From 1 July 2018 there will no longer be two versions of the National Disability Insurance Scheme (NDIS) operating in Western Australia. This situation is due to the signing of a Bilateral Agreement on 12 December 2017 between the Commonwealth and Western Australian governments. The current WA NDIS participant Australians, under the age of 65 and with a permanent and significant disability, have been transitioning to the nationally delivered NDIS, over which the National Disability Insurance Agency (NDIA) will assume responsibility for delivery in WA. This transition phase will continue until the end of this year, and the NDIS is expected to be fully rolled out across Western Australia by 2020.

The purpose of the NDIS is to provide participants with the reasonable and necessary supports to live an ordinary life. The WA NDIS model offered people with disability, their families and carers, the opportunity to design, choose and control the supports and services they needed to live a good life in their local community. The planning framework had a “local coordinator” approach. The WA NDIS used to be called “My Way” and participants could, amongst other things, choose to employ their own support workers.  The extent to which this will be impacted, on a practical level, by national delivery of the NDIS in Western Australia under the national agency NDIA, is not yet clear.  

Questions are being raised in Western Australia about the potential impact this overall change (i.e. to administration and delivery solely by the NDIA) may have for Western Australian participants, their families and carers. There are concerns in WA that the NDIA may introduce or enforce policy to limit the rights of participants to make personal choices on the delivery of their supports under the NDIS. Someone recently asked me what could be done if, in practice, policies of the NDIA or decisions by government regarding funding, result in the legislative Scheme actually not affording people their human rights. 

The Explanatory Memorandum to the NDIS confirms that any limitation under the NDIS on human rights must be reasonable, necessary, and proportionate to ensure the long term integrity and sustainability of the Scheme, which creates additional opportunities for persons with disabilities to exercise their human rights, by providing support to enable participation in the social economic and cultural life of the community. To accord with the National Framework for Reducing and Eliminating the Use of Restrictive Practices in the Disability Service Sector, it appears that any policy developed by the NDIA that could restrict the practice of a participant from employing his or her own support workers must be for the primary purpose of protecting the participant or others from harm.

The establishment of an independent NDIS Quality and Safeguards Commission under the National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and other Measures) Act 2017 may go some way towards addressing any concerns around future NDIA policy that could potentially restrict participants’ choices and rights. Schedule 1 of that Act comes into effect on 1 July 2018 and sets out the functions of the Commissioner. One of the Commissioner’s core functions is to uphold, amongst other things, the rights of those people with disability receiving supports or services, including those under the NDIS. The Commissioner also has complaints functions, which include “to build the capability of people with disability to pursue complaints in relation to the provision of supports or services by NDIS providers”. Independent advocates assisting people in Western Australia with disability to exercise choice and control and to have their voice heard in matters that affect them, are likely to keep a close eye on these recent legal developments.

Written by Agnes McKay on 15 May 2018