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State and territory disability ministers have been sidelined from plans to strip back the NDIS. The legislation will hand the federal minister ‘God powers’ over the scheme.

By Rick Morton.

WhatsApp leak: ministers shut out of  NDIS redraft

The minister formerly in charge of the National Disability Insurance Scheme, Stuart Robert.
Credit: AAP / Mick Tsikas

Last Saturday, shortly after lunchtime, it all exploded. The WhatsApp group – set up between state and territory disability ministers and the then Commonwealth minister, Stuart Robert – had been seething with anger for a while. Then suddenly it was too much.

“I may actually self-combust with incendiary rage before this thing is over,” the ACT minister for Disability, Emma Davidson, messaged her colleagues.

It had been more than 24 hours since a leaked proposal for changes to the National Disability Insurance Scheme was reported in Nine newspapers. But state and territory ministers, who share half the oversight of the $25 billion scheme, had still not been given a copy of the legislation. None of them had seen even a briefing note.

At no point since has the federal government – or Stuart Robert, who was moved from the NDIS portfolio earlier this week in a cabinet reshuffle – made the document available to the states and territories.

The Saturday Paper has spoken with several members of the WhatsApp group and the Disability Reform Council, both of which include Robert.

“He thinks it is okay to have state ministers begging to see a copy of the draft legislation,” one minister for Disability says.

“Robert says he is up to draft 80 on this and no one outside of the federal government has seen it. Not state ministers and certainly not people with disability.”

After Davidson’s message, New South Wales Liberal minister Gareth Ward offered her a thumbs-up. Within moments, he phoned to express his support.

In the Northern Territory and Western Australia, ministers called for Robert to release the official draft. Until that happens, state and territory ministers are working from a leaked document that outlines an alarming future for the NDIS, including a “God power” for the federal minister to remake the scheme at will.

Robert offered no reply to his fellow ministers at the weekend. It was only after Scott Morrison’s Monday cabinet reshuffle – which saw Robert transferred to the Employment, Workforce, Skills, Small and Family Business portfolio – that the Queensland MP popped back up in the chat.

Robert told the other ministers he was removing himself from the group and adding in the new minister for the NDIS, Linda Reynolds.

Reynolds, who remains on paid medical leave following revelations about her handling of former Liberal staffer Brittany Higgins’ rape allegation, politely said hello to the ministers with whom she soon would be working.

Sensing an opportunity, they again requested the draft NDIS legislation. Reynolds did not reply, and has not been in the chat since.

The Saturday Paper has obtained a leaked copy of the proposed changes to the NDIS Act, dated December 2020.

The documents signal plans for a broad, sweeping and potentially irrevocable consolidation of power within the scheme to a single person: the federal NDIS minister.

In its 323 pages, bureaucrats have taken the current NDIS Act and tracked changes throughout. They have added entirely new sections to the legislation and deleted key clauses that have underpinned the very nature of the scheme.

Central to the seismic shift is a new ability of the Commonwealth minister to make so-called “rules” at any time, which the chief executive of the National Disability Insurance Agency must follow when interpreting the legislation.

As first revealed by The Saturday Paper in December, critical rules that used to require either unanimous or majority agreement from states and territories would, under the proposed changes, become the sole prerogative of the Commonwealth.

The Commonwealth minister would be given unilateral power to rule on general supports that will be provided under the scheme, and to dictate the criteria for “determining the total amount of funding allocated for the purposes of a plan”.

This change will strip the states or territories of the veto power they now hold.

But this is not the only significant proposal. The draft legislation includes an expanded debt recovery power, which would allow the NDIA to claw back money from participants who breach the new rules, sparking concern about its similarity to the controversial robo-debt scheme.

In effect, the agency could raise a debt on an individual if they spent their NDIS funding on “ordinary living expenses” or on a service or support the Commonwealth minister decides should have been funded by a state or territory government. These decisions could be entirely arbitrary.

Moreover, as one sector source pointed out, the government is “building a capability to surveil” NDIS participants in order to watch what they spend and where, in close to real time. Using technology solutions such as blockchain – already trialled in the scheme – the government wants to see what people are spending and will launch a new NDIS app in coming months to consolidate these features.

A new section of the act, 46C, would hand the Commonwealth minister the extraordinary power to ban any kind of support and to force states and territories to potentially fund others.

“A participant who receives an NDIS amount, or a person who receives an NDIS amount on behalf of a participant, must not spend the money to acquire goods or services prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection as goods or services acquired as part of ordinary living expenses,” the documents read.

These banned “goods or services” – note, the scheme’s common language of “supports” is not used here – may be things the minister decides ought to be funded by “other general systems of service delivery or support services, whether or not they are currently being so funded or provided”.

The states and territories are concerned this will shift responsibility back to them – as, prior to the introduction of the NDIS, they were the major providers of disability services.

This particular clause, 46C, appears designed in response to a number of Administrative Appeals Tribunal (AAT) findings made against the NDIA, including an October 2019 case wherein a man in north Queensland with multiple sclerosis won a long battle to have an airconditioner provided through the disability scheme. 

The NDIA had argued it was a “day-to-day living expense” but lost because the tribunal said it was a reasonable and necessary support based on evidence people with MS experience worsening of their condition when their core temperature rises.

Similarly, the NDIA lost another matter in 2018 regarding a woman who sought, and won, funding for a personal trainer and gym membership because it allowed her to maintain her physical function.

Legal experts who spoke with The Saturday Paper were astonished at the breadth of this section in the proposed changes.

“He [Stuart Robert] is taking all of the King Henry VIII powers,” one legal source said. “You cannot get a more pure power grab. That is a God power.”

In law, Henry VIII clauses are often described as subordinate pieces of a primary legislation – in this case NDIS rules under the NDIS Act – that subvert or amend the legislation itself, typically through executive power.

This consolidation of power continues throughout the document.

Proposed changes to section 27 of the act would give the Commonwealth minister unfettered ability to decide, for example, whether people are mentally ill to the degree required for NDIS support. It could allow the minister to deny early intervention funding if they believed the evidence about its “benefit” in the future was unclear.

Most strikingly among the draft changes, though, is the removal of the entirety of section 34, which currently declares that participants will be given “reasonable and necessary” support funding “to pursue [their] goals, objectives and aspirations”.

Contrary to other media reports, there has been no suggestion from the Commonwealth that this is a mistake in the drafting or that it will be unwound.

On March 26, Stuart Robert tweeted, “We are introducing reforms to the NDIS because we believe access to the scheme and a participant’s plan should not be determined by your postcode or how much someone can pay for a report.

“This does not extend to removing the term ‘reasonable and necessary’ from NDIS legislation.”

Robert’s wording is deliberate. The term will likely remain in the legislation but not as a descriptor for what participants should receive in terms of support. Now, the term “reasonable and necessary” will describe a participant budget. The difference is subtle, but the latter places more emphasis on the financial metrics of the NDIS and, according to legal sources, would allow rationing of support without an avenue for legal challenge.

Where the draft discusses what is currently written as “reasonable and necessary supports” for individuals with disability, the reference is struck through and replaced only with “funding for supports”.

No less alarming to disability advocates, but more discreet, is a slew of language changes throughout the new document.

Under this proposal, for example, people with disabilities will no longer be entitled to “reviews” of their own funded support package but will instead be submitted to a “reassessment”. This language is changed throughout, and the word “request” has been changed to “requirement” for assessment information. Privately, NDIA staff and Stuart Robert’s office believe they do not need legislative force to introduce controversial independent assessments (IAs) – by government contractors who will examine disabled people to determine their functional needs, breaking the often years-long relationship between people and their treating health professionals – but these are included in draft proposals.

“A requirement … may specify that the assessment or examination is to be conducted by a person included in a class of persons made known to the prospective participant,” the draft clause says.

Public Interest Advocacy Centre senior solicitor Chadwick Wong, who leads the organisation’s project to institute a fairer NDIS, says the combined effect of independent assessments and the leaked legislative changes create new “transparency, accountability and governance issues”.

“The government’s cost-cutting overhaul of the NDIS includes a number of disturbing changes that will erode the ‘choice and control’ promised by the scheme to people with disability,” Wong says.

“The removal of the word ‘co-design’, as seen in documents leaked to the media … also points to a concerning step away from meaningful engagement with the disability sector.

“We urge the government to stop the implementation of these changes immediately, and to properly consult with the community so that improvements to the NDIS may be co-designed with people with disability.”

Taking all of the proposed and planned changes together, the impact on people with a disability is significant. Here’s how independent assessments will work with the government’s desired legislative overhaul.

The eight-year-long experience of people turning up to a planning meeting, expressing their goals and ambitions to live life in the community and having each of those goals funded through a “reasonable and necessary” support to achieve them are over.

Instead, a person’s first experience of the NDIS will be a functional assessment carried out by a team of strangers for a few hours. This assessment will automatically generate a “draft budget” based on software that splits them into categories. These categories will be informed by the functional need score, their age and, according to the agency itself in a submission to a parliamentary inquiry, “the impact of their environment, such as the informal supports available to the participant and other contextual factors such as locality or circumstance”.

Rather than building a support package from scratch, participants will arrive at their first planning meeting with a generic draft budget and then have limited opportunity to argue for individual changes.

Advocates are calling it “robo-planning”. If the NDIS was the greatest policy achievement in a generation, these changes represent the greatest disfiguring of its original intention. They lay the groundwork for an NDIS that is less generous, less fair and less accessible – all under the caprice of a single minister. And he just left the chat.

This article was first published in the print edition of The Saturday Paper on Apr 3, 2021 as "WhatsApp leak: ministers shut out of  NDIS redraft".

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Rick Morton is The Saturday Paper’s senior reporter.