Submission to JSC NDIS - Capability and Culture of the NDIA inquiry

NDIA Terms of Reference – Parliament of Australia (aph.gov.au)

Summary

This submission is a reflection of my personal experience in seeking access to the NDIS as a person with disability, informed by my training and experience as an Australian lawyer and former legal practitioner.

While there were positive aspects in dealing with some staff, particularly the customer service staff and compassion shown by the first decision-maker, the access request process and both points of decision-making (including internal review) are lacking in fairness, equity, and due process.

Additional issues include the limited ability to provide context and nuance for overlapping conditions where management requires both clinical treatment (non-NDIS) and functional support (NDIS). This strictness of approach interferes with the proper interpretation and application of the Rules (r.55 and r.56 specifically). Also, I question whether appropriate weight is given to reports from a GP in the absence of specialist evidence.

Finally, I believe that if the Committee establishes through this review that the lack of due process occurs across the board, avenues for redress and compensation for loss should be made available for people who have been denied access and procedural fairness and have consequently needed to pay for their own supports.

Capability and culture of the National Disability Insurance Agency (NDIA), with reference to operational processes and procedures

Decision-making & procedural fairness

At neither point of decision-making was I provided with an opportunity to respond prior to the decision being made.

It is a very well established legal principle that: ‘the subject of a decision is entitled to have his or her mind directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity to deal with them.’ (SZLPH v Minister for Immigration and Border Protection [2018] FCAFC 145)

Therefore, the NDIA operational processes and procedures lack procedural fairness and the NDIA is operating in breach of the law.

As an applicant, I was never advised of the deficits in my application nor provided with an

opportunity to respond until after the decision was made and access was refused. Despite the Agency’s own guidance documents saying that it may ask for additional assessments to be provided, it did not do so.

Consequently, based solely on the evidence that was available to the first decision-maker at the time without this critical step in natural justice, she had no choice other than to make the decision she did.

As there was no procedural fairness in the initial decision-making process, and I had previously forgotten about my evidence of permanent impairment, the consideration of this subsequent evidence in support of an internal review was only then able to be considered through a biased lens during the internal review, which I refer to in more detail below.

It also brings into question whether appropriate weight is given to an access request supported by a report from a GP in the absence of specialist evidence. Many neurodivergent people, including myself, prefer to see one regular treating practitioner with whom they’ve established rapport and trust. Needing to seek out specialist input simply to establish eligibility is destabilising, anxiety-provoking and a significant expense on an already tight budget that I haven’t been able to afford to date.

Abuse of power & administrative discretion

Without procedural fairness, the access request process is an abuse of power. There is a significant disparity of power between the NDIA and an individual with disability, particularly when we are worn down from the daily struggle of trying to find and access the types of support we need to enjoy a life that most take for granted.

The decision made by the second decision-maker was outside her scope of power. It is unclear if this was a result of internal bias or an abuse of power, however, she decided that I did not meet the criteria for permanent impairment in direct contradiction to the medical evidence provided that had been certified by two medical professionals, both of whom I’d been seeing regularly for around 2 years with no significant improvement.

The second decision-maker relied on 5.4 of the Rules to support her decision, but failed to give due weight to r.5.5 and r.5.6 in light of this evidence:

   5.5 An impairment may be permanent notwithstanding that the severity of its impact on the

functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person’s functional capacity, including their psychosocial functioning, may improve.

   5.6 An impairment may require medical treatment and review before a determination can be made

about whether the impairment is permanent or likely to be permanent. The impairment is, or is

likely to be, permanent only if the impairment does not require further medical treatment or review

in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated). [emphasis added]

Because of this decision, she then refused to consider the remaining criteria required for access to the scheme.

Access request form

The access request form does not provide the ability for an applicant to establish nuance between overlapping clinical treatment needs and functional support needs when asked if there are treatments available that may substantially relieve the impairment. Accordingly, a medical practitioner is bound to select yes as they are certifying the access request.

For example, for a person with disability, an inability to access support significantly impacts upon mental health and well-being, which then creates additional clinical support needs. It is an absurd and inhumane position for the Agency to take to require a person with disability to treat their clinical needs prior to receiving access to functional support in circumstances where those clinical needs were brought on as a direct result of the disability and compounded by not having access to functional support that would improve our way of life.

Additionally, such a strict interpretation of this question as to whether treatments are available that could significantly relieve a person’s impairment, such as the agency has applied, could see even paraplegics denied access now that neural treatments are available that can help them walk again with physical therapy. Should they also be denied access? Absolutely not. Tut may be necessary to review the wording of the legislation to ensure it upholds the principles of the Act and meets its objectives.

The decision makers would also benefit from informed guidance and training on how terms like ‘treatment’, ‘support’, and even ‘capacity’ when used by medical professionals do not always align with the legal interpretation of the same terms.

For example, ‘treatment’ may imply that a condition can be treated and therefore improved. However, the medical profession may also use it interchangeably with the term ‘support’. This small technicality may result in an access refusal in circumstances where a medical professional hasn’t turned their mind to the language of the Agency.

As a result of my doctor’s interpretation of this question on whether there were available treatments, the agency advised me that I needed to pursue these treatment options before seeking access to the scheme. When my doctor provided a letter explaining her interpretation of this question and that she had ticked yes because she believed that if I had the appropriate support then that would substantially alleviate a lot of the difficulties that were impacting my mental health. This clarification appeared to be of no relevance to the second decision maker.

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

Customer Service

The customer service staff who I communicated with at the initial stages were lovely. On the phone and via email, they were compassionate, understanding and supportive, eager to assist me. It put my mind at ease and I felt valued and understood.

Initial decision-maker

When I received the telephone call from the first decision-maker advising me that my application had been declined, I was devastated. It was mid-afternoon and once I got off the call, the level of distress meant I couldn’t work for the remainder of the afternoon. Even though she was very compassionate in her explanation and I sensed she understood that I was in a difficult position and had been for many years, I had been desperately needing something that offered a light at the end of a very long and dark tunnel. This decision made me feel like I was completely on my own again, out of options with nowhere left to turn.

It took me another couple of months before I decided to try again after pursuing further treatment, as advised, and still not seeing significant improvement. I obtained a further letter of support from my doctor and found the evidence of permanent impairment signed by a psychiatrist and my then doctor. I emailed the agency and requested a review.

Second decision-maker

In direct contradiction to the certified medical evidence of permanent impairment, the second decision-maker decided that I did not satisfy the criteria for permanent impairment. She subsequently refused to consider any of the remaining elements required for access and confirmed the initial decision.

As a legal practitioner, I believed that certified evidence of permanent impairment that was directly related to the disability identified in my access request would have been sufficient to establish permanence. It left me questioning myself and my own knowledge, I was shocked, devastated, lost, confused, lost for words and out of options. I needed to call Lifeline.

In not being afforded procedural fairness before the decision was made, as is required by law, The first decision felt like having a door shut in my face but on the second, it was slammed. Hard.

The letter stated that I could submit another access request in the future, if I obtained more evidence. Though, I have absolutely no faith that the same thing wouldn’t happen all over again.

Proposed solutions

The Attorney-General’s website links to the ARC’s publication Legal Training for Primary Decision Makers. I would like to see the NDIA commit to:

Immediately revising its practices to ensure equity and fairness through upskilling all NDIA staff in the legal requirements of administrative decision making and fair process,
Ensuring this training is mandatory for ALL decision-makers.
Issuing a public apology to all applicants who had been denied procedural fairness during their access request and announcing their commitment to quality improvement.
Seeking appropriate and informed guidance delivered with training to all decision-makers, highlighting the different applications in which terms such as ‘treatment’, ‘support’ ‘capacity’ may be used by the medical profession but does not always align within the legal interpretation of the same terms.

Additionally, if a formal assessment is required for access to the NDIS then that should be made clear and people with disability should be able to apply for funding to obtain that assessment.

The legislation may also need to be reviewed to ensure it continues to meet its objectives.

Due to the NDIA’s repeated breaches of the fundamental principles of administrative law, an avenue for redress should be made available to all applicants who have suffered loss as a result of being denied procedural fairness.