After legislating controversial reforms to the National Disability Insurance Scheme (NDIS) last week, the government’s plan to cut 160,000 NDIS participants and save A$37.8 billion over four years is underway.
Author
- Georgia van Toorn
Senior Lecturer in Public Policy and Politics, UNSW
The legislation tightens access to the NDIS by:
- altering the way a person’s needs are assessed
- introducing stricter rules to show a disability is permanent
- allowing automated tools to assess eligibility and plan supports.
But we still don’t know exactly what the new process will look like. Much of the detail has been left to rules, instruments, assessment tools and implementation processes that are still in development.
A new technical advisory group has been set up to advise government. It is expected to complete much of its work by late 2026 and report to government by March 2027. The eligibility changes take effect from January 2028.
People who are already accessing the NDIS will also begin to be reassessed based on the new criteria from 2028. This will happen progressively over three years.
Assessing how your disability impacts daily life
These reforms are designed to move away from assessing NDIS eligibility based on a person’s diagnosis.
Instead, the aim is to have a more consistent and robust approach that assesses a person’s “functional capacity”. This means how much their disability affects their daily life.
A person seeking access to the NDIS needs to demonstrate they have substantially reduced functional capacity and that it’s permanent.
The new assessment process will establish standardised definitions and thresholds for both functional capacity and permanence.
Part of the technical advisory group’s role will be to advise on the criteria and methods used to determine those thresholds. This could involve setting thresholds around particular activities such as dressing, washing, preparing meals or working a paid job.
While there’s a legitimate case for greater consistency in decision-making, standardisation also carries risks . People being assessed often have very different lives and experiences of disability.
The fairness of the system will ultimately depend on how the tools are implemented, and by whom.
It will be harder to show your disability is permanent
Another significant change relates to how a disability is established to be permanent.
The new legislation requires people to have tried all “appropriate treatment options” that could improve or alleviate their impairment. These need to be widely accepted and receive public funding, through Medicare, the Pharmaceutical Benefits Scheme (PBS) or public hospitals.
The technical advisory group will now consider how this requirement should operate in practice.
The difficulty is that what counts as having tried all appropriate options will depend on the availability and accessibility of treatments.
A person’s treatment may be unaffordable (even if partly covered by Medicare or the PBS) or unavailable in their local area, for example, or may be delayed for reasons outside their control. That person may not be seen to have tried “all appropriate treatment”, despite it being practically out of reach.
People may also feel compelled to pursue treatment for the purposes of NDIS eligibility rather than because it’s the most appropriate or effective option for them.
Disability organisations have already raised concerns about the impact of these rules on autistic people, people with psychosocial disability (resulting from severe mental distress), and people with fluctuating, episodic or cumulative disabilities. For those living in regional and remote areas, assessments and treatments can also be difficult to access.
If a particular treatment is not available and reasonably accessible – or it’s not available in a person’s language, or is culturally unsafe – it shouldn’t be treated as an option the person has simply failed to pursue.
Some decisions will be automated
If Labor has learned anything from the Robodebt episode, it’s that automated decision-making needs a clear legal basis.
The new legislation provides an explicit legal authorisation for the use of automated decision-making.
But it goes further than that. The legislation permits computer programs to undertake any administrative action involving “a discretion being exercised, an evaluative judgement being made, [or] a state of mind being formed”.
That is an exceptionally broad remit, especially for such high-stakes decisions.
Yet there is a striking absence of safeguards .
These are needed because automated systems can reproduce existing inequalities when they rely on biased data or historical patterns of decision-making.
A system can appear neutral while embedding the assumptions and exclusions contained in the data it was built on.
The Multicultural Women’s Alliance, for example, has pointed out that culturally and linguistically diverse women with disability tend to spend less on supports because appropriate services are inaccessible or non-existent. They’re also less likely to have formal documentation of functional capacity in the required formats.
These structural barriers shouldn’t be mistaken for evidence of lower need.
The assessment tools should be tested for cultural and linguistic bias before they are introduced, and testing needs to continue once the system is operating.
The work ahead
While the legislation has passed, the most important details are still being thrashed out. That makes the work of the technical advisory group crucial.
Previous attempts to redesign assessment systems, both here in Australia and overseas , offer important lessons for what comes next.
The government has also received extensive evidence through its parliamentary inquiry into the bill and its potential impacts.
That evidence provides a clear warning about the risks that must be addressed as the new system takes shape.
Perhaps most importantly, if these reforms are to deliver fairer and more consistent decisions, people with disability and disability representatives need to be central to that work, not simply consulted after the key decisions have been made.
