Understanding the NDIS Bill

Transcription

1 DISABILITY RESOURCES Understanding the NDIS Bill Simple language, clear examples, questions to think about Disability Directory 2013 This document has been produced as a resource for people wishing to provide feedback on the NDIS Bill. The organisation producing it is completely unfunded and operated on a voluntary basis. If you have been sent this document by someone else, please do the right thing and contribute. The rates are available here: 1 P a g e

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3 Contents Introduction... 6 About making laws... 6 What the Bill does... 6 The main sections... 7 Chapter 1: Introduction... 8 Why do they have all of these statements about objects?... 8 So what are the objects and principles?... 8 Support and assistance Providing information Questions to think about Definitions Ministerial Council Questions to think about Chapter 2: Assistance for people with disability and others Agency may provide Questions to think about People not covered by the NDIS Questions to think about Agency may provide information Questions to think about Chapter 3: Participants and their plans Access Criteria Age requirement Questions to think about Residence Requirements Questions to think about Disability Requirements P a g e

4 Questions to think about Early Intervention Requirements Questions to think about Information Participation Plans What does it include? When does it happen? What happens if I go away? Who gets the actual funding? Questions to think about Chapter 4: Administration General Requirements Questions to think about Information Privacy Questions to think about Support providers Questions to think about Children Questions to think about Nominees Questions to think about Review of Decisions Questions to think about Chapter 5: Compensation Payments Chapter 6: NDIS Launch Transition Agency Transition Agency Page Disability Directory 2013

5 The Board Independent Advisory Council Chief Executive Officer and Staff Questions to think about Page Disability Directory 2013

6 Introduction The Commonwealth government have released a document called the National Disability Insurance Scheme Bill. The Bill describes the way a National Disability Insurance Scheme (NDIS) would work. The government have asked people to read it, and let them know what they think about it. This booklet is designed to help you do that. About making laws A law is drafted as a Bill. It is then taken to Parliament where they vote on it. If enough of Parliament agrees with the Bill, it is passed. It then becomes a law. details than the law. The law does not say everything there is on the subject. It says who can do what, and how. So, for example, the NDIS Bill does not say exactly who will be eligible for the NDIS. It says that the Minister can make rules about this, and it says there will be a National Disability Insurance Agency (NDIA) that will set up the systems to make everything work. When the Minister makes the rules, these must be followed by the NDIA. The difference between rules and laws is that Parliament must vote on a law. They do not vote on rules. So the law must be clear enough to explain what rules the Minister is allowed to make. What the Bill does The Bill agrees that there will be: Bill: A document describing a proposed law. Once it is voted on and passed it becomes legislation, or law. CEO: Chief Executive Officer NDIA: National Disability Insurance Agency NDIS: National Disability Insurance Scheme Rules: The way a law will work. These provide more Parliament does not need to vote on rules. A scheme called the National Disability Insurance Scheme An agency called the National Disability Insurance Scheme Launch Transition Agency (we will call that the Agency) 6 Page Disability Directory 2013

7 The main sections The Bill is set out in Chapters. They are: Chapter 1: Introduction Chapter 2: Assistance for people with disability and others Chapter 3: Participants and their plans Chapter 4: Administration Chapter 5: Compensation payments Chapter 6: National Disability Insurance Scheme Launch Transition Agency Chapter 7: Other matters Each of these is considered in the following chapters. 7 Page Disability Directory 2013

8 Chapter 1: Introduction Part 1 talks about when the Act would take effect. The actual date can only be filled in after the Bill has been passed. Part 2 talks about the Objects and Principles of the Bill, and these are copied for your reference below. Objects do not create new rights or responsibilities. They simply state why the Bill was created and what they are trying to do. Why do they have all of these statements about objects? When anybody needs to make a decision about something related to the Bill, they may find that there is not enough detail to know what the right answer is. This might happen when: Someone applies to be covered under the NDIS and a decision has to be made about whether they are eligible. The Minister makes rules about the NDIS Someone complains about a decision and a court has to decide whether the decision is right So, for example, if some complained about the arrangements in South Australia, saying that they would get better support if they lived in Tasmania, the judge could look at the objects and see that the scheme is supposed to be nationally consistent. So it should be the same everywhere. Or, if someone complained that the amount of support changed suddenly, the judge could look at the principles and see that people with disability should have certainty that they will receive the care and support they need. So what are the objects and principles? 3 Objects of Act (1) The objects of this Act are to: (a) provide for the National Disability Insurance Scheme in Australia; and (b) support the independence and social and economic participation of people with disability; and (c) provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme launch; and (d) enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and 8 Page Disability Directory 2013

9 (e) facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability; and (f) promote the provision of high quality and innovative supports to people with disability; and (g) raise community awareness of the issues that affect the social and economic participation of people with disability, and facilitate greater community inclusion of people with disability; and (h) give effect to certain obligations that Australia has as a party to the Convention on the Rights of Persons with Disabilities. (2) These objects are to be achieved by: (a) providing the foundation for governments to work together to develop and implement the National Disability Insurance Scheme launch; and (b) adopting an insurance-based approach, informed by actuarial analysis, to the provision and funding of supports for people with disability. (3) In giving effect to the objects of the Act, regard is to be had to: (a) the progressive implementation of the National Disability Insurance Scheme; and (b) the need to ensure the financial sustainability of the National Disability Insurance Scheme. 4 General principles guiding actions under this Act (1) People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development. (2) People with disability should be supported to participate in and contribute to social and economic life to the extent of their ability. (3) People with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime. (4) People with disability should be supported to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports. (5) People with disability should be supported to receive reasonable and necessary supports, including early intervention supports. (6) People with disability have the same right as other members of Australian society to respect for their worth and dignity and to live free from abuse, neglect and exploitation. (7) People with disability have the same right as other members of Australian society to pursue any grievance. (8) People with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise informed choice and engage as equal partners in decisions that will affect their lives, to the full extent of their capacity. (9) People with disability should be supported in all their dealings and communications with the Agency so that their capacity to exercise choice and control is maximised in a way that is appropriate to their circumstances and cultural needs. (10) People with disability should have their privacy and dignity respected. (11) Reasonable and necessary supports for people with disability should: (a) support people with disability to pursue their goals and maximise their independence; and 9 Page Disability Directory 2013

10 (b) support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment. (12) The role of families, carers and other significant persons in the lives of people with disability is to be acknowledged and respected. (13) People with disability should be supported to receive supports outside the National Disability Insurance Scheme, and be assisted to coordinate these supports with the supports provided under the National Disability Insurance Scheme. (14) Innovation, quality, continuous improvement, contemporary best practice and effectiveness in the provision of supports to people with disability are to be promoted. (15) It is the intention of the Parliament that the Ministerial Council, the Minister, the Board, the CEO and any other person or body is to perform functions and exercise powers under this Act in accordance with these principles, having regard to: (a) the progressive implementation of the National Disability Insurance Scheme; and (b) the need to ensure the financial sustainability of the National Disability Insurance Scheme. 5 General principles guiding actions of people who may do acts or things on behalf of others It is the intention of the Parliament that, if this Act requires or permits an act or thing to be done by or in relation to a person with disability by another person, the act or thing is to be done, so far as practicable, in accordance with both the general principles set out in section 4 and the following principles: (a) people with disability should be involved in decision making processes that affect them, and where possible make decisions for themselves; (b) people with disability should be encouraged to engage in the life of the community; (c) the judgements and decisions that people with disability would have made for themselves should be taken into account; (d) the cultural and linguistic circumstances of people with disability should be taken into account; (e) the supportive relationships, friendships and connections with others of people with disability should be recognised. Support and assistance Section 6 says that the Agency may provide support and assistance to prospective participants. This could include things like providing them with the assistance of a case manager to support them through the application process. Not all people will need this assistance, but some may. The one thing that will not be funded under that section is legal assistance for people to have decisions reviewed. For example, if you applied for assistance under the NDIS and were refused, the Agency is not going to pay for a lawyer to help you apply. 10 Page Disability Directory 2013

11 This does not mean you can t ask for legal assistance from another place like Legal Aid or a community legal centre. Providing information Section 7 says that information provided to a person with a disability must be explained so that they can understand. Questions to think about Thinking about your own frustrations with the current system, what are the things you are most likely to complain about? If you made a complaint, would the principles above allow you to find some words that would explain why the decision made is wrong? If the Minister is writing rules about the NDIS, do the above principles have enough information to make sure the rules would fit with the situation you live in? The Bill says the Agency may provide support for people to do the things the Act demands. Should this be stronger? If you think this should say must, when should this apply, and when should the Agency be able to decide? For example, it might be reasonable that all people with intellectual disabilities receive assistance with their plan, but that only young people with a physical disability need assistance. Should there be reasons why people can ask for help? What if people don t want help? Are there cases where they should be forced to work with someone (for example, if the Agency can t understand their application?) The Bill says that information should be explained to people in a way they can understand. Do you think this has happened so far? Do you think this section needs to be more specific about how people with a disability are communicated with? Did you understand the law they put online? Could you read it? Did you know what it meant for you? Section 5 talks about circumstances where people do things for you. If you read this carefully, does it include all of the things you would want it to say about how you should be respected when you need to depend on others? Definitions All laws contain a section of definitions. This is so that if there are any problems with understanding what the law means, some of the terms are explained. If a word is not listed in the definitions section, then it will generally mean what the dictionary says, and what most people use it for. 11 Page Disability Directory 2013

12 It is often difficult to comment on definitions by themselves. However, where a term is used later in the legislation it can become important. We have highlighted terms that are in the definitions like this, so you know when to go back and check the definitions to see what the term means. The definitions are reproduced below for your convenience. access request has the meaning given by section 18. Advisory Council means the Independent Advisory Council established by section 143. Agency means the National Disability Insurance Scheme Launch Transition Agency established by section 117. Board means the Board of the Agency established by section 123. Board member means a member of the Board (and includes the Chair). CAC Act means the Commonwealth Authorities and Companies Act carer means an individual who: (a) provides personal care, support and assistance to another individual who needs it because that other individual is a person with disability; and (b) (i) does not provide the care, support and assistance: under a contract of service or a contract for the provision of services; or (ii) in the course of doing voluntary work for a charitable, welfare or community organisation; or (iii) as part of the requirements of a course of education or training. centrelink program has the same meaning as in the Human Services (Centrelink) Act CEO means the Chief Executive Officer of the Agency. Chair means the Chair of the Board. child means a person who is under 18 years of age. COAG means the Council of Australian Governments. community care has the same meaning as in the Aged Care Act compensation has the meaning given by section 11. Convention on the Rights of Persons with Disabilities means the Convention on the Rights of Persons with Disabilities, done at New York on 30 March Note: The text of the Convention is set out in Australian Treaty Series 2008 No. 12 (2008 ATS 12). In 2012, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website ( correspondence nominee means a person who is appointed as the correspondence nominee of a participant under section 87. developmental delay means a delay in the development of a child under 6 years of age that: (a) is attributable to a mental or physical impairment or a combination of mental and physical impairments; and (b) results in substantial reduction in functional capacity in one or more of the following areas of major life activity: 12 Page Disability Directory 2013

13 (i) (ii) (iii) (iv) self-care; receptive and expressive language; cognitive development; motor development; and Understanding the NDIS Bill (c) results in the need for a combination and sequence of special interdisciplinary or generic care, treatment or other services that are of extended duration and are individually planned and coordinated. early intervention supports means supports that are identified in the National Disability Insurance Scheme rules as early intervention supports. enters into an agreement to give up his or her right to compensation: a participant or prospective participant enters into an agreement to give up his or her right to compensation if he or she: (a) (b) enters into an agreement to waive his or her right to compensation; or enters into an agreement to withdraw his or her claim for compensation. entity means a partnership or an unincorporated association. entry, in relation to a person and a residential care service, has the same meaning as in the Aged Care Act Finance Minister means the Minister administering the Financial Management and Accountability Act financial institution means a corporation that is an ADI for the purposes of the Banking Act general supports has the meaning given by subsection 13(2). grace period has the meaning given by subsection 40(2). holder, in relation to a visa, has the same meaning as in the Migration Act host jurisdiction has the meaning given by section 10. managing the funding for supports under a participant s plan has the meaning given by section 42. medicare program has the same meaning as in the Human Services (Medicare) Act meets the access criteria has the meaning given by section 21. meets the age requirements has the meaning given by section 22. meets the disability requirements has the meaning given by section 24. meets the early intervention requirements has the meaning given by section 25. meets the residence requirements has the meaning given by section 23. Ministerial Council means a body: (a) that consists of Ministers of the Commonwealth, States and Territories; and (b) that has been designated by COAG as having responsibilities relating to the National Disability Insurance Scheme. National Disability Insurance Scheme means: (a) the arrangements set out in Chapter 2; and (b) the arrangements set out in Chapter 3 in relation to people who meet the residence requirements because of their residence in a prescribed area and meet the age requirements (if any) in relation to a prescribed area; and 13 Page Disability Directory 2013

14 (c) the arrangements referred to in paragraph (b) as they apply when those arrangements are not limited on the basis of residence in a prescribed area. National Disability Insurance Scheme launch means: (a) the arrangements set out in Chapter 2; and (b) the arrangements set out in Chapter 3 in relation to people who meet the residence requirements because of their residence in a prescribed area and meet the age requirements (if any) in relation to the prescribed area. National Disability Insurance Scheme rules means the rules mentioned in section 209. NDIS amount means an amount paid under the National Disability Insurance Scheme in respect of reasonable and necessary supports funded under a participant s plan. nominee means the correspondence nominee of a participant or the plan nominee of a participant. officer means: (a) a member of the staff of the Agency under section 169; or (b) a person assisting the Agency under section 170. parent: without limiting who is a parent of anyone for the purposes of this Act, a person is the parent of another person if the other person is a child of the person within the meaning of the Family Law Act parental responsibility has the meaning given by section 75. participant means a person who is a participant in the National Disability Insurance Scheme launch (see sections 28, 29 and 30). participant s impairment means an impairment in relation to which the participant meets the disability requirements, or the early intervention requirements, to any extent. participant s statement of goals and aspirations has the meaning given by subsection 33(1). permanent visa has the same meaning as in the Migration Act plan, for a participant, means the participant s plan that is in effect under section 37. plan management request has the meaning given by subsection 43(1). plan nominee means a person who is appointed as the plan nominee of a participant under section 86. prescribed area means an area prescribed by the National Disability Insurance Scheme rules for the purposes of paragraph 22(2)(a) or subsection 23(3). Principal Member means the Principal Member of the Advisory Council. prospective participant means a person in relation to whom an access request has been made but not yet decided. prospective participant s impairment means an impairment in relation to which the prospective participant claims to meet the disability requirements, or the early intervention requirements, to any extent. protected information means: (a) information about a person that is or was held in the records of the Agency; or (b) information to the effect that there is no information about a person held in the records of the Agency. protected SCV holder: a person is a protected SCV holder if: 14 Page Disability Directory 2013

15 (a) the person was in Australia on 26 February 2001, and was a special category visa holder on that day; or (b) the person had been in Australia for a period of, or for periods totalling, 12 months during the 2 years immediately before 26 February 2001, and returned to Australia after that day. recoverable amount has the meaning given by sections 106 and 107. registered plan management provider means a registered provider of supports who is approved in relation to managing the funding for supports under plans as mentioned in paragraph 70(1)(a). registered provider of supports means a person approved under section 70 as a registered provider of supports. residential care service has the same meaning as in the Aged Care Act reviewable decision has the meaning given by section 99. review date of a participant s plan means the date specified in the plan under paragraph 33(2)(c). reviewer has the meaning given by subsection 100(5). special category visa has the same meaning as in the Migration Act statement of participant supports has the meaning given by subsection 33(2). supports includes general supports. Ministerial Council As things stand at the moment, the Commonwealth government has very little to do with disability. They fund some programs, and they pay the Disability Support Pension through Centrelink, but most of the disability services and supports are provided by the states. Even when the Commonwealth funds things, they normally provide the funding to the states, and they provide the actual service. This is very similar to education, hospitals and other services. While the Commonwealth helps out with money, the state runs the school or the hospital. This means that sometimes the Commonwealth makes rules about how the money will be spent. For example, they don t just give money for schools, they give it under different programs, and some of these are aimed at providing additional support for certain students. The NDIS will be a massive change to this arrangement, because instead of working the way education does, disability would be more like Medicare. The agency that handles the money will not go through the state in the form of programs, but deal directly with the individual. 15 Page Disability Directory 2013

16 To handle this change, there is a Ministerial Council proposed in the NDIS Bill. This council would include ministers of both the Commonwealth and the States, and would make recommendations about how this all works. These recommendations could be to the minister responsible for the NDIS, or to the Council of Australian Governments (COAG). These recommendations would be about policy and how it works, not about the outcome for an individual. The Minister must consult the Ministerial Council. Questions to think about Do you think there should be anyone else on the Ministerial Council? 16 Page Disability Directory 2013

17 Chapter 2: Assistance for people with disability and others Agency may provide There are a lot of statements in this Bill about things the Agency may provide. This language gives the government the power to do these things, but does not say that they must do them. Questions to think about Are there services you think the Act should have stronger wording about? Using the word may allow the government to do it, but does not give you the right to complain if they don t. If there was a change of government, would this affect your answer? Remember that Parliament needs to vote to change a law, but not to change the Rules. So if arrangements are put in place by rules or regulations, they can be very easily removed. People not covered by the NDIS The Bill says that the Agency may provide supports to people who are not covered by the NDIS. The sorts of general support they might provide include a service or an activity that includes co-ordination, strategic or referral service. What this means is not altogether clear. It would appear that is it intended to allow the government to provide information, and co-ordination or referral, to people who are not covered under the scheme. Questions to think about If you have a disability and were not included in the scheme for some reason, what sort of services would you expect to receive? Do you think this section should be more specific? Remember also that the States will wind down their delivery of services in some areas. What sorts of problems would this cause if you could not access the NDIS? What would you want to ensure the government has to do for you? 17 Page Disability Directory 2013

18 Is the government generally good at providing referrals? What do you think would be the best way of people receiving advice about where they can go to find some help? What is your preferred method of finding information? Agency may provide information Section 15 says the Agency may provide information about matters relevant to the NDIS and what the Agency does. It says the Agency must use its best endeavours to provide accurate information to people. This is so people can make informed decisions about the NDIS. Questions to think about Is it enough that the Agency needs to try to provide information? What information must they provide for the system to be fair? Informed decision: A decision you make when you have all the information. If you don t understand all the facts, you can t make an informed decision. This is very similar to the concept of informed consent when you are thinking about a medical procedure. You can only agree if you have all the necessary information, otherwise you have not agreed at all. How should this information be available? 18 Page Disability Directory 2013

19 Chapter 3: Participants and their plans This section talks about the process for applying to participate in the NDIS. A person who is included in the NDIS is called a participant. The Bill says that people can apply to be a participant, and the CEO of the Agency will make sure there is a process for this application. There is also an appeal process, but that is later on, and we will talk about it under Chapter 4: Administration. After they receive the request, the Agency has 21 days to decide whether to accept it. They decide this by checking whether the person meets the access criteria, or asking for more information. Access Criteria There are three types of access criteria: How old you are (age requirement) Where you live (residence requirement) The effects of your disability (disability requirements and early intervention requirements) Age requirement Only people under the age of 65 will be admitted onto the NDIS. It is assumed that people over 65 are accessing aged care services, rather than disability services. People who were already on the NDIS and turn 65 will not be removed from the NDIS unless they: Enter into residential care; or Are provided with community care permanently; or Ask to be removed from the NDIS. Questions to think about Do you agree with the age requirement? Are there some conditions that would be affected differently by this rule? Should this age requirement move as the population ages? Should it be tied to the retirement age? 19 Page Disability Directory 2013

20 Do people over 65 need specialist disability supports that the aged care system cannot offer? Should people be able to use a combination of aged and disability care, for example having specialist wheelchair services, but living in an aged care facility? What should the transition from disability to aged care consist of? Have you had experience with age based transitions for example from children s to adult services, or from young adult to mainstream services? What were the problems? What lessons should be learned? Residence Requirements People must reside in Australia to be eligible for the NDIS, and they must be a citizen, a permanent resident or hold a special category visa. Simply having permanent residence will not, on its own be enough. The definitions for residing are similar to those used to work out if someone is a resident for tax purposes, and include: where you live a hotel is more likely evidence you reside somewhere else, owning or renting a home is more likely evidence you reside here; where your family is having all your family, especially spouse, children etc live in another country is more likely evidence that you reside elsewhere, and having your family here is more likely evidence you reside here where you work, study or run a business where do you make money, where are your commitments? where do you own assets? a house, a car, a business? how often, and for how long, do you travel outside of Australia? Are you here most of the time, or only sometimes? To understand how this works, you can think about Medicare. That is a system where we all pay some money from our taxes so that we can see doctors when we need to. If you don t live here, you don t pay tax here, so you don t pay any money into Medicare. Of course not everybody pays for Medicare. Children don t earn money, but they do need to see doctors. People without a job don t pay Medicare, but they can still use it. That means the people who do earn money need to pay enough into Medicare so that it can be available for everyone. 20 Page Disability Directory 2013

21 So there has to be a decision about who can use Medicare. The same thing applies to the NDIS. Questions to think about Should people have to live in Australia to be able to access the NDIS? What about people who are Australian, but live overseas? How long should you have to be here to access the NDIS? One month? One year? Ten years? What if you worked overseas for ten years, earned a lot of money and did not pay any tax in Australia, but then became disabled the day you came back? Should you receive the NDIS? Would your answer be the same for someone who was overseas with their family, but has had a disability for most of that time, has been unable to work and has no savings? Should the NDIS be available for services or supports used overseas? What about if the equipment you need is only available overseas, and you went there for therapy for a long time? Disability Requirements The disability requirements are very broad. The detail would be included in the rules. But if the disability requirements do not include certain categories of disability, then the rules cannot fix that. In the Bill, the definition is: one or more intellectual, cognitive, neurological, sensory or physical impairments, or impairments from a psychiatric condition; and they are permanent (but not necessarily stable, variation is provided for) and it is very difficult to carry out one of more of: o communication; o social interaction; o learning; o mobility; o self-care; o self-management; and being able to mix with people and work is affected; and the support needs are likely to continue over the person s lifetime. Questions to think about Is this clear to you? Does it make sense? 21 Page Disability Directory 2013

22 How does it compare to how you think about who is disabled and needs assistance, and who is not? Does this take into account the way some conditions change? Does this include the sorts of disability you are familiar with in the way you think it should? Early Intervention Requirements The early intervention requirements are that a person has a disability and the Agency believes that providing support early will reduce the need for future support. In other words, they have a condition that is either going to get worse, or they are a child, and supporting them now will make them more able to function in the future. It is a requirement that the Agency believes that intervention will help stop the condition getting worse, and help assist the people supporting that person. Questions to think about The idea of early intervention is made reasonably clear by the recent programs for early intervention. This section seems to include people who have degenerative conditions. But it is hard to imagine how any person with a disability would not benefit from being supported sooner rather than later. Why should this concept be applied only to certain people? What information would be needed to separate out people who need to be included in the NDIS now, even though their disability is not so severe at this stage? Are there conditions that develop slowly and should be included specifically because a more general test would not pick these people up? Information The CEO of the Agency can ask for information to show how a person meets the requirements to be included in the NDIS. Participation A person starts being a participant when the Agency accepts their application. A person stops being a participant when they: die, are over 65 and go into residential care, choose to stop being a participant; or 22 Page Disability Directory 2013

23 their status is revoked. A person s status can be revoked if the Agency decides they have not met the requirements. Plans There are a number of requirements for an individual plan. There is a description of the thinking behind individual plans. In summary, they should be: set up for the individual, and be directed by them, and allow them as much choice as possible respect the role of the people who are important to them, including family, carers and others help support families, and communities, to meet the needs of the individual consider what other supports are available If you are interested in the full list, you should read through section 31 which is included at the bottom of this page. What does it include? A plan includes a statement of individual goals and their living arrangements, supports, and what they are currently doing. It includes a description of the supports needed to achieve these goals. These include the supports available in the community, and the supports to be provided by the NDIS. There is a description of how a support is considered reasonable and necessary under the NDIS, including: that the support is directly related to the goal, and will help the participant achieve these goals that the support will support social and economic participation that the cost of the support is reasonable and value for money that the support is not something that people are reasonably expected to provide for themselves (like food, clothes etc) that there is not someone else who should be paying for the support (like the PBS for medications etc) 23 Page Disability Directory 2013

24 A full list of these requirements is included at section 34. All of them need to be met for the supports to be approved. When does it happen? A plan should be started within 14 days of someone becoming a participant of the NDIS. What happens if I go away? There is a grace period of 6 weeks for people to go overseas. After that there are decisions to be made as to whether the NDIS will continue. Plans will probably be suspended if you are away for longer than 6 weeks. Who gets the actual funding? A participant in the NDIS can ask that: they manage the funding themselves an organisation that they have chosen manages the funding, or someone the NDIA chooses manages the funding or the plan nominee. Plan nominee: A person nominated to do things on behalf of the person with a disability, including preparing or reviewing their plan, managing their funding. A nominee must e either requested by the participant, or requested by the Agency. The participant must agree in writing to the person acting as their plan nominee. You cannot choose to manage your own funding if you are insolvent under administration (if you don t know what those words mean, they most likely don t apply to you!) You also can not manage your own funding if the NDIA thinks that would be too big a risk. If you are managing your own funding, the money would then be paid into a special bank account you set up just for that. There would be some rules around what information you need to provide to show how the money was spent. Questions to think about How often should the plan be reviewed? The bill says you can request a review at any time, but is this reasonable? Should there be a structured review process to assist people in managing this process themselves? 24 Page Disability Directory 2013

25 Is individual funding always the best answer? Should there be a possibility for co-operatives to form? If for example, a group of people with degenerative conditions wanted to pool their mobility aids, so they can be passed along as people s condition changes, how would this work? How should reporting work? How often should people account for what they have spent the money on? What services or supports need to be provided for this? What rules should exist about supports? How do you decide if something is reasonable? What concerns do you have about the criteria for reasonable not being in the Bill, but being in the rules? What if the government wants to cut costs and changes the rules about what is reasonable? 25 Page Disability Directory 2013

26 Chapter 4: Administration General Requirements A participant must notify the Agency if there is a change in their circumstances. This is a very similar requirement to the Centrelink requirements. The Agency will provide details of how this should be notified. Questions to think about Do you know what changes you need to notify Centrelink about? Do you worry that you have not notified them of something, and you will be punished for this? Do you find it easy to notify Centrelink of a change? What suggestions would you have for the Agency making this easier for you? Information The Agency can demand that people provide them information about things that affect their NDIS arrangements. These things might include information about whether they are entitled to the NDIS, whether they have used the funding properly, or whether they have received other compensation that they should have told the Agency about. There are penalties for not telling the Agency things that they have asked you to tell them. Privacy A person may obtain protected information for the purpose of this Act. The Bill does not say which people may be able to access this information. It does say that information must only be accessed for the purposes of the Act. There are penalties for obtaining, or trying to obtain, or offering to provide, protected information for other purposes. Other compensation. There are times when people might receive money related to their disability. For example, if their disability was caused by an accident that somebody was responsible for causing, the person might be able to get some money from the person who caused it. This might be an accident at work, or a car accident for example. If someone receives money for this, they need to tell the Agency, because they can not receive money for the same thing twice. If someone else is paying them for the costs of their disability, the NDIS should not have to pay them as well. Protected information is information the Agency has about a person, including whether they are a participant in the NDIS. 26 Page Disability Directory 2013

27 Sharing information with other Government agencies The Agency can share your information with other Commonwealth departments including Centrelink and Medicare. Questions to think about It is likely that very personal information will need to be provided to the Agency. This could be information about your disability, the impacts of your disability, and your personal plan. Should there be more specific descriptions of who can access this information, and what they can do with it? What if someone gets this information about you for a reason that is acceptable under the Act, and then uses it for something else later? Support providers A person or organisation can apply to be a registered provider of supports. These supports include managing funding, and providing support services. If the Agency is managing the funding, only registered providers can provide supports. Registered providers need to meet a number of requirements, which means the government can have some confidence that they know what they are doing, that they operate safely, and that they have some controls in place about how they do things. They must also have safeguards about who they employ to do the work. These restrictions do not apply so much when someone else is managing the funding. Questions to think about This arrangement means that people who manage their own funding, or have another person or organisation manage it for them have more freedom in who they choose to provide their supports. The government is not responsible for the choices you make, so you have more freedom. Does this provide enough safeguards? Should the NDIS be responsible for providing information about how to make sure you are using a safe and responsible provider, or is that a risk you should be able to take for yourself? What if the organisation you choose takes your money? What if they do things in an unacceptable way? What level of protection do you expect to 27 Page Disability Directory 2013

28 receive under the NDIS? How much freedom do you want to make your own choices? Children The Bill makes specific arrangements for children. If a participant is a child, then it is the responsibility of the parents to do the things the NDIS expects to be done. This might include managing the plan, or managing the funds, or managing some parts of the plan or the fund. If the Agency considers that the child can make their own decisions, they can be responsible for their own actions regarding the NDIS. The Minister can make rules about how these decisions are made. A person has parental responsibility for a child if they are their parent, or have arrangements in place under a parenting order, or have guardianship of the child. If there is more than one person who has parental responsibility, the Agency can decide who has responsibility for things related to the NDIS. That might include a number of people. If someone has parental responsibility for a child, and can make decisions for them related to the NDIS, they must do it in accordance with the child s wishes and in a way that is good for their wellbeing. If the Agency comes to a conclusion that a person with parental responsibility is not acting in this way, they can take away that person s ability to manage the arrangements for the NDIS. Questions to think about Should there be specific words around what a parent is expected to do? If there were more specific words, would this make it difficult for a parent to do what they think is right? What protections should be in place to make sure parents can t abuse the child, and the NDIS funding? What is the right balance of safeguards and trust? How do good parents avoid being forced to defend everything they do, while making sure that people who are not acting in the child s best interests are unable to use the system for their own purposes? 28 Page Disability Directory 2013

29 Nominees You might want or need someone to help you mange things related to the NDIS. This person is called a nominee. Both you and the nominee must agree to the arrangement. The Bill allows for people to act as the nominee for a participant. There are two kinds of nominees: A nominee is someone who handles things on your behalf, and is authorised to receive letters, or make arrangements for you. A nominee can do this permanently, or for a specific period. Correspondence nominee Plan nominee A nominee must act in your best interests and according to what you want. They must make sure they know what you want to happen. The nominee must tell the Agency if there is a reason they can no longer act as your nominee. This might include things like: You don t agree on what is in your best interests They no longer have the time, or ability to act for you, or they don t want to do it anymore You want to have more independence You have had a fight and you no longer trust them to act for you A correspondence nominee can do anything except prepare your plan or manage your funding. This might mean that they fill in forms for you, or make phone calls for you, or answer requests for information. This type of nominee is like having a secretary to handle things. If the correspondence nominee receives information on your behalf, the Agency can consider that you have received this information. A plan nominee can assist with preparing your plan and managing your funding. They can do this for certain things, or for almost everything. The word comes from the word nominate which means that you choose someone to do something. If you nominate someone to receive your mail, you are asking other people to send your mail to them so they can handle it for you. You may nominate someone to make decisions for you, or to pay bills for you. 29 Page Disability Directory 2013

30 If the nominee is not doing what they should, the Agency can cancel the arrangement. If the Agency believes the nominee is causing, or is going to cause, severe harm to you, they can cancel the arrangement. This harm could be physical, mental or financial. The NDIS rules can provide more details about nominees. Questions to think about Have you had experience of nominee arrangements with other agencies, such as Centrelink? What worked well, and what did not? Do you have thoughts on what safeguards should be in place to protect people from abuse by nominees? Do you have ideas about how to make it easier to make sure the Agency will deal with the nominee if that is what you want? Do they have the right balance between protection and interference when the harm to you must be severe? People harm each other emotionally, physically, and financially, and that can be a minor incident in a relationship, and not cause for changing the arrangements for being a nominee. But is severe harm too high a hurdle? How much harm is just part of a relationship? Slight harm? Moderate harm? Serious harm? What if the person with a disability is harming the nominee? Should there be protections in place for this scenario? What evidence of harm should be needed? If a person has a falling out with their nominee, who is also their partner, and claims to be harmed, what process should be followed to make sure that the relationship is not further damaged by the government agency and its risk management? What protections should be in place so people with a disability can alert to cases of abuse by their nominee? Review of Decisions Many of the decisions in the Bill can be reviewed. The Agency has a responsibility to review these decisions if you request it. The review must be carried out by a different person to the one who made the decision. 30 Page Disability Directory 2013

31 If you don t agree with the outcome of the review, you can appeal the decision at the Administrative Reviews Tribunal. Questions to think about Should there be a time limit for reviews? Should there be a specialist body to consider reviews? Have you had experience with the Administrative Reviews Tribunal? Do you think this is a good place to take appeals? Should there be a mechanism to provide you with advice about how to make an appeal, or whether your appeal is likely to be successful? 31 Page Disability Directory 2013

32 Chapter 5: Compensation Payments This section is about payments that people may receive in relation to an injury. The Agency can demand that a person take action to seek compensation for their injury if it is related to the NDIS. So, for example, if someone has a disability because of a car accident, and they would be entitled to receive compensation for the injury, the Agency can demand that they do this. If the person does not do this, they may have their plan suspended. This means that if someone else should be paying you money for your injury, you must try to make them pay, or the NDIS will not cover you. If compensation is paid, the Agency may deduct certain amounts from the NDIS funding. This means that you can t receive funding from the NDIS, and compensation from someone else, for the same thing. The Agency may make demands to anyone who is supposed to pay you compensation, and hasn t. The Agency may ignore some compensation payments if they think it is the right thing to do. This might mean that if you have been paid compensation for something related to an injury, but it is not directly related to your plan under the NDIS, the payment will not be deducted from your NDIS funding. 32 Page Disability Directory 2013