Late yesterday, the Government published the first set of lists detailing what will and will not be classified as ‘NDIS Support’ under the new legislation, which will come into effect tomorrow (3rd October).
We, along with other Disability Representative Organisations, had said that the Government should extend the time before these take effect and adopt a principles-based approach instead of lists. Disappointingly, the Government is powering ahead with the lists with many of the same elements that were shared in the drafts.
While we are still working through the details, it seems that the Government has addressed some concerns raised by the community:
- Targeted prohibitions: Some prohibitions are more targeted and limited, such as those regarding takeaway food, driver training, and hair and nail care.
- Support for First Nations people: Supporting First Nations people’s participation in cultural activities is now recognised as a valid use of an NDIS Plan.
- Support for women’s health needs: Menstruation products are now listed as approved supports.
- Substitution process: The substitution process is described in some detail. If they save money, you may be able to use lower-cost household items like smartwatches and robot vacuums as replacements.
- Improved readability on lists: The lists themselves are much easier to read with some of the conditions attached to the items listed as opposed to big, long carve-outs.
Issues still to be addressed
As we flagged in our submission to the consultation, there are lots of outstanding issues that are likely to have big impacts on people. Here are just a few:
- Vehicle costs: The costs of leasing or purchasing vehicles themselves remain on the ‘not a NDIS Support’ list, overturning significant cases at the Administrative Appeals Tribunal (AAT).
- Other exclusions: Similar exclusions exist for generators and backup batteries, ‘sexual services’, and others despite pushback and recognition at the Tribunal.
- Vague definitions: There are unresolved issues regarding definitions of ‘clinical’ mental health supports and ‘diagnostic’ assessments, continuing concerns from APTOS.
- Service gaps: People are likely to experience gaps in services related to family support and justice settings, among other things.
Separate from these rules, the NDIA has also started to detail how it will handle requests for people to use supports that are otherwise excluded by section 10. If you think you have a support that would be cheaper than more expensive options (like a smartwatch, which lets you keep track of your vitals more cheaply than a bespoke system), you’ll need to reach out to the NDIS contact centre, which will provide an application form with three questions.
When the section was added to the bill just before it passed, we were concerned that this wouldn’t be a reviewable decision. However, an additional limit in the rules means that people will not be able to apply for the same support more than once every 12 months. We’re worried that this will not give enough flexibility for people to use their plan if circumstances change or the NDIA makes a mistake.
Rules on debt procedures
The Government is also publishing some ‘miscellaneous’ rules that are much more important than that name implies! These rules lay out the process for how the Government will approach debts given to people when people spend their NDIS budget on things that are not approved supports, as well as the transition process for people who have supports currently included in their plans that are excluded by these lists.
- Warnings: Participants will receive two warnings if the misspent amount is less than $1500 before a debt is issued. This is a small step towards addressing concerns about allowing people time to adjust to the changes.
- Concerns on debt threshold: We are worried the $1500 amount is relatively low when you consider many people have plans that reach into the thousands of dollars. The Government also confirmed that if the overspending exceeds $1500, debts will start to be raised starting on Thursday, leaving little time for adjustment.
- No time limits: The NDIA can raise debts at any time, potentially creating issues for participants who could be caught by this rule long after spending. The Government has indicated that it is working towards more flexible debt waivers, but this will not be in place by Thursday’s deadline.
Protections for excluded supports
Some protections for participants who currently have support in their plan are excluded under these new lists. However, these special circumstances only apply in specific cases:
- Stated support: The support must be listed as a ‘stated support’ in the participant’s plan, or
- AAT judgment: The participant must have gone through the entire AAT process, with the support listed in a judgment or a consent agreement with the Agency.
The massive administrative hurdle for both of these steps means that many do their best with the plan they receive and use it flexibly to suit their needs. We’re worried these provisions don’t give people the protection and continuity of support needed during this transition.
We are still reviewing the full details and will provide further insights soon. DANA shares many people’s concerns about the impact these changes will have on people with disability and the increased burden this places on already overstretched advocates.