The National Disability Insurance Scheme

144. The introduction of the NDIS followed long-term 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 people with disability. The NDIS represents a significant new area of Commonwealth responsibility and expenditure.

145. The NDIS Act establishes the framework for the scheme, including: the objects and principles under which the scheme will operate; criteria for access; participant plans; nominees; administration; privacy; and review.

146. The NDIS Act is supplemented by National Disability Insurance Scheme Rules covering areas such as becoming a participant, nominees, children, plan management, and protection and disclosure of information.[178] There are also Operational Guidelines, including about nominees and supporting participant’s decision-making.[179]

147. While the NDIS Act contains a number of principles, including a presumption of capacity and a focus on providing people with disability support to exercise capacity,[180] this Inquiry provides an opportunity to ask whether the Act and the mechanisms and processes established under the Act appropriately reflect equal recognition before the law and legal capacity.

148. Some of the potential issues relevant to this Inquiry include:

  • the interaction between the NDIS and NDIS nominees with nominees under other Commonwealth systems as well as existing state and territory guardians and administrators;

  • the powers of the CEO of the NDIA;

  • management of individual packages[181] and the potential for fraud and financial abuse;

  • service provider regulation and registration processes;

  • the need for appropriate safeguards and monitoring; and

  • the interaction between the NDIS and other systems—such as health, education and housing—and determining issues of funding responsibility and access to supports.

149. While the NDIS is still in its roll-out phase, and many of these issues are likely to become clearer in time, the ALRC welcomes stakeholder feedback on these issues.

Question 12. What changes, if any, should be made to the National Disability Insurance Scheme Act 2013 (Cth) and NDIS Rules, or disability services, to ensure people with disability are recognised as equal before the law and able to exercise legal capacity?

Nominees and children’s representatives

Nominees

150. The NDIS Act makes provision for the appointment of two types of nominees— plan nominees and correspondence nominees. A plan nominee may be appointed to prepare, review or replace the participant’s plan, or manage the funding for supports under the participant’s plan. 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.[182]

151. The National Disability Insurance Scheme (Nominee) Rules 2013 (Cth) (Nominee Rules) concern whether a nominee should be appointed, who should be appointed as a nominee, duties of nominees, and cancellation and suspension of nominees.[183] Aspects of a number of other rules are also relevant to the appointment, role and responsibilities of nominees.[184]

152. There appear to be a number of potential issues with respect to nominees under the NDIS. In addition to the intersection issues discussed below at paragraph 157, the Nominee Rules provide, for example, that nominees may be appointed on the initiative of a delegate, as distinct from at the request of the participant. While this is only to occur in rare and exceptional circumstances and as a last resort,[185] the ALRC is interested in stakeholder comments on this or any other nominee-related issues arising under the NDIS Act and Rules.

Children’s representatives

153. The person responsible for engaging with the NDIS on behalf of a child is known as a child’s representative. A child’s representative has a duty to determine the wishes of the child and act in their best interests.[186] Under the NDIS Act, the person or persons with parental responsibility for the child will usually be the child’s representative, unless a delegate is satisfied that this is not appropriate and makes a written determination that another person is to be the child’s representative.[187]

154. In deciding who, other than those with parental responsibility, should be a child’s representative, an NDIA delegate must have regard to a range of factors including:

  • the preferences of the child;

  • the desirability of preserving family relationships and informal support networks;

  • existing arrangements in place between the person and the child; and

  • the ability of the person to work in conjunction with other representatives and supporters of the child in the child’s best interests.[188]

155. The child’s representative has a duty to consult, wherever practicable, the guardian of the child and any other person with parental responsibility as well as ‘any other person who assists the child to manage their day-to-day activities and make decisions’.[189]

156. The ALRC is interested in stakeholder comments on the NDIS Act and Rules in relation to determining a child’s representative and whether any changes are necessary to ensure children with disability are able to exercise legal capacity in the context of the NDIS, and that there are appropriate safeguards with respect to children’s representatives.

Interaction with state and territory systems

157. The interaction between NDIS nominees, children’s representatives and existing support networks, guardians and administrators, is a source of potential uncertainty and tension. The NDIA’s Nominee Overview Operational Guidelines state that

Most participants who need a nominee already have some kind of formal or informal arrangement in place to help them live their lives. DisabilityCare Australia staff should be sensitive to and respectful of these pre-existing support networks. There is no intention for DisabilityCare Australia to override these support networks, the focus should be on strengthening and, where necessary, formalising the support networks of the participant.[190]

158. The ALRC is interested in hearing from stakeholders about whether changes need be made to the nominee or child’s representative provisions under the NDIS Act or Rules as well as social security legislation and state and territory guardianship and administration systems to clarify or address these interaction issues.

Question 13. What changes, if any, should be made to the nominee or child’s representative provisions under the National Disability Insurance Scheme Act 2013 (Cth) or NDIS Rules to ensure people with disability are recognised as equal before the law and able to exercise legal capacity?

Question 14. What changes, if any, should be made to the nominee provisions or appointment processes under the following laws or legal frameworks to ensure they interact effectively:

(a) the National Disability Insurance Scheme Act 2013 (Cth) and NDIS Rules;

(b) social security legislation; and

(c) state and territory systems for guardians and administrators?

[178] See, eg, National Disability Insurance Scheme (Children) Rules 2013 (Cth); National Disability Insurance Scheme (Nominee) Rules 2013 (Cth); National Disability Insurance Scheme (Plan Management) Rules 2013 (Cth); National Disability Insurance Scheme (Protection and Disclosure of Information) Rules 2013 (Cth); National Disability Insurance Scheme (Registered Providers of Supports) Rules 2013 (Cth); National Disability Insurance Scheme (Becoming a Participant) Rules 2013 (Cth).

[179] National Disability Insurance Agency, Nominees-Overview, Operational Guideline (2013); National Disability Insurance Agency, Nominees-Whether a Nominee Is Necessary, Operational Guideline (2013); National Disability Insurance Agency, General Conduct-Supporting Participant’s Decision-Making, Operational Guideline (2013).

[180] See, eg, National Disability Insurance Scheme Act 2013 (Cth) ss 4–6, 17A.

[181] Individual packages may be self-managed, managed using a Plan Management Provider, or managed by the National Disability Insurance Agency.

[182] National Disability Insurance Scheme Act 2013 (Cth) s 79.

[183] A number of other rules are also relevant, including for example, National Disability Insurance Scheme (Children) Rules 2013 (Cth).

[184] See, eg, Ibid.

[185] National Disability Insurance Scheme (Nominee) Rules 2013 (Cth) r 3.4, pt 3.14.

[186] See, eg, National Disability Insurance Scheme Act 2013 (Cth) s 76.

[187] Ibid s 74(1).

[188] National Disability Insurance Scheme (Children) Rules 2013 (Cth) r 3.4.

[189] Ibid r 6.4.

[190] National Disability Insurance Agency, Nominees—Overview, Operational Guideline (2013). See also: National Disability Insurance Scheme (Nominee) Rules 2013 (Cth) pt 3.14. Note, DisabilityCare Australia is now known as the National Disability Insurance Scheme Agency.