By Darren O’Donovan



The recently announced review of the costs of the National Disability Insurance Scheme has triggered debates regarding a perceived “blow out” in scheme costs. Government attempts to isolate the question of “cost” however, should not be allowed to obscure the broader difficulty of drawing clear lines for future decision-making and accountability for failures of the current system. Recent tribunal cases had themselves underlined the uncertain boundaries of the NDIS’ legislation and rules, particularly at its interface with mainstream services. Piecing together the ‘cost’ of the scheme is an altogether narrow way of identifying who bears the responsibility for its future success.

Dividing Responsibilities, Invisible Gaps? The NDIS and Health Systems

The Australian Administrative Appeals Tribunal decision in YPRM and National Disability Insurance Agency [2016] AATA 1023, illustrates the fraught boundary between health system and the National Disability Insurance scheme. The case centred on Section 25(3) of the NDIS Act whereby a person who meets the early intervention requirements may nonetheless be excluded where it appears that early intervention support for this person is not “most appropriately funded or provided” through the NDIS, and is “more appropriately funded or provided” in other ways, including through “general systems of service delivery”. The tribunal found that children with type 1 diabetes are outside the scope of the NDIS, and should access services through the mainstream health system.

The tensions at the dividing line between health and disability services were well flagged with the formative Productivity Commission study in 2011 that it was “likely that some ambiguity will remain around the respective responsibilities of the health and disability system”. Moreover, it recognised that “gaps between disability and health services persist”. Despite this, the primary legislation gives us a rather bare language of “appropriateness”. Section 3(3) of the NDIS Act provides that, in giving effect to the objects of the Act, regard is to be had to matters including:

the broad context of disability reform provided for in the National Disability Strategy 2010-2020 as endorsed by COAG on 13 February 2011; and

the provision of services by other agencies, departments or organisations and the need for interaction between the provision of mainstream services and the provision of supports under the NDIS.

Ultimately it is through the detailed secondary legislation (the NDIS rules) and the COAG system that much of the line drawing is conducted. The Principles to Determine the Responsibilities of the NDIS and Other Service Systems made by the Council of Australian Governments in 2013 and revised in 2015 (the COAG Principles). These state that the Commonwealth, State and Territory health systems “…will remain responsible for the diagnosis, early intervention and treatment of health conditions, including ongoing or chronic health condition.” The NDIS will be responsible for supports required “due to the impact of a person’s impairment/s on their functional capacity and their ability to undertake activities of daily living”

In the 2014 decision of Young v NDIA concerning the funding of a portable insulin pump, the Administrative Appeals Tribunal underlined that:

“Whether or not funding is available through other general systems is not the test of whether it is most appropriately funded or provided through the NDIS. The fact that the health system does not fund entirely, or even at all, what is essentially clinical treatment, or some other form of support that is more appropriately funded through the health system, does not make it the responsibility of the NDIS…the purpose of the NDIS is not to respond to any shortfalls in mainstream services (nor does it purport to impose any obligations on another service system to fund or provide particular supports).” [paragraph 41]

In YPRM, the tribunal held that the supports requested by the child arose out of the exigencies of her chronic health condition. The supports were viewed as relating directly or indirectly to the management of her blood glucose levels during a period of particular vulnerability, namely her extreme youth. The Tribunal held that they fell outside the NDIS, and within the category of what the Support for Participant Rules describes as “time-limited, goal-oriented services and therapies…where the predominant purpose is treatment directly related to the person’s health status”. Having passed down through the legislation, secondary legislation and supporting policy, it is abundantly clear that distinguishing between supports pertaining health status or clinical intervention and supports moderating the everyday impacts of functional impairment will prove to be a contextual, individualised, and thorny analysis.

A Kingdom of Isolated Innovation? The Bounded Rationality of the NDIS

YPRM, and the boundary of health and disability generally, underline that the effectiveness of the NDIS is heavily conditioned by gaps in broader service provision. The NDIS may well prove to be a hostage to the historical failure to embed a broader definition of health and positive schemes of early intervention into our society. The futurist talk of choice and markets, or debates regarding stand alone cost of the scheme, need to recognise these externalities to the scheme. The reasonable and necessary supports provided by the NDIS need the bedrock of non-discriminatory and ordered access to core services. The NDIS cannot be accompanied by row-backs from or attrition of ongoing service commitments by states. The scheme cannot substitute for or achieve its intended outcomes without sustained implementation of the National Disability Strategy 2010-2020. And all of this is even before we get to how an analysis of cost can be deepened by getting into the benefits of the scheme as a broader economic stimulus and future proofing investment for the care sector in an ageing society.

A further damaging aspect attributable to the legal design of the NDIS, is the sheer uncertainty resulting from each condition/intervention having to receive an individual analysis as to where it sits in the division of competences. One can clearly foresee forthcoming appeals in the chronic illness area, e.g. relating to mental illnesses, lupus or Parkinson’s disease. Even where governments are committed to no disadvantage principle, whereby individuals do not see their service provision drop, the complex transition to the NDIS is creating bureaucratic traps. To take one example of the dynamics going on across all government portfolios, consider the comments of Department of Health officials regarding the future budget position of two mental health programmes, Road to Recovery and Day to Day Living, during federal budget estimates last May:

“Within that overall figure of the mental health funding going forward in the fourth year, when the NDIS is expected to be fully operational, there is a small residual amount of funding left from those two programs within the Health portfolio, but that figure may well be adjusted when we have a clearer indication of the percentages of clients”

Where the policy context is volatile, where further cost limiting interventions loom large, securing service provision for individuals can rapidly feel like a moving dartboard. There is also evidence that a form of “appellate governance” is emerging, where NDIA positions are only fully justified and unpacked in the context of tribunal hearings. While we will discuss the issue of cost/benefit analysis in a later blog, YPRM was particularly striking for the manner in which an individual family and their doctor had to make submissions on three economic modelling scenarios presented by the Agency to the Tribunal. Individual families remain the heavy lifters of the scheme, navigating the shifting rules and policy currents, and contesting eligibility and entitlement.

This is the first in a series of blog posts relating to the NDIS drawn from my forthcoming pieces, check back for future blogs on the McGarrigle v NDIA case, education and the NDIS, cost/benefit analysis of individual supports and the role of advocacy in navigating the scheme.