Submission from Dr Gareth Beal

Dr Gareth Beal Proprietor, 3D Support ~ 30Support

To Whom It May Concern:

3D Support is a sole-trading disability supports provider in the NSW Central Coast area. I’ve worked in the sector since 2017, and currently serve as a member of the Central Coast Council’s Access and Inclusion Reference Group, which advises council on the design and implementation of its Disability Inclusion Action Plan.

While the proposed introduction of independent assessments won’t affect me personally in terms of my business, I’ve followed developments around this issue closely and have become convinced that it will adversely and unfairly affect many of my clients. Because I care about their welfare and the positive outcomes many of them have experienced since the introduction of the NDIS, I’m writing this submission to outline my concerns, and suggest some alternative actions that might address current issues around consistency of access and outcomes for NDIS participants, as well as the overall fairness and financial sustainability of the scheme. It’s my contention that the proposed introduction of independent assessments won’t achieve any of these aims – and will, in fact, have the opposite effect.

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

In its current form, as I understand it, the NDIS is underpinned by the social model of disability, and the standard of fairness within the scheme is an ‘ordinary life.’’ The participant gets to decide what, for them, is that ordinary life, because of course it’s different for everyone. These decisions become their ‘goals’. Participants have choice and control in how they collect their own specialist medical assessments and other evidence, and with these they get to make their case for that life. The NDIA then tests this case against what’s defined as ‘reasonable and necessary’ in Section 34.1 of the National Disability Insurance Scheme Act 2013, and thereby determines the funding needed for the participant to achieve their goals.

Minister for the NDIS, Stuart Robert, has stated on numerous occasions that the introduction of Independent Assessments will make the NDIS ‘simpler, faster, fairer and more flexible,’” and at other

• times has highlighted the need to make it more ‘financially sustainable’ as well.

As a service provider, I work with people with diverse, complex needs. The idea of a fast and simple assessment process is completely counter-intuitive. Conducting such an assessment without significant prior knowledge of the participant borders on the absurd. In this regard, I would draw the committee’s attention to a recent ruling by the Administrative Appeals Tribunal of Australia (AAT). Briefly, the applicant, Janet Ray, provided evidence of her reasonable need for NDIS funding, gathered from multiple health professionals over a period of years. The AAT weighed this against the NDIA’s Independent Assessment of her functional capacity (conducted by an occupational therapist over a period of 3 hours). ‘The tribunal said it did not have confidence that the independent assessor’s opinions “were based on an accurate understanding of Ms Ray’s background, past achievements and her current state of mental health.”’

Mr Robert has identified inconsistencies in funding between participants in different socioeconomic circumstances, and I applaud him for wanting to address this. As he has said, ‘some Australians cannot afford the same access to professionals as others.’ The introduction of independent assessments might well address these inconsistencies, but it won’t make the scheme fairer. Quite the opposite. The standard of fairness is, again, an ‘ordinary life.’ For Janet Ray, the opportunity for that life would have been denied her without the intervention of the AAT.

If that’s the kind of outcome Independent Assessments consistently achieve, their introduction will only reinforce the already unfair divide between people with and without disability.

It’s unclear to me how Independent Assessments can be defined as more flexible, given they’ll be mandatory. What’s being abandoned here are the ideals of choice and control, and the participant having a genuine voice in the process.

Finally, as an insurance scheme, surely ‘financial sustainability’ already sits at the heart of the NDIS? In the agency’s own words: ‘the NDIS takes a lifetime approach (i.e. seeks to minimise support costs over a participant’s lifetime) by investing in people early to build their capacity to help them pursue their goals and aspirations resulting in greater outcomes later in life.’

If independent assessments really will achieve outcomes consistent with Ms Ray’s experience, their introduction won’t lift less fortunate participants up to the same level of reasonable, necessary supports, but will simply drag others down. And won’t this result in greater costs to taxpayers in the long term? Doesn’t it undermine the scheme altogether?

On a personal note, I currently work with a boy, aged 7, who I believe has the capacity to live an ordinary, adult life without any NDIS supports at all. His plan is grossly underfunded, and if he’s even

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

In an address to parliament on 26 October last year, the Member for Higgins, Dr Katrina Allen, made the following remarks in support of independent assessments: ‘Assessing a person’s function has always been part of the NDIS planning process. However, current arrangements heavily burden the participants’ doctors, can be complex, costly and, most importantly, inconsistent. As a medical practitioner, I understand the complex nature of the doctor-patient relationship. Sympathy bias is a real thing. As a doctor you always strive to get the outcome for your patient.’

Quite aside from the key points that funding decisions are made by the NDIA, not doctors, and that the ceiling in terms of participant outcomes can only ever be an ‘ordinary life,’ it seems likely that doctors wouldn’t have an eye on the federal budget when making their recommendations. Their only allegiance is to their patient, and this might well result in some degree of bias, though it’s hard to see how this would result in them misrepresenting any evidence-based diagnostic assessment.

Against this, an independent assessor’s biases could result from any number of factors, relating to a lack of time, background knowledge/context, the standardisation (homogeneous framing) of information gathering, and a wholly singular viewpoint, against which no other voices are contrasted and compared. Given all these other risks, it isn’t necessary, perhaps, to also question their loyalties as contractors in the employ of the NDIA.

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

determine plan funding

As far as I am aware, there isn’t a great deal of available information about the selected assessment tools. Anecdotal accounts are quite alarming, however. For example, Jack Rogerson was among 4000 participants who took part in the NDIA’s Independent Assessment pilot. His mother, Nicole, is the CEO of Autism Awareness Australia:

He was asked to take the rubbish out, so she could see how he functions around the house. It
was just such a pointless and demeaning exercise. Jack’s never had a physical disability, and the
  fact that he can take the rubbish out doesn’t really reflect his ability to live independently [...]
He was also asked if he can use public transport. He said that he can get anywhere. But the

any other related matters

I’ve only addressed certain terms of reference above, because I understand that the inquiry prefers succinct responses and the responses I have provided are, I think, far ranging in their scope.

I also understand that the inquiry appreciates it when respondents ‘outline not only what the issues are but how problems can be addressed.’ I shall attempt to do that here.

Clearly, I’m of the view that independent assessments are a deeply flawed, unsalvageable idea, and shouldn’t be introduced at all. Instead, I’d like to suggest alternative ways to address the issues of fairness and financial sustainability in the NDIS:

• To address funding inconsistencies, when applying for NDIS funding, would-be participants could be supported to access specialist assessments through Medicare and/or an expansion of the Better Access Initiative;

• Avoid returning to the medical model of disability. A person with ASD is a person with ASD; that isn’t going to change. But their capacity to live an ordinary life, to reach a point of independence from NDIS funding, is potentially achievable;

• The NDIA could tackle gouging in the current system, especially around assistive technology sold through NDIS-registered providers. Why, for example, can a provider charge a 200% markup on a talking induction hotplate, when the same model can be bought for a third of the price (with shipping) direct from the manufacturer?

• Giving all participants some access to support coordination in their first couple of years would help align funding to outcomes, so long as the coordinators are required to report on their own progress, and can pass a basic knowledge test (e.g., an understanding of Section 34.1 of the NDIS Act, which is essential, as well as strong researching skills and/or knowledge of local services and supports);

• Section 34.1 provides a clear, all-encompassing definition of what constitutes ’reasonable and

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necessary.’ It’s an excellent piece of legislation which itself raises a reasonable, necessarily high bar for access to supports. Section 34.2 undermines this, creating the potential for a lack of clarity, as well as the potential for inconsistency and unfairness, around funding decisions. It should be removed.

For example, under S34.2 ‘everyday objects’ become an exception to what is ‘reasonable and necessary’, as defined by S34.1. But surely ‘everyday’ is a highly subjective, variable term? I’ve worked with a number of families who couldn’t afford internet access or mobile phones, whereas these tools are relatively inexpensive ways to support people with disability; in some cases, this would result in other, much costlier supports becoming unnecessary. S34.1(e) and (f) provide a safeguard against people using such support in bad faith, but if the outcomes for participants in lower socioeconomic circumstances are a genuine concern of this inquiry, then surely S34.1 needs to be the only measure of ‘reasonable and necessary,’ without arbitrary exceptions being placed on the integrity of that framework.

Similarly, sexual health is an important physical and psychological component of an ordinary life. In May of last year, the Federal Court of Australia ruled that an NDIS participant’s request for sex therapy was ‘reasonable and necessary’ as defined in S34.1. ‘At great emotional cost, the case had been fought by a woman in her 40s, known as “WRMF”, who has multiple sclerosis “and a range of other related serious medical conditions.” Three judges of the court found the woman’s disability had developed in such a way that “the prospect for her of sexual release of any kind without assistance is highly unlikely”. She had been single for the 17 years since her diagnosis and was unable even to masturbate.’9

In an interview with 2GB in February of this year, Mr Robert stated that ‘the Commonwealth will now make a principled decision because we don’t believe that taxpayer’s funds should be used for prostitution services.’10 Assuming the government can’t simply violate court rulings, it’s reasonable to assume that this signals an intent to revise or remove S34.1, which contains the only relevant principles around which funding decisions should be made. Can there be a more blatant example of how bias – in this case, both confirmation and false-consensus bias – serves to undermine the consistent and fair implementation of the current system? If the minister’s personal beliefs are allowed to override the equitable rule of law, why should any participant be expected to have confidence in the NDIS?

Thank you for taking the time to read this submission.

Sincerely,