'Most appropriately funded or provided through the NDIS' - the difference between education provision and disability provision

Key Points

• It is sometimes hard to see the difference between an educational support which is most appropriately provided by an education system and a disability support that is most appropriately provided by the NDIS. The difference depends on the needs of the particular applicant for support, what they hope to achieve, and what their level of "educational attainment" is.
• Applicants seeking funding for supports like literacy or numeracy programs should emphasise the importance those programs have for general life skills, independence and community access (as well as for the classroom). That may assist the NDIA to understand that a support is not just for "educational attainment" and it may make them more willing to fund it.

Introduction

The previous entry in this blog (available here - opens in new window) discussed the difficulties with defining what supports are the NDIS's responsibility, and what is 'most appropriately funded or provided through the NDIS' in the context of health provision. The same problem arises in the context of education provision - it is sometimes hard to identify whether a support should be provided by the NDIS, or whether it should be provided by the education system, for example as part of its responsibilities under the Disability Discrimination Act 1992 (Cth) [opens in new window] or similar state laws.

ZCPY and National Disability Insurance Agency

A good example of this is ZCPY and National Disability Insurance Agency [2017] AATA 3052 (opens in new window). The applicant was a 17 year old who was diagnosed with Autism Spectrum Disorder. He found it extremely difficult to read and write - at the time he was assessed to have the reading level of a six to seven year old. This made it very hard for him to access the school curriculum and undertake some daily life activities. 

The applicant sought funding from the NDIS for a number of things, including a literacy program that would be offered by clinicians employed by a private company called LBLP. 

The applicant's high school received $26,145 of funding (for calendar year 2018) from the Victorian Government under its Program for Students with Disability (PSD) [opens in new window]. That funding was used by the school to provide aides for about half of his classes, who would scribe and read information to him. Part of the funding was combined with funding allocations for other students with disability to provide for a PSD Coordinator. The school also had a general literacy program which the applicant started, but didn't like.

The school principal had responsibility (in consultation with a Student Support Group) to decide how PSD funding was spent in relation to the applicant. The principal told the Tribunal he would not consider using part of the PSD funding for an LBLP literacy program, because if it did the school would have to reduce the amount of hours that the applicant was provided with an aide.

One of the issues for the Tribunal was whether the LBLP literacy program was most appropriately funded or provided through the NDIS. The Tribunal referred to paragraphs 7.13 and 7.14 of Schedule 1 of the National Disability Insurance Scheme (Supports for Participants) Rules 2013:

7.13   The NDIS will be responsible for supports that a student requires that are associated with the functional impact of the student’s disability on their activities of daily living (that is, those not primarily relating to education or training attainment), such as personal care and support, transport to and from school  and specialist supports for transition from school education to further education, training or employment that are required because of the student's disability. Any supports funded by the NDIS will recognise the operational requirements and educational objectives of schools.  

7.14   The NDIS will not be responsible for personalising either learning or supports for students that primarily relate to their educational attainment (including teaching, learning assistance and aids, school building modifications and transport between school activities).

The Tribunal stated at [145] of its decision:

The

question   in   an   application   like   this   about   where   the   line   lies   between   the

respo

nsibilities  of  the  NDIA  arising  under  the  NDIS  and  the  responsibilities  of  other

departments and agencies under other general systems, such as the education system, is

extremely  difficult.  

Such  a determination is

difficult because

the

significant

overlap

in

the

objectives of the two systems

and also overlap in the

intended benefits to be achieved by

the provision of the supports in question.

The

question   in   an   application   like   this   about   where   the   line   lies   between   the

respo

nsibilities  of  the  NDIA  arising  under  the  NDIS  and  the  responsibilities  of  other

departments and agencies under other general systems, such as the education system, is

extremely  difficult.  

Such  a determination is

difficult because

the

significant

overlap

in

the

objectives of the two systems

and also overlap in the

intended benefits to be achieved by

the provision of the supports in question.

The question in an application like this about where the line lies between the responsibilities of the NDIA arising under the NDIS and the responsibilities of other departments and agencies under other general systems, such as the education system, is extremely difficult. Such a determination is difficult because the significant overlap in the objectives of the two systems and also overlap in the intended benefits to be achieved by the provision of the supports in question.

The Tribunal noted that the applicant was moving into Year 11 and his goal was to be able to understand the curriculum at that level. The applicant needed to be able to improve his reading and writing to be able to do this, as well as to become more independent and prepare for employment. This meant that the literacy program did not primarily relate to his educational attainment - it was "on a separate track" to it. The Tribunal stated that had the applicant been in primary school (where children ordinarily learn to read and write), it is more likely that it would have decided that a literacy program was part of educational attainment and therefore was not most appropriately funded by the NDIS. However, in the circumstances of this case, the LBLP literacy program was most appropriately funded by the NDIS.

Comment

It is hard for students with disability and their supporters to navigate overlapping systems of school-based support such as the PSD, and the NDIS. When these systems are run by different organisations and with different standards, there is a real risk for people with disability to fall through the cracks. Remember that just because the NDIA says that a support is more appropriately provided by another support system, this does not mean that support system will actually provide it! 

These issues are made even more difficult when school-based disability funding is controlled by the school even when it is 'earmarked' for a specific student with disability. In some respects this goes against the 'person-centric' ethos of the NDIS. It is easy to see why a school would be very reluctant to allow a student to use school-based funding for a private literacy program. If a school has a number of students with disability it can fund teachers aides that are 'shared' between the student - if a student wants to obtain disability support privately, then those resources will no longer be able to be shared (and other students might suffer).

The key point of this decision is that educational supports, especially ones like literacy and numeracy programs, are not just about "educational attainment". They are also about enabling people with disability to participate in the community, become more independent and access other life skills. If the NDIA resists funding these on the basis that they are more appropriately funded by the education system, applicants should emphasise the non-educational benefits that these programs provide, such as community access and access to employment.