NDIS Rules: New framework planning

Executive Summary

National Legal Aid (NLA) welcomes the opportunity to contribute to the Department of Health, Disability and Ageing’s (DHDA’s) consultation on NDIS New Framework Planning (NFP) Rules. Legal Aids are the largest providers of legal services to people with disability across Australia and have been funded by the government to provide specialist legal assistance and representation for NDIS appeals since 2016 through the NDIS Appeals Program. 

NLA is concerned that critical materials and detail including the Support Needs Assessment (SNA) tools, the Budget Method rules, and draft plan variation rules have not been released by government, preventing meaningful consultation and risking harmful implementation. NLA urges immediate publication of all remaining draft rules, assessment tools, and sample participant documents, followed by further public consultation to test the legality, fairness, and operational impacts of what is being proposed. If such mechanisms are still in development, DHDA should ensure sufficient time allocated for adequate consultation before implementation occurs. 

On NLA’s assessment of the current proposed rules, there is a significant limitation on what can be reviewed by the NDIA and the Administrative Review Tribunal (ART) compared to the current legislative framework, with remedies limited to a replacement SNA. To ensure participants can meaningfully access and enforce their review rights, NLA recommends: 

• the NDIA adopt a policy requiring decision makers to give effect to all findings and recommendations made in internal or external reviews when conducting a replacement SNA to reduce reassessments; 
• the NDIA provide participants with full visibility of SNA tool outputs and budget inputs; 
• ensuring that public materials accurately reflect the legal framework and participants’ rights; 
• the Australian government commit to provide an additional $7 million per annum to retain and expand the NDIS Appeals Program as essential infrastructure supporting fairness, accountability and lawful decision-making. 

The transition to NFP presents heightened risks for participants with complex needs, communication barriers or unstable supports. NLA recommends individualised transition planning, funded access to independent advocacy and legal assistance, robust and regular public reporting on transition metrics, consistent terminology, and raising the minimum transition age so participants aged 16–18 move with child cohorts rather than adults. 

The SNA and the subsequent budget is a significant change in the way that the NDIS identifies and funds a participant’s support needs. As a result, clearer rules and safeguards for the SNA process and needs assessment reports are required, along with a budget method that embeds human oversight, discretion and transitional “no worse off” protections, careful use and narrowing of stated supports to preserve flexibility and choice, and spending rules that respect participant preferences, avoid broad restrictions tied to NDIA arranged providers, and include robust safeguards where requirements are imposed. 

Across the scheme, given Legal Aids’ experience in Robodebt, we are concerned about the transparency of internal decision-making tools and any contemplated use of automated decision-making (ADM) without sufficient review procedures or safeguards. ADM should not proceed without standalone public consultation and a clear governance framework that guarantees human oversight, discretion, and the ability to challenge automated outcomes. 

1. The DHDA should immediately release all remaining draft Rules, assessment tools and sample documents (including sample SNA budget‑method outputs, and notices) to assist stakeholders to meaningfully test the legality, fairness, and operation of the proposed rules. This should include: 

a. Draft copies of all proposed rules relating to new framework planning 

b. The full budget‑setting method, including any structured decision‑making model or algorithm, showing clearly how the model operates and how particular factors will be weighed and converted to flexible or stated funding amounts 

c. The documents that will be provided to participants explaining how their specific flexible and stated funding amounts have been arrived at 

d. The documents explaining how the changes will operate in practice, including examples of: notices of impairments; notices to have a new framework plan; support needs assessments; support needs assessment reports; and statements of participant supports. 

2. The DHDA should undertake a second round of targeted consultation once the draft Rules and tools are available, to ensure sufficient consultation and testing has occurred before the rules are finalised. 

3. The Minister should make transitional rules allowing additional consultation and testing before rules are finalised, noting that the current timeline may not permit proper scrutiny on the proposed amendments before they commence. 

4. The NDIA should adopt a policy requiring decision makers to give effect to all findings and recommendations made in internal or external reviews when conducting a replacement SNAs to reduce reassessments. This could be achieved by incorporating such a direction into the Operational Guidelines or delegations. 

5. The NDIA should provide participants with all information used in the SNA and budget‑method process, including the SNA tool outputs, guidance used by assessors, and budget‑calculation inputs. This information is required to ensure participants understand how their budget was determined and can meaningfully participate in any review. 

6. The DHDA and NDIA should publicly release and/or provide explanatory material to support all internal decision‑making tools and guidance relating to SNAs, needs assessment reports, and the budget method. The information provided should clearly set out what factors are considered, how they are weighted, and what discretion exists. 

7. The NDIA should review all currently published materials relating to NFP to ensure these do not contain inaccurate statements about partial SNAs and review pathways that may mislead participants. 

8. The Australian Government should provide an additional $7 million per annum to retain and expand the NDIS Appeals Program, to support the increase in demand for legal assistance resulting from the introduction of NFP and the resulting legal complexity for participants. 

9. The Australian Government should recognise funded access to specialist disability legal assistance be recognised as an essential component of new framework planning, including for participants navigating the SNA process, review rights, and plan variations. 

10. The DHDA should consider the impact of new framework planning on legal assistance demand in its implementation planning, including through data collection and monitoring of legal assistance service pressures during the transition period. 

11. The NDIA should develop individualised transition plans for participants, and tailored for those at heightened risk (e.g., those with high‑intensity supports, complex comorbidities, limited communication capacity, or unstable supports). This is critical to minimise support gaps, distress and adverse outcomes. 

12. The Australian Government should provide funded access to disability advocacy and legal assistance for all people seeking to access to or supports under the NDIS to assist participants to navigate changes to assessment, spending rules and review rights and to meet increase in demand resulting from introduction of new framework planning and resulting legal complexity for participants. 

13. The NDIS and DHDA should collect and publish robust data relating to the transition period to ensure any systemic risks can be identified early, including: 

a. How many participants have commenced the transition to new framework plans, and at what stages of the process they currently sit 

b. The characteristics of participants transitioning such as age, location, whether they are First Nations, etc. 

c. The nature of changes the NDIA is seeing between old framework plans and new framework plans, including whether budgets have increased, decreased, or remained stable; and key supports have changed or the participant has lost access to supports from their previous plan because they have not been included as stated supports 

d. Current timeframes between stages (e.g. how long from being notified of their transition until a support needs assessment is conducted; how long to produce a support needs report; how long for approval of a statement of participant supports). 

14. The NDIA should raise the minimum transition age for young people so that participants aged 16-18 transition with child cohorts, not adults. This is important as participants in this group face rapid reassessments and providing a minimum age will reduce unnecessary reassessment burden. 

15. The DHDA and NDIA should adopt consistent, clear terminology for transition groups. The current inconsistency creates confusion across the disability and provider sectors. 

16. The NDIA should cease use of “primary” and “secondary disability” terminology across all NDIA systems and forms, including updating the Access Request Form to allow listing of all impairments, not a capped number or diagnostic hierarchy. 

17. The NDIA should co‑design with the disability community a process for determining how impairment categories for Notice of Impairments will be determined for participants who accessed the NDIS before 1 January 2025. 

18. The DHDA should amend the proposed Notice of Impairments Rules to include procedural fairness safeguards when the CEO proposes to vary a notice. The safeguards should include provision of written notice, the opportunity to provide evidence, and clear disclosure of any new information relied on. 

19. The NDIA should publish co-designed Operational Guidelines to provide greater clarify to participants on the variation process, ensuring the process is accessible to people with disability by allowing applications for variation by phone, email, or in writing, and ensuring participants are appropriately supported to provide any information or documents required. The Operational Guidelines should stipulate clear timeframes within which the NDIA will decide on variation requests. 

20. The Notice of Impairment (NoI) Rules should allow a participant to make an application for variation in so far as it relates to a different impairment to that being considered by the CEO or already decided on and subject to a review. Alternatively, the NoI Rules might make provision for a participant the amend an application that is still before the CEO. NLA suggests the latter would also make the application process more accessible to participants who may make errors in an application or wish to make changes after receiving professional advice. 

21. The NDIS rules should require assessors to consider how the SNA can be conducted in the most appropriate and supportive manner. NDIA should co‑design the SNA process. 

22. The NDIS rules should set clear expectations for how assessors and decision‑makers approach information‑gathering, including the weight to be given to different types of evidence. 

23. The NDIS rules should establish a clear process that gives participants multiple opportunities to share information, and participants should be assisted to understand what types of additional information may be helpful. 

24. The NDIS rules should provide that where an assessor identifies insufficient information to complete an accurate assessment, the NDIA must obtain additional reports from allied health providers or other relevant professionals using powers under section 6 of the NDIS Act. This should be at no cost to the participant, to ensure participants from different socioeconomic backgrounds have equal access to comprehensive assessments regardless of their means to obtain reports independently. 

25. The NDIS Rules should require that the assessor be a trained allied health practitioner, social worker, or similar professional with disability expertise. 

26. The NDIS rules should support an individualised, participant‑centred approach to ensure assessors do not rely on assumptions based on diagnosis, age, location, or similar factors. 

27. The NDIS rules should require needs assessment reports to be sufficiently detailed so participants can understand what information was considered, what factual findings were made, what supports are recommended, and the reasons for those conclusions. 

28. The NDIS rules should provide that participants are put on notice of the contents of a draft needs assessment report, with an opportunity to correct factual errors and provide missing information before the report is finalised. 

29. The NDIS rules should clarify that, for the purpose of the National Disability Insurance Scheme Act 2013 ('the Act’) section 32L(5), ‘as soon as practicable’ means 28 days, and for section 32L(6A) of the Act, ‘as soon as practicable’ means 7 days. 

30. The NDIS rules should provide that the CEO must decide a replacement assessment is required where there is a material error or relevant information was not considered in a participant’s needs assessment. 

31. The NDIA Operational Guidelines, and where appropriate the NDIS rules, should set out a clear process for consulting participants on whether a replacement assessment should be required. 

32. NDIA operational guidelines, and where appropriate the NDIS rules, should provide for participant choice in how they participate in a replacement assessment, and should identify options that minimise unnecessary repetition or additional materials being required, including whether a reassessment should be conducted by a different assessor. 

33. The DHDA should ensure the budget methodology adequately provides for human oversight and discretion to give effect to the NDIS Act’s Objects and Principles. This could be done by incorporating discretionary ranges and a manual adjustment mechanism where the budget methodology does not produce a budget that adequately provides for a participant's demonstrated support needs. 

34. That Australian Government should implement transitional safeguards to ensure no participant is worse off under a new framework plan unless there is clear evidence a previously funded support is no longer required. This is particularly important for participants with stable, long-term support needs. 

35. The DHDA should consider narrowing the general criteria for declaring supports as stated to ensure participant flexibility and choice is sufficiently provided for. In particular, the “harm/safety risk” criteria should be limited to significant or immediate risks that cannot be managed through less restrictive means such as operational guidance or plan conditions. The “high‑cost” limb should specify a defined monetary threshold (or indexed bands) to promote consistency and avoid arbitrary application.

36. The NDIS rules should explicitly require decision makers to give effect to a participant’s stated preferences where reasonably practicable, and to establish that no less‑restrictive approach could adequately manage any identified barriers before imposing restrictions. Departure from a participant’s preference should only occur where there is clear evidence demonstrating the need to do so. 

37. The DHDA should not prescribe a circumstance in the NDIS rules that would restrict a participant’s flexible funding where the NDIA has arranged (directly or indirectly) for a provider to deliver supports. 

38. The NDIS rules should provide robust safeguards governing the exercise of the section  32H(2)(b) discretion. At a minimum, the decision maker should be satisfied that the situation cannot be managed by less‑restrictive means, and that any proposed provider arrangement is safe, fair, culturally safe where relevant, and aligned with the participant's stated preferences where reasonably practicable. 

39. The DHDA must urgently explore options to establish a fit‑for‑purpose safeguarding framework governing NDIA‑provider arrangements, to avoid reliance on participant-level funding restrictions as de-facto market stewardship tools. 

40. The NDIA should cease current operational practices of imposing "default" funding periods, and any departure from a participant's preference should occur only where there is evidence supporting the need to do so. 

41. The should be no requirement for certain ‘prescribed circumstances’ to exist in order for participants to access capacity‑building supports. 

42. The DHDA should not introduce any rule requiring consideration of whether the participant meets the disability requirements, the early intervention requirements, or both, as this creates differential treatment based on access pathway rather than individual needs. 

43. That DHDA should adopt NLA’s recommendations relating to matters to be taken into account as set out in the Annexure: Technical considerations – Draft Spending Rules. 

44. The DHDA should publish draft plan‑variation rules and conduct further consultation before finalising them. This is critical to ensure plan variation powers are used consistently, provide for procedural fairness for participants, and enable participants to respond to changed circumstances in a timely manner.