NIDA reportedly operating ‘above-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– starting at 30% and ranging up to 75%.

These heavy reductions are being carried out in numerous ways, each more questionable than the last: from the sudden imposition of excessive administrative requirements for frequent low-value consumable purchases, to large opportunistic cuts (30-40%) to 'offset' the purchase of essential Assistive Technologies (such as wheelchairs)– 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 check-in/ unscheduled full plan review’.

The 'unscheduled check-in' is an unexpected casual drop-in and check-up by a NDIA employee which ends with a surprise budget axing – and in so doing, breaches NDIA's own internal processes as well as the due administrative procedures required of a government agency. 

Surprise!

Autistic participants (who lack social awareness and understanding), are now reportedly being blindsided with unscheduled check-ins by NDIA, which turn out to be full unscheduled plan reviews. Such blindsiding of 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 successfully appealed as there is no evidence to justify the need for funding– which is required to challenge any decision by the Agency.

This hit-and-run practice, does not appear to be the work of an isolated NDIA employee– as NDIA will no doubt be quick to claim. Participants across different online chat forums have reported similar ambush strategies conducted NDIA employees as monitored by Disabilitywatch- suggesting that the technique of 'ambushing participants' is widely practiced at NDIA. For example, multiple reports have emerged online of participants who have had their plans cut after an unexpected phone call from NDIA (see Reddit post below).

The frequency of the reports by participants online suggests that the strategy of ambush is not only commonplace at NDIA, but also premeditated as autistic participants– who dont understand whats happening– as being heavily targeted. So it appears that NDIA bureaucrats are seeking to cut funding opportunistically from 'easy' participants who have been earmarked for reductions– although this requires an independent (not internal) investigation to confirm.

Taking advantage of an individual's mental disability is unacceptable at the best of times, but is morally reprehensible when carried out by a government agency charged with their care. It also throws into question the credibility of the NDIA as as the unsupervised determiner of care for the most disabled and vulnerable people in the country– particularly in light of the propsed I-CAN– which seeks to remove all professional allied-health recommendations and avenues of appeal from NDIS–giving NDIA unfettered discretion to axe budgets as they please.

NDIS participants and families are so shocked by the underhandedness of 'unscheduled check-in', that they are now taking to Reddit to warn each other of NDIA's dirty tactics, see Reddit check-in post below.

NDIA acting 'above-the-law' 

Given NDIA's increasingly murky methods, it should come as no surprise that the Agency is now also refusing to comply with the FOI requests of plaintiff law firms, such as national law firm, Maurice Blackburn Cashman (who are advising Disabilitywatch pro-bono on specific questions). This is unsurprising, given the range of shady techniques employed by the Agency to get its budget's down any which way. Presently, should NDIA's questionable methods be scrutinized in the full light of day, the Agency may find itself liable.

In tandem, NDIA's unscheduled plan reviews and lack of cooperation with FOI requests of plaintiff law firms suggests that they currently consider themselves ‘above-the-law’.

Why is this happening?

However before jumping to conlusions, it is important to understand the election policies underpinning NDIS, as they act as drivers for NDIA's behaviour– the answer is not as straightforward as it first appears. 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 the autistic and developmentally delayed children, who make up the other half of the scheme.

However, NDIS' severely and permanently disabled participants are not the cause of the scheme’s fast growing budget, which has instead been driven by the rapid intake of children (seeking therapy only) under an insurance-style automatic inclusions system, which accepts children onto the scheme on the basis of a diagnosis only which causes their numbers swell rapidly. In contrast, severely and permanently disabled participants are accepted onto NDIS (under s.24) on a case-by-case basis onlyand are required to demonstrate both the severity and permanency of their condition.

While the recently proposed Federal-State Thriving Kids program will curb the rapid growth of NDIS from mid-next year by transferring the responsibility for the therapy of mild-to-moderately autistic and developmentally delayed children to the new Federal-State program, it excludes existing child participants which leaves the NDIS budget strained.

Playing Politics with Disability 

Most children of the 330,000 on NDIS are not severely disabled (but rather mild-to-moderately affected only). Furthermore, they are accessing NDIS for child therapy only, rather than essential care support. Unlike the severely in 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 restrict access to NDIS for existing participants on the scheme. Only new ones.

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.

Prior to the last election, Labor PM Anthony Albanese, ruled out the possibility of means testing NDIS. At a casual glance the election promise of 'no-means-testing', does not appear to be a controversial or harmful policy. However, when one considers the demographics of Labor held seats, you can see how convenient this policy is for the Labor Party.*

The other half of the scheme– the silent half– are severely disabled, and so in addition to being high-care, are unable to independently covered their basic care costs as they are too disabled to work (they suffer an 77% unemployment rate scheme-wide). This most disadvantaged half of the scheme, would not be affected by means testing, however the same cannot be said for the other half of the scheme, who as working parents (of 330,000 children on the scheme – 43% of all participants) would be heavily affected by means-testing and actively dislike it. So by ruling it out, Labor's Leader helped engineer 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, who are unable to cover their own care costs out-of-pocket should there funding be cut.

Why the severely disabled don't count the at the ballot box

The severely disabled participants on NDIS do not pose a political threat to Labor. Firstly, a number of them lack the legal capacity and so are unable to vote or advocate for themselves. Of the remainder who can vote– where exactly would they swing to? The Liberal Party? The originators of the direct assessment and for whom the NDIS is an incendiary subject– the mere mention of which–  causes them to narrow their eyes and hoof the ground. 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 in a higher socioeconomic bracket and can potentially swing to Liberals, meaning they need to be kept on side politically.

So by refusing to means-test access to NDIS, Labor leader Anthony Albanese' guaranteed his Party's success at the polls, but threw the burden of NDIS’ weighty budget reduction onto NDIS' severely and permanently disabled participants, who are not only high-care so totally unable to care for themselves, but have no means to pay their care costs out-of-pocket due to a 77% unemployment rate scheme-wide. 

The profound and  widespread harm this election promise has caused, does not appear to bother Australia's great 'social-reform' party, whose decision to avoid means testing NDIS has very plainly focused NDIA’ aggressive cost cutting efforts on NDIS' most vulnerable participants with cuts of at least 30% and up to 75% over the past year to all funding streams– including essential care– using any means possible.

NDIA may wield the knife, but Labor hands it to them and directs where to cut: working parents of autistic children on the scheme – who populate their electorates and may swing–are off limits.

Harm and neglect on the scheme 

Such deep cuts to the most vulnerable on the scheme, has triggered the start of widespread neglect of NDIS’ 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 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.

Both of these behaviors suggest the onset of new mental health issues – where non existed before –  as a result of NDIA’s misguided actions, at the behest of the Labour Party. Despite that as the National Disability Insurance Agency, it is NDIA’s role to help– not harm its disabled charges.

Focusing NDIS’ budget reductions on the care plans of NDIS' severely disabled participants – rather than the mild-to-moderate ones with monied parents– causes physical and emotional harm to the most vulnerable participants on the scheme, rather than those who can weather it. For an example, of 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 replacement hospital bed) and is now experiencing signs of physical neglect and emotional distress, please see Reddit chat below (posted with permission).

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The Perfect Budget Storm for the Scheme's Most Severe 

Cuts to participants care plans have been unacceptably deep, because 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-next year;
• Offsetting the rapid budget growth resulting from the automatic inclusion of children who drive it up, which remains rampant at least 20% annually (this growth should end mid-next year but the existing participants will remain on NDIS, leaving the budget strained);
• 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);

Layered directly on top of one another, these budget pressures are resulting in unacceptably deep cuts in the order of 30%-75% for NDIS’ severely disabled participants and driving NDIA to trial ever more inventive budget reduction approaches– such as spontaneous check-ins–in an effort to meet budget reduction targets imposed by Labor, which are too ambitious while mild-to-moderately affected children continue to be accepted onto to NDIS in droves.

As not only are severely disabled participants required to offset the burgeoning numbers of minors with deep cuts to their plans– but the children themselves are untouchable: shielded under the election wing of Labor's favour, who have both exempted them from being either transferred to the proposed State-Federal Thriving Kids program or be means tested in order to avoid rocking the boat electorally. These children are– by enlarge– not severe, have working parents with means and are seeking therapy only.

This leaves the most vulnerable on the scheme to not only bear the brunt of the NDIS growth reduction targets, but also to offset the rapid growth in childhood admissions which is at least 20% per annum, as well as paying $2Billion for Thriving Kids) –resulting in a triple whammy of budget reductions.

The 'prequel' cartoon...

Making it Legal: Enter the I-CAN 

The proposed I-CAN assessment would be a godsend for NDIA, who are required to bring in NDIS budget growth down to 5 -6% per annum shortly and who are already operating outside the law in order to achieve the existing budget target of 10% set by Labor (while hemmed in by their election promises). Why is that? Because by removing all existing safeguards and oversight for participants from the scheme, the I-CAN administratively enables NDIA to crush budgets unexamined and thus meet their 5-6% budget targets unhindered and unexamined.

The proposed I-CAN assessment, which would be conducted by NDIA bureaucrats using a proforma questionnaire, would remove all scrutiny and professional care and therapy recommendations by allied-health for severely disabled participants from the scheme. It would also remove the right for participants to appeal funding decisions made by NDIA to the Administrative Review Tribunal (ART) for review, as the ART only has jurisdiction where a decision has been made by a government ddecision maker; because the I-CAN is an algorithm, and so the outcome cannot be appealed as no decision maker was involved in making it. This is deeply concerning, as currently 73% decisions appealed to the ART by NDIS participants are overturned by the Tribunal.  Such an independent appeal process of NDIA decisions is essential to protect the safety of the NDIS' vulnerable participants, who are otherwise at the mercy of the Agency's determined and unfettered to drive down budgets.

The ability of the scheme’s severely disabled participants to appeal NDIA's decisions to the Administrative Review Tribunal (ART), is the only recourse and safegaurd participants currently have against hardline cost cutting by the Agency. Which is precisely why NDIA want to remove it, the existing ability of participants to appeal decisions by the Agency poses an active obstacle to NDIA meeting their budget reduction targets. 73% of ART appeals are overturned by the Tribunal due to human rights which causes endless headaches for the the Agency– who are constantly tied up at ART. Without an avenue by which NDIS decisions can be appealed, NDIA can cut much deeper and simply disregard human rights.

Which is what NDIA have planned: Under the I-CAN, professional recommendations by allied-health would be completely eliminated from the scheme, as would external oversight of NDIA’s decision-making, clearing the way for NDIA to ride roughshod over participants' rights and quietly crush participant care budgets behind closed doors undisturbed pursuit of the bottom line. 

It is this precise lack of oversight, as well as a complete absence checks-and-balances on their administrative power that the I-CAN offers which makes it so appealing for NDIA as an administrative tool. The Agency– desperate to reduce its budgets undisturbed– is now seeking to crush budgets easily and legally– unscrutinized and unfettered.

Were the I-CAN to be introduced in its current form, a humanitarian disaster would quietly unfold: with the scheme's straightjacketed participants unable to appeal or amend NDIA's often dangerous decisions.

A national disability scheme which has no safeguards, external oversight or avenues for appeal is not only unsuitable for the disabled– but actively dangerous.

In summary, the proposed I-CAN doesn't pass the sniff test.

Keeping Up Appearances

All this harm is happening so that Labor can keep its self-serving election promises and thus its reputation. The Party's electoral base remains undisturbed and they do not appear to have failed policywise-- which would cause significant embarrassment for Labor who hailed NDIS as a 'once-in-a-generation' social reform.

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. NDIA's severely disabled participants cannot complain publicly, so are not a political liability and therefore not a concern.

They suffer in silence; they suffer in pain. 

Co-payments: a safer way forward

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.

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 overwhelming 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. Additionally, co-payments disincentivize unnecessary therapy appointments thus minimise expediture– 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, as 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 for therapy sessions would curb this wasteful practice as no one will waste their own money.

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 widespread rough-handling, harsh cuts and resulting neglect caused by Government - both the elected and bureaucratic arms working tandem– to the most disabled and disadvantaged on the scheme, nay the country. Labor's current path is highly unethical and needs to change.

It will not be possible to rein in the NDIS budget safely, if the policies that the NDIA design for continually waste money by encouraging unnecessary spending. The severely disabled on the scheme cannot absorb more cuts– they are at the bottom of the social ladder and cannot finance the care funding short-fall– they simply deteriorate and fall into neglect. They have suffered enough already.

NDIS can be steered into financially sustainable waters, however a fresh approach is needed. The current NDIS funding model is broken and cannot be window dressed: it was designed for a cohort with a capacity which is far more elastic than the permanenty and severe cases NDIA select for. This results in the frequent missallocation of funding, as the Agency invests heavily in socially reintegrating participants (in the order of $10.8 Billion per annum) in accordance with NDIS' initial goal of increasing Australia's workforce participation rate of the disabled– despite their permanent and severe diagnosis. Along with the introduction of co-payments, NDIS' funding model requires urgent revision to prevent its vulnerable participants from being harmed in the race to make NDIS financially sustainable.

The ‘Party of Social Justice’, cannot continue down it's current path of crushing care budgets of the most severely disabled on the scheme in the name of political expediency.

Yes, NDIA need to rein in spending– but safely– not by any means possible.

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