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A win for the government in its push to deny people on the National Disability Insurance Scheme access to sex worker supports may hand the Commonwealth even greater power to control the scheme. By Rick Morton.

The NDIS and government controls

The minister for the National Disability Insurance Scheme, Stuart Robert.
Credit: Sam Mooy / Getty Images

A “moral panic” battle by the federal government to ban National Disability Insurance Scheme participants from hiring sex workers, which could reshape the foundation of the $25 billion program, has been given a significant boost.

The win came on March 12, when the deputy president of the Administrative Appeals Tribunal (AAT), Gary Humphries, made a decision in the case of 70-year-old Alexa McLaughlin.

For the first time in the eight-year history of the NDIS, Humphries interpreted the scheme’s legislation as providing a way for the National Disability Insurance Agency and the Commonwealth to reject support, even if it is considered “reasonable and necessary”.

His decision was based on a sliver of the legislation – section 33(2) – that had never before been tested. It had been raised, however, by the NDIA during the landmark appeal to the Federal Court of the sex worker case that’s sparked a government push to rewrite the parliamentary act governing the NDIS.

That case, in which an anonymous woman in her 40s with complex disabilities and conditions that precluded “sexual release” of any kind on her own won the right to have a dedicated sex therapist see her once a month, is now back at the centre of the fight for control over the future of the NDIS.

In May last year, the Federal Court rejected last-minute attempts by the NDIA to argue that section 33(2) of the legislation allowed it to dismiss reasonable and necessary supports. But the court found it could consider the issue only once it has been raised properly before the AAT. The section could lead to “a somewhat substantial revision to the present conception of this legislative scheme”, the court said.

Now Humphries’ decision last week in the AAT has opened the door for the government to dismiss support for anyone under the NDIS, even if this support has previously been deemed “reasonable and necessary”.

“This began as a moral panic but that is just the beginning,” one state disability minister tells The Saturday Paper. “Bigger forces are at play and it is all about control.”

After losing the sex work appeal in the Federal Court, NDIS Minister Stuart Robert and the government set about readying the ground for a rewrite of the scheme’s legislation. These changes would give the Commonwealth the explicit power to refuse funding for certain types of support.

At the same time, Robert has been spruiking the introduction of so-called “independent assessments”, or IAs, which also require legislative change to take effect. Both attempts have been rushed, launched late last year in the middle of the pandemic, with the government apparently committed to the new regime starting in July this year.

Earlier this month, ACT Minister for Disability Emma Davidson sent a letter to Minister Robert and NDIA chief executive Martin Hoffman, warning of “significant concerns” about the rollout of independent assessments. Davidson wrote that these concerns were only compounded by the announcement of a panel of providers in the ACT just two days after the consultation period ended.

“It seems there was little opportunity to have regard for the feedback provided through consultation and the real concerns of people with disability,” she wrote in the letter, which was obtained by The Saturday Paper. “I am somewhat concerned that the Commonwealth is increasingly acting unilaterally on matters relating to the NDIS on important decisions regarding choice and control and reasonable and necessary supports.”

In its submission to a new parliamentary inquiry into changes to the NDIS Act, the Commonwealth Ombudsman similarly sounded a warning that the sweeping “breadth” of changes “being introduced in a relatively short time frame may present a challenge for the NDIA, its partners and for participants, carers, advocates and service providers”.

The ombudsman, Michael Manthorpe, summarised a laundry list of key NDIS changes following the 2019 review by David Tune of the NDIS Act and warned that in addition to defining what constitutes “reasonable and necessary” support and tinkering with the early intervention pathway for children aged six and under, the agency is “expected to introduce changes to participant budgets”.

The federal government argues this will increase “consistency” in decision-making, using examples from electorates in Tasmania and South Australia where funding appears to be higher for some people with similar functional needs than for others.

La Trobe University administrative law expert Dr Darren O’Donovan tells The Saturday Paper that the significant decision of the AAT could give the federal government precisely what it appears to want: a way to control costs.

“The residual discretion issue needs to be put to the Federal Court. While there are arguments on both sides, I think it is a question of law that can be fought and won,” he says. “For eight years lawyers and advocates have shown the agency’s financial [cost] claims are often based on crude assumptions and lack in detail.

“Key data and decision-making tools are unpublished, it is a black box. We must not engage in generic robo-planning that doesn’t start with the person’s goals.

“The NDIS Act expects politicians to lead, share relevant data and be accountable. If there are financial sustainability concerns, then that is an issue for the government to address in a patient, collaborative way through detailed rules agreed by the Disability Reform Council.”

If the current emphasis of the legislation is rewritten, placing greater priority on government budget concerns, then the very nature of the NDIS will change.

Late last year, The Saturday Paper revealed the pieces of the NDIS chessboard that have slowly been moved into place over many years by the Coalition government ahead of its final strike to refine the scheme.

It has sought to hold to ransom funds destined for state and territory governments – as prescribed by Julia Gillard’s original legislation for the NDIS – in return for the power to make decisions about the scheme’s design on its own.

Under current arrangements, many of the subordinate “rules” that are made to give effect to parts of the scheme legislation must be agreed on by every state and territory in the country. Minister Robert is seeking to abolish that enshrined consensus.

Although the proposed reforms have many elements, the disability sector sees them as being part of the same overarching project to wrest back control of the scheme at a federal level and save money in the budget.

A coalition of 20 disability organisations, including the largest peak bodies in the country, issued a joint statement on March 11 warning against false comparisons between individual NDIS participants.

“While we all want greater consistency, we are very concerned this increasingly automated process will not adequately consider individual need and circumstance,” their statement read.

“This is not the NDIS we fought for. These changes will fundamentally alter the individualised and personalised nature of the NDIS.”

In its joint submission, the Department of Social Services and NDIA write there is “understandable concern… [that] any changes to this crucial new development for people with significant and permanent disability may potentially result in fewer people, receiving less support, with less power to make their own decisions.”

“That is not what is proposed under these changes,” the agencies wrote.

The common thread between the significance of the AAT decision and the Commonwealth’s broader effort at redesigning the entire NDIS is its almost singular focus on the upfront cost of the scheme.

Bruce Bonyhady, considered by many the architect of the NDIS and the scheme’s first chair, told the parliamentary inquiry that the only evidence for independent assessments is that they result in cost savings for government.

“It is difficult to understand why administrative ‘efficiency’ is being prioritised over accuracy, especially given that the accurate determination of both eligibility and reasonable and necessary supports are foundational to the success of the NDIS,” Professor Bonyhady said in his submission.

“Fairness and consistency can only be achieved through accurate, valid assessments and governments need both accurate and consistent assessments for funding to be predictable and sustainable.”

Bonyhady, who now leads the Melbourne Disability Institute at the University of Melbourne, dismantles almost every element of the proposed assessments in the withering submission, and notes there is no evidence in any of the pilots that the support packages granted to participants are accurate.

“It is therefore disturbing that the NDIA intends to replace the current planning process with an almost total reliance on IAs,” he said.

“Moreover, unless the NDIA changes course, there is a very real danger that IA will have all the hallmarks of automated ‘robo-planning’, rather than the individualised planning and funding process that people with disabilities and their families fought so hard for when campaigning for the NDIS.”

Independent assessments are just one feature, but their arrival is instructive.

It was former NDIA chief executive Rob De Luca who initiated the then-secret Project Greenlight within the disability agency – the first name for outsourced functional checks, now being delivered under the moniker of “independent assessments”.

These had been recommended by the 2011 Productivity Commission and trialled on and off since 2013 but were abandoned because no assessment tool was ever found, or developed, that could achieve the desired consistency.

Nevertheless, De Luca pressed on. At the end of 2019, he resigned and went on to become chief executive of Zenitas Healthcare.

When the NDIS agency announced the successful tenders for the new independent assessors, due to begin work in July, one of the eight companies that won the work was Allied Care Group, a subsidiary of Zenitas.

In his damning submission to the parliamentary inquiry into changes to the NDIS Act, Professor Bonyhady says the “independent” nature of these new independent assessments is really only describing the separation of disabled people from their existing network of treating health professionals. They are not, he suggests, independent of government.

This article was first published in the print edition of The Saturday Paper on Mar 20, 2021 as "Control room".

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Rick Morton is The Saturday Paper’s senior reporter.