Government of Western Australia response to the Terms of Reference
Introduction Under ‘A Western Australia for Everyone: State Disability Strategy 2020-2030’, the Government of Western Australia (WA) has a strong commitment to protect, uphold and advance the rights of people with disability living in WA; including through shared governance of the National Disability Insurance Scheme (NDIS).
The State Government is a key stakeholder in the shared governance, performance and financial sustainability of the NDIS; and in the provision of mainstream services, and specialist disability services for some individuals ineligible for the NDIS.
To this end, the State Government makes this submission on NDIS independent assessments.
Key Issues The introduction of independent assessments is a significant change to current policy and operations of the NDIS. The proposed model raises numerous concerns for the support of people with disability and the limited pilot projects to date, do not allay these concerns. People experiencing multiple disadvantage, or considered vulnerable or hard to reach, such as people with psychosocial disability, Aboriginal and Torres Strait Islander people, and people with complex support needs are most at risk from this proposal as they may face increased barriers to engaging with the independent assessment process.
The accuracy of assessments will significantly impact participants’ plan budgets. This has implications where tools either under or over report functional capacity. Some assessment tools lack cross cultural validity and there are risks associated with a one-off assessment, conducted by an unfamiliar assessor, without input from a person’s treating practitioner or therapist.
Assessments in artificial settings such as hospitals or prisons may be inaccurate; and if a participant’s plan fails to meet their needs, safe discharge or release into the community may be delayed. Lack of appropriate supports may also result in repeated presentation to hospitals or recidivism.
The new approach, to use independent assessments as a key input to determine plan budgets, risks compromising the current individualised approach to funded supports linked to participants’ goals.
State Government Position The State Government calls for further consultation. Any process that impacts on availability of support to people with disability should not be rushed and must include appropriate consultation, transparency and collaboration with States and Territories and people the NDIS was designed to support. Further consultation, involving genuine dialogue with stakeholders, may ameliorate some of the concerns and confusion for participants and in the community; and afford the State Government greater opportunity to provide informed input to ensure that people with disability in WA have access to supports and services to meet their needs.
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People with disability must be protected from unintended consequences. To realise the benefits of independent assessments for people with disability and the performance and sustainability of the NDIS, the State Government calls upon the Commonwealth to address potential impacts on individuals and cohorts that may be disadvantaged by the changes. This includes implementing the protections outlined in the 2019 independent review of the NDIS Act 2013 (the Tune Review) and developing an overarching framework for assertive outreach by the National Disability Insurance Agency (NDIA) to cohorts at risk of disengagement. The NDIA must ensure the cultural competency of assessors and cross-cultural validity of assessments.
Independent assessments must be person-centred and consistent with the rights of people with disability. An individualised approach to NDIS access, planning and budgeting is essential to maintain the integrity of reasonable and necessary supports and ensure participant choice and control. A range of potential adjustments and strategies must be considered on an individual basis, as outlined in response to the Terms of Reference below. The independent assessment itself must be transparent, as well as the results and how they will be used. Participants should be informed about how decisions are made, and which decisions are reviewable; including the consideration of other evidence and impact on the independent assessment, explanation of the assessment results and link to the budget, and how to plan a support package. There must be rights of appeal that offer procedural fairness and meet community expectations of natural justice. The NDIA must also establish principles and governance processes for exemptions from undergoing an independent assessment and ensure people with disability, their supporters and advocates understand them.
The independent assessment process must be subject to review by Disability Ministers and/or other independent review mechanisms. Consistent with the ‘Heads of Agreement between the Commonwealth and Western Australian Governments on the NDIS’ and similar agreements with other jurisdictions, the Disability Reform Ministers Meeting is to be the decision-maker on all NDIS policy issues. This includes access and eligibility, provision of reasonable and necessary funding support, and scheme costs and sustainability. The NDIA must provide projections and ongoing data on the impact of independent assessments, particularly related to the number of people entering or exiting the scheme and reasons why; and, changes to reasonable and necessary funded supports. These factors could have implications for mainstream services, including the potential for ‘cost-shifting’ to the State Governments. Disability Ministers, or another independent review mechanism, should monitor and measure the overall benefit of the introduction of independent assessments.
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Response to the Terms of Reference
A. The development, modelling, reasons and justifications for the introduction of independent assessments into the NDIS
In examining inconsistencies in NDIS decision-making, the NDIA has identified differences between States and Territories in the evidence of functional capacity provided by participants; and data showing that participants in higher socio-economic areas receive more funding.1 The NDIA has also identified a need for management strategies to address increased plan costs identified by the Scheme Actuary.2
The Western Australian (WA) State Government supports policies and practices that will achieve equitable and appropriate access to NDIS funded supports and welcomes improvements to NDIS decision-making to achieve:
- equity
- consistency
- improved participant experience and outcomes; and
- scheme financial sustainability.
It is important to recognise that these elements are interconnected. Measures to promote consistency should not compromise equity; and an individualised approach must be maintained.
There should also be a balanced approach to financial sustainability that supports the best possible participant experience and outcomes; and does not unnecessarily restrict access. Improving support for participants, families and carers, through quality plans that are fully utilised is key to the financial sustainability of the NDIS model in Australia.
It is acknowledged that the scheme design phase and other reviews have consistently recommended the introduction of independent assessments - to avoid ‘sympathy bias’ in the evidence provided, promote national consistency, and improve the capacity of NDIA staff to make decisions and comparisons between individuals.
However, some of the assumptions underpinning the independent assessment approach are untested. The piloting so far has been very limited and cannot be seen as a robust evaluation of the approach as the design and methodology to inform the independent assessment process were not released for review. Neither has there been information about whether or not a research body has been involved, which may have provided greater confidence in the process.
In addition, evidence about the interface of independent assessments with other scheme design factors has not been explored. Other potential evidence and sources
1 National Disability Insurance Agency. (2020). NDIS 2020 in review. Retrieved from https://guides.lib.monash.edu/citing-referencing/apa-government-other-reports 2 National Disability Insurance Agency. (2020). National Disability Insurance Agency 2019–20 Annual Report. Retrieved from https://www.ndis.gov.au/media/2724/download
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of variability in decision-making and outcomes should be recognised and the causes investigated (both human factors and scheme or process design) to provide evidence for the current design of independent assessments. These evidence-based and transparent factors must inform the design of the independent assessments. Differences among assessors and assessment settings are unlikely to be entirely mitigated by the new approach, especially as the assessor is required to have no prior knowledge of the person and may have only had limited training in the tools used to conduct the assessment. Independent assessments will not fully control the complex influences of socio-economic status, cultural background, geographical location and advocacy support. The assessments are one component of a multistage decision-making process with other inputs and stakeholders. Internal practice guidance and NDIS decision-makers’ capacity to maintain fidelity to the process will also impact the quality of decisions.
The NDIA has promoted the benefit of assessments at no-cost to participants and to alleviate the effort required to gather evidence. However, individuals and State Government services will continue to incur costs associated with providing evidence of permanent disability, prior to an independent assessment. For people applying for access to the NDIS, a health professional will still be required to provide information that an impairment is permanent (or likely to be) and evidence of disability. Treating health professionals may also be asked to provide information about the likely benefit of early intervention supports; and the treatments that have been considered and/or administered.
There has been significant apprehension about independent assessments in the community. The change process may have been improved by earlier engagement with people with disability and giving a longer timeframe to consider matters raised through the consultations and this inquiry. It is noted that the tender of Independent Assessors was released before the consultation concluded. The NDIA has released information responding to questions and concerns; however, parts of the process remain unclear. Some participants may need more help to understand the new approach to planning; and how they can prepare for and be involved in the process.
Information about how assessments will be conducted; how the process will interface with other evidence requirements and service systems; and the implementation, has been rudimentary and fragmented. There is also little information about how the new approach will impact on the interpretation and application of the ‘reasonable and necessary’ requirement for funded supports in NDIS plans. These issues pose challenges for the State Government in forming a clear understanding of the modelling, operational facets, risks; and implications for people with disability and mainstream services in WA. This is exacerbated by the delay in releasing an exposure draft of the bill to amend the NDIS Act 2013.
The introduction of independent assessments is ostensibly to create greater equity and fairness, however, there has been little explanation or evidence as to how the independent assessment and associated tools will translate to a plan budget. Hence, how an independent assessment will achieve greater fairness and align with the NDIS construct of funding to deliver ‘reasonable and necessary’ support remains unexplained.
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Data on unmet need for disability services is generally poor.3 The NDIS actuarial estimates of financial sustainability are limited by virtue of a lack of long-term data required to fully inform an insurance model. Further evaluation of causes other than evidence of functional capacity, driving the cost of NDIS supports, should be undertaken to fully understand influences on financial sustainability. The view taken on NDIS financial sustainability appears to focus on balancing short-term income with expenditure, without consideration of the dividends gained through early input; resulting in greater individual independence, reduction in lifetime support costs and greater community and economic benefit. Focusing on long-term benefits aligns with the approach taken in developing the NDS and NDIS Outcomes Framework, still in development.
Comprehensive data modelling and early investment in the NDIS to achieve the best long-term outcomes for people with disability and the community must remain integral to the insurance approach.
B. The impact of similar policies in other jurisdictions and in the provision of other government services
Improvements to decision-making in the NDIS should draw on lessons from other sectors and schemes to inform the implementation of any reforms. The introduction of independent assessments should be informed by precedents and practice conventions across similar sectors to ensure fairness, face validity and public confidence; to minimise potential unintended consequences.
In Western Australia, the Eligibility Policy for Specialist Disability Services funded or provided by the Disability Services Commission, is aligned with the definition of disability in the Disability Services Act 1993 (WA). Assessing the impact of functional capacity enabled responsive access to services and connection with other community and government supports. Eligible people’s access to funded services was constrained by the available budget and WA used a local coordination model to refer and link people to informal supports and build community and family capacity, reducing the need for formal funded support.
Aged care sector reforms have engaged a network of assessment providers to conduct prescribed assessments to address consistency, which has been met with scepticism in the sector and seen as privatisation. Similar concerns are being raised across the disability sector, given the selection of eight providers through a Commonwealth tender, prior to the outcomes and recommendations of this inquiry. Questions have been raised around the true independence and transparency, given there are no appeal rights for the assessments.
The NDIA must ensure independent assessments build on lessons learned in these programs to ensure the highest standard of integrity and accuracy.
3 Australian Institute of Health and Welfare (2020). People with disability in Australia 2020: in brief. Retrieved from https://www.aihw.gov.au/reports/disability/people-with-disability-in-australia-2020-in- brief/contents/people-with-disability-in-australia.
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C. The human and financial resources needed to effectively implement independent assessments
A thin market already exists in the provision of allied clinical services and there is the potential that this will be exacerbated as clinicians are recruited to and engaged in independent assessments. This will require close monitoring and a targeted workforce strategy to address the requirements. For example, in WA there are not enough specialised mental health clinicians to staff public and private inpatient and community services; and competing demand will place more stress on an already stretched system.
Independent assessments can and must be conducted in a range of settings if they are to be so heavily relied on for decision-making.
WA schools already receive multiple requests for information and reports to support planning and access to the NDIS, and there are concerns that independent assessments will place additional draw on education time and resources. There is the potential for assessments to require significantly more engagement from education staff to support the student’s independent assessment, which compromises schools’ primary purpose i.e. teaching and learning. There is a concern that assessments could disrupt schooling where independent assessments are conducted in school times or settings.
Given the security demands in custodial settings, conducting independent assessments in these environments will require facilitation by State Government Corrective Services, which has associated resourcing implications. It is anticipated that assessors will need to be escorted by prison staff when conducting assessments with prisoners or detainees, to ensure security and safety. It is also likely there will be additional demand for interview rooms and telephone facilities which will need to be arranged by prison based staff. Prisoners’ healthcare practitioners with information relating to functional capacity may also need to be involved in the assessment, noting that not all allied health disciplines are represented within Corrective Services.
The NDIA has indicated that assessments may be conducted differently for participants living in remote areas. The State Government welcomes approaches that support timely access, particularly in remote and very remote parts of the state. Resident local allied health professionals, providing NDIS funded services, could be engaged to conduct independent assessments in some regions. A place-based approach offers flexibility to accommodate transience in remote populations and a greater understanding of local culture and community issues.
More detail is required about the workforce demands of independent assessments, NDIS service provision and allied health professions to understand the potential impacts on supply for the NDIS and other service sectors. There also appears to be no recognition of the cost treating professionals will incur in providing information to support independent assessments and how this might be reimbursed or paid for.
D. The independence, qualifications, training, expertise and quality assurance of assessors
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A one-off independent assessment with an approved provider lacks the benefits that a known and trusted treating health professional, who has a long-standing connection with the individual, can bring to the assessment process. This situation is made more challenging because it appears that the assessor will not have access to all relevant information about the individual. NDIS applicants and participants will not be required to provide treating practitioner or therapist reports as part of an independent assessment. Neither does it appear that the assessor will be provided with and take account of treating practitioner and therapist reports. While there is an inference that this is intended to ensure independence, it could compromise the quality of the assessment, through a lack of specialist clinical input on diagnosis, health impact and trajectory. Providing the assessor with evidence would routinely be the case for assessments of this nature in other contexts, such as in the Commonwealth Government aged care and work capacity assessments. The State Government would support such a process to ensure the highest quality assessment.
It is recommended that assessors are clinicians, with significant experience in working with people with disability – ideally, at least five years. Assessors must have well-developed skills and expertise in the nature of disability, and often the specific disability, to fully assess the functional impact. Assessors must understand the interplay between a person’s disability and their various environments and relationships, the impact on their functioning and therefore support needs. Assessors must also have the time to undertake a thorough assessment. In some instances, this will require consideration of the logistics in arranging the assessment which will require additional time over and above the assessment, such as obtaining security clearances to enter prisons. This could increase screening costs borne by the State Government and potentially delay assessments.
It is recommended that there are clear guidelines on matching assessors to assessment needs. Assessors from some disciplines are more specialised to accurately assess certain domains of functioning and this is acknowledged in the Independent Assessment Framework. Experience with different disability, cultural and age groups is an important element of assessors’ expertise, including the ability to work with interpreting services. The NDIA must also ensure equitable access across the State to skilled and experienced assessors so any actual or potential participants living in regional and remote areas, or those from diverse backgrounds, are not disadvantaged.
The panel of providers for independent assessment must be ‘live’, to enable the NDIA to bring on more assessors to meet demand or changing needs. The State Government considers that the panel should remain open, with ongoing evaluation and expansion to support equity and choice. This is particularly important to minimise the risk of disengagement and to support diverse cohorts, including people with different disability types, cultural and language backgrounds and circumstances.
The Independent Assessment Framework acknowledges the need for governance to support quality outcomes; however, more detail is required about the process and structures that will be put in place. This is vital to ensure consistency between policy and practice. The development of a quality assurance framework should ensure
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continuous improvement and comparability of outcomes between assessors. It should also provide direction on professional supervision and mentoring, recognising and considering the differences across regional and metropolitan services and delivery.
In addition, a monitoring framework should be established to embed evidence-based research and practice; data on access rates and decision reviews; and feedback from participants, families, guardians, advocates and treating practitioners.
E. The appropriateness of the assessment tools selected for use in independent assessments to determine plan funding
The use of independent assessments in NDIS plan funding decisions must be person-centred, consistent and fair, based on a full understanding of each participant’s needs and situation; and involve collaboration with participants on plan development and their chosen supports.
The current approach to decisions about a participant’s statement of supports requires the NDIA to identify their goals and aspirations, as well as strengths, capacity, circumstances and context. By contrast, the introduction of independent assessments puts the focus on functional assessment, with the individual’s goals and aspirations considered after the draft plan budget has been set. Further, until now, NDIS plans have been an aggregate of funded supports, each deemed ‘reasonable and necessary’ for the individual to achieve their goals. This sequence is counterintuitive, may undermine the individualised nature of NDIS plans and diverges from the intent of the NDIS legislation.4 It also carries a risk that individual participant outcomes may become subordinate to scheme sustainability and statistical modelling. As noted above, there is no evidence to support the link between the tools (which are designed to assess functional impact) and plan budgets.
Providing draft budgets to individuals and families prior to planning and ensuring that the planning meeting is with the delegate decision-maker are positive changes. However, it is not clear how detailed a draft plan and budget will be or the mechanism by which it is generated, including the roles and responsibilities of the participant, independent assessor and delegate.
There are risks using independent assessments for planning and budget decisions, including:
- assessment tool limitations, resulting in functional capacity being under or over- estimated
- the potential for the assessment tools to lack cross-cultural validity
- the time allocated and choice of tools not being appropriate to provide a holistic assessment for some participants
4 NDIS (Supports for Participants) Rules 2013, Part 4 – Needs Assessment
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- independent assessments may not fully address the current inconsistencies in funding packages as a result of variability in assessor experience, knowledge of the person being assessed, the way information is gathered, the influence of socio-economic status and other factors
- the tools used in the independent assessment are not directly linked to establishing funding budgets and given this, contextual factors, such as thin markets, cannot be factored into the budget. Another example is the complexity of factors relating to individual’s transport needs.
The validity of an assessment will have significant impacts on a participant’s plan and quality of life. The limitations in the assessment tools risk functional capacity being either under or overestimated, depending on the individual’s potential or actual situation and environment.
For example, concerns have been raised about the suite of assessment tools and their applicability to the custodial environment and the risk that inappropriate tools are likely to miss or under report an individual’s impairment. The cultural appropriateness of some tools within the suite must be considered to avoid systemic bias in plan funding, compounded for culturally and linguistically diverse (CaLD) communities that may have a higher representation in the justice system.
In addition, people with cognitive impairment may be disadvantaged by the use of standardised assessment tools which fail to incorporate appropriate engagement strategies required to accurately capture the support requirements of people with diverse needs.
Care must also be taken in selecting and administering tools for plan funding, that are commonly used in other contexts. For example, the Vineland Adaptive Behaviour Scales 3rd Edition (Domain version) is used regularly by the WA Department of Education in assessing adaptive functioning. Many tools have timeframes between repeat assessment, which repeated more often, compromise the accuracy and validity of the results. This risks the additional burden of time and effort on individuals, families and government services, such as education providers.
Robust independent advisory oversight and meaningful stakeholder engagement must form part of any evaluation of the appropriateness of the assessment tools to determine plan funding.
F. The implications of independent assessments for access to and eligibility for the NDIS
The State Government recognises that independent assessments have the potential to improve decision-making regarding NDIS access. However, there are significant risks that need to be managed to ensure the introduction of independent assessments do not create unintended barriers to scheme access. This is essential to build public confidence in the process and reduce impacts on State Government and non-government community services.
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The Tune Review cautioned that measures should be put in place to safeguard against identified risks. Those measures include:
- giving participants the right to choose the provider of the assessment
- the right to challenge its results
- accreditation requirements for providers; and
- the NDIA providing clear and accessible information.5
The Tune Review highlighted disengagement as one of the biggest risks in implementing the new independent assessment process.
It is important to identify whether there are prospective NDIS participants on the borderline of eligibility, who will be most affected by these changes; what is known about this group; and how their interests can be appropriately protected. Where individuals fall on the cusp of eligibility but are deemed ineligible, a second assessment may be warranted. A repeat assessment, may afford better protections and more equitable access, particularly as allied health input is not considered by the assessor.
The correct tool selection is imperative, together with sufficient time to undertake a thorough assessment. There are concerns that tool selection will not provide a holistic assessment and the estimated time to conduct an assessment will be insufficient for some participants. Further, time usually spent on other activities, such as schooling, may be impacted.
The independent assessment process appears to assume that all individuals have the capability to participate knowingly in the assessment, however, some individuals and their supporters cannot report and respond as the tools intend, due to insight, comprehension, memory and concentration limitations. There is a risk that participants who have difficulty adequately stating or acknowledging their support needs, such as those with decision-making disability, may be denied access to the NDIS or have plan funds reduced. It is crucial that there are mechanisms for appointed guardians to be involved in independent assessments. The State Government is concerned that limited consideration appears to have been given in recognising appointed guardians.
There is the potential for some groups to become over-represented in the NDIS based on a conclusion that limitations in functional capacity are related to disability, when they may relate to differences in cultural expectations, experiences and norms, or limited understanding and engagement in the process itself. This needs to be investigated and managed through the independent assessment governance and monitoring framework.
5 Tune, D. (2019). Review of the National Disability Insurance Scheme Act 2013: Removing red tape and implementing the NDIS Participant Service Guarantee. Retrieved from https://www.dss.gov.au/sites/default/files/documents/01_2020/ndis-act-review-final-accessibility-and- prepared-publishing1.pdf
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There is an existing disparity between NDIS timeframes and hospital discharge requirements and pressures, which can be exacerbated by delays. The additional time required for independent assessment processes to facilitate an access decision, an approved plan and access to funded supports, could result in a person who is medically fit for discharge remaining in hospital unnecessarily. This is a poor outcome for the participant and has significant consequences for the State Government health service, which would incur substantial costs, contribute to bed- block and divert resources in an avoidable situation.
In prisons there are practicalities to be addressed regarding visits by independent assessors, such as the location and number of appointments required. Implementing independent assessments in a custodial environment must also balance security requirements and the individual’s choice of service provider.
Hospital and prison environments also pose a challenge to conducting valid independent assessments. These environments are usually highly structured and regulated, limiting a full range of usual activities and independence. This may prevent an independent assessment from producing an accurate picture of an individual’s functioning in the community. In addition, hospital and prison environments can support effective medical management, reducing the functional impact of disability. For example, for people with psychosocial disability, medication management may be less effective when the individual is in the community, thereby reducing their functional capacity.
A further issue in some settings is whether the use of videolink would allow for an accurate and valid assessment.
G. The implications of independent assessments for NDIS planning, including decisions related to funding reasonable and necessary supports
A quality individualised plan, that includes reasonable and necessary supports, is essential for participants to achieve the outcomes intended by the NDIS and may reduce lifetime costs. Plan quality also impacts where participants require NDIS funded supports to facilitate better outcomes from other service systems. For example, to have their needs understood and to access and benefit from mainstream services to support health and wellbeing.
Foremost, there remain questions about the weight attributed to the independent assessment and how it informs and/or determines the plan budget. While specialised and complex supports are contained in the fixed portion of plan funding, there is a need for clarity about the other factors, information and decision points that influence a participant’s final plan budget. It is also unclear how significant underutilisation of a previous plan will be explored and used to support quality decision-making and avoid incorrect assumptions that the supports are not necessary. It is recommended that the NDIA consider further evidence in the plan budget process, including outcomes
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of previous formal assessments and other documentation from treating doctors and allied health professionals.
The new planning process will focus on assisting participants to identify how they can best use their NDIS funding; to meet their needs and pursue their goals and aspirations. Having a plan budget before planning occurs appears to be counterintuitive and there are issues arising with the definition of reasonable and necessary funded supports. With the draft legislation yet to be released for feedback, clarity is required on the parameters of what is considered to be a reasonable and necessary support and any planned amendments.
It has always been the case that a person’s status as a participant may be revoked under the NDIS Act, if the CEO is satisfied that they do not meet the disability (or early intervention) requirements. However, with the introduction of independent assessments, concerns have surfaced about greater numbers of people potentially exiting the scheme. It is important that the NDIS continues to reflect a lifetime approach consistent with insurance principles and that people are not exited from the scheme without great caution, particularly where they experience episodic or fluctuating functional capacity. A strategy for achieving this may be delaying the exit process for a set period, with a zero-dollar value NDIS plan remaining in place.
The validity of an independent assessment and its effectiveness in ensuring plan quality may impact on State Government services such as hospitals and custodial settings. If there is a failure in the process and a participant’s plan does not meet their needs, a safe discharge or release into the community may be delayed.
H. The circumstances in which a person may not be required to complete an independent assessment
The principles for exemption should support case by case consideration to identify where an independent assessment is unlikely or unable to provide an accurate reflection of functional capacity. Exemptions may be required where there are situational barriers, such as in regional and remote areas, hospitals and custodial settings. For example, in custody, individuals may not have access to key supporters; or a valid assessment may be unachievable. Consequences such as an unreasonable impost on mainstream agencies or a risk of delayed release from prison or hospital should also be considered as grounds for exemption.
A person’s capacity to participate is another important factor. For example, where an individual has slow movements, thinking or speech, or an alternative way of communicating, high levels of anxiety or psychosis. These factors may make an exemption appropriate. For some participants from culturally and linguistically diverse backgrounds, fluctuating conditions and/or complex support needs the assessment may not be adequate. The NDIA has acknowledged this and proposes that the independent assessment will provide a foundation in these circumstances, however an exemption may be more appropriate in some cases.
The NDIS application process can be distressing for many vulnerable people, and independent assessments may exacerbate this. The NDIA has flagged risk of harm
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in developing the principles for exemptions and the State Government fully supports this. Consideration should include the impact of psychological distress on wellbeing, exacerbation of a condition or symptoms and as a disengagement trigger.
A lack of rapport and confidence in the process may interfere with the assessment and invalidate the outcome or trigger disengagement. There should be mechanisms in place to address partial disengagement by participants due to dissatisfaction with the process or repetition, which may undermine the assessment results.
When exemptions are granted it is recommended that there is flexibility in gathering alternative evidence to demonstrate substantially reduced functional capacity. It is recommended that there is scope to accept the judgements of previous formal assessments in some cases, particularly where they have been used for guardianship tribunals or public trustee decisions.
More information is required about who holds the authority to grant or refuse an exemption and whether it is a reviewable decision; and how plan budgets will be determined when a participant is exempted from independent assessment.
I. Opportunities to review or challenge the outcomes of independent assessments
Having independent persons implement the assessments creates actual or perceived separation of responsibility and reduced accountability on the part of the NDIA. On that basis, there must also be opportunities for natural justice, requiring all components of the process to be transparent and appealable. Participants must be made aware of the outcome of the independent assessment and provided opportunities for swift recourse in the event they are dissatisfied. This is critical for participant confidence and the efficacy of the process.
Participants who are denied access on the basis of an independent assessment may seek a review of the decision. However, many will not have the means or ability to undertake this process independently and will require support.
There is a distinction between reviewable decisions made by a delegate under the NDIS Act and the professional decision-making of an allied health independent assessor. The NDIA has indicated that applicants can only seek a second assessment where the assessment was not consistent with the independent assessment framework, or if the applicant has had a significant change to their functional capacity or circumstances. However, people with disability and their supporters cannot reasonably be expected to recognise instances where the assessor fails to meet the test administration standards required by the NDIS. This creates a barrier to individuals’ right of review and means assessors may not be fully accountable. On that basis, the NDIA must actively identify circumstances where an independent assessment has failed to meet the required standard and support the individual to seek a second assessment. Further, the NDIA must ensure individuals are aware of the extent to which decisions are made by NDIA delegates. The State Government infers that delegates will still hold decision-making responsibility for access, budgeting and planning processes. Individuals must be aware of this so that they can fully utilise their existing rights of appeal.
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In a custodial setting, individuals cannot freely access telephones or the internet to contact the NDIA, which is likely to be a barrier to engaging in a review process and meeting the relevant timeframes. Support to resolve issues and navigate the process may by default fall to Corrective Services staff.
There is little publicly available information about complaints processes associated with independent assessment, although the Framework outlines the need for governance to support quality assurance. This should include information that defines the features and characteristics of a sound and robust independent assessment and related professional judgement and decision-making processes.
The information available suggests that if a participant does not attend an independent assessment on two occasions, they will be denied access to the NDIS or may have funding reduced or removed. This could place additional financial pressure on State Government agencies as they attempt to resolve the situation, particularly where a person has a decision-making disability. This rule also fails to recognise that some disabilities result in participants having limited concept of consequence or responsibility; hence, the reason for not attending should be considered before denying access or reducing funding.
Further information is required about the governance of quality assurance processes for contracted assessments and how the NDIA will approach situations where a participant believes the plan budget is insufficient to cover their support needs.
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
There is a very high risk that marginalised communities will be further disadvantaged by the introduction of independent assessments. Some groups may be more likely to disengage entirely or there may be shame associated with describing the full extent of a disability. Some cultures require a male or female assessor, someone from the same religion or country or an assessor from a different family group. In addition, such groups require a higher level of investment to establish trust and relationships.
There should be diversity in the pool of assessors to reflect community norms and needs. Assessors need skills and experience in working with people who have English as a second language and/or are from CaLD backgrounds, including Aboriginal and Torres Strait Islander peoples and people from the Deaf community. Along with the core training requirements, the recruitment and selection process can contribute to building capability and capacity within the panel of assessors.
Many of the assessment tools in the approved suite lack cross-cultural validity, particularly for the 7 to18-year cohort; or are otherwise not culturally appropriate and/or sensitive. Many items in the checklists, such as the PEDI-CAT, are likely to be inappropriate for people living in regional and remote communities and from cultural backgrounds differing from the normative samples. It will be important that appropriate tool(s) are used. For example, a person from a CaLD background may
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demonstrate poor outcomes in the communication domain, unrelated to impairment and functional capacity or may have difficulty understanding the assessment tools.
The State Government has identified disengagement as a particular risk for Aboriginal and Torres Strait Islanders, those from CaLD backgrounds and those with mental health conditions resulting in psychosocial disability. Clearer information about how the NDIA will address and monitor the engagement of cohorts that are at current or future risk of disengagement is required.
There is limited reference to any planned use of technology to enhance independent assessments, particularly for individuals and families in regional, remote and very remote areas, with higher populations of Aboriginal and Torres Strait Islander peoples. Any assumptions about the role of technology to facilitate independent assessments must take into account variability in digital literacy and inequities in access to equipment and services. Using video conferencing or telephone calls may be inappropriate for certain individuals, but in particular for Aboriginal or Torres Strait Islander peoples.
K. The appropriateness of independent assessments for people with particular disability types, including psychosocial disability
A person-centred process requires trust and rapport to be established to enable genuine and open engagement. Time and expertise are required to develop this relationship to support a fulsome assessment process. This is critical for many vulnerable individuals, particularly those with intellectual, neurological, psychosocial or cognitive disability.
Independent assessments could undermine and devalue existing relationships that participants have with professionals of their choosing, who are likely to have greater understanding of their circumstances and functional capabilities. People who lack insight into their functioning and have difficulty engaging with and trusting others, may experience significant impacts from the process itself and the resulting funding outcomes, placing them at increased risk.
In 2017, this Committee recommended that the NDIA, in conjunction with the mental health sector, develop and adopt a validated fit-for-purpose assessment tool for people with psychosocial disability.6 Assessment tools must capture the complexity of psychosocial disability and lead to accurate assessment of the level of disability; a meaningful assessment of support needs; and the fluctuating nature of those needs.
The piloting conducted has not adequately assessed the efficacy or impacts of independent assessments for people with psychosocial disability. People with a primary psychosocial disability accounted for only around seven per cent of the 513 voluntary subjects in the first trial. The need for closer examination of the effectiveness of independent assessments in meeting NDIS requirements and
6 Joint Standing Committee on the NDIS. (2017). Inquiry into the provision of services under the NDIS for people with psychosocial disabilities related to a mental health condition. Retrieved from https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/National_Disability_Insurance_Scheme/ MentalHealth/~/media/Committees/ndis_ctte/MentalHealth/report.pdf
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minimising negative impacts on people with psychosocial disability has been recognised.
There are already fewer than expected people with psychosocial disability in the NDIS and additional or alternative approaches to determine functional capacity should be considered, given the episodic and fluctuating nature of impairment experienced by many. This may include accepting evidence from previous formal assessments of impairment, such as guardianship tribunals; and having the opportunity for a trusted person to be present at an assessment.
Independent assessment must also be fit for purpose to meet complex support needs, including for participants with rapidly degenerative neurological conditions, where functional impact can change quickly, requiring a flexible, coordinated and responsive approach, integrating concurrent health and disability services.
Autism is the most prevalent primary disability among NDIS participants nationally and in WA. People with Autism Spectrum Disorder (ASD) vary significantly in their strengths and needs; and independent assessments must accurately inform the types of supports and services most suitable for each individual. The assessment process presents unique challenges for people with ASD, given that it is characterised by impairments in social interaction and communication. Along with the unfamiliar setting of an independent assessment, these factors combined present a risk of multiple disadvantage for this group.
As noted above, disengagement was acknowledged as a significant risk by the Tune Review, since the independent assessment approach depends on applicants and participants’ willingness to work with NDIA-approved assessors and the level of trust that has been developed. The mandatory nature of the assessments may create a barrier for some individuals who are known to be hard to reach or otherwise vulnerable, by way of disengagement or through increased distress and exacerbated symptoms.
If a person is found ineligible, there should be linkages and referral to other services. This has been highlighted in cross-jurisdictional collaboration to improve the experience of NDIS access processes for people with psychosocial disability and is relevant to prospective participants across all disability categories.
L. Any other related matters
Independent assessment arrangements must offer privacy and dignity, and a suitable environment; should consider aspects such as support for decision-making and individual advocacy resources; and integrate individual preferences. Funding needs to be flexible to facilitate these conditions and ensure that there is enough time and the right people and supports present for a safe and truly reflective assessment. Information sharing processes between the NDIA and State Government agencies to support independent assessments may also require consideration.
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There should be strategic consideration and ongoing focus on providing information and support for prospective participants and existing participants as independent assessments are introduced. Advice should be sought from people with disability and include outreach to those with complex communication needs, decision-making needs and known access barriers, or who may be considered hard to reach, such as people with psychosocial disability and people from CaLD backgrounds.
Earlier consultation on the introduction of independent assessments would have resulted in less concern and confusion for participants and the community. It would also have allowed the State Government to better understand the impacts and implications of the approach; and provide more substantive input. Transparency and co-design produce greater confidence that input to consultation processes is considered and could potentially have informed the development of an assessment process that is more suited to the heterogenous nature of disability.
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