We wrote to you on Friday 17 June 2022 regarding an inherent problem with the Specialist Disability Accommodation Pricing Arrangements.
Put simply, the Pricing Arrangements are inequitable because they do not include a rate that allows a NDIS participant to live in a house without sharing with another participant.
The NDIA supports a participant to live in an apartment without sharing.
The NDIA supports a participant to live in a villa/duplex/townhouse without sharing.
Why therefore, is it a problem for a participant to live in a house without sharing?
We presented the cases of 7 participants who are living in our houses. Their SDA decisions are for SDA at the level of High Physical Support, Apartment, 1 bedroom, 1 resident. They are choosing to live alone, or with family, in 2 or 3 resident houses. We have asked the Minister to approve an additional category of SDA funding for single residency house or allow us to claim the full amount of the funding to cover the use of the house.
You instructed Gerrie Mitra, General Manager Provider and Market Development to respond to us on your behalf. We thank Gerrie for the response we received. Following are a few choice quotes which we believe NDIS Participants and interested parties will be extremely interested in:
“Participants can share SDA accommodation with non-SDA eligible persons including family members, however, the NDIS cannot provide accommodation funding support for people who are not SDA-eligible.”
“The National Disability Insurance Agency (NDIA) has agreed that under these circumstances, it is appropriate to apply the NDIS Pricing Arrangements for SDA (2021-2022) Appendix G – Shared living arrangements, which includes living with people who are not SDA-eligible. This pricing was created to assist with the removal of some of the barriers faced by an SDA provider considering this type of arrangement.”
“As an SDA provider, management of your investor’s expectations includes an awareness of how Appendix G is applied and the potential financial impact of this before you accept any tenant.”
“Further, all decisions to fund SDA must meet the requirements of the NDIS Act, including the value for money criteria. The choice by a participant to reside in a 3 bedroom home alone is not able to be supported by the NDIS and therefore SDA pricing arrangements reflect this.”
“Regarding your reference to the UN Convention on the Rights of Persons with Disabilities, Section 3(1)(a) of the NDIS Act provides that one of the Objects of the Act is to give effect, in conjunction with other laws, to Australia’s obligations to the UNCRPD. The Agency, in delivering the Scheme in accordance with the requirements of the Act and Rules, is acting consistently with this object.”
Is the Minister aware that the response above directly links the Minister to policy from the previous Government? This is Policy the Minister rightly spoke out about while in opposition because it is just plain wrong.
We trust that the response sent by Gerrie was an oversight not properly checked by the Ministers Office and look forward to a prompt correction.
Participants are already supported to live in an apartment without sharing.
Participants are already supported to live in a villa/duplex/apartment without sharing.
How is an apartment or villa/duplex/townhouse different to a house?
Does the Minister really agree with the views expressed by the General Manager Provider and Market Development National Disability Insurance Agency on his behalf?
NDISP has 7 participants who are either living alone or with a partner/family in our SDA houses. We are supportive of the UNCRPD, and we believe strongly that a participant has the right to live in a house with their partner/family.
In fact, let us look at the UNCRPD again – “Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement.” (Article 19, UNCRPD)
It is exceedingly difficult to see how the Minister and the NDIA are being supportive of the UNCRPD when Article 19 say give people choice, and the Agency is very clearly saying, no you do not have a choice of your housing type or who you live with.
Everything that we are on about is human rights…whereas policy as expressed by Gerrie Mitra on behalf of the Minister and the NDIA, is a clear violation of human rights of persons with a disability as defined by the UNCRPD.
We respectfully ask that the Minister review our response below and treat this matter as urgent. Unfortunately, our Participants’ situations are pressing (becoming homeless is important when you have a severe disability).
Ms Mitra wrote, “Participants can share SDA accommodation with non-SDA eligible persons including family members, however, the NDIS cannot provide accommodation funding support for people who are not SDA-eligible.”
This view is not consistent with the tenets of the UNHCR. Anderson v Kennedy has confirmed that the NDIS cannot separate a person with a disability from their family. Our case studies, which we previously sent to the Minister, show beyond any doubt that the Agency WILL be separating participants from their families if our request is not granted.
Ms Mitra wrote, “Further, all decisions to fund SDA must meet the requirements of the NDIS Act, including the value for money criteria. The choice by a participant to reside in a 3 bedroom home alone is not able to be supported by the NDIS and therefore SDA pricing arrangements reflect this.”
Ms Mitra has implied that funding participants to live in a house cost more. This is factually incorrect, both in a direct comparison to other housing types and when considering the total cost to the agency. We have already shown the Agency the cost savings.
There cannot be a blanket rule regarding whether a support is value for money. The National Disability Insurance Scheme (Supports for Participants) Rules 2013 clearly explains what value for money means. A support represents value for money if the costs of the support are reasonable, relative to the benefits achieved and the cost of alternative support. The CEO is to consider the following in deciding about value for money:
(a) whether there are comparable supports which would achieve the same outcome at a substantially lower cost;
(b) whether there is evidence that the support will substantially improve the life stage outcomes for, and be of longterm benefit to, the participant;
(c) whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term;
(d) for supports that involve the provision of equipment or modifications:
(i) the comparative cost of purchasing or leasing the equipment or modifications; and
(ii) whether there are any expected changes in technology or the participant’s circumstances in the short term that would make it inappropriate to fund the equipment or modifications;
(e) whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides;
(f) whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports.
Value for money is not defined as the total amount it costs the Agency, it is the direct comparison of that cost when compared to comparable costs in the community. This has been tested and ruled on by the AAT. Anderson V Kennedy has confirmed that the NDIS must consider the entire funding landscape when considering value for money.
Ms. Mitra wrote, “Regarding your reference to the UN Convention on the Rights of Persons with Disabilities, Section 3(1)(a) of the NDIS Act provides that one of the Objects of the Act is to give effect, in conjunction with other laws, to Australia’s obligations to the UNCRPD. The Agency, in delivering the Scheme in accordance with the requirements of the Act and Rules, is acting consistently with this object.”
The UNHCR states unequivocally that persons with a disability have the right to choose where and with whom they live. In denying our Participants the right to have Apartment funding applied to another dwelling type, the Agency is forcing Participants to either a) live alone away from their family in an apartment or b) live in a house but then have complete strangers sharing the same house with their partners and children. Neither option satisfies the Agency’s obligations to the UNHCR.
To restate our very reasonable request,
We are simply asking that participants who have already been approved for apartment, 1 bedroom, 1 resident or apartment, 2 bedroom, 1 resident funding be allowed to live in a house and either a) claim the full amount of funding that they have been approved for or b) claim 2 x 1 bedroom rate for the house.
By allowing this, the NDIS would be saving money and fulfilling the intent of the legislation by simply allowing participants to live in the most appropriate housing type, without penalty.
Ultimately there should be a single person house rate, which to be commercially viable would need to be equal to a minimum of the equivalent rate achieved by a two-participant house with two SDA participants living there.
An alternate interim solution is to go back to the situation where participants were approved for a specific housing type and amount but allowed to apply this to any other appropriate housing up to that amount. Until the Pricing Arrangements are fixed, we do require the urgent intervention on the Minister on our behalf.
Minister Shorten, do we really have to take each of these cases to the Administrative Appeals Tribunal?