WELFARE
RIGHTS
25th January 2013 CENTRE INC Advice, advocacy and free legal services for people with Centrelink problems
Committee Secretary
Senate Standing Committee on Community Affairs,
PO Box 6100,
Parliament House,
Canberra, ACT, 2600
To the Committee Secretary,
Please find attached Welfare Rights Centre Queensland’s submission to the Senate Standing Committee on Community Affairs Inquiry into the National Disability Insurance Scheme Legislation 2012.
For over 25 years Welfare Rights Centre (Qld) has been providing advice, advocacy and free legal services to people having problems with social security system and disability discrimination. We do this through telephone advice services and also the provision of representation through the Centrelink appeals processes and disability discrimination conciliation conferences.
We believe people have a right to participate socially and economically in the community as they are able. In order to achieve this, Australia should have welfare systems based upon fairness, which recognise and accommodate diversity, are transparent, and facilitate the contribution of those with barriers to participation.
This submission is focussed on sections within and omitted from the draft legislation that relate to the creation of an accessible, fair and transparent review process for people accessing the proposed NDIS. Our remarks are often expressed in the context of our experience with relevant social security and related acts.
Also included in this submission are comments on current processes within the Centrelink appeals system. Our experience shows there are valuable lessons to be taken from this system and considered in the creation of the NDIS.
Yours Sincerely,
Georgina Warrington
Director
PO Box 293, Fortitude Valley Qld 4006
Phone: 07 3421 2510 Freecall: 1800 358 511 Fax: 07 3421 2500
Email: wrcqld@wrcqld.org.au Website: www.wrcqld.org.au WelfareRightsCentreisacharitableorganisation. Donationsover$2areTaxDeductible.
Comments on the Draft Legislation
Administrative Appeals Tribunal – only independent stage of appeals process
There is no equivalent to the Social Security Appeals Tribunal (SSAT) included in the draft legislation, with individuals who are unhappy with their initial internal review required to appeal to the Administrative Appeals Tribunal (AAT). Within the Centrelink appeals system the SSAT provides an informal, quick and independent appeal stage for individuals to access. It can also provide people with the opportunity to realise that they require more evidence and/or advice before proceeding to the more formal, legalistic and costly Administrative Appeals Tribunal. Many individuals take their appeals to the SSAT stage as it is an independent entity in which they have more confidence in than internal Centrelink processes.
The Administrative Appeals Tribunal also requires that applications for appeal be in writing and an individual only has 28 days from the date the decision is received to lodge the appeal.
The Centre predicts that the AAT will be heavily utilised by individuals unhappy with decisions within NDIS as it will be the first independent level of appeal. Administrative Appeals Tribunal timeframes can be lengthy which is of concern to WRC as the issues to be appealed within NDIS should be viewed as time-critical for instance, access to personal support services. As it is going to be utilised by an entirely new system, it is likely that these timeframes will be further challenged by an increased workload, unless there is an injection of significant funding in anticipation of increased demand.
Notice to Require Decision Makers to Provide Reasons for Decisions
There is no section in the draft legislation that requires decision makers to provide reasons on a review of a decision. Welfare Rights Centre believes that explanations of decisions are crucial for people to be able to fully understand the reality of their situations. Without explanations for the decision, individuals can incorrectly believe that there is no hope of changing their situation; alternatively they can waste their time and public resources on an appeal that has no prospects. The provision of reasons also allows advocates assisting the individual to reasonably assess the merits of the case and provide advice.
Section 138 of the Social Security (Administration) Act 1999 states:
(b) a statement about the decision-maker’s decision that:
(i) sets out the reasons for the decision; and
(ii) sets out the findings by the decision-maker on material questions of fact; and
(iii) refers to the evidence or other material on which those findings were based; and
It is the Centre’s opinion that a section of this nature should be included in the NDIS legislation.
Section 99 – Reviewable Decisions
Currently this section outlines the specific instances where a decision is reviewable. By approaching reviews this way, the legislation is narrowly drawn and is in danger of omitting important areas of decision making that people should have the right to appeal. For example, in the current draft there is no provision to appeal debt recovery (s190 – 195). Also omitted from the list, and as identified in only an initial review of the draft legislation (this is not an exhaustive list) are sections: 13, 26(3), 30, 40(4), 44(2) and 77. Several of these
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sections involve discretionary powers (such as special circumstances waiver) and it is inappropriate that a single officer has the power to make such a decision which is then not appealable.
WRC believes that this section should instead approach reviewable decisions in a similar manner to current social security arrangements. In Section 126 of the Social Security (Administration) Act 1999, it states that:
Review of decisions by Secretary
(1) The Secretary may review:
(a) subject to subsection (2), a decision of an officer under the social security law;
Within the NDIS Bill, Section 99 should be altered to read:
(1) The CEO may review:
(a) A decision of an officer under the NDIS Act and any subordinate legislation;
By allowing for all decisions to be reviewable, individuals are protected from instances of oversight where designers of the system were not able to predict all decisions that may require review. Exceptions can be outlined in this section, as they are in Section 127 of the Social Security (Administration) Act 1999. Framing the legislation in this manner also means that parliament is not required to amend the legislation every time an additional section is identified which should to be reviewable in the interests of fairness for an individual. It is more appropriate for any delays to be in adding exemptions to review powers than review rights.
Section 195 Waiver in Special Circumstances
Currently this section in the National Disability Insurance Scheme Bill Exposure Draft (2012) states:
The CEO may waive the right to recover a debt if:
- (a) the debt did not arise in whole or part as a result of: (i) a contravention of this Act, the regulations or the National Disability Insurance Scheme rules; or
(ii) a false or misleading statement or a misrepresentation; and
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(b) there are special circumstances (other than financial hardship or the disability of the debtor) that the CEO is satisfied make waiver appropriate; and
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(c) the CEO is satisfied that waiver is more appropriate than writing off the debt This section is of concern to the centre as it is significantly more restrictive than the social security equivalent. In the Social Security Act 1991, the section (S1237AAD) states:
“there are special circumstances (other than financial hardship alone) that make it desirable to waive”
The addition of the word ‘alone’ allows for financial hardship to be a cumulative part of the individual’s circumstances being considered, rather than an individual one.
Social security case law has clearly defined special circumstances to be those that are “unusual, uncommon or exceptional” in the circumstances of a social security recipient, thus the presence of a disability would not
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be a special circumstance, however catastrophic disability, or a disability that causes a debt to arise, such as one which features impaired decision making should be considered as a special circumstance.
It is the centre’s opinion that this section should be amended to include the word “alone” and remove reference to disability.
Section 101 - Variation of reviewable decision before review completed
Section 101 is ambiguous as to the capacity for decision makers to review a decision that has been lodged at a higher review level. Section 126(2) of the Social Security (Administration) Act 1999 is more explicit in its language and clearly allows for the previous decision maker to review the decision even after an appeal has been lodged at the higher stage. Where new evidence is available, this section allows the previous decision maker to reconsider and this can expedite the process and save the resources of the higher level of appeal. The absence of any such language in the draft legislation could currently be perceived to not permit this type of review. This section should be amended to clearly allow for such reviews.
Section 6 - Agency may provide support and assistance
There should also be easy access to independent advice, advocacy and representation. Community Legal Centres providing these services should be funded adequately to not only provide services to individuals, but also to contribute to systemic advocacy and review of the new NDIS structures (as outlined in section 208 of the draft bill) to ensure the system is protecting people’s rights. If this is not going to be funded by the NDIA it must be funded by another Department within the Federal or State Governments. To not protect the rights of this vulnerable client group is unacceptable.
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Principles and Objectives of Appeals Processes
Welfare Rights believes there are a number of general principles that should underpin an appeals process. The process should be:
Accessible
Simple and informal at the lower levels Free
Fair Timely
It is worth exploring the role that underpinning principles play in policy and legal contexts. Whilst articulating principles within legislation does not strictly make them enforceable, it demonstrates a commitment to process and to the people directly affected by it. Principles and objectives can however assist to interpret any ambiguously worded legislative section as in this situation the interpretation most in accordance with the objectives of the act should be taken. It is essential that the NDIS appeals process reflects Australia’s commitment to adhere to the principles of the Convention of the Rights of Persons with Disabilities. The draft legislation gives effect to “certain obligations that Australia has as a party to the Convention on the Rights of Persons with Disabilities” and outlines a number of objectives which reflect the values within the Convention.
The current draft legislation does not outline principles or objectives of the appeals process within the NDIS system. Both the Social Security (Administration) Act 1999 and Administrative Appeals Tribunal Act 1975 outline objectives “of providing a mechanism of review that is fair, just, economical, informal and quick” within the appeals section of the acts (S 141 and 2A respectively). A similar articulation of objectives in the NDIS legislation would be a useful tool for advocates when negotiating for fair and timely appeals proceedings and this should be included.
It is important to note that it is not enough for the National Disability Insurance Agency (NDIA) to only provide Service Commitments within its policies and advertised in publications in lieu of articulating the standards within the legislation. Centrelink’s service commitments include: respect, easy access to services, quality information, fair and transparent services, genuine consultation and efficiency. From contact with over 1300 people per year, WRC is aware that these service commitments are often not upheld and yet are not appealable.
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Pros and Cons of the Current Centrelink Appeals System
Pros
o Multiple levels of appeal o Informal process to begin with that only becomes more formal and legally oriented in later stages o Free and accessible o Easy to make an application to appeal to most stages o Independent at the higher levels o Relatively quick o Does not require/mandate legal representation at any level
Cons
o Inadequate information provision – process are prolonged as system does not volunteer information to assist people to solve their issues o Forms used for assessments do not facilitate adequate information gathering
Centrelink Appeal Stages
There are a number of levels to the Social Security appeals process:
- Original Decision Maker
- Subject Matter Expert
- Authorised Review Officer
- Social Security Appeals Tribunal
- Administrative Appeals Tribunal
- Federal Court
- Original Decision Maker (ODM) – the Centrelink Officer, who made the initial decision, can reassess the decision and ask for more information with which to reconsider the decision from the Centrelink ‘customer’.
An ODM reconsideration can be requested verbally and the review is generally completed within a month.
This stage can be a pointless delay to obtaining a fair decision unless there is new information that can be provided. People can go straight to the Authorised Review Officer level of appeal and should do so where there is no new information to provide.
Howthisstage/processcouldbeimproved:
This stage could be more valuable if it played a greater role in explaining what sort of evidence is needed to succeed in the claim being appealed. At present it can leave ‘customers’ with no additional understanding of the original decision. The letter received to confirm the outcome of the review often provides very little additional information.
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In cases where the decision in question only requires a small amount of clarification, the ODM could and should seek this from Doctors or other professionals thereby reducing the need for further stages of appeal, rather than rely on information provision by the individual.
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Subject Matter Expert Review – a Centrelink worker with specialist knowledge in the area of appeal (e.g. debt matters, member of couple, DSP) reassess the application. This is only a recent addition to the appeals process. Welfare Rights Centre Qld believes that this stage has merit in theory, but we haven’t seen any cases in practice. Generally, if the Centre gets involved in an appeal, this stage is skipped. As a result we are not in a position at this time to give opinion as to whether it adds to the broader appeals process. It may only serve as another layer to negotiate and it is hoped that the person conducting the next phase of appeal should have the same level of expertise.
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Authorised Review Officer Review (ARO) – this is the final level of internal Centrelink review. Service Standards dictate that it be completed in 28 days, but often it can presently take significantly longer as caseloads are high. This leaves individuals in limbo for extended periods (for example, someone applying for Disability Support Pension must continue to look for work and fulfil participation requirements, or someone with a debt raised against them must continue to make repayments of the debt being appealed until the review is completed).
This level only requires an individual to request the review verbally, making it broadly accessible. The ARO is required to give written reasons for either upholding or reversing the decision.
This stage provides the advantage of having someone different, a more senior Centrelink worker, review the decision.
Approximately one third of all decisions appealed are overturned at this level.
Howthisstage/processcouldbeimproved:
This process should, but does not, advise the individual what further information and evidence is needed for a positive decision and give people opportunity to provide it.
In practice, the reasons for the decision given in notification of outcome letters are of widely varying standards. A Commonwealth Ombudsman Review made recommendations to Centrelink to improve these letters, e.g. by plainly explaining their reasoning, but in the Centre’s experience these don’t appear to have been actioned. Where the decision is against the ‘customer’ the absence of clear reasoning leaves the individual confused and uncertain as to whether they have any prospects at higher levels of appeal, this can cause or pointlessly prolong the anxiety related to the issue.
Individuals have to proceed to the next level of appeal to have access to the notes the AROs make in their investigation. These notes often provide the additional information that better explains the decision maker’s reasoning.
- Social Security Appeals Tribunal (SSAT) – this is a quick and informal independent tribunal. Centrelink are only represented by their papers/submissions, which means the process is less adversarial in nature. The individual appealing sits across a desk from the tribunal member who takes notes (not recorded). First names are often used and the tribunal is not worried about legal
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rules of evidence and can consider all types of information presented (e.g. anecdotal). The tribunal member can use their own experience and knowledge to inform their decision.
Inquisitorial-style questioning enables the tribunal member to attempt to find out as much as possible about the case so they are not solely reliant on the information provided. They can contact doctors or other relevant people if the client hasn’t presented all the appropriate evidence or they can give the client the exact issue to get further information on and provide to the tribunal at a later date.
Decisions are quick, written decisions are commonly received within 14 days after the hearing. The reasoning for the decision is usually well explained. It can be a little lengthy and legal for some clients. This is probably necessary and useful should they wish to seek further legal advice. Clients get sent a copy of all of the relevant paperwork from their Centrelink file to use to prepare for the appeal (although some things do get missed). This is much quicker than Freedom of Information requests which usually take around 28 days to obtain. The whole SSAT process usually takes three months, but this can vary according to the case.
People have 13 weeks to appeal decisions at all stages to the SSAT level if they still wish to qualify for any eligible payment to be back paid to the date of the original claim (this does not apply to debt matters). This is usually plenty of time for the client to come to terms with the decision and discuss it with others and decide if they want to appeal to the next stage. Appeals to the SSAT stage can be lodged over the phone. The allowance for non-written applications even at this external level makes it accessible to people with literacy or language issues.
Just fewer than 30% of ARO decisions appealed are overturned at this level of appeal.
Howthisstage/processcouldbeimproved:
As with the ARO level, there is often no explanation provided on what additional information may be required and the quality of written decisions varies widely.
There is also no requirement for Tribunal members to contact the individual’s doctor in cases where a medical condition is in question. There should be a policy requiring reasonable attempts to be made to contact treating doctors in these reviews. This currently occurs haphazardly and at the discretion of the Tribunal member.
- Administrative Appeals Tribunal (AAT) - Individuals have 28 days to appeal their SSAT decision from when they receive it. This is a tight timeline in complex and emotional cases. The AAT do grant extensions of time. Applications for appeal are required to be in writing. Centrelink are also able to appeal to the AAT a decision made in the SSAT.
Centrelink has advocates present at the tribunal hearing and although “informal”, it can be a bit like a court room and fairly intimidating. Centrelink will pay doctors and other professional witnesses to give evidence (almost always by phone) and this can take some pressure off the individual who is appealing as the tribunal members can ask the relevant questions directly. If the person is self represented the tribunal members are likely to make effort to ask all the relevant questions of the professional witnesses. It is a slower process than the SSAT and usually includes conferences to discuss the progress of the matter and encourage negotiation and limitation of the issues prior to the hearing. Often Centrelink will arrange further investigation and may make offers / partial offers to resolve the appeal in an effort to avoid the cost of preparing for the formal hearing.
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Approximately 30% of decisions appealed at this level are overturned.
Howthisstage/processcouldbeimproved:
As at the SSAT, there is no requirement for Tribunal members to contact the individual’s doctor in cases where a medical condition is in question. There should be a policy requiring reasonable attempts to be made to contact treating doctors in these reviews. This currently occurs haphazardly and at the discretion of the Tribunal member. The Health Professionals Advisory Unit within Centrelink is sometimes utilised to gather further information during this stage which allows for greater accuracy of information as in these circumstances medical professionals are consulting other medical professionals.
Currently there are no policies or guidelines as to how long the tribunal has to reach a decision. Decisions can take as little as a few weeks to a number of months. While the complexity of the case can impact on decision making, it is the Centre’s experience that the particular Tribunal member responsible also influences timeframes. There should be a policy detailing expectations for timeframes and where decisions are to be delayed, clear reasons should be provided to the individual.
- Federal Court – Individuals have 28 days to appeal and only on a question of law. This stage is rarely used as there is the risk of a costs order as a part of the outcome. Centrelink takes a model litigant approach (i.e. have to follow due process in a timely fashion) and pays for the individual to be represented if Centrelink were the ones who chose to appeal the AAT decision.
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Additional Centrelink Processes that Impact upon Appeals
A significant proportion of the work of Welfare Rights Centres across the country involves appeals about qualification for Disability Support Pension (DSP). The application and subsequent appeals processes have particular relevance to the NDIS, as assessments of the support needs of individuals will be at the heart of the system.
Outlined below are two elements of the DSP application process that contribute to both inaccurate assessments and challenges during the appeals process:
- Job Capacity Assessments (JCA) A Job Capacity Assessment is a comprehensive assessment of an individual’s level of functional impairment and work capacity, usually conducted to determine qualification for Disability Support Pension.
Issues:
JCAs can be conducted by a variety of allied health professionals. This may include occupational therapists, nurse, physiotherapists, psychologists, social workers etc. They may have relatively limited knowledge about the disability or condition they are assessing Assessors are only allocated a set period of time to conduct assessments and complete the paperwork. This may be insufficient in some cases. The reports which assessors are required to fill out limit their ability to make comprehensive notes (e.g. there is a limit on the number of characters/key strokes available to answer particular questions). This limits the report’s value to appeal against. Welfare Rights Centre has been told by Assessors that they have difficulty filling out the forms because of the constraints.
- Medical Reports The Medical Report is an eleven page report to be filled out by an individual’s doctor outlining the diagnosis, clinical features, treatment, compliance with treatment and impact of the individual’s medical conditions.
Issues:
These forms require doctors to fit complex conditions into tick boxes Only allow for notation on a couple of conditions Questions do not align well with medical understandings of conditions and terminology , e.g. the social security definition of words such as ‘stabilised’ and ‘fluctuating’ Doctors do not get any specific Medicare rebate for completing the forms and therefore can be reluctant to spend an adequate amount of time on filling them out properly
Medical Report forms do not ask doctors all the relevant questions necessary to adequately assess the work capacity and the level of disability of the individual. Furthermore the form is filled out by doctors without any information provided to explain the rules that govern eligibility for DSP. Information provision about eligibility requirements would enable doctors to better manage their patients’ expectations and to discuss further treatment possibilities.
These issues illustrate the need for a medical report that asks the level of support a person requires and whether these needs are likely to change. Reports which require doctors to fit their patients’ conditions into tick boxes and not account for health and circumstantial changes do not adequately reflect the nature of many disabilities.
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Conclusion
Welfare Rights Centre believes that in order to deliver a fair, accessible and transparent appeals system within the NDIS, the following considerations should be included in the final draft of the National Disability Insurance Scheme Bill and in the design of the broader system arrangements;
Decision-makers at all levels of appeal should be required to detail clear reasons for the decision reached
An additional level of appeal below the Administrative Appeals Tribunal that is independent and informal (similar to the Social Security Appeals Tribunal) should be added to the appeals process
Section 99 must be amended to allow all decisions to be reviewable, with exceptions outlined
Principles of the appeals system should be added to Part 6 – Review of Decisions of the NDIS Bill
The government must commit to fully fund the Administrative Appeals Tribunal to accommodate the increase in workload
Section 195 – Waiver in Special Circumstances of the NDIS Bill should be amended to recognise that some amongst the client group have impaired decision making capacity
Community Legal Centres must be funded to provide advocacy, advice and representation to people accessing NDIS. Funding must include allowance for the provision of systemic advocacy.
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