After much deliberation by governments, the NDIS Specialist Disability Accommodation Rule has been made public.
It is fitting that despite long wait, the NDIS’ rule on SDA should be released this week.
This week marks almost 3 years to the day that Bruce Bonyhady spoke to a packed audience in Canberra’s Manuka Oval about how the NDIS can create housing for people with disability.
The NDIA Chair spoke of how the NDIS’ funding for housing will soon flow to create new housing options for people with disability.
36 months later NDIS participants and providers will be finally breathing a sigh of relief that this essential funding will begin to create new housing across Australia.
The short story is that the Rule is mostly consistent with the SDA Decision Paper. There is one big and important exception, and a couple of small change.
The Rule also helpfully clarifies a few points that were unclear in the Decision Paper.
Unfortunately, some of the detail remains unclear – potentially to be clarified through the NDIS’ operational guidance that can finally be released.
To recap on the journey to date for NDIS and housing, check out DSC’s previous blog posts.
The Rule overtakes everything else to date
The SDA Rule is the new source of truth on SDA.
The Rule has the force of legislation. Plus, it has been painstakingly agreed – every single State Disability Minister had to sign off on the rule. And changes to the Rule can only be made with their agreement. We are locked into the path set down by the Rule.
The SDA Rule builds on the Framework for SDA that was agreed by all governments in November 2015 (https://www.ndis.gov.au/SDA-pricing-payments) and the final Decision Paper in June 2016 (https://www.ndis.gov.au/SDA-pricing-payments).
The Rule does not include everything. Pricing plus a range of dwelling requirements and participant assessment tools are all set down by the NDIA.
This gives the NDIA flexibility to change these requirements as we learn more throughout the roll out. But what the Rule says goes – the NDIA won’t have the flexibility to enroll a dwelling that the Rule says is non-compliant.
The Rule can be accessed here: https://www.legislation.gov.au/Details/F2017L00209/Download
Choice and control: Under threat by States maximising SDA revenue
Despite the SDA policy being extremely well designed overall, it is let down by the potential undermining of participant choice and control (and quality of life). It is hard to see any reason for this policy, other than protecting existing State interests and maximize SDA revenue.
The big ticket concerning item in the Rule is the deal with States on ‘in-kind’ housing. In short, participants appear to be required to select any available ‘in-kind’ housing option before they choose another provider.
Almost all in-kind housing is likely to be SDA properties owned by state governments.
This means State Governments get first dibs on any SDA participant’s tenancy. Participants will be forced to accept an ‘in-kind’ offer before they can select any other housing option.
Will this matter in practice?
Probably not for providers. In the short term, there will be significant unmet demand. In-kind SDA properties are likely to have very few vacancies, and these will be quickly filled.
Almost certainly for participants. In-kind SDA is almost all existing stock, most of it outdated and no longer appropriate for people with disability. It’s the group homes we all think of when we think of dwellings that need to be replaced in the NDIS.
Essentially, any State Government that lists these as in-kind will be forcing participants to live in these outdated properties. These participants will be not be able to choose a new, technology-enabled, disability appropriate dwelling, but forced into old stock listed as ‘in-kind’ by a state government.
This takes away the choice to live in a home of their choosing, a fundamental right under the NDIS Act and the Convention.
There are many good news stories in the SDA Rule…
More flexibility for participants/providers to find/offer SDA. The SDA rule allows participants to access any SDA option if nothing appropriate is available. This means that that if the participant only needs Fully Accessible, but all that is available is the higher cost High Physical Support, then the participant can get the funding in their plan for High Physical Support. This is an excellent outcome for participants.
A holistic assessment for SDA type/location. The Rule requires the NDIA planner to consider a broad and holistic range of factors to determine what type of SDA and the location. This includes community connections, informal support, independence building etc. It addresses the concerns some had that planners would be forcing participants into larger group home models that are lower cost for NDIA.
Clearly reinforced home ownership as an option for participants. The Rule explicitly allows for participants to self provide SDA. This means a participant with SDA in their plan can own their own accessible house and be paid for it by NDIA. Very exciting!
And is a further push away from large and congregate settings
Definition a parcel of land – it’s strict! Parcel of land is very important in SDA – it is used to determine the maximum density of participants who can live in the same area. The Rule sets out a technical definition of ‘parcel of land’ that aligns with each state’s Land Titles or Land Acts. They specifically include the whole subdivision registered plan for subdivided land (not just an individual sub-divided title). This is intended to avoid sub-division of properties to avoid classification as a “Legacy” property.
Legacy stock prices – reducing to $0 over time. The Rule codifies the current thinking that over time legacy stock (10+ participants on a single parcel of land) prices will drop to $0. This is the approach the NDIS will use to phase out large congregate settings. For those that thought the NDIS might renege on phasing out large congregate settings, the Rule shows that governments are serious that the NDIS has the power and authority to de-fund these larger settings and it will certainly use that power.
The rule also provides some more clarity on the SDA process:
Outlines the role of the Support Coordinator. The Rule anticipates that most participants will need help navigating the SDA market. The role of Support Coordinators is clearly set out to do this work by clarifying their need for SDA, availability of the appropriate SDA, negotiating with SDA providers and finding alternatives to SDA.
The Rule ensures participants with SDA can continue in existing living arrangements. The Rule makes is explicit that all participants with SDA in their plan and currently in SDA will get this SDA type and location in their plan if they choose. This is great news for participants living in SDA as no participant with SDA in their plan will be forced to move because their assessed SDA level is different to where they currently live. Although, importantly, this is for “a period of time” which is not defined.
Age for SDA – at least 18 years. The Rule might be silent on the age that a participant needs to be to get SDA. But the explanatory memorandum makes it clear that the NDIS is not intending to fund SDA for participants aged under 18 years. This is lower than the 25 year threshold that had been thrown around. But the Rule is not definitive on 18-25 year olds being eligible for SDA, so expect some planners to continue to say it is a parental responsibility beyond 18 into a person’s early 20s.
Separation of tenancy and support remains unanswered:
All quiet on the separation-of-tenancy-and-support front. The Rule is conspicuously silent on the enforcement of the principle of separating tenancy (SDA) from support (SIL). Despite this being a hotly contested issues, the only reference in the SDA Rule is that the SDA provider must “allow access to providers of other supports” to the property. This is a far cry from SDA and SIL being “ultimately provided separately” that the SDA Decision Paper discussed. This kicks the can down the road to the NDIA to decide what the Registration Requirements and Terms of Business will be for SDA providers.
The Rule is likely to be followed up with more detailed pricing and dwelling requirements information the NDIA.
DSC will continue to provide updates on these documents as they are released.