What recourse will NDI participants have in terms of having an inaccurate/faulty

assessment itself struck from their record or otherwise marked as invalid for use in future decisions?

I have been attempting to request an answer from the NDIA regarding this question since they first published information regarding the Independent Assessments that they will be rolling out next year. The question has been “escalated” to the team that are managing the information for Independent Assessments, but no reply has been forthcoming.

I have also previously attempted to contact MP Stuart Robert directly on 16th Sept 2020 and received no reply.

I have read the pages on the ndis.gov.au site regarding the Independent Assessments, the published “Functional Capacity Framework”, and the open letter from the MP Stuart Robert. None of the available information covers this question.

The NDIS website on the independent assessment process states:

Q: What if I disagree with my assessment? A: If you don’t agree with the decisions we make based on your independent assessment, you can ask for an internal review of a decision.

The NDIS website’s FAQ on independent assessments states:

Q: Can I appeal the decisions that are informed by my independent assessment? A: Participants can request a review or appeal decisions made by the NDIA, if they feel a decision made about them is wrong.

As an independent assessment is neither a “decision”, nor is it “made by the NDIA”, it would appear that if an assessment is faulty there is nothing the participant can do to have the faulty assessment itself removed/struck from their record. This is extremely prejudicial for their future as it will continue to influence future decisions on R&N supports even though it may be woefully inaccurate.

The recent AAT case between “Ray vs National Disability Insurance Agency”, ruling available at: https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2020/3452.html , where the AAT discarded the independent assessment due to substantial errors in that assessment is a good example. Based on the full text of the court decision and its reasoning, The independent assessment that had been done was appallingly inaccurate with a very large number of assumptions having been made by the assessor that simply didn’t match reality. The result of that faulty assessment was incorrect decisions being made by the NDIA regarding whether the person met the access requirements for the NDIS. Since that decision was up for external review, the AAT had the power to overrule the assessment when doing that review of the access decision - but will that assessment remain in the participant’s NDIS records? Will their first plan be based on the assessment done, even though it has already been ruled to be untrustworthy? Will it affect what the NDIA decide is Reasonable and

Necessary for the participant, despite it not being an “accurate and reliable” reflection of their capability?

A second such case that deserves mention is that of “Arnel vs National Disability Insurance Agency” in [2019], ruling available at: https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2019/4778.html where the AAT also discarded the independent assessment due to substantial errors of logic and the failure of the application of practical good sense on the part of the OT in the assessment.

The NDIA have shown very clearly in the cases above that they are perfectly prepared to throw away the information from the applicant’s treating medical team in favour of the information in the independent assessment when the two were in conflict. So while the independent assessment will not be the “only” piece of information used in making decisions, the NDIA has already shown both in actual terms with the cases above, and in theoretical terms when mentioning avoiding “sympathetic bias” in the original release of the “Functional Capacity Framework” document, that the independent assessment is the information that will be used for decisions if there is a conflict - even if it is wrong.

By not being able to challenge a faulty/inaccurate independent assessment ITSELF, the participant is going to have to take MULTIPLE decisions through review, as every decision made based on the errors in that assessment will be based on fiction instead of fact.

There’s also the question then of how a review caused by faulty decisions made due to a faulty assessment is going to be handled during an internal review? If the NDIA simply compare the decisions being reviewed back to the faulty assessment they were based on despite the assessment itself being inaccurate, the NDIA are quite likely to find that the original decision(s) based on the assessment “were correct”, resulting in more people needing to appeal to the AAT in order to have the foundation of those decisions - the assessment itself - re-examined. Further, if the assessment itself continues to be used for those same Reasonable and Necessary decisions over following years, the participant may well find that they are having to take the same decision through review multiple times, when that decision is made a second time in the following plan(s).

That is extremely unfair and unreasonable, and undermines the stated purpose for introducing these independent assessments.

Medical professionals are human, not gods. They can and do sometimes make mistakes, whether through:

• inadequate knowledge of the particular circumstances (e.g. in Ray vs NDIA, believing that the participant had passed year 12 when in fact they had failed year 11, and was quite able to get a job when in fact she had been unable to sustain paid employment due to an inability to learn the tasks required for the job)
• inadequate understanding of functional impact (e.g. in case Arnel vs NDIA in the assessor was not aware that the functional impact of CRPS could result in the participant being unable to control her limbs, and therefore believed that there was no impediment to driving when the participant’s right leg was severely affected).
• personal beliefs & pet theories regarding the participant’s disability/disabilities (e.g. in Arnel vs NDIA, the assessor’s belief that an exercise program developed by an exercise physiologist or physiotherapist would likely resolve the issues of falls that

• were actually caused by the nerve rewiring from CRPS that results in the inability to feel the position and movement of her limbs, and of intermittent loss of control of those limbs affected),
• misunderstanding what they have seen (e.g. in Ray vs NDIA, seeing Mrs Ray take lunchtime medication and therefore believing that she could manage all her medications without any assistance)
• misinterpreting information provided (e.g. in Ray vs NDIA, misinterpreting the result from the further studies Mrs Ray did through a registered training organisation as indicative of much higher level of communication understanding - particularly written

than she was actually capable of)

and many more possibilities.

I’ve HAD issues with faulty assessments in my (diagnostic) medical records in the past, and have had those assessments “poison” the treatment relationships with OTHER specialists until countered/rescinded. Being unable to have a faulty/inaccurate independent assessment for the NDIS rescinded/marked inaccurate/overturned is an extremely concerning prospect. I don’t need those problems permanently affecting the NDIA’s R&N support decisions.

With the assessments being required for any significant changes for review/change of life/etc, over time it becomes more and more likely that the participant will eventually run into an assessor who gets things wrong. The NDIA have also already stated that it will not be possible to submit an equivalent/competing assessment from your own treating medical professionals. With the current proposal as it has been presented so far, the participant then has no adequate remedy for the situation once this occurs.

There needs to be some recourse to the participant to deal with the assessment itself if the assessment is faulty/inaccurate, not only for “decisions made by the NDIA based on” that faulty assessment.

As an update to this submission: I have now received a reply from the NDIA on behalf of MP Stuart Robert.

The answer to this question is that there is currently no planned process for a participant to request a replacement or removal of a faulty assessment on their NDIS record if/when it does occur. It was either overlooked during planning, or hoped that people would not notice it was missing.

This is completely unacceptable, and extremely detrimental to participants as stated in my initial submission.

Attached is the letter received from the NDIA to go together with the original submission as supplementary information.

This process must be designed/in place prior to assessments becoming compulsory. To do the rollout of compulsory assessments without having a process for a participant to challenge an unfair/unreasonable/inaccurate assessment will cause significant impact and harm to participants if/when their assessments do go wrong. There have been many example cases go through the AAT appeals process to support the statement that independent assessors DO NOT always produce a fair and reasonable assessment of the participant’s functional capacity

despite using the same tools proposed in the independent assessment framework, so there is good reason for being concerned about the lack of any planned process for handling the problem when it occurs.

While the NDIA states in the letter that the participant can submit other reports if they choose to do so, the history of past AAT cases and the NDIA’s statements regarding “sympathetic bias” shows that if there is a conflict between the assessment and the rest of your reports the NDIA will discard the reported information from your medical team in favor of their independent assessment. This means that the participant has absolutely no right of reply or recourse for dealing with the assessment itself when it is faulty.