NDIA Accountability Project

Concerns about Independent Assessments impacting people with psychosocial disability

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Greg Franklin

31 March 2021

Submission to the Joint Standing Committee on the National Disability Insurance Scheme Inquiry into Independent Assessments (2021)

Please reference my Submission to the National Disability Insurance Scheme Consultation as a submission to the Joint Standing Committee enquiry into Independent Assessments. I hope to complete a more detaile submission to the terms of Reference today.

Greg Franklin

                                           Greg Franklin

                                           22 February 2021

National Disability Insurance Agency GPO Box 700 Canberra ACT 2601

Consultation paper: Planning Policy for Personalised Budgets and Plan Flexibility

I was not going to put in a submission to this, and the other consultation papers. Quite frankly I am too tired from trying to navigate the mess known as the NDIS. Tired of putting in submissions, writing to MP’s and Ministers. Tired of Watching as so called advocates and experts use people with disabilities as nothing other than a career path. Tired of watching as people, particularly those with a Psychosocial disability take their own life’s because of the failings of the NDIS. But here I am. This will not be a long Submission. I am simply copying and pasting my submission to Access.

Independent assessments are just another means to limit the funding made available to participants. Anything else in the consultation paper is not worth commenting on for as long as Independent assessments are being used.

Copy and Paste follows:

I was going to prepare yet another long detailed submission, as I have in the past for other matters concerning the disaster known as the NDIS, referencing to the consultation paper and the vast amount of data and documents that exist which demonstrate why Independent Assessments should

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to be adopted by the NDIA. Instead I will first draw your attention to the AAT ruling in Ray versus NDIA; https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2020/3452.html : In this case the tribunal ruled that they did not have confidence in the NDIA’s appointed assessor because they did not have “an accurate understanding of Mrs Ray’s background, past achievements and her current state of mental health.” The tribunal concluded that Mrs Ray’s treating psychologist was more reliable than the NDIA’s appointed assessor. I urge you to read the entire ruling before continuing down the path of Independent assessments.

The use of Independent Assessments is nothing more than a means to ensure that the NDIS remains within the original number 0f 467,000 participants, and remains on budget of $22mil. The latest Australian Bureau of Statistics Data, (https://www.abs.gov.au/articles/psychosocial-disability), says that this may not even cover those with a Psycho Social Disability!

“While most (87.4% or 994,600) people with psychosocial disability lived in households, one in eight (12.7% or 144,000 people) lived in cared-accommodation, including hospitals and aged care facilities.”

The recent Productivity Commission enquiry into Mental Health, which can be found here https://www.pc.gov.au/inquiries/completed/mental-health/report supports the ABS data.

Yet The NDIS has provision for only 64,000 people with a psycho Social Disability!

Here in lies the crux of the problem being faced by the Federal and State Governments. The NDIS was never properly scoped. The estimated number of participants was at least half of the ‘real” umber. The budget was based on an inaccurate number of people requiring an average support package of $39k.

Rather than address this issue the NDIA, and Governments have taken the path of making access to the scheme as hard as possible, and support package’s as small as possible. Independent Assessments are the latest weapon to be used against Australians with disabilities.

The NDIS is an Insurance scheme. Its intent was to ensure people with disabilities in Australia were treated with dignity and respect as per the United Nations Convention on the Rights of Persons with Disabilities. That intent was lost in the NDIS Act, and even further diminished as the scheme has been implemented. Australia, as a signatory State, is in contravention of the UNCRPD. The use of Independent Assessors is the latest means that Australia is using to abuse and degenerate people with disability. The Legislation itself is poorly written in regard to UNCRPD, particularly Psychosocial disability.

The NDIS has failed. If Independent Assessments are used it will be left to the State governments to pick up the pieces as once again people with disability are forced back to an ineffective health system, locked away in institutions, nursing homes. Left begging on the streets because this government, the NDIA Board and executive are not so much inept, but totally lacking in human compassion and would rather have people die than address the real issues.

Greg Franklin

Submission to the Joint Standing Committee on the

National Disability Insurance Scheme

Inquiry into Independent Assessments

2021

greg franklin

31 march 2021

Executive Summary

The National Disability Insurance Scheme’s (NDIS) objects and principles are based on the concepts of choice, control, independence, and opportunity for Australians living with a disability. Independent Assessments do not adhere to the objects and principles in the Intent of the NDIS Legislation.

  • There is insufficient evidence to support the need for the Independent Assessment proposal for NDIS applicants and Participants.
  • There is a sufficient number of incorrect statements and unsupported interpretations in NDIS reports associated with Independent Assessments to raise questions over the validity of conclusions in those documents.
  • In a sufficient number of cases, what has been reported as evidence in the NDIS documents is not consistent with accepted practice standards in reviewing literature or conducting research.
  • There are multiple instances of NDIS decision-making in the reports that are contrary to the criteria set out in the Independent Assessments framework.
  • Many of the issues of concern reported by the NDIS as problematic in the current system of functional assessment either remain present in the Independent Assessment proposal and will be exacerbated by its introduction.
  • The Independent Assessment proposal removes the rights of people with a disability to exercise choice and control in decision-making.
  • Independent Assessments are in breach of AAT ruling Ray Versus NDIA, and as such will mean any Independent Assessment can be referred to the courts.

I submit that Independent Assessments will further damage the National Disability Insurance

Scheme

and as a consequence render the scheme unworkable.

I also submit that NDIS Participants are entitled to their legislated and socially constructed human rights being upheld, rather than treated as a quantum of functional capacity.

Responses to the Terms of Reference

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

The foundations of the development of the Independent Assessment review included:

  • The suite of assessment tools should be diagnosis neutral (i.e. it should be possible to use the suite of assessment tools across all disabilities) (sic).

The object of the NDIS is to support people with disabilities through individually tailored programs. It is contradictory to this philosophy that a generic assessment of functional disability can provide a holistic approach in understanding individual needs.

Allied Health Professionals have an array of Assessment Tools they utilize in their various specialties. Each Individual has the most appropriate tool for them, as individuals, used by their therapists to determine the most appropriate supports and management methodology. In Ray versus NDIA Administrative Appeals Member K Parker determined:

“This exchange between Ms Anderson and Occupational Therapist X caused the Tribunal to lose confidence that Occupational Therapist X’s opinions were based on an accurate understanding of Mrs Ray’s background, past achievements and her current state of mental health. This is a further reason why the Tribunal does not accept Occupational Therapist X’s evidence, except where indicated in these Reasons for Decision, in relation to the extent of Mrs Ray’s functional incapacity.”.

Where Occupational Therapist X is an Independent Assessor contracted by the NDIA. https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2020/3452.html

This indicates that the reason for Independent Assessments is to change the Legislation

because of the legal ruling that upholds the Intent of the Legislation. This case also

color: highlights that the appropriate Assessment tools already exist, and that these tools should be

chosen and applied by Therapists who are managing the persons disability over their lifetime.

The NDIA also states that therapists will be biased in their recommendations. This is defamatory

to Professionals who have only one aim; to give people the best possible care they can. Ray V

NDIA demonstrates that the NDIA is putting the Independent Assessors in the position of

ensuring the bias is to limit access and funds as much as possible, rather than ensure the best

possible care is provided for People with Disabilities as per the Intent.

b. the human and financial resources needed to effectively implement

Human resources

I live in Regional NSW. We do not have sufficient qualified persons to provide care. Telehealth is

partially assisting, but more face to face personnel are required. It is difficult to understand how

the contracted companies will be able to recruit enough people to implement Independent

Assessments, unless those being used are not suitably qualified.

Financial resources

Ray V NDIA indicates that appeals will be widespread. The recently leaked draft of changes to

the legislation indicate that the Ministers intent is to “rewrite the Law”. This is a dangerous move

in a Democracy, and should raise alarm in every Australian. The cost of appeals will be far more

than retaining the status quo. A cynical person would view the implementation of Independent

Assessments as nothing more than more profit to political mates.

c.The impact of similar policies in other jurisdictions and in the provision of other

government services

I will limit my response by referencing to the NSW Workers Compensation Scheme, Icare.

Some media articles:

“Set up by the NSW government in 2015, it has lost more than $3 billion, despite cutting benefits to thousands of injured workers.” https://www.abc.net.au/news/2020-08-24/icare-workers-compensation-insider-speaks-out/12583058

“The review of the troubled insurer follows revelations of financial mismanagement of the country’s biggest workers’ compensation scheme and the underpayment of thousands of injured workers by up to $80 million.“ https://www.smh.com.au/national/nsw/scathing-icare-review-finds-a-need-for-cultural-change-20210301-p576tq.html

“however you cut it, under icare billions of dollars of employers’ money has disappeared. And according to the Auditor-General, it’s in deficit.” https://www.smh.com.au/national/nsw/icare-may-have-breached-legislative-requirements-schemes-overcharged-auditor-general-20201214-p56nal.html

I could provide many more links that highlight the issues with Icare. This is the path that the Minister recommends the NDIS now travel. A path of corruption, a path that will be littered with the remains of the disabled.

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

Very little detail is available to comment on this. Suffice to say that nationally we do not have enough sufficient suitably qualified people to provide therapies. To take from that pool will further exacerbate the situation. Independence will be removed if the Independent Assessors also provide services, so that is not an option.

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

I do not have any information on the proposed Assessment Tools. If they are to drawn by already peer reviewed and recognized tools, and applied by suitably qualified people who have good knowledge and understanding of the person being assessed, then they may be

  • appropriate, only if the person being assessed consents to an Independent

Assessment. But, we are told that there will be only a small number of tools to be selected from, and that the assessment will be a maximum of three hours, sometimes over the phone and by people who have never met the person being assessed.

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

I will quote verbatim from the Enable submission to this inquiry, (sub_01IA), as it succinctly answers this, and is worth repeating:

“Almost every set of diagnostic criteria in the DSM-5 includes a criterion that the person diagnosed experiences “clinically significant impairment in social, occupational, or other important areas of current functioning”. As such, at least for individuals with a DSM-5 diagnosis, a qualified and experienced health or allied health practitioner (or team of practitioners) has identified clinically significant functional impairment. Any disagreement by an assessor under the Independent Assessment proposal would require at least equivalent qualifications, experience, and understanding of the individual’s presentation across all functional domains to legitimately query the previous clinicians’ conclusions.

We submit that it is highly unlikely assessors under the proposed scheme will meet that high-level skill threshold, especially given that the NDIS has reported it intends to provide limited training to those assessors. The approach by some NDIS Planners in questioning the opinions of experts in disability has already damaged the credibility of the system and we contend that disagreement between highly-skilled, qualified external clinicians and the NDIS assessors is likely to further erode confidence in the agency. In any case, regardless of what degree or experience the Planner might have, he or she is not acting in the capacity of a health practitioner in that role.”

g. the implications of independent assessments for NDIS planning, including

The current process is a mess. The use of Independent assessments will only make it worse.

Participants provide reports from qualified professionals to support claims for reasonable and necessary supports. The NDIA invariably rejects most of the claims because the planners have little knowledge and are not qualified to understand the reports. This is purely a cost saving measure by the NDIA. The use of Independent Assessors will merely move the cost cutting to the contracted Assessor agencies. The argument by the NDIA that Allied Health Professionals are “biased’ and “claiming more than reasonable” should be viewed as slanderous. It also flies in the face of Governments insistence that the experts need to be the ones making necessary decisions in the current COVID-19 Pandemic. Are the disabled not counted as being members of society? It certainly appears that way. The NDIS intent was that the person with a disability was the centre, the focus. That the person has choice and control. Independent Assessments remove this key tenet of the Scheme.

  • review, AAT, Federal Court.

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

Independent assessments are even more inappropriate for Indigenous Australians, people from

regional and remote areas, and CALD. I live in regional Australia. We have limited access to

therapists and supports as it stands. To suddenly be able to find people who have the

qualifications to undertake Independent Assessments suggests that the NDIA could have, and

should be putting out tenders so that people with disability in mine, and other regions can obtain

the supports we require, and are entitled to under the NDIS Legislation.

2.10 k. the appropriateness of independent assessments for people with particular

disability types, including psychosocial disability

Quoting The Enable submission:-

“A stated principle of the NDIS is that Participants will be treated with dignity, respect, and

with reference to individual needs. There is no evidence of how that will be supported

through the current Independent Assessment proposal other than aspirational statements.

Our submission on the issue of appropriateness is outlined to a significant degree in sections

2.1, 2.3, 2.4, 2.5, and 2.9 above. However, it is important to reiterate that different disabilities

will have variable impact on participation, responding, and emotional reaction to proposed

Independent Assessment. Some of the issues likely to affect specific groups include:

  • Individuals on the autism spectrum often take a literal approach to language. Any

abstract language in task instructions or scale items can easily be misinterpreted.

  • Many people with a psychosocial disability have difficulty interpreting the intentions and emotions of others. This will affect responding, possibly leading to defensiveness that has the potential to be inaccurately labeled as an ‘uncooperative attitude’.

  • People with Autism Spectrum Disorder and psychosocial disability often downplay or have limited insight into their level of impairment. It requires a skilled clinician with much experience not to simply accept a superficially positive presentation.

  • As noted above, some of the scales chosen by the NDIS as part of the Independent Assessment proposal do not have well-established reliability and validity for specific and general disability presentations (e.g., relying on a sample only 39 individuals in a reliability study for the PEDI-CAT [ASD]).“

I am a Psychosocial participant. I have two children who are participants under Autistic Spectrum Disorder. I concur with the Enable submission, and add that the very thought of having to undertake an Assessment fills me with dread. I cannot see any way that I could do so. Suicide is the predominate thought I have, a likely outcome rather than undertake an Independent Assessment with a complete stranger.

Like wise my children would be unable to face a complete stranger. No matter what tool that person used it would not provide a valid functional assessment. That can only be obtained by their Allied Health Professionals.

l. any other related matters

I have a supplementary submission to this enquirery, my submission to the NDIA. It outlines the reason the NDIS is trying to limit access and funding. So do other submissions I have made to various inquiries.

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The NDIA legislation does indeed need to be reviewed, made workable. But not in the manner

as per the leaked draft changes. Most importantly the estimated numbers need to be corrected.

My submission to the Productivity Commission Inquiry into Mental Health is the latest in my list

of trying to highlight the error in the number of people eligible.

https://www.pc.gov.au/ data/assets/pdf file/0005/240809/sub287-mental-health.pdf

I urge the Committee to read this submission.

Independent assessments are designed to limit access and plan funding so that the NDIS, an

Insurance Based scheme, can remain within its initial allocated budget, and estimated

numbers. Latest Data indicates that the schemes Estimated Numbers is approximately half of

what they should be. Those who do not gain access, or have their funding cut will still require

assistance in a fair and humane society. That burden will fall back onto the State Governments.

The State governments have mainly dismantled the infrastructure to support people with

disability, and will have to start from scratch, and find Billions of Dollars in State Budgets. It may

well be that in this case States will withdraw from the NDIS, thereby ending what should have

been a major improvement in supporting people with Disability in Australia.

The emerging aftermath of the COVID_19 Pandemic indicates that a new wave of people will

require assistance for lifelong disabilities as a result of either suffering from the virus, or the

Psychological impacts from societys battle to contain the virus. To introduce Independent

assessments at such a time in our history is extremely shortsighted.

Summary and conclusions

In conclusion:

  • The Introduction of Independent Assessments is in breach of UNCRPD to which Australia is a signatory, and as such a breach of Human Rights.

  • There is insufficient evidence to support the need for the current Independent

    Assessment proposal for NDIS applicants and Participants.

  • There is a sufficient number of incorrect statements and unsupported interpretations in

the NDIS reports to raise questions over the validity of their conclusions.

  • In a sufficient number of cases, what has been reported as evidence in the NDIS

    documents is not consistent with good practice in reviewing literature or conducting

studies. This is especially relevant when it has the potential to negatively affect

hundreds of thousands of Australians with disabilities, their families, and the community.

  • There are multiple instances of NDIS decisions in the reports that are contrary to the

criteria set out in the framework. Indeed, many of the issues of concern reported by the

NDIS in the current system of functional assessment either remain present in the

Independent Assessment proposal or are likely to be exacerbated by its introduction.

  • The Independent Assessment proposal is contrary to the stated intention of the

    Australian Parliament, NDIS legislation, and the rights of people with a disability.

  • Legal Precedent has established that Independent Assessments are subversiant to the

    Assessments of a persons treating Health and Allied Health Professionals.

  • Independent assessments have the very real potential of seeing the States pull out of the

    Scheme.

  • The NDIS legislation and operation does need to be reviewed and amended to improve the

    operation of the Scheme. But any such review should be done via a co design approach

    using people with disabilities from all cohorts, and should use people who do not belong , or

    represent the miriad of representative organisations, as they have lost touch with those they

    purport to represent.