Appendix H Process
By Greg Barry, SDA Services Founder and Principal Consultant
Process Introduction
Currently, for SDA eligible participants who are entitled to supports set out in Appendix H, unless and until a quote is provided by an SDA provider for an enrolled SDA dwelling, NDIA’s SDA decision making does not confirm for them via any established process (“a process”) either:
That the application of appendix H is approved as an element of a participant’s SDA supports, or,
A specific dollar value for an appendix H scenario aligned with a participant’s intended living arrangement and their approved SDA building type, design category and location.
This paper respectfully seeks to address this topic and concludes that there ought to be a process.
Summary of Conclusions
Section 19 (1) (ii) of the SDA Rules requires that the plan for an eligible participant must include the amount of support available to the eligible participant. That provision is a legislative mandate for the NDIA CEO to undertake a process.
The AAT decision QKNJ and National Disability Insurance Agency found that Funding is, in the view of the Tribunal, the last step in a continuum to be taken to complete the process of decision-making and is designed to ensure that the supports provided are adequate for the particular applicant. Funding in this context logically includes Appendix H funding scenarios.
NDIA decisions, which the writer has seen, and which include words to the following effect;
“Appendix H is a pricing arrangement and not a decision…” “… because the adjustment is made at the time of “quote” approval, it is not a decision (it’s a pricing arrangement)…”
are in error, in that a decision to provide supports for an Appendix H scenario or not is a reviewable decision and one which forms part of the SDA decision-making continuum, and, delaying such a decision until the submission of a quote by the provider of an enrolled SDA dwelling is inappropriate given particularly S 19 (1) (ii) of the SDA Rules and the QKNJ decision.
The publications, Specialist Disability Accommodation Pricing and Payments Framework and Specialist Disability Accommodation Pricing Review 2022-23 Final Report provide supportive reasons for a process.
As to Balance of Convenience and leaving aside obligation, it would likely be a relatively low level of difficulty for the NDIA to institute a process when compared to the difficulty that the lack of a process manifests for SDA eligible participants, and SDA providers, investors, and financiers. In seeking funding via Appendix H participants must bear the onus of providing to the NDIA a valid Appendix H scenario that aligns with their intended living arrangement and the other elements of their SDA eligibility.
S 19 SDA Rules, Current NDIA Appendix H Decisions, and, AAT Decision QKNJ
NDIA’s CEO obligations pertinent to Appendix H arise in S 19 of the SDA Rules (our underlining):
19 Eligibility to receive support for specialist disability accommodation to be included in plan
(1)The plan for an eligible participant must include: …
(ii) the amount of support available to the eligible participant in relation to the dwelling specified in the notice.
The appropriate interpretation of available must include available in the future and cannot sensibly be restricted to just currently enrolled dwellings available at the time of the SDA eligibility decision. The SDA Rules 2019 repealed former provisions which required consideration of:
… whether other SDA of the appropriate SDA type and in the appropriate location for the participant is, or will very soon be, available and whether (in respect of at least one vacancy) the participant and the provider are likely to agree to the participant residing there. (1)
The word amount can only logically be interpreted as a dollar sum.
The dwelling can only sensibly mean the notional SDA decision dwelling elements (building type, design category and location) as described in the matters determined for the eligible participant by the CEO under subsection 15(1)2. Comments above regarding available are also applicable here.
Passages from a recent communication from a NDIS planner to an SDA eligible participant relating to Appendix H are copied and pasted in the appendix.
Key issues from that communication are summarised here (our underlining):
• Appendix H … requires we adjust the funding
• Appendix H is a pricing arrangement and not a decision
• … because the adjustment is made at the time of “quote” approval, it is not a decision (it’s a pricing arrangement) and does not change the SDA decision itself).
It is not clear whether this planner was suggesting that all SDA pricing / funding determinations are not decisions or that just Appendix H determinations are not decisions.
If it is the latter that is contended, then the comments in this paragraph apply. There are no distinctions made, relevant to appropriate determinations, between any of the individual pricing Arrangements and Price Limits in the National Disability Insurance Scheme Pricing Arrangements for Specialist Disability Accommodation 2023-24. Neither are there any suggestions in those as to whether they are matters for decisions or not. Appendices A to D and H contain similar pricing matrices, which are Tables that set out Annual Base Price Limit per SDA- eligible Participant with similar scenarios for each. A suggestion that matters for appendices A – D require decisions and matters for H are not, would be arbitrary and invalid.
Irrespective of whether it was the former or the latter being contended, the issue of whether the quantum of funding for SDA outcomes is a reviewable decision was specifically considered by the AAT in QKNJ and National Disability Insurance Agency. Relevant paragraphs are pasted here (our underlining):3
58. The respondent has contended throughout this matter that the question of pricing any accommodation under SDA falls to an application of the SDA Price Guide and further that the process attaching to the price of any SDA falls outside the purview of the Tribunal as the CEO’s responsibility ends with the decision of what SDA is appropriate on a case-by-case basis. Thus, it is contended that because the CEO’s role does not extend to applying the SDA Price Guide and setting the level of funding to be provided, the Tribunal’s jurisdiction does not run to a review of that process.
76. The CEO is responsible for considering the applicant’s request for SDA, and this is clearly a reviewable decision falling within the Tribunal’s jurisdiction. Further, as part of that decision-making process, it is necessary for any decision of a positive nature by the CEO to have any practical effect and to make the decision operative, funding is a necessary part of that decision.
77. The Tribunal does not, with respect, agree that this is a two-part process when deciding whether an applicant for SDA is approved for it. The decision has several steps to get to the point where the supports are considered reasonable and necessary. Funding is, in the view of the Tribunal, the last step in a continuum to be taken to complete the process of decision-making and is designed to ensure that the supports provided are adequate for the particular applicant.
78. The process, when followed, for SDA is analogous to that of a production line where sections of an item are put into assembly as it moves slowly along. Here, the final part of the process is determining what level of funding fits the final product.
The part of the communication from the planner which said that Appendix H is a pricing arrangement and not a decision echoes (albeit later than the QKNJ decision) the NDIA’s contention in QKNJ that the CEO’s role does not extend to applying the SDA Price Guide and setting the level of funding to be provided.
That contention is incorrect and was rejected in the QKNJ decision.
The QKNJ decision was not appealed by the NDIA and the above conclusion ought to be followed for NDIA SDA decisions for reasons including that the administrative decision-making ought to recognise that the AAT will make the same decisions on the same issues.4
Publications
The NDIS Operational Guidelines - Specialist Disability Accommodation v7.0 2022-07-25 do not provide guidance for this issue. The Specialist Disability Accommodation Pricing and Payments Framework sets out the long-term pricing and payments framework for the funding of the land and built elements of Specialist Disability Accommodation (SDA) under the National Disability Insurance Scheme (NDIS)5 and assisting this issue it relevantly provides (our underlining);
9.The NDIS will support the availability of SDA for participants who are assessed as requiring such specialist accommodation.6
10.The NDIS will support a sustainable SDA market that fosters choice and control, encourages innovation, provides options for participants, continuity of supply and financial sustainability for governments, participants and providers.7
19.The pricing and payment arrangements adopted by the NDIA should provide certainty on the payment amount and the period for which this is specified, such that a SDA provider could raise finance for the development and/or redevelopment of appropriate dwelling stock.8
Specialist Disability Accommodation Pricing Review 2022-23 Final Report
The SDA Pricing Review Report echoed parts of the Pricing and Payments Framework.
The SDA Pricing Framework also requires that the pricing and payment arrangements adopted by the NDIA should provide certainty on the payment amount and the period for which this is specified, such that an SDA provider could raise finance for the development and/or redevelopment of appropriate dwelling stock.9
It also requires that the pricing and payment arrangements adopted by the NDIA should:
… provide certainty on the payment amount and the period for which this is specified, such that an SDA provider could raise finance for the development and/or redevelopment of appropriate dwelling stock (paragraph 19).10
Clearly these excerpts from both publications support and align with contentions that a process would;
a. support the availability of SDA for participants who are assessed as requiring such specialist accommodation, and,
b. support a sustainable SDA market that fosters choice and control, encourages innovation, provides options for participants, continuity of supply and financial sustainability for governments, participants and providers, and,
c. manifest the NDIA providing certainty on the payment amount and the period for which this is specified, and,
d. provide such certainty that an SDA provider could raise finance for the development and/or redevelopment of appropriate dwelling stock.
The Pricing Review Final Report also addressed SDA Self Provision:
Recommendation 13: Encouraging Self-Provision
The NDIA and Department of Social Services should work with other relevant Commonwealth and state/territory agencies that have responsibility for existing government-sponsored home loan schemes to examine options to modify the rules of those schemes to enable fair and equitable access by NDIS participants who wish to be SDA self-providers.11
That report’s authors in Encouraging Self-Provision and recommending options for home loan schemes … to enable fair and equitable access by NDIS participants who wish to be SDA self-providers implicitly acknowledged that intending self-providers of SDA often need to borrow funds to complete their building of SDA dwellings. It would have been obvious to them and included in their considerations that this needs to occur well before the dwellings can be enrolled as SDA dwellings.
SDA eligible persons for whom the then appendix G (now H) would apply are a substantial percentage of the cohort of persons who aspire to SDA Self-Provision. Again, it would have been obvious to the authors of the Pricing Review Report and included in their considerations that these persons would need confirmation of their Appendix H support and the quantum of that before they could prove their repayment serviceability prospects to funders so as to borrow to build, enrol a dwelling and then selfprovide.
Without confirmation of their Appendix H approval and the amount of support available12 this cohort’s ability to raise finance for the development and/or redevelopment of appropriate dwelling stock13 is impaired in a manner inconsistent with this SDA Pricing Review recommendation.
To put that contention another way, by necessary implication, the Pricing Review’s authors in seeking to better support borrowing for self-provision, recognized the need for those borrowers (including those for whom appendix H applies) to know and share with funders the amount of support available14.
Balance of Convenience
Lack of a process has these consequences:
It does cause and will readily foreseeably continue to cause distress for SDA eligible participants who are notionally entitled to Appendix H supports when they seek to navigate and negotiate next steps for their long-term appropriate housing where dwellings are in planning or construction stages well prior to SDA enrolment. Absent confirmed and quantified SDA Appendix H supports these persons are in limbo with no way forward for negotiating and cementing their aspirations. Oftentimes this distress follows a lengthy SDA decision journey preceding this Catch 22 impasse.
SDA Providers’ and associated investors’ and financiers’, financial risks and blockages for their projects’ commencements are increased where the projects seek to provide dwellings for Appendix H entitled SDA eligible participants.
Presuming to view the matter from the NDIA’s perspective, the creation and administration of a process would present a relatively low level of difficulty. There is already a requirement for persons seeking Home and Living decisions to lodge a change of circumstances form with all new SDA applications. The Appendix H considerations can be readily made via that process.
Given particularly that potential Appendix H scenarios are numerous and varied, the onus ought to be upon the SDA eligible Participant when Appendix H funding decisions are sought, to provide to the NDIA a valid Appendix H scenario which aligns with their intended living arrangement and the other elements of their SDA eligibility.
SDA Services
SDA Services Pty Ltd
26. 10. 2023
Disclaimer: The information contained in this paper is intended only to provide a general overview of matters of interest. It does not constitute legal advice. Professional advice should be obtained from a legal professional before taking any action in relation to any of the information contained in this paper. No person should act, or refrain from acting, on the basis of the material contained in this paper.
Footnotes
1 National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2016 (Cth) r 4.2 (a) – (f). 2 SDA Rules S 19 (1) (b) 3 2021/2127 Re: QKNJ and National Disability Insurance Agency 4 Garry Downes JJ, ‘Visit to Supreme Administrative Court of Thailand and Central Administrative Court of Thailand’ (Structure, Power and Duties of the Administrative Appeals Tribunal of Australia, 21/02/2006), https://www.aat.gov.au/AAT/media/AAT/Files/Speeches%20and%20Papers/StructurePowerDutiesFebruary200 6.pdf
5 Specialist Disability Accommodation Pricing and Payments Framework p. 2 6 Ibid paragraph 9 7 Ibid paragraph 10 8 Ibid paragraph 19 9 Specialist Disability Accommodation Pricing Review 2022-23 Final Report p. 7 10 Specialist Disability Accommodation Pricing Review 2022-23 Final Report p. 25 11 Specialist Disability Accommodation Pricing Review 2022-23 Final Report p. 50 12 SDA Rules S 19 (1) (b) 13 Specialist Disability Accommodation Pricing and Payments Framework paragraph 19 14 SDA Rules S 19 (1) (b)
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Appendix
Quote from Planner Communication
If an arrangement can be made within an SDA dwelling, the NDIA would make a determination for SDA on the basis of the participants support needs, noting the section of the SDA pricing arrangements for Appendix H that requires we adjust the funding to align to the living arrangements for of the participant and the reasonable rental contribution.
Appendix H is a pricing arrangement and not a decision – its an adjustment to the funded amount aligned to the NDIS SDA pricing arrangements based on the criteria that the participant has notified the agency of an agreement having been reached between their provider (SDA) and themselves in relation to their living arrangements.
To facilitate you residing in a ###, with your family, who are not eligible for SDA, under appendix H, on receipt of confirmation that such an arrangement has been made, the agency would adjust the funding made available to reflect the pricing arrangements outlined in the appendix H table of the SDA pricing arrangements – effectively adjusting your eligibility amount to ### amount. We would apply this adjustment to the dwelling enrolment also. The adjusted price would remain in place for the term of that agreement, so long as you continue to reside with persons who are not SDA eligible.
A provider can request appendix H be applied to their quote by providing a quote clearly detailing the agreement between them and the participant, including details related to who will be living at the property (including number of SDA eligible persons), the address of the property, the property enrolment details (for example Fully accessible, House 3 residents ), whether or not the participant will be sharing their bedroom with another person, the requested adjustment under appendix H and acknowledgment of requirement to notify the agency of any change to the living arrangement of the participant.
The agency has to complete a risk assessment prior to the adjustment being made – but there is no requirement for appendix H to be detailed as a support in a participants plan (because the adjustment is made at the time of “quote” approval, it is not a decision (it’s a pricing arrangement) and does not change the SDA decision itself).