NIDA reportedly operating 'outside-the-law’ in the race to bring down NDIS budget 

In the drive to get the NDIS budget down, NDIA may have finally fallen foul of the law. Since the legislative reforms of October 2024, things have been difficult for NDIS’ severely disabled participants, who have been subjected to deep cuts– ranging from 30% and up to 75%.

These heavy reductions are being carried out in numerous ways, each more dubious than the last: from the sudden imposition of new and complex red tape for frequent low-value consumables purchases, to large opportunistic cuts (30-40%) to 'offset' the cost of essential assistive technologies, such as wheelchairs and beds– NDIA have been nothing short of creative in their pursuit of reductions. However, the Agency may have now bottomed out in its quest for savings, with its latest innovation: the ‘unscheduled plan review’.

The 'unscheduled plan review' is an unexpected 'check-in' by a NDIA employee which ends with a surprise budget axing despite no reports being submitted– and in so doing, breaches NDIA's own legislatively mandated processes. 

Surprise!

NDIS participants have reported being blindsided with unscheduled checkins by NDIA, which turn out to be unscheduled plan reviews. Such blindsiding of NDIS participants, prevents them from organising the necessary allied-health and medical reports required to justify their funding. By not giving participants the opportunity to organise the necessary reports, NDIA can cut participant funding with ease and the decision cannot be easily reviewed as there is no evidence to justify participant's need for funding at NDIA internal review– necessary to make a case for the participant.

Under s.48(6)a) of the NDIS Act 2013, NDIA must notify participants of the Agency’s decision to conduct a reassessment before their plan ends– 2 months notice is the Agency standard protocol so that necessary allied-health reports can be organized. NDIA is also statutorily required to give the participant a reasonable opportunity to provide information and reports relevant to the assessment s.50(3). Failure to do so may invalidate the decision, but participants are not aware of their rights so this hit-and-run practice continues unabated.

Disabilitywatch has found participants across different online chat forums reporting being subjected to unscheduled plan reviews, which suggests that they are not work of rouge NDIA employees, but a strategy used to reduce budgets where participants have been earmarked for cuts, regardless of their lawfulness or participant safety.

NDIS participants and their families are so shocked by the underhandedness of 'unscheduled plan review', that they are now taking to Reddit to warn each other of how to handle unsolicited plan reviews from NDIA while protecting themselves, see Reddit check-in post below of an unscheduled plan review carried out by  NDIA on an autistic participant. Disabilitywatch's consultant psychologist has reported a number of their NDIS clients are now afraid to answer the phone because bare budget was cut via an unexpected phone call.

Of additional concern is that participants who are socially impaired–and so don't understand what is happening– have also been targeted by unscheduled plan reviews and had their funding cut following unexpected phone calls. It is unclear whether the Agency simply had these individuals earmarked for cuts and was unconcerned whether socially impaired participants understood what was happening, or were actively taking advantage of participant's lack of social understanding which makes them soft targets for budget reductions. This practice needs to be independently investigated as it throws into question NDIA’s ability to administer its duties in good faith as a government agency charged with the care of the vulnerable.

Flagrant breaches of administrative process and making decisions on ‘no evidence’ compromise the credibility of NDIA to safely care for at-risk Australians. NDIA's credibility is of particular concern in light of the proposed I-CAN assessment– which will remove allied-health as assessors of severely disabled participants' care requirements and replace them with proforma questionnaires conducted by NDIA bureaucrats themselves. In light of institutionalised and routine statutory breaches and aggressive practices towards vulnerable participants, can NDIA employees be trusted to conduct a fair care assessment without allied-health supervision or will the I-CAN simply be another opportunity to drive budgets down?

If disabled participants are being ridden rough-shod over now (See No Dot's example below) with allied health and avenues of legal appeal available to them, imagine what will happen when those are removed? Will NDIS be abke to safely care for the severely disabled– the very people it's charged with looking after- or will it put them at risk?

NDIA reportedly acting 'outside-the-law' 

Given that NDIA is currently breaching its own statutory processes in order to get budgets down, it should come as no surprise that the Agency is now also reportedly often side-stepping its responsibilities to comply with FOI requests, which would expose such administrative breaches to the Administrative Review Tribunal and plaintiff law firms.

NDIS participants seeking access to their personal files report being increasingly brushed off by the Commonwealth Agency who are claiming that they have either lost the documents or resending documents that have been previously sent (not the ones requested) or occasionally highly creative legal arguments are offered which sidestep the Agency's statutory responsibilities under the Freedom of Information Act 1982 (FOI Act 1982). s.11 FOI Act 1982 grants individuals right of access to most documents of a Commonwealth agency (unless they are exempt documents) in ordero maintain transparency and good governance of Commonwealth agencies. Without being allowed to access to personal NDIA files, participants are unable to appeal unscheduled plan reviews to the Administrative Review Tribunal, as they do not have access to their case files-- which is required for any appeal.

By regularly brushing off or not adequately complying with particiants FOI requests, NDIA are preventing non compliant administrative practices from being examined and reviewed by the Administrative Review Tribunal (ART). Additionally, refusing FOI requests also stymies appeals to ART as well as reduces the risk of any common-law class-action against the Agency. However, denying FOI is clearly bad faith and breaches the Agency's statutory requirements under the Freedom of Information Act 1982.

The Agency appears to be not complying with due process and thwarting legislative efforts at transparency in order to drive budgets down in any way possible, so politically set budget targets can be met. In tandem, NDIA's unscheduled plan reviews and frequent refusal of participants' FOI requests suggests that the Agency currently considers itself 'above-the-law' and not a safe pair of hands for Australia's most vulnerable.

Why is this happening?

However, in order to understand the aggressiveness of NDIAs cost-costing tactics, it is important to be aware of Labor's election policies for NDIS, which set the parameters for Agency behaviour: the answers are not as straightforward as they first appear. 

NDIS’ severely and permanently disabled participants are soft targets for cuts as they are generally unable to advocate for themselves– unlike the working parents of children accessing the scheme for therapy only– who make up the other half (43%) of the scheme.

However, NDIS' severely and permanently disabled participants- who are admitted onto the scheme case-by-case only (based on their severity)- are not the cause of the scheme’s rapid expansion. The mild-to-moderately affected children who are being admitted onto the scheme in droves (seeking therapy only) under the insurance-style automatic inclusions are responsible for the scheme's rapid expansion and budget growth.

This means that in order to meet Labor’s National Cabinet growth target of 8% by mid this year, NDIA have to double-down and focus budget reductions on the scheme’s most severely disabled participants, so that the double-digit growth resulting from child admissions can be offset and the overall growth rate of the scheme can be contained to meet the 8% National Cabinet target. This impacts the most vulnerable on this scheme twice as hard.

While the proposed Federal-State Thriving Kids program promises to curb the rapid growth of NDIS by transferring the responsibility for the therapy of mild-to-moderately autistic and developmentally delayed children to the new Federal-State program, the program's commencement has been pushed out by six months to the end of this year and exempts existing child participants- leaving the NDIS budget strained. 

The delays to ending admissions onto the scheme by automatic inclusions make the current budget growth targets harmful to the scheme’s severely disabled participants who are forced to offset rapid scheme growth caused by the automatic admission of mild-to-moderately affected minors. Compounding this inequity, Labor's election promise to not means-test NDIS, shields existing children on the scheme, most of whom are seeking therapy only and have working parents.

In tandem, these policies throw the burden of budget reductions from those who can afford it, onto the most vulnerable on the scheme- the care budgets of the severely disabled participants. The severely disabled are bearing the brunt of the many policy failings of political and bureaucratic decisionmakers and paying for it with their health and safety, simply because they are soft targets and lack political clout.

This is convenient for Labor who wish to be seen to be bringing NDIS budgets down inline with public expectation, while not disturbing their voting base.

Playing Politics with Disability 

Of the 330,000 children on NDIS, around two-thirds are only mild-to-moderately impaired (rather than severely disabled) and are accessing NDIS for child therapy only– rather than essential care support. Unlike the severely and permanently disabled participants on the scheme, NDIS' child therapy participants have working parents who are capable of at least part-paying their therapy bills, however due to their high prevalence and disproportionate numbers in Labor electorates– and thus their voting power– it is not politically favorable for Labor to impede access of NDIS for existing child participants, as it disturbs their voting base. Only new participants will be transferred to Thriving Kids, the rest will be grandfathered, with no means testing of participants despite the fact they have working parents. This does not appear to be a problematic policy until one considers the demographics of Labor electorates.

According to the Menzies Research Center, the rates of autistic NDIS participants are up to six times higher in Sydney Labor electorates, than in the more affluent Liberal Sydney suburbs. Most autistic participants accessing the scheme are children. These heavily populated suburbs just so happen to include Anthony Albanese's western Sydney electorate of Grayndler, as well as those of many of his party room colleagues– who were all standing for re-election, seeking a second term in office.

Labor PM Anthony Albanese’s election promise of ‘no means-testing NDIS’, does not appear to be controversial or harmful at a casual glance, however, when one considers the demographics of Labor seats, you can see how expedient this policy is for the Labor Party.

The other half of the scheme’s participants– the silent severely disabled, half– rely on NDIS to have their basic daily care needs met- cooking, eating, washing, dresing. In addition to being unable to care for themselves, severely disabled participants are also unable to cover their care costs privately should they be cut–as they are by-enlarge unemployed-- and suffer an 70+% unemployment rate scheme-wide. This most disadvantaged half the scheme are too disadvantaged to be affected by means-testing, however the same cannot be said for the other half of the scheme- the 330,000 children admitted under automatic inclusions (43% of scheme participants), who have working parents would be heavily impacted by means-testing and likely oppose it. So by ruling it out means-testing, Labor's PM helped engineer a second term in office– for both the Party and himself. It was a smart and winning move politically, however utterly devastating for the silent half of the scheme– the severely disabled and unemployed participants, for whom the budget burden was shifted onto and who are unable to cover their own care costs out-of-pocket should their funding be cut.

Why the severely disabled don't factor into political decision-making

Severely disabled participants on NDIS do not pose a political threat to Labor. Firstly, a number lack legal capacity and so are unable to vote or advocate for themselves. Of those who can vote– where exactly would they swing to? The Liberal Party? For whom the NDIS is considered a Federal budget burden and an economic drag? The Liberal prosposal for 'Direct Assessments' breached trust between the Liberal Party and the disability policy, and was doubled-down by Former Liberal Leader Susan Ley's proposal for major structural changes to 'end the culture of dependency'. The best severely disabled participants can do electorally is to vote Greens– however then their preferences flow to Labor regardless, meaning their protest vote has no impact on Labor's election platform.

In contrast, working parents of the mild-to-moderately disabled children on the scheme, are more upwardly mobile and could potentially protest vote against Labor- by swinging to the Liberals- meaning they need to be kept on side politically.

Because NDIS severely disabled participants cannot threaten Labor seats, they are not factored into political decision making around NDIS, unlike the vocal and socioeconomically more buoyant working parents of minors on the scheme, who can swing. This creates a human rights issue for permanently and severely disabled participants who have had the burden of reducing NDIS thrown disproportionately onto them, despite being least able to afford it.

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The Perfect Budget Storm for the Scheme's Most Severe  

Because of their lack of electoral impact, it has fallen on the scheme’s most severely disabled participants to absorb three different budget pressures:

• Reducing NDIS’ annual budget growth of from 22% to 10-10.8% since Labor entered office, with the aim of hitting the National Cabinet target of 8% annual growth by mid-this year;
• Setting aside $2 billion dollars over 5 years for the new Federal-State Thriving Kids program, which appears to be being cut out of the NDIS budget (in accordance with the Grattan Institute’s recommendations);
• Offsetting the rapid budget growth resulting from the automatic inclusion of children who drive it up, which remains double-digit. The 200,000+ existing mild to moderately affected children with autism or global developmental delay with working parents on the scheme will remain and not be means tested. The six month delay to the commencement of Thriving Kids will drive their numbers up further and place undo pressure on severely and permanently disabled participants who are required to offset their admission from their care budgets which they rely on for basic survival.

Layered directly on top of one another, these budget pressures are resulting in a triple whammy of budget reductions, for the most vulnerable on the scheme. Severely and permanently disabled participants have reported deep cuts in the order of 30%-75%. Such deep cuts have triggered the start of widespread neglect of NDIS’ most needy- its severely disabled participants. Disabilitywatch's online research has found participants who– following deep cuts– are now unable to wash regularly or are suddenly developing bedsores from immobility– both clear signs of neglect. Disabilitywatch has also uncovered multiple reports of participants suffering emotional distress following large reductions to their care plans as they are unable to cope with their new uncertain future– such as ‘crying all time’ or experiencing the onset of chronic anxiety post-cuts, which causes them to live in fear. For example, an NDIS user who has a spinal cord injury and is paralyzed from the armpits down recently received a 40% cut (following the purchase of a like-for-like replacement hospital bed) and is now experiencing signs of physical neglect and emotional distress, please see Reddit chat (posted above with permission).

These behaviors suggest the onset of neglect and new mental health issues – where non existed prior – due to the heaviness of the cuts. A common law class-action is inevitable, the current approach is not a safe solution for participants and creates unnecessary liability risks for the Agency. 

Focusing budget reductions on most severe participants has resulted in deep and unsafe cuts in an effort to meet Labor's National Budget targets to offset the ongoing and rapid admission of children under automatic inclusions which will last another year due to political delays.

Enter the I-CAN: driving down care budgets unsafely

The proposed I-CAN assessment is seen by NDIA as the solution to NDIS burgeoning budgets, as it removes allied-health assessments from the scheme, replacing it with a questionnaire administered by NDIA and an algorithm which will enable participant budgets to be reduced quietly without professional oversight. It has been projected that the I-CAN will save billions of dollars annually for these reasons.

Firstly, it must be questioned whether such an approach is safe, given the lack of good faith and unlawful treatment of participants by NDIA employees as demonstrated by the unscheduled plan reviews, unsafe cuts and frequent FOI runarounds. What will happen when scrutiny of allied-health is removed from the equation? Will the scheme even be safe for its disabled charges? 

The I-CAN merely exacerbates the existing problem, by attempting to rein in the NDIA budget by cutting savings out of essential care support of the most vulnerable on the scheme. Meanwhile, mildly-moderately affected children on the scheme with working parents who are able to at least part-pay their therapy bills will be unaffected by the I-CAN assessment which does not apply to minors.

This is a recipe for neglect and harm for the most vulnerable on the scheme, who depend on NDIS for their very survival, while passing over mild-to-moderately minors with working parents (seeking therapy only) who can afford a cut. Either National Cabinet growth targets need to be waived until Thriving Kids is up and running or the weight of budget reductions needs to be more equitably redistributed to those on the scheme who can pay, to avoid unacceptable risk to the most vulnerable on the scheme and a class-action for the Agency.

Keeping Up Appearances

Publicly, NDIA is now successfully bringing NDIS’ budget growth down– in-line with taxpayer expectations– however, behind closed doors the most vulnerable are being harmed on a daily basis. 

This is happening so that Labor's electoral base remains undisturbed and the Party does not appear to have failed policywise by failing to rein the NDIS budget-- which would cause significant embarrassment for Labor who have staked their reputation on the success of NDIS which was  hailed as: a 'once-in-a-generation' social reform. The contradiction does not appear to be a problem for the social-reform party.

Co-payments: redistributing risk

While access to NDIS does not need to be means tested, a means tested co-payment for working parents of children accessing NDIS therapy only, needs to be introduced post haste, so that the burden of budget reductions is shifted from those who are high-risk and cannot pay to those who are low risk and can pay. Otherwise the scheme will cause neglect and harm to those who actually need it, while duplicating the market for those who don't need it.

It is the job of the government to intervene where the market has failed, not to duplicate it. It is unclear why working parents, who are able to part-pay their child's therapy bills are fully subsidized by the NDIS, while severely disabled participants who lack the resources to privately cover their own care costs, are weathering such deep cuts and suffering neglect as a result.

Medicare only partly subsidizes citizen’s medical bills, on the understanding that individuals who have the means to part-pay should. Why is NDIS any different? Especially considering that the allied-health therapy sessions which NDIS fully reimburse, are lower priority than the medical appointments which Medicare only part-pay.

Children make up 43% of participants on the scheme– at least 330,000 participants– most of whom have working parents, so a shift to only partly subsidising their therapy (by households who are able to do so) would significantly relieve pressure on NDIS' strained budget. The majority of these children are not severe and are on NDIS for therapy only not care support.

Not only could the co-payment be means-tested to make it fair, but the size of the reimbursement could be tiered depending on the level of household earnings to ensure that access to therapy is not impeded. This would prevent any election promise from being broken as co-payments to do not impede access to the scheme. Additionally, co-payments disincentivize unnecessary therapy appointments thus reduce expenditure– a feature bound to please Treasury.

Such a policy shift is actually necessary, as the current rebate system is wasteful as it actively encourages participants to book unnecessary therapy sessions, otherwise any unspent funding is automatically and permanently cut at the end of their plan under NDIA's 'use-it-or-lose-it' rule. A means-tested co-payment would curb this wasteful practice as no one will waste their own money. Therefore, tiered co-payments would bring down the NDIS budget safely in two ways:

● directly reducing NDIS' expenditure through the co-payment itself; and 

● disincentivizing unnecessary therapy sessions, which changes scheme culture.

Introducing a co-payment for child therapy only, would be a more challenging policy for Labor, as it would affect large numbers of their voting base, but it is a necessary move given the deep cuts to the most disabled and disadvantaged on the scheme which has resulted in widespread neglect and harm as the budget reduction burden is placed on the shoulders of those who can least afforded it, simply because it is politically expedient to do so. Labor's current path is highly unethical and needs to change.

The severely disabled on the scheme cannot absorb more cuts– they are socially disadvantaged and cannot self-finance care funding short-falls– they simply deteriorate and fall into neglect and have suffered unacceptably already. Co-payments do not require any election promise to be broken and do not impede access to NDIS making them politically viable solution to NDIS' financial woes.

NDIS can be steered into financially sustainable waters safely, however a broader approach to cost reductions is required, which includes spreading out the burden of budget reductions across the scheme, so that cuts are absorbed by those who can pay, rather than simply targeting the scheme's most at-risk participants and jeopardizing their safety, because they lack political clout. Recent unsafe cuts to the care budgets of the most severe– have resulted in neglect, avoidable accidents and new mental health issues– demonstrate that NDIA cannot be trusted to reduce participant budgets safely unsupervised with the I-CAN. Co-payments offer a more equitable and safer sharing of budget reductions, lowering the risk of harm to high-risk participants (such as No Dot) and thus reducing the burden of liability for the Agency. Payments would also disincentivise unnecessary therapy sessions and waasteful spending and help change scheme culture, from one of wastefullness to careful spending.

NDIA also cannot continue down the its current high risk path of routinely breaching its own legislative processes-- such as conducting unscheduled plan reveiws-- in order to meet National Cabinet budget targets. Smarter policies need to be devised which keep the Agency within the law, while achieving necessary cost reductions.

The ‘Party of Social Justice’, cannot continue down its current path of merely carving up essential care budgets of the most severely disabled on the scheme in order to meet its ambitious budget targets, while minors with working parents continue to enter the scheme in droves, due to political delays to Thriving Kids.

Yes, NDIA need to rein in spending– but safely. Co-payments need to be introduced, to shift the burden of budget reductions from the most vulnerable who cannot pay, to those who can.

For media enquiries please contact enquiries@disabilitywatch.org