NDIS must be sorted now to be effective and viable

Australians with severe disabilities need the security and support the National Disability Insurance Scheme provides. The scheme must be affordable for taxpayers, however, which is why the agency running the NDIS is right to resort to legal action to fight off appeals from clients for more money in their support packages or to get into the scheme. More than 750 such appeals have been made to the Administrative Appeals Tribunal since the scheme began. And in just two months this year, the National Disability Insurance Agency has been forced to revise plans for three clients by $200,000 a year after the AAT judged they had been underfunded.

Future legal action, as Rick Morton writes today, is likely to come from applicants diagnosed with conditions such as chronic fatigue, mental health problems and autism who want to join the scheme. However responsible the NDIA is being in trying to limit access to the scheme from such applications, it has lost 40 per cent of the cases it has fought so far, incurring legal costs of up to $10 million a year. In its submission to the ­Productivity Commission review last year, the NDIA noted that its risk exposure from the result of legal cases was “potentially extreme”. Decisions by the AAT or the Federal Court, it said, had the potential to vastly ­increase the scope of access and what was considered “reasonable and necessary support’’ to clients, even while the NDIA challenged some decisions.

The basic problems date back to Labor’s rushed, incompetent establishment of the scheme under Julia Gillard: first, the lack of clear boundaries for what the NDIS could provide and for whom; and second, the commonwealth shouldering 100 per cent of NDIS cost overruns while allowing the states equal say and equal control over implementing the scheme.

The time to resolve those problems is now, before the NDIS reaches full rollout next year, when it is likely to serve about 475,000 people and its projected cost is $23.6 billion for the first full year of operation. At the start of this year, the scheme was serving 140,000 clients, of whom almost 38,000 — or 29 per cent — had autism as their primary disability. An equal number had intellectual disabilities and 7 per cent had psychosocial disabilities.

From the surge in legal cases and their outcomes in the past year, it is clear the ultimate scope and cost of the NDIS will be shaped by court and tribunal decisions. Social Services Minister Dan Tehan was right when he said on yesterday’s front page that such decisions “will be critical to the future sustainability of the scheme”. That’s why he needs to act. The COAG Disability Reform Council is not due to review the NDIS legislation until 2021. That process must be brought forward to provide the NDIA with flexibility to set boundaries and limit its clientele to focus on its core constituency: those with severe disabilities. The states will be reluctant to give up the cushy deals they were handed by Ms Gillard. But it is in their interests to help ensure the NDIS remains viable.