Question 5–1 How should the National Disability Insurance Scheme Act 2013 (Cth) and NDIS Rules be amended to clarify interaction between supporters and representatives appointed in relation to the NDIS, other supporters and representatives, and state and territory appointed decision-makers?
5.80 One of the key difficulties in applying the Commonwealth decision-making model to the NDIS is determining the appropriate interaction between NDIS supporters and representatives, supporters and representatives in other areas of Commonwealth responsibility, and state and territory appointed decision-makers.
5.81 This issue is of particular relevance given the ongoing roll-out of the NDIS. AGAC provided a scenario which highlights the potentially difficult interaction between the NDIS and state and territory appointed decision-makers under the existing scheme:
A person who is the subject of an administration (financial management) order appointing a Public Trustee makes an application for NDIS support themselves or through a nominee for funding a particular matter. The operators of the NDIS scheme are unaware that the person has been found to have a decision-making disability by a Tribunal and is incapable of managing their own financial and property affairs. The result has been that money has been paid out to such applicants directly to their bank accounts which the Public Trustee is under order to manage. Without the knowledge and intervention by the Public Trustee, this may be seen as a windfall by the applicant and spent for purposes other than that for which the grant was paid.
5.82 It is also important to address stakeholder concerns about an increase in applications for the appointment of state or territory decision-makers since the introduction of the NDIS. For example, 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.
5.83 This was echoed by the OPA (Qld):
there are a number of points in the process of becoming and being a participant that may prompt the appointment of a guardian or other substitute decision‐maker if appropriate support and assistance is not provided.
5.84 The general issue of interaction under the NDIS is discussed below. Interaction involving management of NDIS funds is discussed separately later in the chapter. The ALRC is interested in stakeholder comment on the interaction issues which arise in the context of the NDIS, the two possible approaches discussed below, and other possible approaches.
5.85 Under the NDIS Act and Rules there is limited recognition of state and territory appointed decision-making arrangements. The key points of interaction relate to the appointment of a nominee at the initiative of the CEO, the duty of nominees to consult, and the obligations of nominees who are also state or territory or participant appointed decision-makers.
5.86 The provision of the Nominee Rules requiring a plan nominee to act is 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).
5.87 Under s 88(4) of 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 Nominee Rules further provide that in such circumstances, the CEO must have regard to a number of things, including ‘whether the participant has a court-appointed decision-maker or a participant-appointed decision-maker’; and any relevant views of a ‘court-appointed decision-maker or a participant-appointed decision-maker’.
5.88 The matters the CEO must have regard to in deciding who to appoint as nominee include ‘whether the participant has a court-appointed decision-maker or a participant-appointed decision-maker’, and their views. The CEO is also to 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.
5.89 The OPA (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 OPA (Vic) said that
it is expected that state/territory-appointed guardians and administrators would be appointed as nominees under the NDIS where this would be appropriate, but a review is required to ascertain the extent to which this is happening in practice in the launch sites.
5.90 Nominees also have a duty to consult with ‘any court-appointed decision-maker or any participant-appointed decision-maker’.
5.91 Section 207 of the NDIS Act deals with the concurrent operation of state and territory laws with the Act and states 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’.
5.92 The OPA (Qld) submitted that,
given this position of nominees as ‘de facto substitute decision makers’ it is also important that the interaction between the [NDIS Act], the NDIS Rules and the state‐based guardianship and administration legislation is further clarified.
Possible models of interaction
5.93 There appear to be a range of possible approaches to interaction issues. In this section the ALRC discusses the possible application, in the context of the NDIS, of the two approaches outlined in Chapter 4.
5.94 Under the first approach, which reflects the current position, it is possible to have an NDIS supporter or representative and a state or territory appointed decision-maker.
5.95 In circumstances where appointments of an NDIS supporter or representative do not overlap with that of a state or territory appointed decision-maker—for example, because they are appointed in relation to different decisions or areas—there is unlikely to be any conflict. Reducing the possibility of conflict with Commonwealth appointments may be strengthened by amendment of state and territory legislation to ensure state and territory appointments are, as much as possible, confined in scope and time.
5.96 In circumstances there may still be some overlap in the areas of decision-making covered by the appointments. If there is conflict, s 109 of the Australian Constitution may require that the responsibility of a state or territory appointed decision-maker extend only to those areas not covered by the decision-making power of the Commonwealth representative. To facilitate this interaction, information sharing arrangements may be necessary for the representative and state or territory appointed decision-maker to fulfill their particular roles.
5.97 This could occur either as a result of formal mechanisms, or more informally. The ALRC considers this aspect of the approach may address some concerns expressed by stakeholders in relation to the appointment of different individuals or organisations.
5.98 The ALRC welcomes stakeholder comment on mechanisms to ensure sharing of information between Commonwealth representatives and state and territory appointed decision-makers where they are different.
5.99 Under a second possible approach, where a state or territory decision-maker has been appointed, a new assessment of the support needs of the participant should be undertaken for NDIS purposes. If the person requires fully supported decision-making, then a representative should be appointed, either by the person, or using a Commonwealth appointment mechanism. The appointment of the existing state or territory decision-maker as representative should be permitted and encouraged, but would not be automatic.
5.100 As suggested in Chapter 4, one of the considerations a decision-maker could have regard to in appointing a Commonwealth representative should be the desirability of appointing an existing Commonwealth representative or state or territory appointed decision-maker where one exists. This is likely to encourage appointment of state and territory decision-makers as representatives for NDIS purposes where appropriate. However, even where an existing representative or state or territory appointed decision-maker is appointed, the appointee would be subject to the provisions of the NDIS Act and Rules relating to their role and duties, as well as associated safeguards.
5.101 This model appears to be most consistent with the views of stakeholders such as the FSC which submitted that where a state or territory decision-maker has been appointed, they should automatically be the NDIS representative. Similarly, the NSW Council for Intellectual Disability submitted that,
if a guardian has been appointed with authority to make decisions about services, then that person should automatically be recognised as NDIS nominee. Similarly, if there is a nominee and a different person is appointed as guardian, the guardian should automatically take over as nominee.
Management of NDIS funds
Question 5–2 In what ways should the National Disability Insurance Scheme Act 2013 (Cth) and NDIS Rules in relation to managing the funding for supports under a participant’s plan be amended to:
(a) maximise the opportunity for participants to manage their own funds, or be provided with support to manage their own funds; and
(b) clarify the interaction between a person appointed to manage NDIS funds and a state or territory appointed decision-maker?
5.102 Under the NDIS Act, a participant may request that NDIS funds be self-managed by the participant, 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. There are also currently 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’.
5.103 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’.
5.104 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. However, in circumstances where they do not, these provisions may require amendment to remove the power of the CEO of the NDIA to determine who should manage the funding for supports. Alternatively, the provisions could be amended to remove the qualifier and require that, in such circumstances, the CEO is required to give effect to the will, preferences and rights of the participant.
5.105 Under the existing provisions of the NDIS, Queenslanders with Disability Network observed that
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.
5.106 The preferable approach is for participants to self-manage their funding for supports to the greatest extent possible, and that the NDIS legislation should be amended to reflect this.
5.107 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.
5.108 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 FSC 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’.
5.109 The ALRC is interested in stakeholder comments on ways in which the NDIS Act and Rules could be amended to maximise the opportunity for participants to manage their own funds, or be provided with support to manage their own funds; and clarify the interaction between Commonwealth supporters or representatives and state and territory appointed decision maker, in relation to the management of NDIS funds.