EXPLANATORY STATEMENT
Issued by the Authority of the Assistant Minister for Social Services
National Disability Insurance Scheme Act 2013
National Disability Insurance Scheme (Timeframes for Decision Making) Amendment Rules 2015
Purpose
Section 209 of the National Disability Insurance Scheme Act 2013 (the Act) provides that the Minister may, by legislative instrument, prescribe matters required or permitted by the Act to be prescribed or which are necessary or convenient to be prescribed in order to carry out or give effect to the Act.
The National Disability Insurance Scheme (Timeframes for Decision Making) Amendment Rules 2015 (the Amendment Rules) are made pursuant to section 204 of the Act and amend the National Disability Insurance Scheme (Timeframes for Decision Making) Rules 2013 (the Timeframes for Decision Making Rules). Under the Act, rules may be prescribed which extend the time available for the CEO to make a decision or do a thing that is required under the Act. This additional time must not be more than double the length of the specified period.
The amendments reflect the addition of new launch areas for the National Disability Insurance Scheme (NDIS) in New South Wales from 1 July 2015, to include the City of Blue Mountains, the City of Hawkesbury, the City of Lithgow and the City of Penrith. These areas are early transition areas and are referred to in the Amendment Rules as ‘the 2015 NDIS launch areas’. The Commonwealth and New South Wales have agreed that, as part of the transition to full scheme, the NDIS will roll out in these areas in advance of other areas in the host jurisdiction. The NDIS will be implemented in these areas from 1 July 2015 for children and young people aged 17 years and under.
In particular, the Amendment Rules deal with the timeframes in which certain decisions must be made regarding whether a person is eligible to become a participant in the 2015 NDIS launch areas.
The Amendment Rules are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Background
In 2011, the Productivity Commission report, Disability Care and Support (Report No. 54), found that ‘current disability support arrangements are inequitable, underfunded, fragmented and inefficient, and give people with a disability little choice’ (Overview, p. 5), and recommended the establishment of a National Disability Insurance Scheme (NDIS).
The Act was enacted in March 2013 giving effect to the commitment by the Commonwealth, State and Territory Governments to establish such a scheme, and for its progressive implementation from 1 July 2013. The Act is supplemented by rules made under the Act, which address the more detailed operational aspects of the NDIS.
An early NDIS transition site in New South Wales will commence in the Nepean Blue Mountains region on 1 July 2015 and is the first step in transition to full scheme NDIS in New South Wales. This location was chosen particularly to assess the effectiveness of early intervention processes and provide benefits to children in terms of reduced lifelong support needs.
Commencement
The Amendment Rules commence on the day after registration.
Consultation
The Amendment Rules are Category C rules under section 209 of the Act. Accordingly, a majority of host jurisdictions have agreed to the making of these rules as required under subsection 209(6) of the Act.
Within the Commonwealth, the Department of Social Services has consulted with the National Disability Insurance Agency (known in the Act as the National Disability Insurance Scheme Launch Transition Agency) on the form of the Amendment Rules.
Regulation Impact Statement (RIS)
The Office of Best Practice Regulation has been consulted and has advised that a RIS is not required (OBPR ID 19284).
Explanation of the provisions
Section 1
This section provides how the amendment rules are to be cited, that is, as the National Disability Insurance Scheme (Timeframes for Decision Making) Amendment Rules 2015.
Section 2
Section 2 provides that the Amendment Rules commence on the day after registration. This date follows parallel amendments to existing rules made by the National Disability Insurance Scheme (Facilitating the Preparation of Participants’ Plans—New South Wales) Amendment Rules 2015 and the National Disability Insurance Scheme (Becoming a Participant) Amendment Rules 2015. The timeframes within the Amendment Rules will only apply to access requests made from the date of commencement, and until 30 June 2016. Outside of that period, the timeframes which apply to access requests made by a prospective participant residing in a 2015 NDIS launch area are those set out in section 20 of the Act.
Section 3
Section 3 provides that Schedule 1 amends the Timeframes for Decision Making Rules.
Schedule 1
Schedule 1 sets out the amendments to the Timeframes for Decision making Rules.
Schedule 1, item 1
Item 1 makes an amendment to ensure the Timeframes for Decision Making Rules in Part 3 apply to the 2015 NDIS launch areas. This has the effect of extending timeframes for making particular decisions in relation to an access request made within 12 months after 1 July 2015 for a prospective participant residing in a 2015 NDIS launch area. Generally speaking, the CEO must make a decision on an access request, or request further information, within 42 days after receiving the access request. Where the CEO has made a request for further information, the CEO must make a decision on an access request or make a further request, within 28 days after receiving the information. Shorter timeframes apply where the access request is made by a person whose need for assistance is urgent. For the avoidance of doubt, the ordinary timeframes specified in the Act will apply after 30 June 2016.
Schedule 1, item 2
Item 2 inserts a new definition to assist with interpreting the meaning of the phrase “2015 NDIS launch areas”, which includes the City of Blue Mountains, the City of Hawkesbury, the City of Lithgow and the City of Penrith in New South Wales, where the roll out of the NDIS will commence on 1 July 2015. A minor technical amendment is also made to substitute the phrase ‘proclaimed under’ to ‘constituted under’ in relation to the Local Government Act 1993 (NSW). There is no substantive difference intended in the new form of words.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
National Disability Insurance Scheme (Timeframes for Decision Making) Amendment Rules 2015
This legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the legislative instrument
The purpose of this legislative instrument is to extend timeframes within which certain decisions must be made regarding whether a person is eligible to become a participant in the National Disability Insurance Scheme (NDIS). The timeframes are extended for only a specified period, namely, for 12 months after the relevant early transition site commences under the Act.
Human rights implications
The National Disability Insurance Scheme (Timeframes for Decision Making) Amendment Rules 2015 is essential to the transitional implementation of the NDIS, which is designed to advance the human rights of people with severe and permanent disability. Specifically, the instrument will help to ensure that the National Disability Insurance Agency will be able to efficiently process the large number of requests expected to be made during its initial period of operation by, or on behalf of, people who seek access to supports or funding for supports.
Accordingly, the instrument engages, either directly or indirectly, the following human rights:
Rights of people with disabilities
- The Convention on the Rights of Persons with Disabilities (CRPD) contains several human rights relevant to the NDIS. Notably, Article 26 of the CRPD requires governments to take effective and appropriate measures to enable persons with disabilities to attain and maintain maximum independence, full physical, mental, social and vocational ability, and full inclusion and participation in all aspects of life.
- This instrument relates to several human rights set out in the CRPD (including personal mobility, health, habilitation and rehabilitation), and promotes respect for the dignity of people with disabilities.
Right to health; Right to social security; Right to an adequate standard of living
- The right to health – encompassing the right to the enjoyment of the highest attainable standard of physical and mental health – is contained in Article 12(1) of the International Covenant on Economic and Social and Cultural Rights (ICESCR). The UN Committee on Economic Social and Cultural rights has stated that health is a fundamental human right indispensible for the exercise of other human rights.
- The right to social security is set out in Article 9 of the ICESCR; Article 28 of the CRPD; and Article 26 of the Convention on the Rights of the Child (CRC); and Article 11 of the Convention on the Elimination of all Forms of Discrimination Against Women. Essentially, that right requires that governments, within their maximum available resources, take action to ensure access to a social security scheme that provides a minimum essential level of benefits to all individual and families that will enable them to acquire essential health care.
- The right to an adequate standard of living is specified in Article 11 of the ICESCR, Article 28 of the CRPD and Article 27 of the CRC, which require governments to take appropriate steps to realise this right. The CRPD provides that one step is to ensure access by people with disabilities to appropriate and affordable services, devices and other assistance for disability related needs.
It is appropriate that timeframes for decision-making during the first 12 months of the early transition site be altered to ensure that urgent claims are prioritised, and expectations of prospective participants are appropriately managed, when the volume of requests to the National Disability Insurance Agency are expected to be high.
Conclusion
This legislative instrument is compatible with human rights as it forms part of an overall legislative scheme designed to deliver improved health social security and living standards to people with disability. This instrument does not limit any human rights. To the extent that decision-making may be delayed, these measures are reasonable, necessary and proportionate in the circumstances and consistent with the country’s available resources.
Assistant Minister for Social Services
Mitch Fifield