Maurice Blackburn Lawyers
Since 1919
Maurice Blackburn Pty Limited
Level 21
380 Latrobe Street
Melbourne VIC 3000
31 March 2021
Joint Standing Committee on the National Disability Insurance Scheme PO Box 6100 Parliament House Canberra ACT 2600
By email: ndis.sen@aph.gov.au
Dear Sir/Madam,
We welcome the opportunity to provide feedback in relation to the inquiry by the Joint Standing Committee on the NDIS (the Committee) into Independent Assessments.
Yours faithfully,
Tom Ballantyne Principal Lawyer MAURICE BLACKBURN
Submission in response to the Joint Standing Committee on the NDIS Inquiry into Independent Assessments
March 2021
TABLE OF CONTENTS
………………………………………………………………………………………………………………. Page
INTRODUCTION ……………………………………………………………………………………………. 2
OUR SUBMISSION ………………………………………………………………………………………… 2
RESPONSES TO THE TERMS OF REFERENCE ………………………………………………. 5
A. The development, modelling, reasons and justifications for the
introduction of independent assessments into the NDIS ........................ 5
B. The impact of similar policies in other jurisdictions and in the provision of
other government services..................................................................... 7
C. The human and financial resources needed to effectively implement
independent assessments ..................................................................... 9
D. The independence, qualifications, training, expertise and quality
assurance of assessors ......................................................................... 9
E. The appropriateness of the assessment tools selected for use in
independent assessments to determine plan funding .......................... 10
F. The implications of independent assessments for access to and eligibility
for the NDIS ......................................................................................... 11
G. The implications of independent assessments for NDIS planning,
including decisions related to funding reasonable and necessary supports
12
H. The circumstances in which a person may not be required to complete an
independent assessment ..................................................................... 12
I. Opportunities to review or challenge the outcomes of independent
assessments ....................................................................................... 12
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 .................................. 15
K. The appropriateness of independent assessments for people with
particular disability types, including psychosocial disability .................. 16
L. Any other related matters .................................................................... 17
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Introduction
Maurice Blackburn Pty Ltd is a plaintiff law firm with 33 permanent offices and 30 visiting offices throughout all mainland States and Territories. The firm specialises in personal injuries, medical negligence, employment and industrial law, dust diseases, superannuation (particularly total and permanent disability claims), negligent financial and other advice, and consumer and commercial class actions.
Maurice Blackburn employs over 1000 staff, including approximately 330 lawyers who provide advice and assistance to thousands of clients each year. The advice services are often provided free of charge as it is firm policy in many areas to give the first consultation for free. The firm also has a substantial social justice practice.
For 100 years, Maurice Blackburn has worked with Australians who have suffered severe and catastrophic injuries, assisting them to access justice, compensation and support as they attempt to rebuild their lives. We assist them in navigating the law, social insurance schemes and private sector insurance. We engage with their families, friends and carers – as well as service providers – as they rally to assist our clients.
We have been regular contributors to the various inquiries relating to the development of the NDIS since its inception, dating back to the original Productivity Commission inquiry. We have also been advising clients and other stakeholders since the commencement of the Trial sites. All of our submissions are based on the lived experience of our clients, and the observations of Maurice Blackburn staff who work with them.
Many of Maurice Blackburn’s clients are also NDIS participants and we have acted in a number of internal review and AAT appeals.
Our Submission
The National Disability Scheme has been built on a number of well documented foundations. Two of these pillars, enshrined in the stated Objects and Principles of the National Disability Insurance Scheme Act 2013 (the NDIS Act) are:
- To enable people with disability to exercise Choice and Control1 and
- To provide Reasonable and Necessary supports2
Maurice Blackburn believes that the introduction of Independent Assessments, under the Government’s current plan, actively erodes the principle of ‘Choice and Control’. There is an imminent danger that we will end up with a tick-box, cookie cutter approach to determining supports. Details of this form the basis of this submission.
We further believe that other parts of the Government’s legislative agenda actively erode the principle of ‘reasonable and necessary’. Using the long debated question as to whether NDIS funds should be used to purchase sexual services as a ‘Trojan horse’ (and as evidence to support their view they (the government) know better than people with disability about what people with disability need), the government will soon seek to position themselves as the sole arbiter of what is reasonable and necessary. States’ capacity to veto poor decisions about tightening definitions of what constitutes reasonable and necessary is in real danger.
1 See for example NDIS Act: https://www.legislation.gov.au/Details/C2020C00392: Part 2, Clause 3(e) and Clause 4(4) 2 Ibid: Part 2, Clause 3(d) and Clause 4(5)
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This two-pronged approach is an attack on the foundations of the NDIS.
It is also worth noting that the first object of the NDIS Act is to:
in conjunction with other laws, give effect to Australia’s obligations under the
Convention on the Rights of Persons with Disabilities done at New York on
13 December 2006
Object (i) goes on to list:
in conjunction with other laws, give effect to certain obligations that Australia has as
a party to:
(i) the International Covenant on Civil and Political Rights done at New
York on 16 December 1966; and
(ii) the International Covenant on Economic, Social and Cultural Rights
done at New York on 16 December 1966; and
(iii) the Convention on the Rights of the Child done at New York on
20 November 1989; and
(iv) the Convention on the Elimination of All Forms of Discrimination
Against Women done at New York on 18 December 1979; and
(v) the International Convention on the Elimination of All Forms of Racial
Discrimination done at New York on 21 December 1965.
The rights of people with disability also feature in the principles of the Act, detailed in Part 2, Clause 4.
Clearly, the drafters perceived the development of the NDIS through a right-based lens.
Maurice Blackburn is not convinced that the proposed reforms are consistent with a human- rights based approach. In our view, they quite clearly diminish the rights of people with disability.
A substantial review of the NDIS conducted in 2015 recommended the inclusion of another principle into the Act, reflecting the concepts of centrality of people with disability and co- design3. This was supported both by COAG and the recent Tune Review4.
This current legislative agenda has also eroded this widely agreed, yet undocumented principle that the scheme should be founded on the centrality of people with disability and co- design. The changes sought through the introduction of Independent Assessments and the centralisation of decision making around support provision have not been the result of co- design nor in an effort to ensure the centrality of people with disability in the process – in fact, quite the opposite. They have been made in spite of these principles.
The NDIS and its founding principles were the result of the hard work and diligence of people with disability and their supporters, who fought for many years to ensure that the scheme was founded on these principles and objectives. It is our opinion that the current Government is actively seeking to undermine or erode those principles and objectives for no other reason than as a costs saving measure.
3 See Report by Ernst & Young: https://www.dss.gov.au/sites/default/files/documents/04_2016/independent_review_of_the_ndis_act.pdf, recommendation 4 4 https://www.dss.gov.au/sites/default/files/documents/01_2020/ndis-act-review-final-accessibility-and-prepared-publishing1.pdf: p.218
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It is also apparent to us that the adoption of an Independent Assessments regime provides a convenient means for the NDIA to outsource its responsibility for poor decisions. Coupled with the removal of the right to seek a review of decisions, it provides free reign for the NDIA to dodge accountability which, through any objective assessment of its review processes, has never been its strong suit.
In addition, the justification for the proposed changes comes from a wilful misrepresentation of the outputs of the Tune Review.
If the proposals are accepted, we could end up with a scheme where decisions related to reasonable and necessary supports are unilaterally made by the federal Minister, decisions about eligibility and supports are made by people who have never met the person they’re making decisions about, and that people with disability have no recourse over a bad decision. This is clearly unacceptable.
The Joint Standing Committee on the National Disability Insurance Scheme is the last line of defence in protecting the hard-won principles and objectives of the scheme from being undermined. The Committee has done a remarkable job in the past of protecting the essence of the scheme and its participants, through listening to participants and asking serious questions about the NDIA’s approach to matters such as quality assurance, the quality of decision making by planners and the haphazard approach to workforce development. Now more than ever, people with disability and the sector that supports them need the Committee to listen closely to them, and protect the very fabric of the scheme.
We urge the Committee to join with people with disability, their carers, their advocates and service providers in calling on the new Minister to stop this damaging, conflicted and unnecessary attack on the core pillars of the NDIS.
Our responses to the Terms of Reference appear below.
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Responses to the Terms of Reference
A. The development, modelling, reasons and justifications for the introduction of independent assessments into the NDIS
The introduction of Independent Assessments is being done for all the wrong reasons.
Firstly, it has not been done in the spirit of co-design nor the centrality of having people with disability in decision making. There has been no meaningful consultation on the decision. This is evidenced by the universal condemnation of the process by people with disability and their advocates.
Secondly, it has been done on the basis of a flawed, limited and incomplete pilot project. There has been significant commentary around the validity of the pilot by those directly involved in the sector5, and by those involved in the pilot6.
Thirdly, it based on a wilful misrepresentation of the recommendations of the Tune Review.
The information paper on the proposed legislative changes7 clearly states that:
Independent assessments were originally recommended in the 2011 Productivity
Commission report that led to the creation of the NDIS, and again more recently in
the Tune Review.
Recommendation 7 of the Tune Review8 reads as follows:
The NDIS Act is amended to:
a. allow evidence provided to the NDIA about a prospective participant or participant
to be used for multiple purposes under the NDIS Act, including access, planning and
plan review processes
b. provide discretionary 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.
The important distinction in part (b) of Recommendation 7 is that it focuses on the provision of ‘discretionary powers’. Nowhere does Tune recommend the mandating of Independent Assessments. This is made explicit in paragraph 4.39 of his report:
Therefore, it is reasonable that the NDIS Act is amended to enable the NDIA to
require the provision of a functional capacity assessment by a NDIA-approved
provider, but that this power be discretionary. To support this, the NDIA will need to
develop clear operational guidelines for decision makers in exercising this
discretion.
5 See for example: https://everyaustraliancounts.com.au/putting-ndis-assessments-to-the-test/ 6 https://www.abc.net.au/radio/melbourne/programs/breakfast/nicole-rogerson-ndis-assessment/13036182 7 https://www.dss.gov.au/sites/default/files/documents/12_2020/information-paper-release-december-2020-final_0.pdf: p.11 8 https://www.dss.gov.au/sites/default/files/documents/01_2020/ndis-act-review-final-accessibility-and-prepared-publishing1.pdf: p.14
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In developing his recommendations in relation to Independent Assessments, Tune also makes the following observations9:
This change in approach will require extensive consultation with participants, the
disability sector, service providers and the NDIA workforce. Fundamentally,
however, the success of the program will largely be dependent on:
a. the willingness of prospective participants and participants to work with
NDIA-approved functional assessors
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.
Clearly that consultation has not occurred prior to the Minister Robert’s decision to mandate Independent Assessments. The use of the word ‘willingness’ would indicate that participants should have choice and control over the process. Please see our response to ToR D in relation to the independence of assessors.
Tune goes on to say:
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:
a. participants having the right to choose which NDIA-approved provider in
their area undertakes the functional capacity assessment
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
c. the NDIA-approved providers being subject to uniform accreditation
requirements that are designed and implemented jointly by the NDIA and
appropriate disability representative organisations
d. the NDIA providing clear and accessible publicly available information,
including on the NDIS website, on the functional capacity assessments
being used by the NDIA and the available panel of providers.
These clearly articulated safeguards have been ignored in the development of the implementation strategy. Please refer to our response to ToR I in relation to the participants’ right to challenge decisions.
Maurice Blackburn submits that the development, modelling, reasons and justifications for the introduction of independent assessments into the NDIS are all manifestly inadequate. It has been a textbook example of poor public policy development.
9 Ibid: para 4.33, p.66
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B. The impact of similar policies in other jurisdictions and in the provision of other government services
Maurice Blackburn is unable to identify an insurance scheme, in the areas in which we work, where something equivalent to independent assessments has been introduced.
We suggest, however, that the Committee might look at examples of successful schemes where such depersonalised processes have proven unnecessary and unwarranted.
The Traffic Accident Commission of Victoria (TAC) is:10
…. a Victorian Government-owned organisation set up to pay for treatment and
benefits for people injured in transport accidents, promote road safety and help
Victorians get their lives back on track.
It has the legislated objectives to:11
a) to reduce the cost to the Victorian community of compensation for transport
accidents;
b) to provide, in the most socially and economically appropriate manner, suitable and
just compensation in respect of persons injured or who die as a result of transport
accidents;
c) to determine claims for compensation speedily and efficiently;
d) to reduce the incidence of transport accidents;
e) to provide suitable systems for the effective rehabilitation of persons injured as a
result of transport accidents.
TAC’s stated mission12 is:
To be the world’s leading social insurer.
It is, of course, a much smaller scheme than the NDIS. According to its most recent annual report,13 last year TAC supported approximately 59,000 claimants, with varying degrees of injury. Approximately 110,000 (or 19%) of those were claimants with complex needs14. Many of these need long-tail, ongoing support.
Claimant satisfaction is high, with:
- 93% of clients agree the TAC treats them with respect and sensitivity
- 89% of clients believe the TAC can be trusted to treat them fairly
- 86% of clients say the TAC ensures they understand any decisions made about their claim, and
- 82% of clients agree the TAC resolves any problems that arise15.
Importantly, the TAC leaves decisions in relation to what constitutes reasonable and necessary support for complex cases to the courts. There is no tick-box methodology employed to determine support provision16.
10 https://www.tac.vic.gov.au/about-the-tac 11 https://www.tac.vic.gov.au/__data/assets/pdf_file/0014/27131/86-111aa152-authorised_1.pdf: Section 8, p.32 12 https://www.tac.vic.gov.au/about-the-tac/our-organisation/tac-mission-vision-values 13 https://www.tac.vic.gov.au/__data/assets/pdf_file/0011/470576/TAC-ANNUAL-REPORT-WEB.pdf 14 Ibid: p.32 15 Ibid: p.44
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Where disputes arise, TAC utilises a Joint Medical Examination (JME) model, which has meant there is no cherry-picking of health services or doctor shopping. It has led to a sizeable reduction in medical appointments and associated cost per case.
Also importantly, this is a scheme which offers full merits based reviews of decisions. It is a scheme which is not hampered by a lengthy and inefficient internal reviews process. (Please see our response to ToR I for more information about NDIS review and appeal processes).
The major difference between the two schemes appears cultural, driven top-down by management and the governance structures and incentives that appear to be about efficient benefit delivery. The TAC scheme is based around an individualised care model – the polar opposite of a cookie-cutter approach.
This is reflected in the CEO’s words17:
By directing our unwavering focus to improving the support we provide, we aim to
become the world’s leading social insurer.
The TAC systems and processes are a direct reflection of the governance and management culture described above. They foster a partnership arrangement with all stakeholders, including the injured person. There is a prevailing attitude that all stakeholders are partners with the scheme in achieving the appropriate supports and benefits for the client. It is a philosophy that is not based on competition or disputation.
Importantly, TAC is financially healthy18.
Our staff who work within the TAC scheme tell us that:
- Complex claims case managers genuinely listen to the expert opinion of health professionals. They have an evidence based approach to benefit provision.
- The trust/communications between TAC management and stakeholders is excellent. Management knows that stakeholders understand that scheme viability is essential. No-one benefits if the scheme become unviable.
- Poor behaviour and compromised decision making within TAC is rare. Where it has been identified it has most commonly come from audits of the outsourced claims review process.
As noted above, there are scale differences in the number of complex claims administered by TAC as compared to NDIS. We believe, however, that the cultural and attitudinal differences – along with the clarity of purpose in decision making – make it a model worth investigating.
Unlike the NDIS, external regulators (eg relevant Ombudsman’s offices etc) have found no need to conduct endless investigations into TAC’s current processes for handling complex cases.
16 TAC uses an initial screening process to determine whether a claimant’s case should be administered by the Rapid Recovery Division (non-complex claims) or the Supported Recovery Division (complex claims). This screening process does not determine what reasonable and necessary supports should be provided to claimants in either Division. 17 https://www.tac.vic.gov.au/__data/assets/pdf_file/0009/192753/TAC_Strategy2020_UPDATE_WEB.pdf; p.3 18 Ibid: p.68
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C. The human and financial resources needed to effectively implement
The Committee will be fully aware of the provisions within the tender process for the implementation of independent assessments. We are confident that others will provide advice as to whether that represents a good utilisation of limited resources. Maurice Blackburn has no additional input on this Term of Reference.
D. The independence, qualifications, training, expertise and quality assurance of assessors
As the Committee will be aware, Maurice Blackburn has been highly critical19 of the decision making capacities of those within the NDIA charged with the responsibility for allocating reasonable and necessary supports.
Our criticisms in the past have centred around the expertise of planners. In our submission to the Committee’s inquiry into planners20, we noted:
It is our observation that many Planners seem to lack specific knowledge in relation
to the work of health specialists such as Physiotherapists and Occupational
Therapists. Their expert recommendations, on many occasions, have been ignored
by planners.
In our view there is a clear deficit of skills and experience with some planners and
urgent action is required to remedy this through comprehensive training. This is
particularly critical for planners working with participants with complex care needs,
whose plans must only be prepared by planners with appropriate experience and
training.
Maurice Blackburn submits that NDIA should consider sourcing professional
development for planners from the relevant heath industry peak bodies. This would
be beneficial for all involved.
If planners currently ignore the considered input of experts that (a) we know have appropriate expertise and qualifications and (b) have detailed knowledge of the participant’s case, how will they possibly be in a position to evaluate the quality and appropriateness of input of appointed assessors?
So, in terms of the qualifications, training and expertise of assessors, there will continue to be no last line of defence against a poor assessment.
More worrying still are concerns around the independence of the assessors. Under the proposed arrangements, the NDIA will have a contract with the entity which employs the assessors. The ability for these entities to retain these contracts will be dependent on them maintaining a good relationship with the funder.
This is not independence.
It is inescapable that while ever there is a funder/recipient relationship, the recipient will be (or at least feel) obliged to comply with the overarching goals of the funder.
19 https://www.aph.gov.au/DocumentStore.ashx?id=fc3979c0-9102-4537-850d-e08257b3b9c8&subId=669594 20 Ibid: p.5
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It is also inescapable that while ever that veneer of independence exists, doubts will always remain about the purity of the decision making.
The people who provide assessment reports in the current environment are experts, operating with total independence – not the veneer of independence. There is no risk to them arriving at a decision that the funder may not agree with. There is no benefit to them arriving at a decision that they think will enhance their relationship with the funder. There is no real or perceived conflict of interest.
When decision making is uncompromised, the chances of achieving the correct assessment of what is reasonable and necessary is greatly enhanced.
We agree with the observation that, under the current plans, the Independent Assessments would be independent of the applicant/participant, but not independent of the government/NDIA.
There is also no information or transparency about how these independent assessors will be briefed or trained by the Agency. There is a clear risk that these independent assessors could be briefed with the Agency’s ‘version’ of the eligibility criteria, or what supports are reasonable and necessary. This would clearly undermine their independence and the value of the assessment.
Maurice Blackburn is also concerned about the potential impacts of the proposed changes on small independent allied health practices. We share the sector’s concerns that the outsourcing of independent assessments to large, well resourced health conglomerates will remove an avenue of work for small local providers. This was not the intention of the creators of the scheme. We also note concerns that allied health professionals will be recruited solely to carry out independent assessments, further depleting an already stretched provider network.21
Maurice Blackburn urges the Committee to go back to what the Tune Review recommended – the provision of discretionary power to utilise independent assessment. These powers would be useful only in situations where the applicant or participant does not currently have allied health professionals able to offer professional observations about that specific client’s disability, or that the applicant or participant doesn’t have the means to obtain such reports.
We also remind the Committee of the safeguard recommended by the Tune Review that:
c. the NDIA-approved providers being subject to uniform accreditation requirements that
are designed and implemented jointly by the NDIA and appropriate disability representative organisations
We are unable to name any disability representative organisation that supports the process which will soon be implemented.
E. The appropriateness of the assessment tools selected for use in independent assessments to determine plan funding
As legal practitioners, we do not have sufficient working knowledge of the specific tools to comment on their efficacy. We urge the Committee to listen to those that do.
21 See for example: https://otaus.com.au/publicassets/701ad0dc-457a-eb11-943a-005056be13b5/OTA%20submission%20to%20NDIA%20-%20Access%20Policy.pdf: p.9
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We are aware of a significant body of concern that the tools adopted by the NDIS are simply not fit for purpose. They were not designed to assist in the development of support budgets, nor were they specifically designed for use in the disability space – especially with regard to intellectual disability.
Well regarded organisations such as Inclusion Australia have written extensively on these istues. They have done the leg work of seeking academic expertise to back up the on-the- ground experience of their members in the use of those tools. They say:
The academics we consulted with said that the selected independent assessment tools were not designed to provide the information needed to develop a support budget. They said that other tools, rejected by the NDIS, could provide information that would give transparency through from function to costing.22
More generally, we remind the Committee that immediately following the 2019 Federal election outcome, the Prime Minister said:23
Every single Australian with a disability needs a bespoke approach, their challenges are different and they must be recognised as different. You can’t take a cookie-cutter approach to this….and we need to have a system that can address that.
Maurice Blackburn suggests that the tools selected achieve the exact opposite. The use of ‘yes/no’ tools24 cannot take into account the complexities of an individual’s disability.
Maurice Blackburn suggests that the Committee strongly recommend that the Government start again in its search for an appropriate assessment methodology, and this time conduct it in the spirit of co-design, seeking input from professionals with specific expertise in disability assessment, and from those who will rely on its outputs to survive.
F. The implications of independent assessments for access to and eligibility for
the NDIS
Once again, Maurice Blackburn reminds the Committee that Independent Assessments were never recommended as a mandatory requirement, either for eligibility or planning.
For those people with disability that would benefit from having a universally provided assessment – where circumstances prevent them from being able to source a more specific report – we suggest that the end uses of that report be strictly contained.
The process currently under consideration appears to be an intentional attempt to erode the current merit based approach.
We also believe that the introduction of independent assessments will lead to the erosion of participant’s ability review and challenge Agency decisions on eligibility and supports (please see our response to ToR I for more on this).
We can only hope that the adoption of a tick box regime to determine eligibility and supports is not the first step toward the automation of this process. This Government has a poor and damaging track record in utilising such technologies.
22 https://www.inclusionaustralia.org.au/wp-content/uploads/2021/02/Inclusion-Australia-submission-on-Independent-Assessments-FINAL.pdf: p.6 23 https://www.pm.gov.au/media/press-conference-canberra-3 24 See for example: https://www.bunburymail.com.au/story/7162418/disability-groups-warn-against-ndis-change/
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G. The implications of independent assessments for NDIS planning, including decisions related to funding reasonable and necessary supports
Please see our response to ToRs (E and F) above.
H. The circumstances in which a person may not be required to complete an independent assessment
As noted elsewhere in this submission, we believe that the use of Independent Assessments should be discretionary, and restricted to only circumstances where the applicant/participant:
-
Does not have an existing relationship with appropriate health professionals who can provide the specific information about that individual and their disability, and
-
Does not have the means to acquire an individualised assessment.
Also as noted elsewhere in this submission, we do not have confidence that, across the board, planners have the necessary skills and experience to critique whether an independent assessment is appropriate or accurate.
I. Opportunities to review or challenge the outcomes of independent
assessments
The Tune Review is clear that the capacity to challenge the outcomes of an independent assessment is a fundamental and necessary safeguard.
We remind the Committee that one of Tune’s ‘key protections’ was:
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
That the current proposals do not include this safeguard is an indictment on the process.
There is a fundamental misunderstanding underpinning the removal of review processes from Independent Assessments. Wrong decisions are not made due to error in the expert reports written by those supporting a person with disability. Wrong decisions are made through incorrect interpretation of those expert reports or ignoring them entirely.
As the Committee will be aware, Maurice Blackburn has been highly critical of the NDIA’s approach to the review of support decisions.
Committee members may recall that in our submission to the Committee’s Inquiry into Planners, we presented three case studies where the estimated reasonable and necessary supports agreed to by planners differed markedly from the assessment of a Court.25
In those case studies:
25 https://www.aph.gov.au/DocumentStore.ashx?id=fc3979c0-9102-4537-850d-e08257b3b9c8&subId=669594: Appendix A
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Case Original Plan Plan Value After Plan Value After Difference Study Value ($) Internal Review or Judgment or Offer ($) Conciliation ($) ($)
| Case Study | Original Plan Value ($) | Plan Value After Internal Review or Conciliation ($) | Plan Value After Judgment or Offer ($) | Difference ($) |
|---|---|---|---|---|
| 1 | 215,906 | 409,429 | 502,654 | 286,748 |
| 2 | 61,435 | 266,311 | 204,875 | |
| 3 | 56,672 | 415,745 | 492,456 | 465,376 |
In previous submissions, we have highlighted the fundamental procedural and cultural problems with the current plan review process. That process involves three steps:
i. The Reassessment Process.
Problems:
-
In our experience, when the NDIA is contacted in relation to deficiencies in a client’s plan, the NDIA’s first response, by default, is to assert the original plan, or at most agree to minor adjustments to the original plan.
-
We have experienced very few cases in which suggestions for making the draft plan fair or aligned to expert opinion are given appropriate, individual consideration by the NDIA.
-
The NDIA’s default mechanism and approach to the reassessment of plans, according to the experience and perceptions of our staff and clients, is to engage in stonewalling. The delay in response after a participant has asked for their plan to be reviewed (sometimes up to 12 months) means that often, by the time the NDIA has made a decision about whether to affirm or amend a plan, a new plan has already been issued.
ii. The Internal Review Process
Problems:
-
This is one person within the NDIA purporting to judge the actions (or inaction) of another person employed by the same entity. It is transparently lacking in independence
-
It is generally unclear whether the person undertaking the review has any additional expertise or experience in disability supports and care needs. If that is not the case, then the problems created by the original planner’s lack of expertise are simply replicated. In our experience, this is particularly problematic in cases of catastrophic disability and complex care needs.
-
The ability of participants to obtain additional expert evidence about their needs (for example, from an occupational therapist) is extremely limited in most cases. It is therefore uncommon for the person conducting the internal review to have access to any additional evidence that might better inform their decision.
-
There seems to be significant confusion over the correct interpretation of the legislation and associated instruments across the NDIA. This leads to inconsistent application of the rules and different outcomes depending on who is making the decision at any point in time.
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iii. AAT Appeals
Problems:
-
The ‘no costs’ nature of the AAT precludes most participants from accessing legal representation because of the prohibitive cost associated with having to pay themselves, regardless of whether the Agency decision was unlawful and wrong. In most other jurisdictions, costs can be recovered from the unsuccessful party.
-
Legal Aid has received some funding for these appeals but resources are notoriously scarce. A number of disability advocacy groups have also been funded to provide support but most are only able to provide advice rather than formal legal representation. As shown in the case studies summarised in the table above, the value of supports under dispute can amount to tens or hundreds of thousands of dollars per year. Many involve complex disabilities, high-care needs and require sophisticated expert evidence, which most participants will not be able to afford or arrange.
-
The legislation and rules are also unclear, difficult to interpret and subjective. Some disputes involve complex questions of statutory interpretation, or the interaction between the NDIS and other sources of support (for example, Medicare and the health system).
-
The NDIA engages private law firms to represent them in every AAT appeal at great cost. Because of the barriers to engaging legal representation, the participants themselves are rarely represented. This problem is compounded by the difficult and complex legal issues that arise during the appeals. It is entirely unreasonable to expect a self-represented participant to be able to navigate and respond to arguments put to them by sophisticated lawyers and barristers representing the NDIA. This is not something a participant should be required to engage in unassisted.
An external review process with a pronounced power imbalance does nothing to improve decision-making within the NDIA. Instead of encouraging good decision-making at first instance or in the internal review phase (and thereby minimising legal disputes), the Review Process simply shields the NDIA from taking responsibility for poor decision-making.
The problem is, none of this will be solved through the introduction of the Independent Assessments regime. It will have no impact on the possibility of planners making the wrong call about reasonable and necessary supports. The proposed removal of the appeals process for Independent Assessments will, however, have a profound impact.
Maurice Blackburn believes that a review and appeal process is even more important under a one-size-fits-all, cookie cutter approach. Assessment will be being made by people acting under resourcing stress, who do not know the person they’re assessing and may know nothing about her/his specific disability. This creates heightened risk, so an appeals process is more important than before.
Maurice Blackburn also shares the concerns of disability support agencies that in its current format, the proposed reforms are expected to significantly increase demand for support from advocacy, informal and mainstream supports to help participants navigate and cope with the anticipated surge of appeals cases and complaints. We echo their call to ensure there are appropriate services available to support prospective and current participants to have access to support – including legal support – to cope with any changes.
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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
Maurice Blackburn has significant concerns about the successful tenderers’ capacity to provide appropriate services for people from regional and remote communities, Culturally or Linguistically Diverse (CALD) backgrounds and in Aboriginal and Torres Strait Islander (ATSI) communities. These concerns are the same as our concerns about the NDIS’s capacity to find suitable service provision for these cohorts, in the satisfaction of their plans.
If the NDIA can’t find service providers with appropriate cultural knowledge and skills to provide the services participants need, how are they going to find assessors capable of providing appropriate assessment services for those cohorts?
People with disability from a CALD background, and from ATSI communities require specialised expertise and cultural competence from service providers. We are not confident that the proposed model has sufficient requirements for the assessments to be completed in a culturally sensitive way.
Similarly, assessors will need to be trained and experienced in trauma informed service provision.
Under the current system where the applicant/participant’s treating health professionals are able to provide relevant information about that client, one can be assured that the cultural and trauma-informed sensitivities adhered to by those providers are acceptable to the client. This is not the case with an assessor who is unknown to the client and unaccustomed to working within these sensitivities.
In terms of geographical difficulties, it is absolutely inappropriate for Independent Assessments to be conducted over the telephone. The information collected in these interviews will determine the clients’ quality of life for the foreseeable future. The NDIA should rule out that phone consultations are deemed as an appropriate means of information collection.
We also note concerns from the sector that:
The proposed use of telehealth facilities to undertake assessments with participants in rural and remote areas may make it difficult for some people with disability to fully participate.26
In order to instil confidence in the process, the NDIA will need to:
- Ban the use of assessments completed by any means other than face to face,
- Require the successful tenderers to only recruit assessors with appropriate experience and training in the cultural sensitivities of the communities in which they will be providing assessments,
- Require the successful tenderers to only recruit assessors with appropriate training and experience in trauma informed service provision,
26 https://everyaustraliancounts.com.au/ndis-sector-statement/
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- Require the successful tenderers to only recruit assessors with appropriate experience and expertise in the specific disability they are assessing (see our response to ToR K below),
- Require the successful tenderer to ensure that all written materials are written with appropriate cultural sensitivity, and fully accessible,
- Require the successful tenderer to ensure that all assessments are conducted with regard to appropriate cultural sensitivities, and allow for full accessibility – such as the use of interpreters, and
- Require the successful tenderer to ensure its agents have a thorough understanding of the environmental factors impacting the individual they are assessing.
Would it not be simpler and better process to have the applicant/participants’ treating health professionals conduct the assessment?
K. The appropriateness of independent assessments for people with particular
disability types, including psychosocial disability
As noted in our response to ToR J, assessors must have appropriate experience and expertise in the environmental factors impacting the individual they are assessing – and respect the cultural and accessibility needs of the client.
Similarly, the assessor must have appropriate experience and expertise in the specific disability type they are assessing.
Maurice Blackburn has no confidence that this will occur.
We note recommendations that this Committee has made in the past in relation to the experience and expertise of staff directly engaged by NDIA:
The Interim Report27 from the Committee’s inquiry into Planning noted the following recommendation:
Recommendation 9
The committee recommends that the National Disability Insurance Agency (NDIA) ensure that additional training and skills development is provided to all persons involved in the planning process (particularly NDIA officers and LACs), to ensure that all such persons:
o are familiar with a range of disabilities experienced by participants, and develop specialisation in particular disability areas; o are familiar with allied health expertise; o understand the specific needs of Aboriginal and Torres Strait Islander participants, and participants from culturally and linguistically diverse backgrounds, to ensure that they are able to deliver culturally appropriate services; and o receive training in domestic violence awareness
The Final report28 from the same inquiry noted the following:
27https://parlinfo.aph.gov.au/parlInfo/download/committees/reportjnt/024350/toc_pdf/NDISPlanningInterimReport.p df;fileType=application%2Fpdf 28https://parlinfo.aph.gov.au/parlInfo/download/committees/reportjnt/024487/toc_pdf/NDISPlanningFinalReport.pdf;fileType=application%2Fpdf: p.xx
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Recommendation 21
The committee recommends that when conducting recruitment processes for planners, the National Disability Insurance Agency give greater preference to candidates with experience or qualifications in allied health or disability-related areas.
Recommendation 30
The committee recommends that the National Disability Insurance Agency develop and implement a mechanism to encourage planners to develop specialisation in particular types of disability or particular groups of participants.
The Committee would not have made those recommendations had there not been identifiable concerns, uncovered during the inquiry, about the NDIA’s recruitment processes, and their appointment of people with inadequate experience and expertise in the specific disabilities experienced by the people in front of them.
If the NDIA cannot directly recruit people with appropriate experience and expertise in the disabilities for which they are constructing plans, how can we have confidence that the NDIA will hold out-sourced agencies accountable for the experience and expertise of those making decisions which will impact eligibility and funding allocations?
Maurice Blackburn predicts that there is a high probability that the successful tenderers will have business models that allow for high numbers of inexperienced staff, with high turnover, and that those staff will not be equipped to handle complexity.
Maurice Blackburn urges the Committee to develop recommendations that ensure this prediction cannot eventuate.
Once again, would it not be simpler and better process to have the applicant/participants’ treating health professionals conduct the assessment?
L. Any other related matters
No response to this Term of Reference
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