Submission to the Joint Standing Committee on the

National Disability Insurance Scheme

Inquiry into Capability and Culture of the NDIA

Professor Kylie Burns

Professor Michele Foster

Professor Susan Harris Rimmer

Dr Eloise Hummell

16 December 2022

Contact:

Professor Kylie Burns

ARC Discovery Project (ARCDP2001100742) Adjudicating Rights for a Sustainable National Disability Insurance Scheme

Research Investigators:

Professor Susan Harris-Rimmer, Professor Kylie Burns, Professor Michele Foster
Dr Eloise Hummell

Policy Innovation Hub, Griffith Business School, Griffith University

Law Futures Centre, Griffith Law School, Griffith University

The Hopkins Centre, Menzies Health Institute, Griffith University

2 | The Hopkins Centre, Law Futures Centre & Policy Innovation Hub

About Us

The Hopkins Centre, established in 2017 and co-located at Griffith University and Metro South Hospital and Health Service, is Queensland’s premier research agency examining rehabilitation and resilience for people with disability. With over 200 research affiliates, including both academics and clinicians, The Hopkins Centre’s approach to research involves a distinctive coupling of the voice of lived experience with systems and policy analysis. The Hopkins Centre’s work transcends traditional disciplinary boundaries to investigate how to drive improved outcomes for people with severe disability through translating research into effective policies and practice.

The Law Futures Centre was established in 2015 to produce outstanding scholarship that anticipates, innovates, and meets pressing emerging challenges for law and legal institutions in Australia and internationally. Bringing together researchers from law, environmental sciences, international relations, business, health, criminology and humanities, Law Futures Centre members are committed to outstanding collaborative research that harnesses law as a key melioristic tool for shaping a better, more just future.

Established in May 2016, the Policy Innovation Hub sits within the Griffith Business School and provides insights and analysis that helps to shape the future of Queensland, Australia and the Asia-Pacific. The Policy Innovation Hub forms relationships with governments, international institutions, and policymakers to assist informed decision-making and involvement in the delivery of transformational projects; and solve policy problems through evidence-based collaboration with multidisciplinary experts.

As academics and researchers from these three Griffith University centres, in drafting this submission we have drawn upon both our individual expertise and our preliminary work on a current research project, Adjudicating Rights for a Sustainable NDIS (2020-2023), which is funded by an Australian Research Council (ARC) Discovery Project (ARCDP2001100742) grant. The project is described more fully in the Appendix to this submission.

Summary of Submission

Any changes to how the NDIS is implemented and administered by the NDIA should be consistent with the principles of administrative justice, enhance the rights of people with disability and are consistent with the Convention on the Rights of Persons with Disability (CRPD).

Our research and engagement with a broad array of NDIS stakeholders suggests that capability and culture at the NDIA can be improved through:

Providing further clarification of the operation of Section 34 of the National Disability Insurance Act 2013 (Cth) particularly in the context of Sections 3 and 4.
Clarify legislative language regarding the role and relevance of general scheme financial sustainability in the determination of individual support decisions pursuant to Section 34.
Ensuring disability specific knowledge of all NDIA staff through enhanced training initiatives
Increasing resources to support and enable the Participant Service Guarantee especially in relation to the empowerment and connectedness of participants.
Redesigning the decision-making process, from planning to review and appeal, to meet the objectives of being a rights-based, individualised, and collaborative process.

Developing clear and accessible policies, procedures and information with particular attention to accessibility for First Nations peoples, Culturally and Linguistically Diverse (CALD) populations, people with intellectual disabilities or those who are neurodiverse.
Providing reasons for Section 34 decisions that clearly explain the evidence behind decisions, not only the technical legal grounds.
Creating a public registry of NDIA settlement outcomes reached at the Administrative Appeals Tribunal (AAT).
Providing greater funding for supported advocacy and legal representation to assist NDIS participants to navigate the NDIS and enact their rights to reviews and appeals.
Given the announcement of the replacement of the AAT with a new merits review body, re- consider the structure and process of merits-based reviews of NDIS decisions to ensure trauma and human-rights informed.
Upholding obligations under the Commonwealth Model Litigant obligations.

Inquiry Terms of Reference

TOR (a)

the capability and culture of the National Disability Insurance Agency (NDIA), with reference to operational processes and procedures, and nature of staff employment

TOR (b)

The impacts of NDIA capability and culture on the experiences of people with disability and NDIS participants trying to access information, support and services from the Agency

TOR (c)

any other relevant matters

In addressing these, we set out our submission under the following headings:

Primacy of the Convention on the Rights of Persons with Disabilities
Decision-making of reasonable and necessary supports
- Decision-making tensions in applying Section 34 criteria
- Capability of decision-makers
- Administrative complexity of decision-making processes
Transparency and Accountability
- Transparency of internal decision-making
- Transparency of decision-making at the AAT

3.3 NDIA’s responsibility to learn and implement change

Engagement and Trust

Adversarial interactions

Trust deficit

Cultures that cause harm

As they are not defined in the above ToRs, we find it useful to present our understandings of the terms capability and culture to ensure clarity of the way we construct our submission. In agreement with the submission from Queensland Advocacy for Inclusion2 , we consider “the term ‘capability’ to mean the ability of the Agency to perform its core functions, in other words, how well it achieves its stated aims, and the term ‘culture’ to mean the observed behaviour, attitudes and norms of the Agency when performing its core functions”.

Primacy of the Convention on the Rights of Persons with Disabilities (CRPD)

In our view, it is important that any changes to how the NDIS is implemented and administered by the NDIA are consistent with the principles of administrative justice, enhance the rights of people with disability and are consistent with the Convention on the Rights of Persons with Disability (CRPD). Do mechanisms, tools, and processes of decision-making deliver fairness and consistency, and more so, promote the entitlements and rights of people with disability as the NDIS was intended and as the NDIS Act legislates? We thus frame our submission with observations about the CRPD as providing necessary guidance to the evaluation of and changes to the operation and implementation of the NDIS, including to the NDIA in the context of Australia’s Disability Strategy 2021-2031.

The NDIS Act is designed to bring the principles and obligations of the CRPD into Australia’s domestic legislation by providing access to nationally consistent funding and support to help people living with disabilities realise their aspirations, and to participate in the social and economic life of the community. The preamble of the CRPD, and the General Principles set out in Article 3, reflect the need for the respect for inherent dignity and individual autonomy (including the freedom to make one’s own choices and the independence of the person); the need for persons with disabilities to be able to participate fully and effectively and be included in society; the need for respect for difference and acceptance of persons with disabilities as part of human diversity; and providing persons with disabilities the opportunity to be involved actively in decision-making processes about policies and programs, including those directly concerning them. As Disabled Peoples Organisations (DPOs) have said for decades: “Nothing about us without us”.

In particular the NDIS Act should bring to life Articles 3 (general principles), 4 (general obligations), 7 (children with disabilities), 9 (accessibility), 19 (living independently and being included in the community), 22 (respect for privacy) and 23 (respect for home and the family).3 In late 2019, the Committee published its findings and recommendations on its recent review of how Australia is

Meeting its obligations under the CRPD

The Committee was deeply concerned about the following issues relating to NDIS assessments. They found that:

Disability assessments under the NDIS are still relying heavily on the medical model of disability.
The NDIS not providing equal opportunities for older persons with disabilities.
The NDIS was inaccessible because it is too complicated to access, and did not address the lack of services in remote areas.
The lack of sustainable and well-resourced individual & independent advocacy programs.

Some of the Committee’s recommendations for Australia included the following:

Australia should carry out Disability Rights Impact Assessments on any legislative changes that may impact the rights of persons with disabilities.
Review disability assessment criteria for support schemes under the NDIS and align them with the human rights model of disability, ensuring adequate support for older persons with disabilities, CALD or Indigenous persons with disabilities, and persons with intellectual or psychosocial disabilities.
Australia should make the NDIS application and review processes easier for people with a disability to use and make sure that all information is accessible.
Ensure that all Australians with disabilities have access to ongoing, sustainable and well-resourced individual and independent advocacy programs, especially outside of the NDIS.

Unfortunately, our research and engagement reveal that many of these issues identified in 2019 remain in 2022, and the recommendations have not been fully implemented. There was significant concern expressed by more than 75% of stakeholders in our qualitative interviews that CRPD obligations were not being realised within the Scheme.

Some leading concerns were that:

The rights of people with disability are not reflected in decisions or decision-making processes;
The social model of disability as expressed in the CRPD and in the NDIS Act was in practice being repealed and replaced with a medical deficit model; and
Adversarial and legally complex processes, especially at review and appeals stages, were not consistent with a rights-based approach.

A leading concern amongst attendees at our recent workshop was that current processes and practices of review and appeal are neither disability, human rights nor trauma informed, and this can result in causing more harm, especially psychological harm, to people with disability and their families.

Decision-making of reasonable and necessary supports

Decision-making tensions in applying Section 34

Decision-making dilemmas when determining reasonable and necessary supports according to Section 34 criteria was a concern expressed by nearly all 31 interviewees. The top three criteria identified by interviewees as being a point of tension were: value for money (s 34 (1)(c)); informal supports (s 34 (1) (e)); effective and beneficial (s 34 (1)(d)). Largely, this meant that interview stakeholders perceived that consideration of these criteria dominated and prevailed unreasonably as the leading reasons for denying requests for funded supports. Supports were determined as not representing value for money able to be provided by informal support especially family; and/or not proven to be effective and beneficial.

Indeed, the overarching dominance of a cost-saving language was perceived as driving this decision-making, especially at the expense of goal, objectives and aspirations (s 34 (1)(a)), and social and economic participation (s 34(1)(b)). The Joint Submission #7 also observed a NDIA cost-saving approach to section 34 decision-making.

Interviewees however presented differing perspectives about what contributes to the problems of interpretation of Section 34, including ‘opaqueness’ of S 34 application, a lack of clarity and meaning in NDIS legislation and policy, the discretionary nature of interpretation, the shift to being more ‘impairment’ and ‘diagnostic focused’, and the pursuit of consistency over individualising.

We acknowledge that all Section 34 criteria must be satisfied for a support to be funded. However, concluding that a requested support did not meet value for money was seen by interview stakeholders to be made without due consideration and comparison, and without clear reasoning. PIAC’s submission (#29) also raised the concern about the use of ‘value for money’ criteria, thus recommending that “Decisions that a requested support does not represent ‘value for money’ should set out the NDIA’s evaluative assessment”.

Related to the prevalence of the value for money criteria for denying supports, most interview stakeholders expressed concerns that broader considerations of the financial sustainability of the Scheme (explicit in sections 3 (3)(b) and 4 (17) but not in section 34) were a latent but pervasive factor in individual Section 34 decisions. Indeed, 23 of our 31 interviewed stakeholders perceived the pervasiveness of a financial sustainability rationale (narrowly interpreted as expenditure) being used to limit and exclude supports. At issue here is the unclarified technical legal role of general Scheme financial sustainability and how Sections 3 and 4 of the Act should play out in decision making at the individual participant level. However, if in the case of the NDIS, general Scheme financial sustainability is a factor to be utilised in Section 34 to determine individual supports, then the legislation should make it clear and the approach to determine this made clear to everyone.

Overall, our research indicates that the reasonable and necessary criteria have both strengths and weaknesses. It is flexible and designed to be tailored, however in the same way it is challenging to operate. There thus needs to be increased clarity regarding how Section 34 is interpreted and applied, including clarity about the relevance of general Scheme financial sustainability for determining an

Section 2 - Decision-making

2.1 Interpretation and application of section 34 criteria

There must be an ongoing fundamental focus on evidence-based decision-making in the NDIS.

Recommendations:

Review Section 34 decision-making guidelines to ensure legislative compliance
Clarify legislative language including the role and relevance of general Scheme financial sustainability in the determination of individual support decisions pursuant to Section 34.
Provide and release examples of how Section 34 can be interpreted
Ensure that the determination of Section 34 remains fact intensive and evidence-based to continue to be flexible and tailored

2.2 Capability of decision-makers

Complex decisions such as what is appropriate funding for people with diverse disability-related needs requires a sophisticated process of assessment and a system conductive to good decision-making. Ideally, this should combine processes that derive a comprehensive understanding of complex needs and individual contexts with valid assessment mechanisms and clear values to generate transparent decisions6. On the contrary, our research and stakeholder engagement indicate strongly that this is not the current state of decision-making within the NDIA.

As identified in section 2.1 above, a genuinely individualised scheme will more than likely have inbuilt administrative tensions. Our research strongly presented the perception from expert stakeholders that NDIA decision-makers lack understandings of disability, including complex and inclusive needs; lack nuanced skills in decision-making; lack adequate training including on the NDIS legislation; and often held flawed assumptions (e.g., all disabilities are equal, factors in rural and remote locations). Stakeholders interviewed raised concerns about unintended consequences of poor decision-making of Section 34 criteria such as inconsistencies in the application of criteria, a financial focus with implicit rationing of supports, receiving approval for funded supports was perceived as ‘a lottery’, and that these decisions were achieved through procedural and prescriptive practices rather than individualisation.

Well-informed and well-trained staff are critical to understand the complexities and nuances of individual needs and appropriate individualised supports. Workshop discussions concurred that highly knowledgeable and skilled decision-makers with capacity to engage respectfully and directly with NDIS participants and their families are needed in the NDIA at primary stages. The group endorsed the crucial nature of staff capability, especially of primary decision-makers, to ensure the quality of the first decision, and thus reduce the need for both reviews and appeals.

The prominence of senior NDIA staff with backgrounds in the corporate and banking sectors was also perceived by interview stakeholders to misdirect a NDIA culture away from the purpose and visions of the Scheme. We acknowledge that there have been significant changes since June 2022 in the leadership of the NDIA towards more people with disability, including on the NDIA Board. Our data

Section: Workforce Framework for NDIS

supports this change, and we thus reiterate the need for sustained efforts to include NDIA leadership with lived experience of disability, and NDIA decision-makers (including planners and reviewers), with knowledge of disability and adequate training in disability, trauma and rights-focused approaches and interactions.

The NDIS Quality and Safeguards Commission developed the Workforce Framework for NDIS. However, this appears not to be applied to NDIA staff or external consultants to the NDIA such as legal representatives. There are four ‘Core Capabilities’ pertaining to the roles of ‘General Support Work’, ‘Advanced Support Work’ and ‘Ancillary’, these are: ‘uphold my rights’, ‘communicate effectively’, ‘build trusted relationships’, ‘work collaboratively’. It is our view that these should guide all interactions (direct and indirect) with people with disability (those who are NDIS participants and those who are seeking access to the NDIS), including within the NDIA. (https://workforcecapability.ndiscommission.gov.au/framework/level/#gen ourRelationship 0 0).

Recommendations:

Increase and improve NDIA staff training of disability specific knowledge and engagement approaches
Increase proportion of NDIA staff members with lived experience of disability
Workforce Framework should apply to all NDIA staff and their interactions
Resource levels should be increased to support and enable the service guarantee especially in relation to the empowerment and connectedness of participants

2.3 A culture of administrative complexity of decision-making processes

The Objects of the NDIS Act and the Principles which guide action under the NDIS Act clearly indicate that the determination and delivery of supports to people with a disability must support and maximise their choice and control in the pursuit of their own goals. The NDIS Act notes the importance of people with a disability being involved in decision making processes about them. The inclusion of these Objects and Principles in the NDIS Act indicates a planning process that is intended to be individualised and goal responsive.

Stakeholders interviewed in our research expressed concern about the increase in administrative complexity which has characterised the Scheme over time. More than half identified this as a concern, highest amongst consumer and legal stakeholders. NDIA administrative processes were described as a ‘battle of forms’, with the evidentiary burden of proof and burden of meeting heavy administrative criteria on the person with disability, including requiring more paperwork, retelling experiences, and providing increasing amounts of evidence. A perceived decline in a collaborative approach to planning, with it becoming less person-centred, was also reported.

The complexity of decision-making processes, combined with a lack of engagement with the decision- maker, has reinforced stakeholders’ perceptions that the NDIA is operating with a mindset of bureaucratic efficiency (a position also strengthened through views on the use of algorithms and standardisations within the Agency), and that processes are not being tailored to individual needs or preferences. At the workshop in November 2022 this view was repeated. As a recent workshop

Recommendations:

The decision-making process, from planning to review and appeal, should be redesigned to meet the objectives of being rights-based, individualised and collaborative.
Develop clear and accessible policies, procedures and related information with particular attention to accessibility for First Nations peoples, CALD populations, people with intellectual disabilities or who are neurodiverse.
Until such a point at the processes are clear, understandable and accessible, supported processes including funded advocacy need to be provided by the NDIA.

Transparency and Accountability

Our qualitative data revealed general agreement that decision-making of reasonable and necessary funded supports is playing out with a lack of transparency and accountability from the Agency, at planning, review and appeal stages. There was an accompanying concern that there is no compulsion on the Agency to be more transparent nor to improve processes of first order decision-making based on AAT decisions.

Complementary detail to this section is attached as Annexure A.

  3.1 Transparency of internal decision-making

Interview and workshop stakeholders agree that there is a ‘hidden nature’ of NDIA decision-making and lack of clear evidence linking the NDIS Act and decisions, accompanied by poor communication of decisions by the NDIA. The impact of the perceived hidden nature of decision-making is twofold: producing a negative impact on public trust and confidence about decisions and the transparency of decision-making processes; and hindering NDIS participants to exercise their rights to review and appeal processes. The lack of transparency and consistency in NDIS decision making has been noted in numerous reports including the Tune Review and the Joint Standing Committee’s recent Inquiry in relation to NDIS Planning. Our data supports the assertion that transparency in how funding decisions are made and reviewed is critical for a fair NDIS which recognises the rights of all participants and which delivers administrative justice. We agree with PIAC’s submission (#29) that “It is a fundamental”

principle of good public administration, and administrative law, that government bodies should

provide detailed reasons that allow a person affected to understand why a decision has been made.”7

In our submission to the Senate Community Affairs Legislation Committee - The NDIS Amendment Bill 2021, we supported the amendment to s 100 (1) to require the provision to participants of reasons for all reviewable decisions. It is important for transparency and administrative justice, especially in allowing participants to properly consider their rights of appeal to the AAT, that the reasons are unpacked, not just according to the legislative criteria, and are presented in a mode of communication that is tailored to the communication style of the NDIS participant. We strongly support recommendations by PIAC (#29), QAI (#26) and the Office of the Public Advocate of Victoria (#30) that the NDIA should explain its decisions in full with detailed reasons.

The NDIA’s use of algorithms and standardisation to determine funded support for NDIS participants was widely critiqued by stakeholders interviewed in our research and our workshop stakeholders based on the lack of data publicly released by the NDIA. The role of Typical Support Packages (TSPs) as an unknown and hidden aspect of decision-making was seen by interview stakeholders and workshop attendees as a particular concern. Although the majority of stakeholders interviewed (n=20) agreed there was a role for algorithms within the NDIA decision-making processes, they shared the view that the data must be released, transparent, and used primarily as a basis from which to individualise with the NDIS participant and their supporters.

The Review of Reviewable Decision (RoRD) stage is also not transparent and provided a point of discussion between workshop attendees. Data from the most recent NDIS Quarterly report details that of closed RoRDs by outcomes (Figure 50), 60% were confirmed, 24% were varied or set aside (no data released distinguishing these two outcomes), and 16% were withdrawn. The percentage of RoRD outcomes that have been confirmed rose drastically since the March 2021 quarter, tracking (across quarters) from 22% (March ’21), 32% (June ’21), 47% (Sep ’21), 61% (Dec ’21), 67% (March ’22), 58% (June ’22) and to the current 60% (Sep ’22). One conclusion can be that decisions are becoming better and therefore do not need to change. However, other considerations expressed by workshop attendees, included the introduction of the 60-day timeframe (from 90days) putting pressure on reviewers. QAI’s submission (#26) also expresses concern about the increase of RoRDs being confirmed, suggesting that “targets or other motivating factors are driving decision-making at this stage as opposed to the individual merits of the review”.8

Recommendations:

Accessible information requires that all communication is meaningful to the person and should be tailored to their preferred mode and style of communication
Reasons for S34 decisions provided by the NDIA should clearly explain the evidence the decision is based upon and not only the technical legal grounds
NDIA must release data that underpin the use of Typical Support Packages and any other algorithms that guide key decision-making of funded supports.

3.2 Transparency of decision-making at the AAT

Our current content analysis of all finally determined AAT and Federal Court Appeals in relation to reasonable and necessary support decisions from the commencement of the NDS until 30 June 2022 includes 98 AAT and Federal Court decisions. Our preliminary results reveal that in these reported appeals, the NDIA is legally represented (almost always by both a solicitor and barrister, most often external to the agency) in all cases. Approximately 70% of NDIA participants are only represented by some form of advocate, and this is not always a legal advocate.

Related to transparency of decision making at the AAT, several preliminary themes are identified from our initial analysis of AAT cases:

A complicated legal framework for determining whether supports are reasonable and necessary under the NDIS legislation (objects, principles, s 33, s 34, rules, operational guidelines). This is problematic for participants in determining and arguing whether their supports are reasonable and necessary, and further compounded where the participant has no legal representation or advocacy.
Some cases concern very ‘technical’ legal analysis of provisions of the NDIS legislation including applying the principles of statutory interpretation. In these cases, arguments made on behalf of the NDIA are often focussed on an interpretation of the legislation which limits a support, rather than an interpretation beneficial to a participant.
The role of ‘financial sustainability’ considerations in determining an individual’s supports under s 34 remains unclear. It is not uncommon in AAT cases for the NDIA to make arguments about the financial cost to the NDSIS of the provision of a particular kind of disputed support to the whole NDIS cohort of those with a similar disability to the participant.
Lack of sufficient evidence is often a determining factor in a support not being provided to a participant. This points to a need to support participants to obtain and provide the type of evidence the NDIA seeks and an AAT decision-maker will need much earlier in the decision-making and review process.

The most recent NDIS Quarterly report detailed that in the cases that went to a full hearing (and therefore underwent the full fact-intensive approach carried out by an AAT member), 37% of decisions agreed with the initial NDIA decision under appeal, the AAT member varied the decision in 34% of cases and set aside the original decision in 29% of cases. Therefore, in 63% of cases the initial decision

Recommendations

Creating a public registrar of NDIA settlement outcomes (de-identified summaries) will support transparency and accountability of decision-making.
Provide greater funding for supported advocacy and legal representation to assist NDIS participants enact their rights to reviews and appeals.
Data need to be captured and made public about the reasons why 35% of closed AAT appeals that were ‘resolved before hearing’ were withdrawn either by the NDIS participant or dismissed by the AAT.
Given the announcement of the replacement of the AAT with a new merits review body, consider the structure and process of merits-based reviews of NDIS decisions to ensure trauma and human-rights informed.
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  3.3 NDIA’s responsibility to learn and implement change
```

23 of 31 stakeholders interviewed in our research expressed uncertainty about the NDIA’s accountability, especially how internal review and external appeal outcomes inform improved decision-making practices. A lack of transparency about review outcomes, especially appeals settled prior to AAT hearing, contributes to a perception that the NDIA is not instituting a learning and change process. Our view, based on research data, is consistent with PIAC’s (Submission #29)

13 A new system of federal administrative review | Attorney-General’s Department https://www.ag.gov.au/legal-system/new-system-federal-administrative-review

14 | T h e H o p k i n s C e n t r e , L a w F u t u r e s C e n t r e & P o l i c y I n n o v a t i o n H u b ,

Recommendation

Recommendation 3 that the NDIA needs to “implement systemic changes to reflect AAT and court decisions”.

We also note and endorse PIAC’s NDIS tracker which shows that the majority (75%) of actionable recommendations issued through over 16 major inquiries, including those by the JSC and the Tune Review, have been partially or not implemented by the NDIA. Not only does this reflect poorly on NDIA accountability but furthers the NDIA’s public trust deficit.

Recommendations:

As per recommendations made by the Tune Review and the Australian National Audit Office, it should be made public how data from settlement outcomes and early resolution outcomes is reported and used by the NDIA to improve the consistency of internal decision-making.

4) Engagement and Trust

Issues identified above, including opaque decision-making processes, pervasiveness of cost-saving discourse, lack of genuine engagement and collaboration in planning and review stages, insufficiency of staff knowledge and training specific to disability, and complex administrative processes, have contributed to stakeholder perceptions of the NDIA having a public ‘trust deficit’, exacerbated by adversarial interactions.

4.1 Adversarial interactions

Stakeholders interviewed were concerned that model litigant obligations were not always observed by the NDIA or their legal representatives. The general perception was that current processes, especially at appeals, are confrontational, adversarial and overly legal, and not appropriate for engaging people with disability and vulnerable population groups. There was a strong sentiment that reviews and appeals especially are a ‘legalistic game’ likely designed to deter people. Adding to concerns was the lack of specialist legal and advocacy support to enable participants to navigate through the processes.

Our initial analysis of AAT cases has also raised a number of matters which we believe raise concern about adversarial interactions and we will investigate further in our research:

Some AAT cases may indicate an inadequate understanding of intersectional matters which may impact the capacity of carers - for example domestic violence contexts.
Some cases indicate a critique by the AAT of adversarial tactics or approach taken by the NDIA, NDIA lawyers or NDIS experts. In addition, rhetorical questioning styles (widely used by lawyers and barristers in range of contexts including criminal cases) which suggest to a witness

Recommendations:

The NDIA and its legal representatives must uphold their obligations under the Commonwealth Model Litigant Obligations and develop specific guidelines to exact a standard of fair dealing to be expected from government litigants in the context of the NDIS.
Lawyers used by the NDIA need to be trained to engage appropriately with people with disability and adhere to accessibility considerations.
In the face of adversarial processes, funded advocacy and legal representation is critical to appropriately advise and support NDIS participants.

4.2 Trust Deficit

Qualitative interview data and broader engagement with stakeholders has demonstrated a significant public trust deficit in the NDIA, and specifically in the NDIA’s capability to fairly and consistently administer the Scheme, seen as influenced by a culture dominated by cost saving language, scepticism of the expertise of people with disability and their families, and bureaucratic efficiencies at the cost of administrative justice for the people the NDIS was intended to give a better life and opportunities to.

We acknowledge that the incoming Labor government and Minister for the NIDS have recognized that lack of trust and have made concerted efforts to begin to rebuild this, especially through wide consultation with the disability sector and the release of more NDIA data in recent quarterly reports. To this end, our recommendations above reiterate and support efforts to achieve this.

5) Cultures that cause further physical and psychological harm and decrease function

It has been well documented in international and Australian research in relation to both insurance and compensation systems that decision-making and review processes which are poorly designed can cause psychological harm to claimants and are implicated in outcomes such as delayed recovery,

Potential Psychological Harm to NDIS Participants

It is likely based on existing research evidence that some NDIS participants, many who may already be psychologically vulnerable, could be experiencing psychological harm as a result of processes utilised by the NDIA to determine whether supports are reasonable and necessary, including review and appeals processes.

As Collie noted in respect of DVA processes, this should prompt consideration of both policy and legislative design to ultimately delivers a ‘best practice model’ of determining supports. Research in relation to insurance systems also indicates that failures to implement appropriate best practice processes can cause further costs to schemes in the longer term due to harm to or loss of function by participants.

Examples of best practice person-centred models exist in the insurance context and may assist to inform how the NDIS (as an ‘insurance’ Scheme) should approach its processes and policy. This may include matters such as direct and personal communication with a dedicated NDIA officer and decision-maker throughout the determination of support process in the manner preferred by a participant; empowering the participation of the participant at all times;

e nsuring that all documentation is in plain English and is accessible; limiting the number of medical and other reports required; guidelines and templates for external parties (e.g. medical and allied health professionals) so it is clear what information is required by the NDIA early in the process to determine supports; ensuring swift and timely access to support to prevent deterioration in physical or psychological health; and transparency and explanation as to why decisions are made.

References

Elbers, Akkermans, Cuijpers & Bruinvels (2013) Procedural justice and quality of life in compensation processes, Injury, 44(11);
Grant & Studdert (2009) Poisoned Chalice? A Critical Analysis of the Evidence Linking Personal Injury Compensation Processes with Adverse Health Outcomes, Melbourne University Law Review, 33(3);
Grant et al., (2014) Relationship between stressfulness of claiming for injury compensation and long-term recovery: a prospective cohort study, JAMA Psychiatry, 71(4);
Murgatroyd, Cameron & Harris (2011) Understanding the effect of compensation on recovery from severe motor vehicle crash injuries: a qualitative study, Injury Prevention, 17(4);
Schaafsma, De Wolf, Kayaian & Cameron (2012) Changing insurance company claims handling processes improves some outcomes for people injured in road traffic crashes. BMC Public Health, 12.

Recommendations:

Priority consideration should be given to the impact on the people that go through the planning, review and appeal processes to ensure processes are not doing more harm.

We stand willing to give evidence to the Committee if required.

Kind regards,

Kylie Burns, Michele Foster, Susan Harris Rimmer and Eloise Hummell

study-mhiccap.pdf (the ‘Collie Report’) 45- 52 which suggested reforms based on best practice model for DVA claims.

18 | The Hopkins Centre, Law Futures Centre & Policy Innovation Hub,

Appendix

About the ARC Project Adjudicating Rights for a Sustainable National Disability Insurance Scheme (ARCDP2001100742)

By enhancing the visibility and transparency of decision-making processes and priorities, and promoting informed public discussion, this project will contribute to making the National Disability Insurance Scheme a fair and sustainable scheme, and an international exemplar. The study involves three phases conducted over three years (2020 — 2023) and employs a multidisciplinary, translational design incorporating analysis of social, policy and legal frameworks, qualitative interviews, analysis of administrative data and qualitative case study methods to develop both a broad national understanding of dominant frames surrounding the administrative justice decisions and concepts of justice; and a more nuanced understanding of administrative justice as experienced by participants.

The project will highlight the power and justice effects of the administration of the NDIS, including what principles and values serve as dominant justifications for reasonable and necessary support, areas of contestation with choice and control, and the discrepancies in how administrative justice is viewed. The findings will contribute to a better understanding of which participants the NDIS is failing and contribute to a critical debate about the values guiding funded support decisions and fairness outcomes.

Evidence informing this submission:

Qualitative Interviews

Interviews were conducted between July 2021 and February 2022 with 31 NDIS stakeholders from across government statutory, professional bodies, legal organisations, and advocacy agencies. Interview questions asked about: original intentions of the NDIS and subsequent changes since implementation in relation to funded supports; reasoning and justifications behind decisions about funded supports; challenges associated with decision-making; and current Scheme performance and improvements to ensure fair process and fair outcomes for NDIS participants.

Stakeholder Interviews (n=31)

Bureaucracy 8
Professional 8
Legal 7
Advocacy 8

Appeal Case Reports

Overview summary analysis of 98 cases taken to the Administrative Appeals Tribunal (n=95) and to the Federal Count of Australia (n=3) where an NDIS participant is appealing the NDIA decision on reasonable and necessary supports. Cases were included from the first NDIS appeal case in the AAT in June 2014 until June 2022. The 98 cases are currently subject to an in-depth content analysis using a coding framework (in preliminary stages of analysis). i9j[The Hopkins Centre, Law Futures Centre & Policy Innowation Hub,

Workshop

The aims of the workshop were to:

Exchange critical perspectives and knowledge on known tensions in NDIS review and AAT appeal processes and decisions pertaining to reasonable and necessary funded supports, including where and how procedural fairness working and failing.
Contribute to NDIS reforms by identifying policy priorities that will improve procedural fairness, administrative justice and rights entitlements in review and appeal decision-making on reasonable and necessary supports.

Excluding the research team and support staff, 43 people participated in the workshop, with approximately half attending in-person in Brisbane, Queensland and half participating online through MS Teams. Attendees included people with disability, disability advocates, lawyers, public policy and legal academics and government agency representatives.

ANNEXURE A

Link

21 | The Hopkins Centre, Law Futures Centre & Policy Innovation Hub

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