Corangamite NDIS Reference Group Submission to the Joint Standing Committee on the National Disability Insurance Scheme Independent Assessments Inquiry | External submission

Corangamite NDIS Reference Group

                   Submission to the

Joint Standing Committee on the National Disability Insurance Scheme Independent Assessments Inquiry

                   March 2021

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Contents

Table of Contents …………………………………………………………………………………….. Error! Bookmark not defined. Introduction ……………………………………………………………………………………………………………………………………… 3 Recommendations made to the NDIA re consultation paper February 2021 …………………………………………….. 4 Responses to Terms of Reference…………………………………………………………………………………………………………………..6

Reference A and B.…………………………………………………………………………………………………………………………………..…….6

Reference C ……………………………………………………………………………………………………………………………………………………7

Reference D……………………………………………………………………………………………………………………………………………………9

Reference E and F…………………………………………………………………………………………………………………………………………10

Reference G and H………………………………………………………………………………………………………………………………..……..11

Reference I……………………………………………………………………………………………………………………………………………………12

Reference J and K…………………………………………………………………………………………………………………………………………14

Reference L, Position on Independent Assessments …………………………………………………………………………… 155 General comments ….…………………………………………………………………………………………………………………………………..16

Consultation process inconsistent with the CRPD and Tune Review recommendations ………………………….. 166

Introduction

The Corangamite NDIS Reference Group (CNDISRG) was established in February 2020, following an initial meeting convened by Libby Coker MP for Corangamite. Despite COVID 19 hitting a month later, the group has continued to meet regularly throughout 2020 and again in 2021 to ensure that issues relating to the NDIS can be discussed and followed up via various processes. The CNDISRG has a membership of 20 people, all of whom are scheme participants or families of scheme participants or professionals in the field. The Barwon Area was Victoria’s National Disability Insurance Scheme (NDIS or ‘the Scheme’) launch site and that means that all CNDISRG members have 7.5 years of experience in the Scheme. Collectively the CNDISRG members have in excess of 200 years combined experience in the disability sector. Our membership is broad and includes people with experience in the following areas:

Progressive Neurological Disease
Physical Disability
Acquired Brain Injury
Psycho-social Disability
Intellectual Disability
Autism
Sensory Disability – Blind
Chronic Health Conditions that lead to disability We also cover ages from Early Intervention though to late adulthood and our membership live with either acquired or congenital disabilities.

We welcome the opportunity to contribute our collective perspective to the Joint Standing Committee on the National Disability Insurance Scheme – Independent Assessments Inquiry.

We urge the Joint standing committee to request that the Department of Social Services and the National Disability Insurance Agency immediately cease the proposed roll out of mandatory independent assessments. The implementation of independent assessments should be discretionary and co-designed by people with disabilities and their representative organisations to comply with the Convention on the Rights of Persons with Disabilities.

Recommendations

Below we have listed the recommendations the CNDISRG submitted to the NDIA from the recent community feedback process regarding the proposed changes to the planning and access processes for new and current participants. While some of these recommendations are not addressing the independent assessments directly they are relevant to the process being recommended by the NDIS that begins with the assessments.

No. 1 That the Department of Social Services and the National Disability Insurance Agency immediately cease the proposed roll out of mandatory independent assessments. The implementation of independent assessments should be discretionary and co- designed by people with disabilities and their representative organisations to comply with the Convention on the Rights of Persons with Disabilities.
No. 2 (i) if a participant or prospective participant fails to attend an independent assessment process, they should be supported to request an exemption. (ii) participants or prospective participants are entitled to a full copy of their independent assessment once completed. (ii) participants or prospective participants should be entitled to request a second assessment if they are unsatisfied. (iii) the decision from the NDIA not to grant an exemption for an independent assessment should be a reviewable decision.
No. 3 That the NDIA reviews the use of the proposed independent assessment tools and ensure these are fit for purpose and co-designed with persons with disabilities and their representative organisations and appropriate allied health peak bodies.
No. 4 (i) That the NDIA explains how it is going to fund a trusted support person for participants or prospective participants to undertake the independent assessment process to ensure here is consistency and fairness. (i) That the NDIA and DSS ensures it adequately funds independent advocacy services to meet demand for services related to NDIS issues to enable participants who are not able to advocate to have a voice.
No. 5 That the NDIA provides transparent information regarding the intended role of Support Coordinators in the planning reforms and the future of the NDIS.
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No. 6 (i) That the NDIA reduces the complexity of the access process to prove permanency. (ii) That the NDIA utilise section 6 of the NDIS Act to remove cost barriers to funding assessments that prove permanency for the purpose of the NDIS Act. This reduces the impact of inequity for prospective participants from lower socioeconomic areas who are unable to access the NDIS due to the cost of gathering evidence. (iii) That the NDIA increases outreach support to assist prospective participants through the NDIS access process, particularly for CALD and ATSI Communities.
No. 7 (i) That the NDIA removes the proposal for the interval release of funds. This should only be required under specific circumstances where concern has been identified and justified. (ii) That the decision by a delegate regarding interval releases of funds should also be a reviewable decision.
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Responses to Terms of Reference

We submit the following response to Joint Standing Committee Terms of Reference.

a.  the development, modelling, reasons, and  justifications  for the introduction of
  independent assessments into the NDIS.

While we agree that there needs to be more fairness and consistency within the Scheme, the NDIA and DSS has not provided sufficient evidence that the proposed mandatory independent assessment changes will achieve this.

We believe there are many unanswered questions which the NDIA and DSS have not considered and have not addressed during the recent consultation processes on how independent assessments should be implemented. We also believe the NDIA and DSS have not been transparent regarding their considerations of other alternatives to achieve fairness and consistency that do not involve mandatory independent assessments.

We have the following concerns and unanswered questions:

An individual’s ability to advocate for themselves or have others advocate on their behalf will still influence the independent assessment process and quality of the outcome, submitting complaints about the process etc.
The assessments will vary depending on length of time an assessor spends with the participant, the expertise of the assessor relevant to a particular participant’s disabilities.
Why can’t an individual use their own treating specialist to complete a standardised assessment?
Why won’t the NDIA be more transparent about what they will fund to ensure greater consistency in the scheme? Instead, it has created a system that favours an ability to advocate.

b. the impact of similar policies in other jurisdictions and in the provision of other government services.

We are concerned that comparisons between various services are not appropriate and will potentially be detrimental to the participants and their outcomes.

As an example, independent assessments used in Centrelink to determine access to the Disability Support pension result in either access achieved or denied. Level of funding is not attached to the result as it is envisioned in the proposed IA process in the NDIS. There has been anecdotal evidence around the impact on the mental health of participants of other schemes that use IA and the stress causing great impact, sometimes leading to self-harm.

As Professor Bruce Bonyhady AM (Executive Chair and Director, Melbourne Disability Institute, 22 February 2021) stated in his Response to the National Disability Insurance Agency (NDIA) Consultation -

    “In accident compensation schemes there are only three types of severe disabilities:
    spinal cord injuries, acquired brain injuries and severe burns. This stands in stark contrast
   to the NDIS which includes disabilities of all types and every functional impairment.
   Participants in the NDIS range from people whose disabilities were present from birth,
   as well as those acquired later in life. It has therefore never been clear whether functional
   assessments   could  be   successfully   extended   effectively   to   include    all
    disabilities/functional impairments, as part of the NDIS. Further, because accident
  compensation schemes seek to restore a person back to the position they were in prior
   to their accident (reflecting tort law), the level of functional impairment is the only
   consideration which determines funding. Unlike the NDIS, there is no allowance in
   accident compensation schemes for individual life goals, capacity building or the role of
   informal supports when determining funding levels. Therefore, implementing IA under
   the NDIS to determine reasonable and necessary supports  is both much more
   complicated and fundamentally different to accident compensation schemes. As a result,
   accident compensation schemes provide a very limited guide for NDIS purposes.”

c.  the human and financial resources needed to effectively implement independent
   assessments.

To effectively implement any kind of independent assessment process, people with a disability, caregivers and the wider sector needs to have trust and confidence in the system. It is currently clear from the response and outcry from the community, this is far from what we have.

The NDIA must halt the proposed and rushed reforms to look at all options available to achieve fairness and consistency for the NDIS. The question about the necessary human and financial resources is secondary to the question of how can independent assessments be used as a discretionary tool in the NDIS system to improve the NDIS for people with a disability?

From the perspective of parents and informal caregivers, there is greater reliance being placed on them to support with independent assessments. This will be an additional process on top of regular therapy and assessments for participants. The NDIA has been silent on the additional informal support that is expected for the independent assessment process and how it will respond to those who have no informal support. This shows the NDIA does not appreciate how challenging it can be for parents/caregivers who must make time for these assessments and consider the needs of other children in their family who also have a disability.

The NDIA has not addressed the needs of working parents/caregivers who often must use work time for meetings, causing potential loss of income, and the interruptions to the person with a disability’s schedule could be the cause of unnecessary stress and trauma.

Parent quote: “I wouldn’t want to be communicating about my children’s needs in front of them. Doing 2 plan reviews for my children is already a drawn out, lengthy and

exhausting process, adding an extra assessment for both of them where I would have to find support for the sibling or find a time to chat to the assessor without them adds an extra layer of complexity to the process.”

We are concerned about the potential inequity of the independent assessment process when a participant has no informal supports to assist during their assessment. No information has been provided on who is going to provide this support and how this is going to be funded. It is not appropriate for a Local Area Coordinator to provide this role, due to their workload and potential conflict of interest. The preference of the person with a disability must be prioritised and accommodated. If a participant is not supported, the outcome could be detrimental to the result, mimicking the inequality that this process is supposed to be addressing – which has shown the better the support, the better the funding. It is also not reasonable to expect underfunded independent advocacy agencies to have the capacity to provide this support. We highlight that independent advocacy services are being overloaded with NDIS appeals, reviews and other NDIS advocacy related matters. People with disabilities attempting to access these services are required to wait, sometimes months, due to limited funding and demand exceeding availability.

The NDIA has not addressed the potential challenges and complexity of implementing a new process which overrules what participants and their caregivers have been attempting to navigate for the last 7 years. The mandatory independent assessment process will undoubtedly bring new complexities and challenges. People with a disability and their caregivers should have access to independent support to assist them to navigate the NDIS during times of significant change.

People with a disability should not have to wait for months to have access to independent support. This increases the risk of neglect and abuse of persons with disabilities. In preparation for these upcoming changes, it is critical that independent advocacy organisations are also appropriately resourced to support people with a disability to navigate the new system.

The United Nations Committee on the Rights of Persons with Disabilities has highlighted notes in its concluding observations on Australia’s implementation of the Convention on the Rights of Persons with Disabilities that it is concerned about the “unsustainability and inadequacy of resources for continuous, individual and independent advocacy programs”.1 We note that the Joint Standing Committee has also already made calls for the advocacy programs to be appropriately funded.2 There are currently no plans for funding to be maintained or increased relating to NDIS issues (both general and NDIS Appeals). This will have a detrimental impact on a participant’s ability to access independent support and access to justice.

1 Committee on the Rights of Persons with Disabilities, Concluding observations on the combined second and third periodic reports of Australia, CRPD/C/AUS/CO/2-3, October 2019 pg 2 Para [5(g)] 2 Joint Standing Committee NDIS Planning Final Report, December 2020, Recommendation 33. Pg 235 Para [10.83] 8

d. the independence, qualifications, training, expertise, and quality assurance of assessors.

If the NDIA implements IA as it proposes, it is critical that the assessor is an expert in a participant’s disability. It is highly ignorant that the NDIA asserts using tools that are disability neutral that the experience of the assessor will be irrelevant and will not impact the assessment. A participant has a right to be assessed by a professional who has knowledge in that person’s disability which caused the impairment. This will impact how that assessor interacts with a participant and how they answer questions. Anyone with experience in the disability sector would be aware of this.

It would simply be unrealistic to expect that the NDIA can provide an independent assessor suitable for every person on the NDIS that is available in their particular region. The NDIA should be investing in up skilling the existing allied health workforce regarding the NDIS to ensure decisions can be made fairly and consistently. Participants have a right to be comfortable with who they are being assessed by, and to have trust and assurance they are experts in their field. The NDIA fails to recognize that each applicant has very distinct, unique, and often times complexities and circumstances that cannot be assessed in haste. It must be noted that no one size fits all, even in instances where applicants have a similar diagnosis. No one-off cursory assessment by an independent assessor can ever replace an assessor who already has historical knowledge of and has built trust and rapport with an applicant. The NDIA assurance given with regard to the quality and skill of independent assessors can be no guarantee that each applicant will receive a fair and equitable assessment based on their individual circumstances, as would occur if assessments were conducted by specialised, skilled assessors that are known to the applicant. Therein lies a major and fundamental flaw in the proposed changes to the NDIS scheme. It is our strong contention that independent assessors employed to assess the complexities of each individual’s unique capacities and circumstances, within a single, time constrained period, are not well placed to arrive at an assessment that is fair and equitable, and one that meets the unique and individual needs of each and every applicant. In order to avoid future budget blowout, NDIA must invest in early planning that is appropriate, functional and will withstand the test of time.

Parent quote “I find it challenging to find providers who understand and have the unique skill set to work with my girls. This is due to the different and often hidden challenges girls with Autism present with. I find it doubtful that an independent assessor would have the relevant skill set to be able to make recommendations without seeing them around their peers. Even the regular therapists need the odd school or home observations to be able to effectively make recommendations and target their needs.”

Participants already work with their own care team, covering multiple areas of their issues. To dismiss their expertise as having a form of sympathy bias is disrespectful of both the professional in their capacity as a qualified practitioner and is dismissive of their contribution and involvement with their client/participant.

This was addressed at the AAT on 8 September 2020, in the case Ray versus National Disability Insurance Scheme, handed down a decision which rejected the NDIA’s use of an independent assessment.

The Tribunal sided with the therapy team that had worked with the client for a decade, including 50+ hours of contact time in various settings, and dismissed the IA due to only one contact, of a three-hour period in one setting. This result acknowledges that multidisciplinary teams provide better information than a one-off assessment because it not only takes in the functional issues but addresses knowledge of the individual and their life as a total package.

e.  the appropriateness of the assessment tools selected for use in independent
  assessments to determine plan funding.

The NDIA has indicated the NDIS Plan funding will be heavily weighted on the outcome of the independent assessment. Our concern relates to the suitability of the standardised tools the independent assessors will utilise. The proposed tools have already been met with criticism from peak allied health organizations, such as Occupational Therapy Australia (‘OTA’). There are concerns that the proposed standardized tools are impersonal and clinically flawed for the purpose of determining NDIS supports. OTA is calling for greater co-design in relation to the tools.3 This raises questions around how much the NDIA has consulted and collaborated in relation to these proposed tools and their fitness for purpose.

We are also concerned about the cultural insensitivity of the proposed tools that will potentially lead to systemic bias and racism. The cookie cutter approach to all participants could put particular cohorts, including CALD and Aboriginal participants, at risk of not having an accurate assessment due to lack of understanding of issues relevant to certain backgrounds.

 f.  the implications of independent assessments for access to and eligibility for the NDIS.

After going through the troublesome process of providing the evidence needed to prove permanency for access to the scheme, that a potential participant then has to be assessed by a stranger over a limited time period to pass the final test is potentially demoralizing and traumatic to the individual. Participants are already dealing with challenges and obstacles navigating other areas of their life. Participants may already have a team of trusted specialists who supports them. The Scheme is supposed to provide support for the 10% of Australians living with the most significant disabilities to live an ordinary life. Independent assessments are not aligned with this.

3 Occupational Therapy Australia, Submission No 52 to Joint Standing Committee on the National Disability Insurance Scheme, Parliament of Australia, Inquiry into general issues around the implementation and performance of the NDIS (October 2020) (‘Occupational Therapy Australia Submission’), 10

The notion of ‘contracting out’ the gatekeeper role for access is of significant concern. This does not make the assessment ‘independent’ – the assessor is paid by the NDIS so there is no true independence. As has been revealed recently in the media, some of the agencies that have won their tenders are connected to the previous CEO of the NDIS and that could be conceived as a conflict of interest. What is the true agenda for these changes?

The notion of people being sent off for re-eligibility based on an independent assessment has the potential to cause harm to vulnerable people. The current legislation already has the capacity to address whether a current participant should remain on the scheme but to make everyone on the scheme to have to continually audition for the agency has the potential to cause more trauma than is already occurring.

g.  the implications of independent assessments for NDIS planning, including decisions
   related to funding reasonable and necessary supports.

Having independent assessments driving draft plan budgets is unacceptable. To have a scheme that purports to be individualised and person centred being driven by standardised Independent Assessments determining the majority of the budget completely undermines the NDIS as a ‘best practice’ support scheme. A person’s goals and aspirations should come before the budget.

The proposed planning process has the conversation around an individual’s goals at step 4, and that conversation is about what goals can the individual fit into the budget, not about what the individual would like to achieve. This has the potential to regress back to the old block funding system that the NDIS was supposed to be moving away from.

We are also very concerned regarding possible changes to “reasonable and necessary” supports the government is attempting to change. There has been no official explanation to date, only a leaked draft bill that has the community terrified. If the government removes reasonable and necessary as it stands it potentially changes the entire scheme and starts from the beginning, rather than refining what already exists and listening to the community about improvements. Starting again will potentially undermine the scheme. People with a disability need consistency, certainty, and stability NOT a scheme that is constantly being changed by a govt that is determined to take the control into its own hands rather than enabling the person with a disability the control and supports to live an ordinary life.

h.  the circumstances in which a person may not be required to complete an independent
   assessment.

As the Committee will be aware, the NDIA has stated: “The delegates decision not to grant an exception for an Independent Assessment will not be a reviewable decision.”

The very limited list of circumstances that enable a person to not be required to do an IA does not truly consider the pressure and stress being placed on the individual and their informal supports already with navigating the scheme. Without opportunity to ask for a review of the decision an individual is being denied their right to be heard regarding decisions that will have a huge impact on their lives.

The delegates decision not to grant an ‘exception’ must be a reviewable decision.

i.   opportunities to review or challenge the outcomes of independent assessments.

As the Committee will be aware, the NDIA has stated: “Independent assessment results themselves will not be directly reviewable by the AAT. This is because independent assessments are not a decision the delegate makes under the NDIS Act.” The removal of the right to review undermines one of the fundamental principles of the NDIS. We are extremely concerned about the removal of the right to request a review of independent assessment results. We believe if mandatory independent assessments are implemented, review rights are a critical aspect of monitoring, transparency, and accountability of this process. By contracting out the IA role the NDIS is developing an ‘independent gatekeeper’ role that will potentially see people turned away from the scheme when they should be eligible, and they require support. As the Committee will be aware, the NDIA has stated: “We will not be changing the review process. The access decision remains a reviewable decision and the applicant can request an internal review and then appeal the decision at the Administrative Appeals Tribunal (AAT).” Please note that these two quoted paragraphs above, are confusing and the language used by the NDIS is jargonistic and unclear for people with a disability and their family/caregivers to understand. The NDIA needs to use more accessible and simplified language. As the Committee will be aware, the NDIA has also stated: “Disagreeing with the results of an otherwise sound and robust independent assessment is not sufficient for the NDIA to fund another assessment. Applicants can only seek a second assessment where the assessment was not consistent with the independent assessment framework”. The right of an applicant to complain about an IA result only on the basis of process or procedural fairness grounds is unacceptable. Should it become evident the results of an IA do not provide an accurate representation of an assessed person’s disability and level of function, then there must be provision for, and option available for review. Any costs associated with an independent assessment with a second assessor must be funded by NDIS. It appears NDIA in outsourcing the assessment process is attempting to create the impression that assessments are conducted independently. However, the fact that the NDIA is financing the assessments and, as well, is ordering the assessment tools and processes that are to be followed, would suggest the concept of independence is entirely absent. In itself this further supports the contention that participants must have right of review.

The NDIA specifically notes that participants or prospective participants will be entitled to a ‘summary’ of assessment. If NDIA is to promote transparency then it must provide the applicant with a full assessment result. Review rights are a critical aspect of accountability and monitoring of NDIS decisions. The importance of review rights is also supported by the Tune Review:

 [4.34] The NDIS Act should be amended to support the use of functional capacity assessments as
 proposed above. However, there are a number of key protections that need to be embedded as this
 approach rolls out, including:

  (b.) participants having the right to challenge the results of the functional capacity assessment,
 including the ability to undertake a second assessment or seek some form of arbitration if, for
 whatever reason, they are unsatisfied with the assessment.

 [4.33] Fundamentally… the success of the program will largely be dependent on:

  (b) those assessors providing truly independent functional capacity assessments, so they are not
 perceived as agents of the NDIA, or a tool designed to cut supports from participants.

As the Committee will be aware, the NDIA has stated: ‘Consistent with the NDIS Act,
where a participant refuses to attend an independent assessment and none of the
exemptions apply, the delegate may:

request another person provide information that is reasonably necessary for the purposes of reviewing the participant’s plan and the reasonable and necessary level of funding, or
not make a decision to determine a new plan until such time that an independent assessment is undertaken.’

‘Outside of these exceptions, if an applicant chooses not to complete an independent assessment, we will consider that the applicant has withdrawn their access request.’ We believe the above processes raise many issues and potential inequities for people who are unable to undertake the independent assessment process and do not receive an exemption. Or, if for whatever reason a participant is unable to make it for their independent assessment.
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 If independent assessments are made mandatory, there must be the right to appeal a
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denial for an exemption to the assessment. This ensures accountability in the decision- making process. The NDIA must also consider that many people, because of their impairment, may not be able to attend their independent assessment and may have trouble communicating this.

We are concerned if people are not supported through the independent assessment process people who require NDIS access but fail to attend their independent assessment
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will have their access request withdrawn or their funding blocked. People who do not attend their independent assessment should be supported to make an exemption request.

j.  the appropriateness of independent assessments for particular cohorts of people with
     disability, including Aboriginal and Torres Strait Islander peoples, people from regional,
    rural and remote areas, and people from culturally and linguistically diverse
   backgrounds;

 AND

k.  the appropriateness of independent assessments for people with particular disability
   types, including psychosocial disability;

The appropriateness of independent assessments for particular disability types is of large concern. As we have stated before, an assessment needs to consider, not just the diagnosis but the fact that each applicant has distinct, unique, and often times complexities and circumstances that are very individual, and this includes cultural understanding and acceptance of disability and the way it is perceived. It also needs to be addressed how this process will be implemented in remote and rural settings where services are already limited. If assessors are not able to physically assess the individual, how can it be deemed an accurate account compared to those in more populated areas where the assessor can be in the same room as the individual. Once again, the inequity of the system will remain.

The challenge for reflecting support needs for a psychosocial disability is unique in that it can be of an episodic and fluctuating nature and is not readily captured in a ‘one off’ brief mandatory independent assessment. Further, the notion that a psychosocial assessment can be conducted and completed with the use of a ‘one size fits all’ tool is not an acceptable proposition. Many participants engaging with the NDIA, including those with psychosocial disability have a history of complex trauma, some at the hands of the institutions and government services. Applicants in many instances are already familiar with involuntary detention under the Mental Health Act and have experienced its disempowering and harmful effects. For a number of applicants who undertake a mandatory assessment proving eligibility, this can trigger memories of institutional power which for them equates to loss of choice and control. It is therefore difficult to understand the reasoning underscoring NDIA’s insistence on handing eligibility decision making to assessors ill equipped and without the necessary skills and capacity to make reasonable and valid eligibility assessments.

There are many disabilities that will be disadvantaged by this process. People on the Autism Spectrum and those with a cognitive impairment will also struggle with engaging in a limited time assessment with a stranger.

ASD (particularly girls) Parent quote – “One of my children in particular will say she doesn’t need help with anything and doesn’t have the self-awareness of her need for assistance. Her insight is quite poor and she would never admit to struggling, especially to someone she has never met before. She is a self-proclaimed expert in everything which is far from the truth. Often a new person coming into our house would result in a big meltdown and do more harm than good.

My other child would treat the assessment as a performance and functions really well one-on-one for a length of time. That is not her reality most of the time and her functional capacity fluctuates greatly depending on the situation she is in. It would probably take her a full day of barely functioning to recover from her assessment.”

Parent quote (young man with intellectual disability) -”my son is very agreeable and hates being around any conflict. This means that he will say yes to just about anything you ask him. Without myself to clarify and possibly restructure the question the assessment will end up very incorrect in its results. I fear for when I am not here to support him through the constant processes of proving his need.”

  l.  any other related matters

Position on Independent Assessments

Our position is that mandatory independent assessments are not consistent with the objects and principles of the NDIS Act 2013 (NDIS Act) and the Convention on the Rights of Persons with Disabilities (CRPD). We refer to the 2019 review of the NDIS Act led by David Tune AO PSM (Tune Review). The Tune Review consulted widely with the community and provided a detailed report with 29 recommendations to improve the NDIS experience for people. We believe the mandatory independent assessment reforms are inconsistent with the Tune Review recommendations. Any recommendations implemented from the Tune Review will not be beneficial to improving the experience of the NDIS should the mandatory independent assessment process is implemented. The power for the NDIA to mandate an independent assessment should only be discretionary under certain circumstances as per recommendations by the Tune Review and current existing legislation in the NDIS Act at section 6, section 26, and section 33(5). We believe there are significant risks in mandating independent assessments. There are risks to the wellbeing of participants and prospective participants who are forced to undertake an assessment from someone they have never met. There are risks that people will disengage from joining the NDIS preventing people from valuable support.

Mandatory independent assessments and the proposed access and planning reforms are not

dignified and do not respect persons with disabilities and their human right to live an ordinary life. The lack of collaboration and respect for the person with a disability in the proposed process is not consistent with the objects and principles of the NDIS Act and the CRPD. The lack of review rights for the independent assessments process also raises suspicion regarding the NDIA’s intent of introducing these reforms.

The proposal of independent assessments has lacked consultation and transparency and the independent assessment pilot program has had significant flaws. It is also inconceivable that the NDIA is still running a pilot program whilst alongside this they have confirmed the independent assessments will be implemented. It is evident from the response in the community that trust, and collaboration has not been built to attempt to carry out such a significant reform that will impact thousands of lives.

We urge the NDIA to cease the roll out of mandatory independent assessments and consider all community feedback to co-design the NDIS, so it is implemented alongside people with disabilities and not to them.

General

Consultation process inconsistent with the CRPD and Tune Review

recommendations We are concerned the decision to introduce the mandatory independent assessments policy has not involved persons with disabilities.

The NDIA has released consultation papers regarding how to introduce the mandatory independent assessments rather than consulting about the overall policy. This has caused disappointment, frustration, and distrust amongst persons with disabilities who have constantly had people and governments making decisions for them. The NDIS was supposed to change this and put people with a disability first and treat them equally in decisions made about them.

We would like it to be acknowledged that the government announced this change prior to the Tune Review release, falsely attributing the change to the Tune Review as a recommendation.

The Tune Review was released in December 2019 and yet in a media release dated 14 November 2019 titled The NDIS Plan from the Minister’s office it is stated -

‘Following the completion of the pilot to Government’s satisfaction, we intend to fully

implement the use of independent functional assessments – fully paid for by the NDIA – in the access and planning pathways from 1 July 2020.

Improving the assessment process will help make the NDIS more reliable, consistent and equitable for everyone, ensuring it provides the right levels of support for the people it was intended to support.

The use of independent functional assessments will form one element of a broader program of work to imbed the insurance principles of the NDIS.’

We draw the NDIA’s attention to the strong opposition to mandatory independent assessments. A grass roots petition has over 50,000 signatures opposing the assessments.1 Disability advocacy organizations and peak allied health bodies have also spoken out against the mandatory independent assessments’ rollout.2

The consultation process has not been consistent with the CRPD, Tune Review recommendations and recommendations from the 2015 NDIS Act Review.

CRPD Article 4(3) In the development and implementation of legislation and policies to implement the present Convention, and in other decision-making processes concerning issues relating to persons with disabilities, States Parties shall closely consult with and actively involve persons with disabilities, including children with disabilities, through their representative organizations.
Tune Review recommendation: o Recommendation 7 (b): The NDIS Act is amended to provide d iscretionary powers for the NDIA to require a prospective participant or participant undergo an assessment for the purposes of decision-making under the NDIS Act, using NDIA-approved providers and in a form set by the NDIA.3 o [4.33] This change in approach will require extensive consultation with participants, the disability sector, service providers and the NDIA workforce.4 o [4.34(c)] the NDIA-approved providers being subject to uniform accreditation requirements… are designed and implemented jointly by the NDIA and appropriate disability representative organizations.5

2015 NDIS Act amendment

  o  The government has agreed to introduce a co-design principle into the NDIS
       Act based on a recommendation from the 2015 NDIS Act review. This principle
         states “People with disability are central to the NDIS and should be included in
      a co-design capacity”6

1 https://www.change.org/p/stop-ndis-from-rolling-out-independent-assessments-that-takes-away-all-choice- and-control-from-people-with-disability

2 Occupational Therapy Australia, Submission No 52 to Joint Standing Committee on the National Disability Insurance Scheme, Parliament of Australia, Inquiry into general issues around the implementation and performance of the NDIS (October 2020) (‘Occupational Therapy Australia Submission’), Office of the Public Advocate, ‘Position Statement: NDIS Independent Assessments’ (Media Release, 25 November 2020) (Web Page)< https://www.publicadvocate.vic.gov.au/media-centre/415-opa-position-statement-ndis-independent- assessments>, Australian Associate of Psychologists Inc, ‘NDIA change will create greater disadvantage for Australians with disabilities’ (Media Release, 22 October 2020), Synapse, ‘Synapse strongly rejects compulsory NDIS Independent Assessments’, (Media Release, 10 September 2020) (Web Page)

https://synapse.org.au/news/synapse-strongly-rejects-compulsory-ndis-independent-assessments/, Women with Disabilities Australia, ‘WWDA urges the NDIA to halt Independent Assessments’, (Media Release, 6 September 2020) (Web Page) <https://wwda.org.au/2020/09/media-release-wwda-urges-the-ndia-to-halt- independent-assessments/>.

3 Tune Review, 67.

4 Tune Review, 66 [4.33]

5 Tune Review, 66 [4.34(c)]

6 Tune Review