As you would be aware, in October 2022 an Independent Review Panel co-chaired by Professor Bruce Bonyhady AM and Ms Lisa Paul AO PSM (Panel) was appointed to conduct a review of the design, operation and sustainability of the National Disability Insurance Scheme and build a more responsive and supportive market and workforce (NDIS Review).

On 30 June 2023, the Panel released its report  The Report outlines 'what you have told us needs to change', detailing ten areas for improvement and five key challenges for the NDIS, moving forward. Importantly, the Report does not make any recommendations, or outline measures that the NDIS Review intends to implement to respond to the issues highlighted in the Report. Rather, it functions as effectively a progress report, highlighting information that the NDIS Review has received to date in the form of key issues and challenges. This gives us some insight into the issues and challenges that the NDIS Review will seek to address in its Final Report, and resulting recommendations, due in October 2023.

For each of the 10 areas for improvement highlighted in the Report, the NDIS Review has posed questions, which it has stated is 'what we want to know now'. The NDIS Review is seeking responses to these questions through the 'Have Your Say' portal, on the NDIS Review's website. Submissions can be made through the portal until 25 August 2023.

We encourage all of our clients to consider whether to make a submission to the NDIS Review, as appropriate engagement from the sector, particularly from providers who have experience working within the NDIS, will be integral to ensuring that the NDIS Review's recommendations are tailored and fit for purpose.

We provide a high-level summary of the Report, below.

What the Panel has learned so far

In the Panel's news release accompanying the Report, they note they have heard from thousands of people who have shared their experiences with the NDIS.

In highlighting what the Panel has learned so far, the Report notes that 'you have told us how complex and costly the processes in the NDIS are … navigating the system is leaving participants and their families exhausted and stressed'. While acknowledging that the 'NDIS has transformed the lives of many people with disability and their families', the Report flags that at the 'heart of the review is improving the participant experience' and better solutions need to be developed to achieve this.

Importantly, the Panel highlights the important transformative changes that have been led by the NDIS since it was introduced and the positive impact it has had on the lives of people with disability. The Panel notes that the participant experience is at the heart of its terms of reference, and it is focused on learning from the experience of people with disability accessing the NDIS, in carrying out the NDIS Review.

The Report is split into two parts, the first highlighting 5 key challenges and the second highlighting 10 priority areas for improvement, both of which have become apparent from the NDIS Review's work to date, and will shape their future enquiries and the scope of the NDIS Review's recommendations.

Five key issues for the NDIS

Why is the NDIS an oasis in the desert?

The Panel notes that the NDIS was never designed to support all people with disability. The original plan was for the NDIS to work alongside community supports for all people with disability, but unfortunately these community supports have not been delivered. As a result, the NDIS has become an oasis in the desert, leaving people who are not in the NDIS without support and having significant impacts on the cost of the NDIS.

What does reasonable and necessary mean?

The purpose of the NDIS is to fund 'reasonable and necessary' supports for participants, but the Panel has identified that this concept is poorly defined. This leads to people with disability experiencing the following issues when attempting to engage with the NDIS time-consuming and poor planning experiences, inconsistent and inequitable decisions about their funding and supports and disputes between NDIS participants and the National Disability Insurance Agency (NDIA) about their funding and supports.

Why are so many children entering the scheme?

The Panel has highlighted that 'many more' young children are entering the NDIS than was initially anticipated. It acknowledges that this is in part due to a higher level of disability amongst young children than originally expected. However, it is also noted to be due to a lack of supports for children with disability outside of the NDIS in mainstream settings. The Panel also identifies in the Report a number of failings in early interventions, namely that there is a focus on diagnosis rather than support provision, and that early interventions employed for young children with disability are not always based on best practice. This approach to early intervention has also contributed to more young children than initially expected attempting to access the NDIS.

Why aren’t NDIS markets working?

The NDIS was intended to operate on the basis of competition between providers, leading to improved quality, innovation and diversity of services. The Panel notes that this has not occurred, and in some markets a lack of available services leads to participants not having genuine choice and control. Further, it notes that the market approach has not helped to nurture connections with the family, friends and community of people with disability. This is in addition to the usual workforce challenges that we are seeing across caring professions, including issues with the quality, training and retention of the workforce. These failings are undermining outcomes for participants and contributing to increasing scheme costs.

How do we ensure that the NDIS is sustainable?

The Panel highlights that while the NDIS is an uncapped, needs-based scheme (it does not appear at this stage that the Panel is proposing that this must change), it notes that it also must be sustainable and its costs predictable for governments and the public.

Report identified priority areas for improvement

The Report also identifies ten priority areas for improvement, with the aim of 'addressing problems that benefit all participants'. These are outlined below.

Applying and getting a plan

The Panel has highlighted that getting access to the NDIS is not simple or straightforward task for people with disability and their representatives. Further, once an individual has managed to access the NDIS, planning processes are 'complex, confusing and stressful'. Cultural issues at the NDIA are highlighted and that this may be contributing to a lack of trust and confidence in its decisions for people accessing the NDIS. The outcome of this is that people with disability find it very difficult to access the NDIS, and when engaging with the NDIA feel they are not engaging with someone who understands them, their disability or is attempting to make decisions in a way that the decision is made with the individual, or in a way that they can trust or understand.

A complete and joined up ecosystem of support

The Panel has observed that support for people with disability is not planned, funded or governed as a whole ecosystem. This impacts people who need to seek support outside of the NDIS, as they are often unable to access adequate support and also impacts the viability. This leads to people spending too much time attempting to navigate the broader disability ecosystem and people staying in the NDIS when they might not need to, for fear of a lack of support outside of it. This also leads to financial stress being placed on the NDIS, and people with disability having increased future needs because they miss out on supports when they need them.

Defining reasonable and necessary

The lack of a clear, shared understanding of what is 'reasonable and necessary' is leading to the 'complexity, confusing, conflict and inconsistency'  being experienced in the NDIS. The Panel notes that without a shared understanding of what is 'reasonable and necessary' it is hard for participants to know what supports to expect from the NDIS, or to have a planning process which is not 'stressful and confrontational'.

Early childhood supports

Early intervention for children is frequently not based on best practice and there is a lack of support for families. This leads to parents and families feeling that they do not receive the correct supports from the NDIS. The Panel highlights in the Report the need for support to be provided to parents and families to empower them to seek out supports which are based on best practice at the time, and that these best practice supports would assist their children to thrive and be included in home and community life.

The support and service marketplace

The markets which operate within the NDIS are noted to not yet be working for all participants, and do not result in all participants being able to access the supports that they need. The result of the markets not functioning properly is that some participants find it challenging to find the supports they need, near to where they live. It also means that in some markets, participants are finding it difficult to connect with support workers who have the correct 'skills, values and attitudes' for their needs.

Measuring outcomes and performance

The Panel has highlighted the need for improved measurement of outcomes and performance to assist participants to make informed choices, maintain accountability for providers and government and make sure the NDIS is sustainable. To achieve this, there needs to be increased, and higher quality data and evidence available to assist participants to choose services, but also improve accountability.

Achieving long term outcomes

The Panel has observed a lack of focus on 'achieve long term outcomes relating to participation, inclusion in communities and employment'. The enriching value that strong connections with family, friends and community have for people with disability is highlighted in the Report, and that these connections need to be nurtured by the NDIS.

Help accessing supports

There are a range of ‘intermediaries’ (e.g. local area coordinators, early childhood partners, remote community connectors, support coordinators and plan managers) who each have overlapping roles and because of this it is noted to not be clear to participants who should be assisting them to navigate the NIDS. This is causing challenges for individuals seeking to access supports.

Supported living and housing

The housing and accommodation options available to participants is noted to often leave participants with limited choice as to 'where, how or with whom' they live. The need for innovation in disability housing is also noted, as well as the fact that the supply of disability accommodation does not always meet the needs of participants. This limits the exercise of choice and control in relation to accommodation .

Participant safeguards

The NDIS is noted to have not worked to safeguard all participants in the scheme, whilst still maintaining choice and control. The Report highlights not only the need to safeguard people with disability whilst maintaining choice and control through appropriately function systems which improve safety and outcomes, but also the need to empower people with disability and build their capacity so that they are able to keep themselves safe.

Panel is now moving to look for solutions

The Report notes that Panel is now 'moving from the discovery phase to look for solutions, particularly in the priority areas which have been identified as the most challenging and needing the biggest shifts'. It also flags that 'we need your insights to help to answer these questions'.

Submissions can be made through the 'Have Your Say' portal, on the NDIS Review's website, until 25 August 2023.

The Panel will provide a Final Report to the Disability Reform Ministers by October 2023. Where specific opportunities for reform are identified prior to the Final Report, the Panel may bring forward recommendations and a supporting paper to the Disability Reform Ministers ahead of the October deadline.

Considering the challenges and areas for improvement highlighted in the Report, it seems likely that the Panel is going to recommend wide-reaching systemic change to the NDIS. It will be interesting to see how the recommendations arising from the NDIS Review will work alongside the recommendations of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Royal Commission), which due to the scope of the Royal Commission's investigation, will look at the disability sector as a whole. rather than only the NDIS. The Royal Commission and the NDIS Review have both identified that the way the NDIS is interacting with the broader, fragmented disability sector is not working, and that this is too often leading to people falling through 'gaps'.

The Report focuses on safeguarding and although the comments made are broader than the regulator, it seems likely that there will be some recommendations regarding regulatory posture, considering that it is noted that the NDIS as it stands is not adequately safeguarding participants. We would expect both the Royal Commission and the NDIS Review to make recommendations regarding the conduct and scope of powers of the NDIS Quality and Safeguards Commission, which could lead to a significant shift in regulatory posture (noting that a shift is already being seen in how the NDIS QSC engages with and investigates providers.

Final Reports will lead to a significant reform journey

Finally, it is clear through the Report's focus on sustainability, the need to determine what supports are 'reasonable and necessary' and comments around the NDIS not being an oasis in a desert, that the NDIS Review may be considering recommendations around access to the NDIS, which could limit access for some people. There may also be a focus on supports which enable participants to eventually leave the NDIS, rather than being permanently reliant on it. This could lead to recommendations from the NDIS Review around funding the NDIS, what supports and services should, or should not be included in the NDIS and ultimately how participants are approved for the NDIS and if this process can be streamlined or modified to give participants more certainty.

It is a certainty that the end of 2023, with the Final Reports of both the NDIS Review and the Royal Commission will lead to a significant reform journey for the disability sector through 2024 and beyond.

To discuss this update, or if we are able to assist in any way, please do not hesitate to get in touch.