Possability

Submission to Joint Standing

Committee on NDIS Inquiry into Independent Assessments

Prepared by the Possability Group March 2021

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Overview

The NDIA is moving forward with changes that could fundamentally change the NDIS and undermine the key principles of the scheme that were so hard fought for by the Australian community. Many aspects of the reforms appear laudable, such as increasing plan flexibility, making assessments free, and creating more national consistency in decision-making. However, we believe the introduction of Independent Assessments - with the intrinsic link to participants’ individual plans and budgets - should not be made unless there has been greater community consultation and consideration to iron out a range of potentially unintended consequences.

We are also concerned about the selective use of data to suggest that scheme costs are rising at such a rate that it risks the sustainability of the NDIS. We believe this is simply not true (see the commentary on Financial Sustainability of the Scheme, page 9).

We, like many other stakeholders, believe that more time is needed to implement these broad ranging changes to address identified issues and to provide time for change management for participants, their representatives and providers.

Possability, in consultation with a number of other provider organisations, prepared two submissions to respond to NDIA consultation papers:

Access and Eligibility Policy with Independent Assessments
Planning Policy for Personalised Budgets and Plan Flexibility.

Two issues papers summarising these submissions can be downloaded from the Possability website (Independent Assessment paper; Planning Policy paper). These papers were informed by feedback from participants and carers gained through an on line survey and some small focus groups with participants.

This paper summarises the main issues of concern and how they relate to the NDIS Act and expected proposed amendments.

About the Possability Group

The Possability Group is a leading not-for-profit disability services provider with more than 30 years’ experience. Our name, Possability, reflects our focus on each individual’s strengths and abilities, and the desire to inspire people to achieve their potential.

From humble beginnings in Hobart, Tasmania, in 1989, we now operate across Tasmania, Victoria and Queensland. Our team of 1500 employees provide disability support services to more than 1 000 people a year. Our main services include supported independent living, supported employment, skills development, day services and community access. We also offer allied health services, specialising in Positive Behaviour Support. For further information go to www.possability.com.au

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Summary of main issues of concern

Removing accountability for providing reasonable and necessary supports to participants

Recommendation 4 in the Tune Review states that the NDIS Act should be amended ‘to clarify that reasonable and necessary supports are considered together as a package.’ (Tune, Review of the National Disability Insurance Scheme Act 2013, 2019, p. 13)

While on the face of it this recommendation sounds reasonable, the way it is proposed to be implemented by the Australian Government is flawed. ‘Under the proposed new approach to planning, reasonable and necessary budgets will be developed based on independent assessments of functional capacity, rather than support by support’ (Australian Government, 2021, p. 12).

If recently leaked draft amendments are correct, the Federal Government intends to drop any legislative requirement to provide ‘reasonable and necessary supports.’ The Objects of the Act is amended to refer to providing ‘funding for supports’ rather than providing ‘reasonable and necessary supports’ as currently stated in the legislation. The leaked draft legislation entirely removes Section 34 which describes ‘the reasonable and necessary supports that will be funded’ and all inclusions of the words ‘reasonable and necessary’ are deleted. The concern is that these kinds of legislative changes would facilitate the rationing of services to make short-term savings in government expenditure. This approach would be at the expense of the long-term goals of the NDIS and the ability of people with disabilities to fully exercise their human rights as outlined in the United Nations Convention on Rights of People with Disability.

The NOIA has not stated exactly how the budgets will be framed, but we know that in the past they have been matched up with ‘a typical support package based on a participant’s reference group’ (NOIA, 2017, p. 92). Participants will be provided with what the agency determines is a ‘reasonable and necessary’ plan budget which they can utilise flexibly to purchase supports. While this benchmarking approach is efficient and will result in more consistency in plan budgets, it is a top-down approach rather than an individualised method of budget setting. Without more information, we can only assume the methodology is likely to involve using historical averages of spending by individuals w ith similar functional assessments. The concern with this approach is that while it might be suitable for the majority of people, the ‘outliers on the bell curve’ will not have their needs met. We agree with the Bruce Bonyhady’s assessment that this automated approach amounts to ‘robo-planning’, with a loss of personalisation in plans and a high risk of errors (Bonyhady, 2021 ).

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It also relies heavily on the accuracy of the Independent Assessment process to capture the full support requirements of an individual. The tools are not fit for purpose and are highly likely to result in errors and inadequate plan budgets for many people, particularly those with intellectual disability or acquired brain injury who make up 65 per cent of NDIS participants (NDIA, 2020).

People with disability need legislative protections that ensure that they have access to reasonable and necessary supports through the NDIS, not an automated ‘reasonable and necessary budget.’

It is also concerning that the NDIA’s proposed assessment and planning process downplays the importance of goals. Since the inception of the NDIS, planning meetings have always started with a discussion of goals. The focus is on what the individual can do and what they want to work towards, to improve their participation in the community both socially and economically.

Under the proposed changes, goals are downgraded to a ‘nice to have’ or after-thought as they are not considered in the assessment nor funded through the ‘robe-planning’ process. The diagram below highlights how it is planned to turn the order of the planning process upside down.

The Planning Process

Now

Discuss the participant’s goals and aspirations

Assessment of the participant’s level of function and support needs (by Planner)

Create a support package to help the participant progress towards their goals

Decide how the plan will be managed and when the plan will be reviewed

Source: Productivity Commission 2017

Future

Assessment of the participant’s level of function and support needs (by Independent Assessor)

Create a support package and budget based on Independent Assessment

Discuss how the plan budget might be spent to meet the participant’s needs, goals and aspirations

Decide how the plan budget will be managed and when the plan will be reviewed

Source: Diagram based on available NDIA information (NDIA, 2020)

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The importance of goals is reflected in section 34 of the N DIA Act 2013 which describes reasonable and necessary supports:

“For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:

(a) the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;“

It is perhaps unsurprising that this section appears set for removal from the Act, if the leaked draft legislation is correct.

The structure of the planning process must be maintained, starting with the participant’s goals and aspirations, before undertaking a functional assessment.

Dismantling insurance principles

One of the key objectives of the NDIS was to have an uncapped insurance scheme that would deliver reasonable and necessary support for people with disability, while actively managing down the total future social cost of disability’ (NDIA, 2017, p. 22). Key elements of the insurance approach are that the NDIA will ‘actively manage down the total cost of disability over a participant’s lifetime by incentivising short-term investment in participants to reduce long-term costs’ (NDIA, 2017, p. 23).

However, it is not clear how the process of setting NDIS plan budgets, based on the outcomes of Independent Assessments, will support long term capacity building strategies. The Independent Assessment tools only consider a participant’s current functional capabilities; they don’t consider their goals or their potential for capacity building. This means there is little avenue to facilitate higher investment up front in long term strategies. It also reduces the ability for participants and service providers to be innovative with the way their support is delivered and to be adaptable.

While the NDIA states that the Independent Assessments will be used to develop a ‘draft budget’, there is little scope to alter the budget in the planning meeting (NDIA, 2020).

There is a high risk that the proposed Independent Assessments and planning policy will see a return to the classic welfare approach, where financial management is by capping and rationing services, resulting in unmet demand for services and high long term social and economic costs. There is no incentive for the NDIA to drive the market for innovative solutions today, which may cost more in the short term but save money in the long term.

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As the Productivity Commission noted:

“If the financial sustainability of the scheme is given priority over the other objectives of market development and participant outcomes, then the scheme’s objectives will not be achieved” (Productivity Commission, 2017, p. 305).

Independent Assessment tools not fit for purpose

The Independent Assessment tools are a one-size-fits-all approach and lacks personalisation, which was a key vision of the NDIS. There is a high risk of inaccurate assessments and participants falling through the gaps. This is particularly likely for people who don’t fit standard profiles such as those with less known or common disabilities, dual- diagnosis or disabilities with changing symptoms.

In addition, the assessment tools are designed for diagnostic purposes, not as a tool to benchmark funding decisions. Most of the evidence-based assessments proposed are used to identify areas where an intervention may be needed or to track the progress of a participant. They are a snapshot in time and provide information on current gaps. They do not include the participant’s history, reflect the current level of support and do not include any vision of what their life could look like.

In short, the tools were never intended for use to determine funding decisions and their misuse is highly likely to lead to inaccuracies in assessments and poor outcomes for many NDIS participants.

The Productivity Commission stated that ‘the NDIS should only use a tool to assess the needs of particular groups where its reliability and validity have been established for that group’ (Productivity Commission, 2011, p. 318).

The NOIA has not sufficiently demonstrated the reliability and validity of the assessment tools for all NDIS participants and as such the introduction of mandatory Independent Assessments should be deferred until they are able to do so.

Lack of transparency

The method of calculating the Personalised Plan Budgets is obscured and is not explained in any of the consultation papers issued by the NDIA. This lack of visibility prevents people from scrutinising the accuracy or suitability of the formulas or assumptions that underpin the decision-making to set their Personalised Plan Budgets. This is of particular concern when the NDIA has previously stated that the use of reference package data in the planning process is a key method to manage costs (NDIA, 2017, p. 19).

In addition, the adequacy of the Personalised Plan Budget to provide all the required reasonable and necessary supports will be obscured from the participant at the NDIA planning meeting. While we support flexible budgets in principle, due to the budget not

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being built from individualised supports, the adequacy of the funding will not be clear until some months after the planning meeting when the participant begins spending the funds.

The general lack of transparency is particularly concerning because there is an inherent conflict of interest between the NDIA’s obligation to provide reasonable and necessary supports to a participants, support market innovation and manage cost pressures. Our concern is that this conflict will inevitably lead to a short term focus on rationing to the detriment of the long-term outcomes using insurance principles, as was the original intention of the scheme (Productivity Commission, 2011).

The method of calculating plan budgets must be transparent and open to scrutiny by participants and their representatives.

Right to appeal

With no perfect set of assessment tools, the right to a review or appeal an Independent Assessment or plan is crucial. If an Independent Assessment gets it wrong and/or the plan budget is inadequate, the right to natural justice suggests that participants should be able to challenge the results. This is a view that is supported by David Tune, AO PSM, who states that key protections need to be embedded in the NDIS Act including:

“b. participants having the right to challenge the results of the functional capacity assessment, including the ability to undertake a second assessment or seek some form of arbitration if, for whatever reason, they are unsatisfied with the assessment…” (Tune, Review of the National Disability Insurance Scheme Act 2013, 2019, p. 66).

However, proposed changes significantly reduce the right of appeal or redress. New assessments and plan reviews are likely to be more difficult to achieve and the grounds to appeal to the Administrative Appeals Tribunal will be much narrower.

As the NOIA states, Independent Assessments won’t fall under the NDIA’s reviewable decisions because they are not the decision of the N DIA. The outcomes of Independent Assessments will not be directly reviewable by the AAT because they are not the decision of the NOIA (NDIS, Nov 2020). The outsourcing of Independent Assessment decision making disempowers participants from having any recourse if their reasonable and necessary needs are not being met.

Other potential avenues to challenge an inadequate support plan budget are likely to be ineffective. Complaints about the outcome of the process will not be covered by the Participant Service Guarantee and therefore won’t be able to be investigated by the Commonwealth Ombudsman. Plan reviews will be harder to come by, and if you do manage to get one, it is likely to lead nowhere as the NOIA will inevitably conclude that the plan is correct for the outcome of the Independent Assessment, which is again not reviewable (unless the participant can establish a significant change in circumstances).

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To summarise, the outsourcing of Independent Assessments significantly diminishes the abi Iity for a participant to cha I lenge the result under current Iegislative and rule settings.

It is critical that there are legislative protections for NDIS participants to have the ability to challenge assessments or plan budgets if they are not satisfied with the results.

Pros and cons of new planning process

PROS	CONS
Consistent & free: Free so no financial barriers, more consistent assessment & information for planning	Not fit for purpose: Inadequate tools & process, resulting in inaccurate and unfair outcomes. Focus on deficits, not goals. Not truly independent of NDIA.
Efficient & consistent: Use of big data to create participant budgets, quick & easy process; greater national consistency.	Lack of transparency: Generic ‘robo-plan’ budgets. No visibility of NDIA computations & decision-making process.
Simpler planning process: Budget is set, so focus is on how to best spend NDIS funds, & accessing natural & mainstream supports.	Non-negotiable: Reduced planner discretion to adjust for personalisation, not based on specific support items.
Flexible budgets: Participant choice on how to spend most funds. Easier to adjust supports and get small changes to plan budgets.	Hard to fix problems: Little ability to challenge plan budget if it is inadequate; general plan reviews harder to gain.

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Financial sustainability of the NDIS

Have NDIS costs increased?

Expenditure on the NDIS has increased, as would be expected. In the past, the Federal Government budget has benefited from the slower than expected rollout of the scheme and slower take up of services by people with disabilities as they struggled to navigate the complex system. Now that we are in full scheme, the Federal Government is set to spend for the first time the full $22 billion allocated in the budget for 2020-21. This includes additional COVID related funding including PPE for support workers and participants, additional support coordination, a 10 per cent loading to attendant care service types and funding for deep cleaning. It is not clear to what extent these extraordinary costs have contributed to cost increases over the past year as the NDIA has not released any data on this.

The latest NDIS Quarterly Report says “there have been high levels of inflation (well above wage increases) within the Scheme since its inception” (NDIA, 2020, p. 76). The comparison with average wage increases is misleading, as cost rises are largely driven by government agency decisions related to equitable wages and market development. The Productivity Commission (2017) was highly critical of the NDIA finding:

“The National Disability insurance Agency’s approach to setting price caps to date has hindered market development by discouraging the provision of some disability supports. In some cases, it has led to poor participant outcomes, especially for those with complex needs. The benefits of the National Disability insurance Scheme will not be fully realised if the Agency continues with its current pricing approach” (page 55).

The main cost increases relate to:

Mandated Fair Work Australia wage increases long overdue to address wage inequalities in the community sector.
NDIA initiated price increases recognising that their initial price setting would lead to market failure.
The Temporary Transformation Payment of 7.5 per cent introduced in July 2019 for attendant care services to assist the sector adapt to the requirements of the NDIS.

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References

Australian Government. (2021). Australian Government response to the Joint Standing Committee on the NDIS Final Report: Inquiry into NDIS Planning.

Bonyhady, P. B. (2021). An analysis of the ND/A’s approach to independent Assessments: a response to the NOIA consultation. Melbourne Disability Institute.

NDIA. (2017). NOIA Submission to Productivity Commission issues Paper on NDIS Costs.

NDIA. (2020). Consultation paper: Planning Policy for Personalised Budgets and Plan Flexibility.

NDIA. (2020). NDIS Quarterly Report to disability ministers: Q2 2020-21.

NDIS. (Nov 2020). Consultation paper: Access and Eligibility Policy with independent assessments.

Productivity Commission. (2011). Disability Care and Support.

Productivity Commission. (2017). NDIS Costs, Study Report.

Tune, D. (2019). Review of the National Disability insurance Scheme Act 2013.

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