Consultation on the Government’s proposed lists of permissible NDIS supports ends on Sunday. Many people have strong views about what participants should – and shouldn’t – be allowed to spend their NDIS funding on, including, of course, participants.
Public commentary has been spirited. Pockets of the media have fixated on a few hot topics, like fraud allegations, adult services, and obviously inappropriate spending on things like gambling, alcohol, tarot card-readings, and holidays.
But state governments, disability advocates, and many providers see a bigger problem brewing. It’s not a new problem, but it’s about to become more prominent and urgent.
Disability vs. Mainstream Services: where is the line?
As with the current system (and with some exceptions), the proposed “out” list includes “mainstream” government services like health, early childhood development, school education, higher education and training, justice, and aged care.
In theory, the split seems sensible. People should get the help they need from the most appropriate system. Participants should have the same access to health and education services as everyone else.
But, in practice, when looking at individual cases, the NDIS/not NDIS distinction is often harder to make than the current rules or proposed lists suggest.
A real world example
To understand some of the complexity, it helps to look at real world specifics, rather than abstract systems. In particular, it helps to focus on the individuals most affected: NDIS participants.
Take, for example, this Administrative Appeals Tribunal case from 2023. You had an 11 year-old Canberra boy with level 3 autism, a language disorder, ADHD, dyslexia, dyscalculia, and anxiety. The boy was an NDIS participant, probably because of his autism diagnosis. The AAT had to decide whether supports related to his dyslexia and dyscalculia – reading, writing, and maths intervention – should be funded through the NDIS.
Right now, when faced with this type of decision, the NDIA and the AAT have to decide whether specific supports are “most appropriately funded or provided through the NDIS” or through another service system, like health or education.
In this case, the NDIA argued that dyslexia was a learning disorder, that support with reading was primarily related to educational attainment, and that, therefore, the NDIS was not the most appropriate funder. Instead, the ACT Education Directorate was responsible for helping the boy to overcome his dyslexia. With regret, the AAT agreed.
Sounds logical. So what’s the issue?
The AAT decision seems like a logical application of the rules. Reading, writing and maths are school matters. So what’s the problem? Why was the AAT so reluctant to agree with the NDIA?
Just because a system is the appropriate funder doesn’t mean it actually provides the support
The evidence in this case established that the school system did not in fact provide a service that could remedy the boy’s reading and writing difficulties. All the school could offer was a bit of in-class help from a Learning Support Assistant who was also supporting other students. The AAT found it was:
“clear from the evidence given at the hearing that this intervention had no prospect of remedying the [boy’s] deficiencies in reading, writing and mathematics” and that the “interventions which the school is making are not sufficiently targeted to make any difference to the [boy’s] ability to read or write or progress in mathematics”.
But the AAT decision saved the taxpayer money, right?
It meant taxpayers didn’t have to pay for dyslexia support through the NDIS. But the longer-term costs to taxpayers can’t be so easily calculated.
The decision left a level 3 autistic, language-disordered, anxious 11 year-old in upper primary school without basic literacy skills. It left him without public funding for evidence-based help to overcome his illiteracy.
Not being able to read has significant adverse implications for a person’s education. But school ends when you are 17 or 18 years-old. Un-remedied illiteracy lasts a lifetime and, for many people, leads to significant adverse social effects and negative health, work, and justice system outcomes.
Schools are responsible for making reasonable adjustments to personalise and support students with reading and writing. But, if they don’t actually provide it, illiterate children become illiterate adults. Taxpayers may end up footing a larger bill for longer-term supports from another public service, like health or justice.
No bright-lines
The Canberra boy has a permanent disability. He has health needs. He has educational needs. His disability, health, and education issues interact with each other. His disability, his health needs, and his educational challenges all affect his ability to function and to participate in life.
In truth, you can’t draw neat lines between disability and mainstream health and education services for people with disabilities, despite what the rules say. As noted by the AAT:
“The rules set up a dichotomy between supports which ameliorate the functional impact of a disability of activities of daily living [which are NDIS-funded] and supports which primarily relate to educational attainment [not funded by the NDIS]….The [boy] in his submissions highlights that there is a relationship between his educational attainment and his activities of daily living and so this strict dichotomy is hard to apply. If a person has not mastered basic…reading, there will be an impact on their functional capacity to undertake activities of daily living.”
The AAT didn’t disagree with the boy’s point, but concluded they did not have discretion to disregard the rules as written.
Remember that taxpayers are on the hook for all public services
Disability and mainstream health and education systems operate independently but are interdependent – and all funded by taxpayers. This was recognised by the Productivity Commission way back in 2011:
“Access to generic services, such as health…can affect demand for NDIS-funded services, and vice versa. It will be important for the [NDIS] not to respond to problems or shortfalls in mainstream services by providing substitute services. To do so would weaken the incentives by government to properly fund mainstream services for people with a disability, shifting the cost to another part of government (such as from a state government to the NDIS…). This ‘pass the parcel’ approach would undermine the sustainability of the [NDIS] and the capacity of people with a disability to access mainstream services.” (My emphasis.)
Arguably, this game of pass the parcel is exactly what’s happened. States have underinvested in funding mainstream education and health services for people with a disability. Too few supports exist for people with disabilities who are not NDIS participants. One of the main reasons so many people fight so hard for access to the NDIS is that it’s the only real help available.
So why’s the problem about to get bigger?
The Federal government has decided to implement ‘foundational supports’ – disability supports outside the NDIS. If you don’t know much about them, check out this excellent summary by Sina Gingold of DSC.
The foundational supports proposal is a good idea in theory. It is intended to ensure the NDIS is sustainable and focused on supporting people with lifelong disabilities, while also supporting people with a disability who are not participants to get support when they need it in childcare, schools, homes, and community care settings.
Properly funded and skilled front line disability supports in mainstream settings, like schools, could provide exactly the type of help needed by people like the dyslexic Canberra boy. But it has triggered a furious debate between Federal and state governments about the future interdependence of disability and mainstream health and education services for people with a disability and, most immediately, who will fund them.
It’s no surprise that state governments are asking for more time and a new intergovernmental agreement. They’re facing two main issues: a lack of detail on the funding for these proposed additional mainstream services for people with a disability; and a lack of trained people with the skills and systems to deliver them.
Conclusion
Most allied health NDIS providers – including speech pathologists, occupational therapists, and physiotherapists – support people to increase their functional skills, independence and participation, consistent with the purpose of the NDIS.
Ideally, our aims should be to support the whole person in front of us, rather than to focus on arbitrary and false distinctions between an individual’s disability, health and education difficulties.
In reality, like NDIS participants, we have to operate within different systems and to follow different rules around different supports depending on the system or systems we are working within at the time. Regrettably, this means we sometimes have to work with participants on discrete challenges in isolation, while ignoring significant challenges that may affect the participant adversely more in the longer-term.
The Canberra boy’s situation is a good case in point. Presumably, he was receiving some NDIS supports for his oral language disorder associated with autism, executive function challenges, and anxiety under the NDIS, while not receiving supports for his written language (reading or writing) despite lots of evidence showing that oral communication skills, mental health, and literacy are related, and that illiteracy leads to poorer longer-term social and mental health outcomes for adolescents and adults.
People with a disability should be able to access support for their health and education challenges like everyone else. Taxpayers fund the NDIS and mainstream services, and games of pass the parcel between governments do nothing to help participants live their lives well. It’s also unclear if they end up saving taxpayers money after you consider the long-term consequences of limiting supports in one system knowing that there are major deficiencies in the system “most appropriate”.