Legal Update: Coming Changes to the NDIS in WA

Agnes McKay, Principal of Agnes McKay Law Practice, discusses coming changes to the delivery of the National Disability Insurance Scheme in Western Australia.

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.

Agnes McKay

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 co-ordinator” 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.

Agnes McKay has more than 30 years of legal experience in both New Zealand and Western Australia. She holds a Masters in Commercial Law with First Class Honours (1993) from Auckland University. Agnes’ main areas of practice are in business, workplace relations and health and safety law. Agnes also holds governance experience, having been on the shareholder board of ATC New Zealand for more than nine years, when it was one of the largest not-for profit private training educational establishments in New Zealand.

In 2012, Agnes was also a Board member of a not-for profit Western Australian consumer organisation of mental health. In WA, for four semesters (including a 5-week Winter School) Agnes taught and became coordinator of the Masters Unit on Health and Safety Law at Murdoch Business/Law School. She also taught an Employment Law Unit for MBA and Masters level students. Agnes currently mentors under the Murdoch Student Emerging Leaders (MSEL) Mentoring Program. 

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