Joint Standing Committee on the National Disability Insurance Scheme
The purpose of the National Disability Insurance Scheme (NDIS) is to provide reasonable and necessary funding to people with a permanent and significant disability so that they have choice and control over the supports and services they need to pursue life opportunities. The NDIS Act commits to the provision of reasonable and necessary funding, including early intervention supports, to all participants that meet the relevant criteria (NDIS Act, Section 3(1)(d)).
On 7 September 2020, the NDIA released a new NDIS Functional Capacity Assessment Framework with the stated aim to provide “the evidence base and principles to inform the introduction of best practice Independent Assessments”. As part of the implementation of this new Framework, in early 2021 independent assessments will be required as part of the access process, and from mid-2021 independent assessments will be required as part of the plan review process (i.e., mandatory). I agree providing IA to those who face barriers is worthwhile. However, I believe the process will lead to its own inequities such as expelling needy participants, greater amounts of appeals/reviews due to fundamental problems with the assessment and blow outs fiscally as more are required to do repeated assessments, greater use of clinicians from IA providers, larger number of appeals/reviews, greater use of outside legal advice, and participants with greater cognitive and monetary resources accessing appeals/reviews.
The NDIA states the introduction of Independent Assessments (IA) will improve equity and consistency in decision making. These have been areas of complaint from the NDIA which has led to increased official complaints, requests for review of decisions and appeals to the Administrative Appeals Tribunal (AAT). Further, the NDIA state that the introduction of IA are in line with the original scheme design recommendations from the Tune Review and from the original Productivity Commission report. Many submissions will indicate these statements are inaccurate. There were qualifications by Tune and the Productivity Commission.
My Recommendations:
- Independent assessments should be introduced as an option for prospective participants who do not have the financial resources to obtain a functional capacity assessment. Prospective participants should be supported to obtain an assessment from a provider of their choice. The need for the assessment process to remain flexible and tailored to the individual’s needs is critical to the entire premise of the NDIS. To impose a standardised process onto something which cannot be standardized is at odds with the nature of disability and the overall scheme.
Submission 31 - Supplementary Submission
Joint Standing Committee on the NDIS – Page 2
The following points were raised regarding inconsistencies observed:
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Inconsistency in decision-making by NDIA delegates could be improved through greater training and awareness and by increased clarity and consistency with regards to the information required for access decisions or plan budget considerations.
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Participants who complete an independent assessment must be provided a full copy of the assessment report upon completion, not a summary.
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Participants must be able to review/appeal the outcome of an independent assessment outside of the narrow scope proposed.
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Participants must be able to review/appeal the decision of an NDIA delegate to grant an exemption from undergoing an independent assessment.
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Participants must continue to be able to provide clinical evidence of their choosing that will be considered in relation to their access request and/or plan budget considerations.
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Planning meetings must allow participants to raise the need for reasonable and necessary supports which may not have been identified by an independent assessment, evidenced by relevant clinical information.
A participant expressed deep concern about the implementation of this new Framework. They stated:
As a NDIS participant with a degenerative neurological condition, the implementation of this new framework is deeply concerning. Of particular concern is the negative impact this framework will have on myself, other participants and future participants. I have deep concerns that a one off assessment of limited time span will be unable to capture all functional deficits which has taken many clinical assessors working as a team many meetings to come to grips with. Additionally, many of my deficits are invisible requiring my ability to communicate. This is often a problem for me as I have memory deficits as well as communication problems, although being university trained I have a greater cognitive reserve and this is often mistaken as better functioning because I am using habitual strategies to overcome the problem. and require statements from me they exist
The following points were raised regarding implications:
Implications of Independent Assessments for NDIS planning, including decisions related to funding reasonable and necessary supports:
The proposed idea of determining a participant’s plan budget based upon the outcome of a mandatory independent assessment relies solely upon the notion that independent assessments will accurately capture the true extent of a participant’s reasonable and necessary support needs – a position strongly contested by advocates, academics, disability groups and participants/carers. Greater consistency in planning decisions can be achieved without removing a participant’s choice and control over organising the required evidence process. And it removes people with disabilities.
Submission 31 – Supplementary Submission
Joint Standing Committee on the NIDS —
The ability to discuss reasonable and necessary supports from planning discussions. The notion that base plan budgets rely solely on the outcomes of mandatory independent assessments in the majority of participants flies in the face of NDIS statements about increased consistency and fairness. It will produce further inequities. People with disabilities that impact more heavily on their ability to communicate or socially interact—for example—will probably struggle to verbalise and convey the real extent of their support needs in the rigid and timed assessment process proposed. Those who have informal supports will likely have different outcomes to those without supports creating inequities. Also, these barriers will apply to those making access requests meaning more are left outside of the NDIS without supports in States where many services have been substantially reduced. An outcome where people with disabilities will be unable to access supports.
The NDIA proposes that an independent assessment is the sole outcome or result on which a participant’s plan funding budget is decided. Thus, the NDIA will cease considering individual reasonable and necessary supports as required by the NDIA Act and has been determined to be a separate decision in the Federal Court of Australia (Mulligan vs National Disability Agency (2015) FCA544– 03 June 2015, paragraphs 32-34). Now, the NDIA proposes to determine the participant’s budget in accordance with their perceived functional capacity using what many consider to be scientifically invalid and inappropriate tools – deficits not a strengths model. Arriving at a monetary figure from an assessment that was not designed to produce a financial measurement of a person’s functional impairment is an inappropriate. A planning budget that considers perceived functional capacity to the exclusion of reasonable and necessary supports is not personalised.
A lack of information regarding how the NDIS will turn assessment scores into monetary amounts—which is deeply troubling. This approach will stop participants from accessing an individualized budget that reflects their unique set of circumstances both environmentally, physically and mentally. Despite claims that this will make the NDIS more ‘consistent and fair’, the introduction of standardized processes will fail to capture the individual needs of people with disability and will fundamentally alter the nature of the NIDS by moving toward generic support packages that are more like the aged care system and the abandoned block funding models of disability support. Block funding of disability supports was abandoned because of its inequity, inconsistencies and producing harms to disabled people. This move fundamentally erodes the individualized model originally envisaged for the NIDS and co-designed by participants.
The proposed refusal to consider pre-existing evidence pertaining to a participant’s support needs and incorporating this into their budget deliberations is also deeply troubling. The potential for additional evidence to mitigate the risks of inaccuracies from one-off, standardised assessments is clear, and yet the proposed use of independent assessments by the agency explicitly prohibits this.
Joint Standing Committee on the NDIS – Submission 31 - Supplementary Submission
The exclusion of participants from providing their own evidence also denies their right to choice and control in relation to their disability services. Participants must have the right to provide their own evidence.
e Of equal worry, the proposal for planning meetings no longer including conversations between planners and participants regarding reasonable and necessary supports needed by a person with disability. The budget will be pre-determined by the inherently problematic independent assessment, allowing changes only under specific circumstances—including where extensive or complex needs exist or additional high-cost supports are required. This removes the ability of individuals with disabilities to participate in decisions affecting them, as legally mandated by both the NDIS Act and Convention on Rights of Persons With Disabilities (CRPD). There’s significant risk some essential supports won’t appear within an independent assessment; yet those same persons would lack opportunity appealing said assessments during plan meeting discussions. Currently available options involve seeking internal review delegate decision plans which likely increases requests involving Administrative Appeals Tribunal appeals that advocacy sector is insufficiently funded handle effectively.
e Additionally, according to National Disability Insurance Scheme statements concerning independence assessing processes not considered official scheme determinations because contractors perform these tasks resulting removal such evaluations appeal procedures meaning applicants cannot request reviews over reviewed rulings nor ultimately challenge cases before administrative tribunals – deeply troubling given previously mentioned flaws inherent this system.
e I believe it vital people retain abilities raise discuss requirements pertaining support deemed appropriate despite potential absence identification through initial evaluation process Participants should provide supplementary clinical evidence supporting their demands delegates consider when formulating participant budgets Separate implementation planning meetings must continue benefiting all involved ensuring important collaborative dialogues between participants planners remain prioritized Only then can individualised schemes truly respect legal rights participation impacting choices A person right challenging outcomes stemming from separate examinations also enshrined policy reforms Denying basic entitlements signals agenda infringing rather protecting fundamental human dignity Australians living disability