. Nor has the ALRC examined funding mechanisms or practical matters involving resources and responsibilities. Whether there is a general duty to provide support and who should bear the cost of support are consequential issues.