Accountability for administration and sustainability

Responsibility for financial sustainability of the NDIS is shared
The current approach to forecasting for the NDIS weakens confidence in the scheme and misses an opportunity to assess the benefits it delivers
Agencies involved in administering the NDIS have not been set up for success
The operations of the NDIS are not sufficiently codified
The Panel’s vision: Accountabilities for governance and sustainability should drive shared responsibility for a comprehensive and unified ecosystem
Recommendation 21: Clarify accountability for sustainability and governance of the disability ecosystem
A highly-skilled, person-centred, disability-aware culture across all disability agencies and governments
The Participant Service Guarantee should prioritise quality decisions and better experiences for people with disability
The Panel’s vision: A highly skilled workforce across all areas of disability policy, regulation, service delivery and leadership
Recommendation 22: Embed a highly skilled, person-centred, disability aware culture across all disability agencies and governments

Responsibility for financial sustainability of the NDIS is shared

The NDIS is a significant investment by all governments on behalf of all Australians. Its sustainability is essential to maintain community support and ensure it can deliver for those who need it now and in the future.

Under current legislative arrangements ultimate responsibility for NDIS sustainability is shared. The National Disability Insurance Scheme Act 2013 (NDIS Act) specifies that Disability Reform Ministerial Council (DRMC), the Minister, and the National Disability Insurance Agency (NDIA) Board should have regard to the need to ensure scheme sustainability in performing functions or exercising powers under the NDIS Act (Part 2, section 4(17)), but the NDIA is responsible for managing, advising and reporting on scheme sustainability (section 118(b)).³³⁸

The current approach to forecasting for the NDIS weakens confidence in the scheme and misses an opportunity to assess the benefits it delivers

The Annual Financial Sustainability Report (AFSR) provides an annual assessment of the financial sustainability of the NDIS.³³⁹ Reviews of the AFSR projections have found them to be “not unreasonable”.³⁴⁰ However, the immaturity of the NDIS and its dynamic operating environment have led to great uncertainty in forecasting.³⁴¹ The actuarial forecasts on which the AFSR is based use past trends to predict the future.³⁴² This may work well in a mature scheme, but has not in a relatively new and evolving scheme like the NDIS.³⁴³

Significant revisions to scheme forecasts undermine credibility, lead to ongoing questions around scheme sustainability, and cause uncertainty and anxiety for people with disability, families and carers.³⁴⁴ Improving the accuracy of NDIS projections can instil greater confidence in scheme stability and reassure governments and the community that costs are predictable and can be trusted.³⁴⁵

Commentary on scheme sustainability has almost exclusively focused on costs, and the AFSR predominately assesses scheme sustainability through a lens of financial costs. This fails to acknowledge sustainability is about more than just costs and misses an important opportunity for a balanced discussion on the benefits of the NDIS.³⁴⁶ Measuring scheme benefits and its impact to society and the economy is integral to safeguarding the sustainability of NDIS.³⁴⁷

Agencies involved in administering the NDIS have not been set up for success

Under current arrangements, the relationships between the NDIA, NDIS Quality and Safeguards Commission (NDIS Commission) and the Department of Social Services (DSS) are blurred. There is a lack of clarity around policy and administrative responsibilities across agencies, resulting in gaps, duplication, and inefficiencies. This contributes to inefficient operation of the NDIS and poorer outcomes for people with disability.

In particular, there is misalignment and a lack of clarity about responsibilities for important functions, including market stewardship, pricing, policy, regulation, and commissioning. For example, the NDIA, the NDIS Commission, and the DSS all have roles in NDIS markets, but what each agency does to set policies and facilitate effective market operation is unclear.

Many roles under the NDIS can be confusing for participants, supporters and providers alike. For instance, the difference between the roles and functions of the National Disability Insurance Agency (NDIA) and the NDIS Commission is not well understood

- People with Disability Australia ³⁴⁸

This lack of clarity in roles and responsibilities is exacerbated by resourcing constraints. Resourcing for the NDIA to date has been set well below the rate originally suggested by the Productivity Commission.³⁴⁹ This has affected the NDIA's ability to effectively administer the scheme. One of the major challenges the NDIA has faced has been staff caps. At times this has restricted its ability to perform its role effectively.³⁵⁰ This has extended to the NDIA’s Partners in the Community program, which has resulted in Local Area Coordinators becoming planners instead of performing their vital role in building social and community capital.

The NDIS Commission has also experienced structural and resourcing issues since their establishment that have impacted their ability to fully deliver their remit (see Action 19.3).

The operations of the NDIS are not sufficiently codified

NDIA decision-making is guided by government agreements, legislation and subordinate regulation (for example NDIS Rules), operational guidelines and informal policy guidance. We have heard that operational guidelines have lacked transparency and are opaque, with decision-making affecting participants often based on policy guidance at the discretion of the Chief Executive Officer.

…there is a ‘hidden nature’ of NDIA decision-making and lack of clear evidence linking the NDIS Act and decisions, accompanied by poor communication of decisions by the NDIA. The impact of the perceived hidden nature of decision-making is twofold: producing a negative impact on public trust and confidence about decisions and the transparency of decision-making processes; and hindering NDIS participants to exercise their rights to review and appeal processes.

- Law Futures Centre, Policy Innovation Hub and The Hopkins Centre, Griffith University ³⁵¹

We have heard about a lack of consistency and transparency in NDIA decision-making around access and reasonable and necessary supports, and makes for an adversarial process for applicants and participants.

The NDIS is also very inconsistent. Too often I hear of two different people needing the same thing for the same disability for the exact same reasons and one might get exactly what they need whereas the other is left having to either fight for it

Participant ³⁵²

The NDIS are constantly changing the 'ballpark' on the decisions they are making. I want honesty and transparency.

Carer ³⁵³

This issue is not new. The 2019 Tune Review highlighted the importance of the legislative framework and administrative practices enshrining transparency as a principle in engaging with all people with disability.³⁵⁴

The Panel’s vision: Accountabilities for governance and sustainability should drive shared responsibility for a comprehensive and unified ecosystem

All governments have a duty to ensure every dollar of disability funding is well spent and delivers benefits for people with disability. To achieve this, greater clarity is required in roles, responsibilities and decision-making across the ecosystem.

The new Disability Intergovernmental Agreement should also outline a new governance structure for the broader disability support ecosystem, with DRMC (reporting to National Cabinet) being accountable for the sustainability of the disability support ecosystem. DRMC should continue to be accountable for the policy and legislation for eligibility and entitlements framing the sustainability of the NDIS (see also Action 21.2). The NDIA Board should remain responsible for sustainability of the NDIS within that legislative framework. The NDIA Board should continue to identify and report on NDIS financing and sustainability issues to Disability Reform Ministers. This will be a major input into the assessment of the overall sustainability of the disability ecosystem.

DRMC should be supported to make appropriate assessments of the overall sustainability of the disability support ecosystem via an expert forecaster. Sustainability should be considered at a whole-of-ecosystem level. This would include input from the AFSR as a major source, along with a consideration of the benefits provided to participants, the impact of the NDIS on other systems, and the benefits to the broader Australian community. This will require the NDIA and DSS to develop different forecasting models to improve the accuracy of NDIS projections.

Updating Australian Government administrative arrangements will help ensure the unified disability support ecosystem is well governed (Figure 18). This should include clarifying roles and responsibilities and utilising shared processes, workforces, providers, and systems and identifying opportunities to better coordinate the disability supports ecosystem with the broader care economy.

Clarified administrative arrangements should be underpinned by ongoing funding certainty for the NDIA and the National Disability Supports Commission. This would ensure the costs of administering the NDIS effectively can be met and the reform agenda implemented in full.

The significant investment in the NDIS and the establishment of a unified ecosystem requires representation at the highest level in government. This should improve connections with intersecting portfolios, including Employment and Workplace Relations, Social Services and Health. An enduring role for the Minister for the NDIS in Cabinet will support this.

To support consistent decision-making, all key policy parameters should be elevated to legislation and NDIS Rules, instead of relying on operational guidelines and informal policy guidance for decision-making. This would improve transparency, lead to less disputation, and give applicants, participants and nominees avenues for appealing decisions.

If an individual is not satisfied with the NDIA’s interpretation of legislation or rules, they would continue to be able to appeal to the Administrative Appeals Tribunal and Federal Court. If the Federal Court finds in favour of the participant, it would be a matter for governments to decide whether to accept any widening in the scheme or seek to change the rules.

Figure 18: A new governance structure for a unified disability support ecosystem

Recommendation 21: Clarify accountability for sustainability and governance of the disability ecosystem

*Legislative change required

Action 21.1*: National Cabinet should be accountable for the sustainability of the unified disability ecosystem, including the NDIS. Consistent with National Cabinet’s focus on the sustainability of the NDIS in 2023, this accountability should extend to the whole disability ecosystem. The Disability Reform Ministerial Council (DRMC) should support National Cabinet with an ongoing role for prioritising and agreeing disability policy reform directions. DRMC should appoint a forecaster to review and provide advice to National Cabinet on total disability spending and projections, including NDIS scheme expenditure and projections, and the financial sustainability of the disability ecosystem, including the NDIS. The approach to assessing the sustainability of the disability ecosystem should acknowledge the benefits, as well as costs, of disability supports.
In relation to accountability for the sustainability of the NDIS, responsibilities within the existing legislation should be operationalised more clearly. Specifically, DRMC (reporting to National Cabinet) should continue to be accountable for the policy and legislation for eligibility and entitlements framing the sustainability of the NDIS (see also Action 21.2) and the broader ecosystem outside the NDIS. The NDIA Board should remain responsible for sustainability of the NDIS within that framework and broader ecosystem. The NDIA Board should then continue to identify and report on NDIS financing and sustainability issues to Disability Reform Ministers. This will be a major input into the assessment of the overall sustainability of the disability ecosystem.
The Annual Financial Sustainability Report (AFSR) produced by the Scheme Actuary should report on the overall sustainability of the NDIS, by measuring costs, benefits and net fiscal impact on other schemes and programs (including the disability ecosystem). The Scheme Actuary should also develop different forecasting models, including for specific cohorts, to improve the accuracy of NDIS projections. The AFSR should be a major source of information supporting the forecasts of overall scheme sustainability.
Action 21.2*: The Department of Social Services, in consultation with state and territory governments, should review existing National Disability Insurance Agency operational guidelines to identify and prioritise opportunities to strengthen the National Disability Insurance Scheme Act 2013 and Rules. This should elevate key policy parameters to legislation and rules where relevant, instead of relying on operational guidelines and informal guidance within the National Disability Insurance Agency (NDIA) to ensure transparent governance of the NDIS. Key elements of the scheme’s operations, including sustainability and reasonable and necessary supports, should be codified in legislation and rules as much as is practical. Where the NDIA continues to rely on Operational Guidelines, they must be aligned with the principles in the legislation.
Action 21.3: The Australian Government should ensure that the Minister responsible for the NDIS remains a Cabinet Minister. Given the scale of the NDIS, this should facilitate the fiscal, policy and delivery impacts of the NDIS being factored into relevant government decision-making, including across the care economy.
Action 21.4*: The Australian Government should clarify roles of relevant agencies for administration market stewardship, pricing, policy, regulation, commissioning and legislation. This should include the Department of Social Services, the future National Disability Supports Quality and Safeguards Commission, the National Disability Insurance Agency and the Independent Health and Aged Care Pricing Authority. Over time, government should consider opportunities to more closely coordinate the administration and planning of disability supports, workforce and safeguard mechanisms with other programs and regulation across the care and support systems. This should focus on driving improvements in efficiency, effectiveness and outcomes in areas such as quality and safeguarding, research and innovation, market stewardship and assessment of function and support needs.

A highly-skilled, person-centred, disability-aware culture across all disability agencies and governments

The National Disability Insurance Agency (NDIA) and the NDIS Quality and Safeguards Commission (NDIS Commission) play critical roles as delivery and regulatory agencies of the NDIS. Staff working in these agencies require extensive skills to work with each individual and their supporters in a way that is person centred, strength based, trauma informed, disability aware, and acknowledges the inherent dignity and unique individuality of each person. We have heard both of how excellent work by the staff of the NDIA has been critical in assisting many people with disability to achieve their goals,³⁵⁵ and where there is room for improvement.

There are many thousands of staff working for the NDIA. Staff at the NDIA are dedicated, responsive, professional and care about outcomes for people with disability. However, there is room for improvement when it comes to the communication, flexibility, and responsiveness of the NDIA’s current operational processes and procedures.

- Advocacy for Inclusion ³⁵⁶

The planner should read my file before commencing a meeting and ask me questions. I am the plan nominee for my child who has very limited communication (non-verbal). At each meeting I am given the third degree and made to feel like I am rorting the system…After each planning meeting I am left in tears and feel extremely stressed. The planners are generally rude, lack empathy and have limited (if any) understanding of disability. Please employ people with lived experience of disability. Please adequately train staff.

- Carer ³⁵⁷

The NDIA supports over 610,000 people with disability across Australia with access, planning, and funding. We recognise the scale of this task, and the challenges associated with establishing a complex scheme in the tight timeframes set out in bilateral schedules. It is a significant achievement. We acknowledge the commitment, expertise, and purpose displayed by staff in the NDIA and the NDIS Commission.

Further work on the culture and capability of the NDIA and the current NDIS Commission is needed to regain the trust of the community

We have heard concerning reports from people with disability about their interactions with the NDIA. These issues include, a lack of understanding about disability in general and particular conditions and/or diagnoses, adversarial approaches particularly in appeal processes, inconsistent advice, bureaucratic language and processes, and an absence of trauma-informed practice.³⁵⁸

The planners don’t understand the needs of people with a disability. All they are doing is ticking a box. LAC’s and planners not reading documents/reports prior to planning or review meetings. The main call centre is completely useless. They can’t answer any questions and when raising a complaint - the complaints team are incredibly rude and even hang up on you.

- Participant and advocate ³⁵⁹

The range of experiences with the NDIA ranged from confusing and frustrating to damaging and traumatic. Poor experience with NDIA staff or Partners in the Community was one of the most common themes in participant submissions and consultations.

I would also add that putting up with the ignorant, sometimes disrespectful comments the delegates make, because of their ignorance about the implications of my disability is hard. It adds to my burden

Participant ³⁶⁰

NDIS planners do not want to help the people who need help and support and if they helped and supported them with the right information and really listened they would see that people are crying out for help. I feel you need people in these jobs with a lived experience. I have been in a plan review with a person to where the planner was yelling at the person due to wasting her time.

- Provider ³⁶¹

The Joint Standing Committee on the NDIS (JSC)’s Inquiry into the Capability and Culture of the NDIA found similar issues, including significant administrative burdens, a requirement to repeatedly prove disability, cost cutting at the expense of participants, and a lack of adequate training, experience and understanding of disability.³⁶²

The JSC made observations about culture and capability in its final report on the NDIS Commission in 2021. In particular, the Committee recommended the Australian Government ensure adequate resourcing for the NDIS Commission and review staffing levels (noting actions most recently taken in the 2023-4 Budget to increase the NDIS Commission’s staffing and ICT capability). The JSC also observed multiple submissions had raised concerns about the adequacy of staff training in relation to awareness of disability types and disability service provision, roles and responsibilities of the NDIS Commission, understanding of the NDIS Code of Conduct, and adequacy of understanding in relation to cultural awareness of issues experienced by First Nations people with disability.³⁶³

While we are encouraged by recent staff uplift and additional funds for ICT improvements, there continues to be a need for ongoing improvements to culture and capability.

There are opportunities for the current NDIS Commission to improve practice, particularly in relation to methods for complaints handling approaches for people with disability, data usage, responsiveness, and relationships and referrals to other regulators (see Action 19.3).

The Commission reviews incident reports but, due to their internal capacity constraints, often does not respond or seek further information until up to twelve months later when key personnel and/or participants have left the organisation... The tone of requests for information can be both negative and disrespectful. Sometimes, the response proposed by Commission staff is out of step with current expectations, such as consideration of person-centred practice or privacy considerations. This gives rise to questions about the current knowledge level of Commission staff involved with incident reviews. The result is that incident reporting can be seen as a compliance requirement focussed on process rather than outcomes.

Provider ³⁶⁴

A disability legal and advocacy service advised that following a complaint, they continued to follow up on behalf of the complainant over an 18-month period. They wrote:

The Commission finally conceded that they had not communicated with us or our the (sic) client about the final outcome of the investigation until now, had closed the matter without speaking to him, and had communicated only with the Provider.

-Villamanta Disability Rights Legal Service ³⁶⁵

These issues should be addressed to fulfil the NDIS Commission’s current and recommended expanded role in the future to promote quality supports and ensure the safety of people with disability.

We acknowledge steps taken by governments to increase the numbers of people with disability employed (for example, the NDIA’s 2021-22 Annual Report states 18 per cent of staff have disability).³⁶⁶ However, the NDIA is a public sector outlier when it comes to employing people with disability. Over the last three decades rates of employment of people with disability in Australian public service entities have fallen from 6.8 per cent in 1986 to 4 per cent in 2020.³⁶⁷ This trend should be reversed.

The Participant Service Guarantee should prioritise quality decisions and better experiences for people with disability

The 2019 Tune Review made a series of recommendations about the NDIA’s Participant Service Guarantee (the Guarantee), particularly in relation to legislating the Guarantee and the inclusion of relevant timeframes.³⁶⁸

In 2022, the NDIS Amendment (Participant Service Guarantee and Other Measures) Act 2022 came into force. The Guarantee is included in the Participant Service Charter and provides metrics for timeframes in which access, planning, implementation, plan reassessment and variations, reviewable decisions, and nominee matters will be determined. There are also timeframe metrics for the NDIA to respond to complaints and for the call centre to respond to incoming phone calls.

Establishing timeframes and performance metrics was a welcome development. But it is clear there are further opportunities to strengthen the Guarantee to improve participant experience and the quality of decisions made. For example, participants should have opportunities to provide satisfaction scores on NDIA interactions, including access requests and internal reviews. Additionally, consideration should also be given to turnover and satisfaction rates for NDIA employees, including contractors.

The Panel’s vision: A highly skilled workforce across all areas of disability policy, regulation, service delivery and leadership

The Australian Government should take action to improve the culture and capability of the NDIA and the National Disability Supports Commission in order to drive better outcomes for people with disability.

Professional development for all staff should cover disability awareness, intersectionality and trauma informed practice. It should also include reflective practice (examining what worked well and ensuring it is built into future practice) to ensure all staff have the skills and experience to meet the needs of the people they serve. All public servants engaged in disability policy, regulation, programs or delivery should understand the social model of disability, the commitments made through the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) and have understanding of disability awareness and intersectionality.

The NDIA and the National Disability Supports Commission should prepare and publish culture and capability plans to improve and maintain person centred, disability aware practice. There should be an annual independent audit to review the development of these skills. Results of these audits should be published on the websites of both agencies. Net promoter score-style surveys should be undertaken with participants and stakeholders to regularly gauge sector confidence.

A revised Participant Service Guarantee should develop qualitative measures to determine the quality and transparency of decision-making. This data will help improve the experience of people with disability in their interactions with the NDIA.

The new Disability Intergovernmental Agreement should include measurable culture and capability outcomes for public servants employed in areas of disability policy development and implementation in all governments. These should be reported to the new Disability Outcomes Council for public reporting and tabling in Parliament.

Recommendation 22: Embed a highly skilled, person-centred, disability aware culture across all disability agencies and governments

* Legislative change required

Action 22.1: When undertaking capability reviews, the Australian Public Service Commission should have regard to the capacity, capability and culture of the National Disability Insurance Agency, National Disability Supports Quality and Safeguards Commission, and Department of Social Services to deliver relevant reforms. Capability reviews should include people with disability and assess how agencies can ensure the right skills and capabilities are in place to deliver complex reforms for people with disability and families (including designing and testing reforms with people with disability), manage significant shifts to a broader disability support system and adapt to changes in roles and responsibilities.
Action 22.2: The National Disability Insurance Agency and the new National Disability Supports Quality and Safeguards Commission should publish biennial culture and capability plans every two years, supported by independent audits and staff, participant and stakeholder surveys. Plans should set out specific actions for enhancing, maintaining and continually improving a person-centred and disability-focused culture and high levels of internal capability. These plans should be agreed by the Minister(s) for Disability/NDIS and published to ensure transparency and accountability. This should be supported by annual independent performance and culture audits.
Action 22.3*: The Australian Government should re-design the Participant Service Guarantee to prioritise high quality, transparent and efficient decisions and improved participant experience. The Participant Service Guarantee should include new metrics in addition to timeframes to measure quality of decisions and incentivise better participant experience. This could include quality and transparent decisions for participants and employee satisfaction scores, including for partners. This should be designed with participants.
Action 22.4: The Disability Reform Ministerial Council should agree measurable culture and capability outcomes as part of new funding arrangements. All Australian, state and territory government agencies responsible for disability policy and/or service delivery should model best practice in the promotion of disability aware, socially inclusive, person-centred culture. These outcomes should be embedded in funding arrangements (see Action 20.2), documented in the Disability Support Outcomes Framework (see Action 23.1) and reported to the Disability Outcomes Council (see Action 20.5).