Office of the Public AdvocateFor people with decision-making disability, there can be tension between how the National Disability Insurance Agency (NDIA) has designed its processes, and the legislative intention of the National Disability Insurance Scheme (NDIS) to promote choice and control.
Around Australia there are countless examples of the NDIS enabling people with disability to experience a smoother, shorter path to having their needs met. However, this is not always the case. Recent changes to NDIS processes threaten to increase rights-restriction for some people.
OPA has reported for many years on this issue, noting that it is people with decision-making disability – especially those in complex life circumstances – who are most impacted by these design flaws (for example, OPA’s 2018 report The Illusion of ‘Choice and Control’). Consequences observed at OPA include protracted waits for adequate services, participants being stalled in neglectful situations, and extended time spent subject to guardianship.
System design flaws
OPA is regularly contacted about NDIS administrative process hurdles stalling the implementation of services. This includes contact by supporters of NDIS participants previously under guardianship who now must consider reapplying for guardianship just to smooth the path to accessing necessary supports. This is not guardianship to address challenges with weighing up a decision – the decision may be clear, but there is an obstacle inherent in the NDIA and its systems preventing the decision from being executed.
The implementation of the PACE (Participant and Provider Customer Experience) computer system provides one example. Seeking to improve scheme engagement by providing streamlined processes and clearer information, the NDIA began a phased transition to this computer system in October 2023.
People who access supported independent living, specialist disability accommodation (SDA) and behaviour support services must nominate within the PACE computer system who they have chosen to provide these services, and this nomination signals that the provider is approved and can receive payment for supports provided. Presently, the system directs that the only people allowed to complete the nomination are the participant, their nominee or their guardian. These system updates show a lack of understanding of the abilities and situations of the people accessing these supports.
OPA is particularly concerned for people receiving these services who have communication impairments, cognitive impairments and importantly, a lack of social networks or family who are willing and able to take on the role of nominee. Eligibility for SDA requires a participant to have either 'extreme functional impairment or very high support needs'. This must be considered alongside the people residing in SDA who have been dislocated from community and family and taken together, indicates that implementation of PACE has occurred without adequate reflection of the experience of people with disability.
As a result of design like this in the NDIS, people with decision-making disabilities are more likely to require the appointment of a guardian to work around the system, and may also need guardianship for longer, or at more frequent intervals throughout their lives. OPA notes that implementing PACE was a policy decision, not a legislative requirement, and is concerned that if it is not revised, it will be the cause of continuation of guardianship over multiple years for numerous OPA clients.
Consent hurdles evident in PACE are found elsewhere in NDIA systems. OPA’s Advice Service is regularly contacted by support coordinators who query the NDIA’s direction that a participant requires a guardian to progress an administrative process – like plan review requests due to change of situation. Matteo’s experience is an example of NDIA-process obstacles that can lengthen the journey to obtaining the right support.
A less restrictive alternative to guardianship
OPA has other examples like Matteo’s where a request for NDIS plan review did not initially progress due to the NDIA’s insistence that a form be signed to initiate a review. Even when the NDIA has received supporting evidence about the risk to the participant and the reason change is needed, completion of a form by an authorising party has been an obstacle.
OPA notes that the change of situation form is not a proscribed form under the NDIS Act. Under section 48(4) of the NDIS Act, the NDIA has powers to conduct a review of the participant’s plan at any time on the CEO’s initiative. This power can be used to progress plan reassessments, appoint service providers, and for requests for equipment and other funding. If the NDIA is unwilling to use its powers to support a participant with decision-making disability, even when risks are known, this may have the effect of stymying the exercise of choice and control and create delays to a participant’s access to reasonable and necessary supports.
The use of section 48(4) could be considered a less restrictive alternative to guardianship in some circumstances. Matteo’s support coordinator was advised to apply for guardianship by the NDIA and OPA has heard of several similar reports through attendance at hearings in its duty liaison role and undertaking investigations referred by VCAT.
OPA appreciates such referrals as they highlight that VCAT is looking first to less restrictive alternatives in line with the Guardianship and Administration Act. However, at times it appears these applications could be avoided if NDIA delegates acted on their own initiative (as section 48(4) allows) when receiving adequately evidenced requests for reviews. OPA notes that people awaiting outcomes of guardianship applications are also bearing the cost, as in some cases access to essential equipment has been stalled, and in others, support coordinators have refused to provide further service until the question about need for guardianship is resolved at hearing
Reviews and appeals: drawn out and resource intensive
OPA guardians report decreasing success compared to previous years in submitting requests for internal review of reviewable decisions under section 100 of the NDIS Act. OPA’s concern is for the equity of the system, particularly for how people with cognitive impairment who do not have a family or fixed address would be able to challenge an administrative decision.
When use of section 100 has been unsuccessful, significant resources are required to go through the Administrative Review Tribunal (ART) to appeal a decision. OPA experience with the ART is that these are drawn out, time-consuming, resource intensive processes. Firstly, to lodge an appeal with the ART, OPA guardianship orders must include authority under section 40 of the Guardianship and Administration Act to bring legal proceedings in the name of the represented person, and seeking this authority often requires application for reassessment of the order and a subsequent hearing at VCAT. When action is taken to bring a legal proceeding, the OPA legal unit provides significant support and guidance and the guardian undertakes extensive advocacy. While waiting to be heard people with disability are missing out.
The following outline of Barry’s experience shows the marked difference between guardianship for people under 65 before and after the introduction of the NDIS. A decade ago, the guardian’s decision-making was centred on resolving the issues Barry faced, and their advocacy throughout the 2 years focused on accessing appropriate supports to give effect to the decisions. In 2024, the guardian’s decision making was limited to commencing proceedings, while advocating for swift resolution of the drawn-out appeal and imploring services to stay engaged. With funding now available, reappointment of guardianship will mean over the next year, the central purpose of guardianship can again be working alongside Barry to decide on his services.
Human rights impact
Last year’s annual report reflection on the NDIS noted that ‘each case involving a NDIS participant remains with OPA longer and requires more administrative resources than other guardianship matters.’ More time under guardianship is at odds with the focus on decision-making rights of people with cognitive impairment within progressive national and state reforms. Seeking to understand the drivers for this growth, the Systemic Advocacy team conducted an analysis of data of the people whose guardianship orders continue at reassessment. OPA’s report Multiple Appointments: What is known about the people that remain subject to guardianship for years at a time? was published in June 2025.
The analysis found that more than 80% of people who had been subject to at least 3 orders were aged 18–64. For people aged under 65 the rate at which orders were continued when reassessed has been at 50% since 2020, up from approximately 34% during 2010–16. The timing of this increase coincides with the roll-out of the NDIS in Victoria, and notably this change was not reflected among people over 65. These findings indicate that increased demand for guardianship has been driven by changes to the disability services sector brought about by the NDIS. While the research did not examine causation, the findings suggest that an independent substitute decision-maker has become more necessary under the NDIS than it was before.
The Multiple Appointments report has been shared with the Australian Guardianship and Administration Council (AGAC) and Australian Human Rights Commission. In the coming year OPA hopes to work alongside AGAC members to extend this analysis, creating a national picture to further its advocacy around system gaps – including NDIS design flaws – that impact on people with decision-making disability.
This article was included in the 2024-2025 OPA Annual Report.
