7.1
This chapter provides a snapshot of some of the other key concerns raised in evidence concerning independent assessments. The chapter is not intended to provide a comprehensive overview of these 'other' issues; rather, it focuses on those that may be of most interest to the Government as it considers the path forward. These issues included:
Review rights and oversight;
Designing an appropriate model for Aboriginal and Torres Strait Islander peoples in remote communities;
Assessments in remote areas;
Concerns that independent assessments could delay NDIS access; and
Review rights and oversight
7.2
The overwhelming majority of submitters and witnesses considered that independent assessments should be subject to review and appeal. As noted in Chapter 2, the NDIA had stated in its consultation paper report that there would be no change to the review process, and that 'disagreeing with the results of an otherwise sound and robust independent assessment won't mean you get another assessment'.
7.3
Despite assurances that decisions made on the basis of an independent assessment would remain subject to review, this was seen as inadequate to ensure appropriate oversight of the assessment process. The Melbourne Disability Institute considered this approach to be a deliberate legal manoeuvre designed to avoid proper scrutiny and natural justice. Meanwhile, Mr Matt Dunn, representing the Queensland Law Society, queried why the assessment would not be seen as an ‘administrative decision’, and explained:
If we think about the independent assessment as being not something that is a decision of an administrative character, it means that it's perfectly legitimate for that assessment to include irrelevant considerations and to not take account of relevant considerations. That means that any subsequent decision in terms of a plan is itself based on flawed material, in which case any [Administrative Appeals Tribunal] review or internal review of the NDIA will be based on the sufficiency or not of the independent assessment. In effect, you'll end up with the default process of reviewing independent assessments anyway but fighting about that through the lens of a review of an NDIA decision, which will be particularly problematic for impecunious and disadvantaged people, people from non-English speaking backgrounds, people who are not sophisticated and people who can't necessarily obtain legal assistance. If you want to be able to get to the root cause, the better thing is to have a discussion about the independent assessment at the beginning rather than that being one of a multiplicity of issues and potential failures of an NDIA decision.
7.4
Associate Professor Kylie Burns representing the Law Futures Centre and Hopkins Centre, Griffith University, supported this view:
Our view would be that there needs to be a mechanism to review the assessment itself. Otherwise, you end up with a whole lot of time spent producing a potentially invalid plan, and you also then create a great deal of burden and distress for people to have to review their whole plan… Certainly, in accident compensation schemes, it wouldn't be unusual to have some form of internal review of medical assessments done. We would see that as a necessity. If you were to go down this road, there ought to be some ability to review the assessments themselves.
7.5
Queensland Advocacy Incorporated emphasised that review and appeal rights are fundamental to affording procedural fairness to NDIS participants, and that denying procedural fairness impacts on the rights of persons with disability to have choice and control over decisions that impact their lives:
The concealment of information and shrouding of decision-making outlined in changes being proposed by the NDIA raises fundamental questions of procedural fairness. To deny the appeal rights of people with disability is to silence them from decision-making regarding their every-day lives. It removes essential checks and balances and does little to quell rising concern within the disability sector that the introduction of independent assessments has ulterior motives. That is, that they provide a mechanism for the agency to reduce costs as opposed to the outwardly benevolent intentions of removing financial barriers for participants and improving consistency in decision-making.
7.6
Autism Awareness Australia argued that removing avenues for appeal would increase stress for participants and their families and ‘sets up a power imbalance during the one-off assessment’. Other submitters highlighted that an effective review and appeals process would improve trust in the assessment model, and provide oversight and insight into the scheme along with suggestions for improvement. For example, the Brotherhood of St Laurence submitted:
Denying the right to review and appeal IA decision risks compromis[ing] the quality (rigour, accuracy, effectiveness) of the assessors, the assessments and related tools and processes as they are not subject to critical scrutiny by people with disability and their carers. It also removes the opportunity for policy and practice reform based on learning from frontline practice.
7.7
Possability and the Melbourne Disability Institute highlighted the importance of review rights in light of concerns about the validity of the assessment tools. Maurice Blackburn Lawyers explained 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.
7.8
In addition to ensuring that assessments could be reviewed and appealed, the committee also heard that the decision of whether or not to exempt someone from being required to undergo an assessment needed to be subject to review.
7.9
The Queensland Government highlighted the importance of providing transparent information to people who participate in independent assessments to provide support to engage in reviews:
[I]n addition to summarising the results of the assessment, the summary should include information about: how the assessor selected the tools used; how these tools are appropriate for the person’s disability and circumstances; what additional information was gathered; and how this additional information was considered in the assessment outcome. People should also be entitled to receive a full copy of the assessment report. Providing this additional information would greatly increase the transparency of the assessment process, and would enable participants to have confidence the assessment was tailored to their needs.
7.10
The Hopkins Centre and Law Future Centre also argued that independent assessments would make reviews of funding decisions more difficult:
The introduction of plan budgets based on IAs without further information about what supports are notionally included in that budget will impede a participant's ability to have proper reviews conducted by the Administrative Appeals Tribunal.
…IAs will mean that participants will not be fully informed of the reasons behind the funding decision and therefore will have limited evidence on which to base an appeal. Outsourcing the assessment suggests efficiency and financial objectives are an end goal.
7.11
Mx Roen Meijers, representing the Coalition of Disability Advocacy Organisations, also emphasised that basing funding decisions on independent assessments would make review processes more difficult for most people with disabilities:
With the proposed reforms using an independent assessment to produce a flexible dollar figure, it becomes incredibly difficult or almost impossible for any person, let alone a person with a cognitive impairment or perhaps low-level, informal support or low access to formal support, to argue that that dollar figure cannot meet their needs. Even though, in the context of their life, it may well be obvious, the context of their life to date for the agency has not been considered adequate evidence to override a generated dollar figure, and we see no evidence that that will change under this process either.
7.12
The Melbourne Disability Institute also took this position, noting that the process for taking a matter through the Administrative Appeals Tribunal (AAT) for review is already particularly difficult:
Taking an issue to the AAT requires enormous time and financial resources to obtain the necessary reports, as well as emotional and physical capacity to navigate and persist with the process while under considerable pressure. Under IA this path will still be open, but it will be a source of great inequity as it is a course of action realistically only available to those who have significant advantages.
7.13
Occupational Therapy Australia (OTA) argued that there was a need for clinical oversight of independent assessments, given 'possibly clinically flawed' independent assessments:
Accordingly, OTA calls for the establishment of a permanent Committee of Clinical Oversight, genuinely independent of government and comprising representatives of the six allied health professions whose members are allowed to conduct IAs, and representatives of disability consumer groups. Consideration should be given to the Committee being chaired by the Commonwealth Chief Allied Health Officer…
Given the potential for IAs to do real harm, it is imperative the Federal Government commit to such a safety mechanism.
7.14
The committee further heard that the impact on people and families with children with rare and degenerative conditions reduces their capacity to advocate for themselves. Submitters were therefore concerned about the ability of people with rare and degenerative disabilities and their families to request reviews of decisions based on flawed assessments.
7.15
On top of existing difficulties in the internal and external review processes, advocacy groups, such as the Rights Information & Advocacy Centre and Queensland Advocacy Incorporated, raised concerns that the proposed model of independent assessments would stretch existing limited resources to provide advocacy support to submit reviews and appeal to the AAT.
7.16
While arguing that the ability to seek review of a decision remained in relation to decisions made by the NDIA, Mr Martin Hoffman, the CEO of the NDIA, confirmed at the committee’s public hearing in Geelong that the assessments themselves would not be reviewable:
What is always reviewable and appealable is a decision. The independent assessment itself is not a decision; it is information, it is an assessment, it is data that goes into making a decision. That decision is reviewable, is appealable, always was and remains so.
7.17
Mr Hoffman, however, noted that the NDIA had considered feedback in relation to these concerns, acknowledging that:
…we think there are improvements that can be made to the review or checking or input to the independent assessment to ensure that it is accurate and good decisions can be [made] from it.
7.18
In answers to questions provided to the committee on 2 August 2021, the Minister for the NDIS, the Hon Linda Reynolds CSC, stated that the 'NDIA is committed to maintaining the highest ethical standards in the conduct of any quality assurance, research and evaluation projects involving participants', with a particular focus on 'being sensitive to the welfare and interests of people involved'. She further outlined that 'the NDIA has established a range of policies and procedures to ensure compliance with, and maintenance of, ethical standards as prescribed by National Health and Medical Research Council guidelines'.
Designing an appropriate model for Aboriginal and Torres Strait Islanders in remote communities
7.19
The role of trusting relationships and cultural safety for assessments conducted for Aboriginal and Torres Strait Islander people with a disability was emphasised as being crucial for the effectiveness of any proposed assessment model. For example, the Victorian Aboriginal Community Controlled Health Organisation explained:
Cultural safety is about providing quality service that fits within the cultural values and norms of the person accessing the service that may differ from your own and/or the dominant culture and provides the basis for the development of trust…Without that trust, the assessor will not be able to make a full assessment and assist in connecting the individual with the services that will best support them. The potential participant may also disengage for fear that the information shared could be used against them or their family.
7.20
Instead of adopting the proposed approach to independent assessments for Aboriginal and Torres Strait Islander people with a disability, the committee heard that any model for assessments should leverage Aboriginal Controlled Community Organisations (ACCOs) and Aboriginal Controlled Community Health Organisations (ACCHOs) to engage with current and prospective NDIS participants. The committee heard that people conducting functional assessments could be embedded within ACCHOs, and if this is not possible, at least have close links with the organisations to ensure cultural safety and trust. As explained by the Victorian Aboriginal Community Controlled Health Organisation:
This would directly benefit Aboriginal participants because ACCOs are culturally safe environments where Aboriginal people already receive services. ACCOs are trusted by their Communities to provide wrap-around health and wellbeing services to Aboriginal people—upholding cultural safety and cultural practice through service delivery… Independent Assessor placement with ACCOs would enable sharing of information and more awareness of the service offering for Aboriginal people visiting the ACCO, consequently reducing fear. Currently, Aboriginal participants do not have a choice whether to access the Scheme and get an assessment through a culturally safe avenue. Enabling Independent Assessors to co-locate with ACCOs would provide greater choice and control for culturally safe services.
7.21
The committee also heard that such a model has already been piloted in relation to NDIS access and planning pathways for Aboriginal and Torres Strait Islander peoples in South East Queensland, with promising outcomes.
7.22
More broadly, submitters called for increased funding aimed at improving access to the NDIS for Aboriginal and Torres Strait Islander people with a disability:
It is well known that significant long-term investment in improving access to the Scheme is required. The NDIA need to commit to funding that goes above and beyond Remote Community Connectors (RCC) or the Evidence, Access, and Coordination of Planning (EACP) program. These initiatives have been helpful in assisting potential participants and their families navigate the complex framework of the NDIS. However additional, targeted long-term investment in holistic, community-led approaches will achieve better uptake and outcomes.
7.23
Some submitters could see potential benefits in providing access to free functional assessments to Aboriginal and Torres Strait Islander people with disability if implemented differently from the proposed independent assessment model. The committee heard that providing this access may be especially useful to allow for transparency and equity in the NDIS application process.
7.24
In the post-consultation reports for its access and eligibility policy and planning policy for personalised budgets and plan flexibility, the NDIA stated that it intended to:
Undertake further targeted consultation on specific topics, such as how to best deliver independent assessments in rural and remote, culturally and linguistically diverse and Aboriginal and Torres Strait Islander communities.
Assessments in remote areas
7.25
Some submitters also raised concerns about the appropriateness of proposed technological solutions for conducting assessments remotely in rural and remote areas. The committee heard that telehealth was likely to be inappropriate to adequately assess a person’s functional capacity in a range of cohorts—for example, for people in remote Aboriginal and Torres Strait Islander communities, people with psychosocial or intellectual disabilities and people with disabilities affecting their hearing or vision. The Western Australian Government's Department of Communities noted that, in general, it should not be expected that all current or prospective participants have access to good internet connections or laptops/tablets:
Any assumptions about the role of technology to facilitate independent assessments must take into account variability in digital literacy and inequities in access to equipment and services. Using video conferencing or telephone calls may be inappropriate for certain individuals, but in particular for Aboriginal or Torres Strait Islander peoples.
7.26
Additional concerns in relation to the proposed model for independent assessments in remote Aboriginal and Torres Strait Islander communities included:
Proposals around use of technology for remote locations are likely to be inappropriate, inadequate or inaccessible in many remote Aboriginal and Torres Strait Islander communities.
People in remote communities may also live mobile lifestyles, which can mean that someone who has travelled to a remote area to conduct an assessment may have issues finding a person in their home community.
Submitters also noted that the high turnover of healthcare staff in rural and remote areas means that information about a person’s health and disability history can be spread across different databases, and also means that it is harder to find health professionals who know the person well enough to write reports required for NDIS access and planning.
7.27
As noted above, the NDIA in its post-consultation reports for its access and eligibility policy and planning policy for personalised budgets and plan flexibility stated that it planned to undertake 'further targeted consultation on specific topics, such as how to best deliver independent assessments in rural and remote…communities'.
Thin markets
7.28
Noting that the assessor workforce would primarily be allied health practitioners, many submitters also highlighted that thin markets for allied health are already problematic, especially in rural areas, and submitters were concerned that using allied health practitioners as independent assessors would place stress on these already thin markets. For example, the Northern Territory Office of the Public Guardian noted:
Allied health professionals have been identified within the group of professionals to be appointed as independent assessors. This cohort of professionals is already limited in the Northern Territory and within the NDIS. There is a real risk that the use of allied health professionals with the necessary disability experience to competently undertake independent assessments will create further scarcity in the NDIS market place of these professionals and particularly those with disability expertise…
The existing scarcity of allied health professionals with disability experience and expertise and the possible exacerbation of this scarcity will disadvantage participants in the Northern Territory, either by extended wait times for independent assessments, suboptimal independent assessments or the inability of necessary funded allied health support being delivered to participants.
7.29
Workforce concerns and the issue of thin markets were not confined to rural and remote areas, with many submitters noting existing long wait lists for allied health services across the country. For example, Deafblind West Australians reported:
Throughout Australia there are insufficient skilled, trained and experienced service providers to meet the needs of Australians with deafblindness.
No work has been undertaken by the NDIA to address the need for workforce development to upskill staff to ensure the level of quality of services required to meet the needs of people with complex disabilities such as those with deafblindness.
7.30
Many submitters also emphasised the need for the NDIA to do more to build the NDIS workforce overall.
7.31
The NDIA expected that approximately 500 to 600 assessors would be required to meet the predicted volume of a full national rollout of independent assessments. In response to a question about the impact on the allied health workforce in rural, regional and remote areas, the NDIA stated:
As each rural, regional and remote location has its own distinctive requirements there is no single approach to providing assessors in these communities. With consideration for the low volumes, geographical spread and differing servicing models (local allied health professionals, neighbouring communities, virtual health and visits to remote locations) offered by IA Panel Suppliers, it is unlikely that the implementation of IAs will have material impact or opportunity cost on other allied health services in these areas. The NDIA will continue to consult with IA Panel Suppliers to manage any impact of IA’s on allied health services that might be experienced.
Concerns that independent assessments could delay NDIS access
7.32
Independent assessments as proposed were seen to be particularly inappropriate for people with particular disability types where the need for timely and accurate decision-making about a person’s functional capacity and needs was heightened. In relation to degenerative disabilities, the committee further heard that the risks of delaying access to the NDIS were especially serious, as progression of such conditions is not fixed and can quickly lead to dramatically reduced functional capacity. For example, the Muscular Dystrophy Foundation explained that:
The assessments are not suitable for people with progressive conditions. Under the insurance model, if the Participant has an NDIS plan early, based their diagnosis, prophylactic treatments such as stretching and hydrotherapy will contribute to muscle health and mitigate the need for more funding later.
7.33
Concerns about delays in access were also flagged in the NDIA's consultation on its proposed access and eligibility policy. The NDIA did not explicitly address these concerns in its post-consultation report.
Funding flexibility
7.34
The rollout of independent assessments was also linked to plans to introduce greater flexibility of plan funding. Every Australian Counts expressed concerns about the NDIA releasing funding in smaller amounts, rather than in annual budgets. It argued that NDIA consultation 'papers do not provide any indication of why a change from annual budgets to monthly or quarterly budgets is necessary'. Further, Every Australian Counts questioned 'what problem the NDIA are intending to solve' by introducing monthly or quarterly budgets.
7.35
The Queensland Government called for care to be taken in allocating flexible funding amounts to participants who may need 'support to make appropriate choices in deciding which supports should be fixed and which supports should be paid for with their flexible budget'. The Queensland Government flagged 'the risk that, for some vulnerable participants, flexible budgets may result in choices with negative long-term impacts being made'. It further expressed the concern that the flexible budget model would create 'the risk of participants inappropriately relying on hospital and health services to provide their disability-related health supports, in order to utilise their NDIS funding to cover underfunding in other areas'.
7.36
In answers to questions on 2 August 2021, the Minister stated that the 'approach to plan budgeting, as described in the Personalised Budgets technical paper, will not proceed' and legislative changes would not include this proposed approach.
Other issues
7.37
Among the myriad of other issues raised in evidence that deserve further attention, submitters and witnesses also pointed to:
The independence of assessors, with concerns that assessors would work in the NDIA's interests;
Concerns that if opinions about a participant's functional capacity varied between professionals assessors, this would likely 'erode confidence in the agency';
The worry that 'independent assessors may develop compassion fatigue from hearing so many accounts' that 'they may just see current and future prospective participants as…"just another number"';
The fact that independent assessments would not provide cost savings for many people with rare and degenerative conditions, and some people with disability in general, as they would still require assessments carried out by their treating health professionals as part of their plan preparation to request funding and determine their needs;
Concerns that any approach based on uniformity or consistency risks overlooking the diversity of people with disability and their individual circumstances; and
The role of goals in the proposed reforms, which would not have been discussed until the final stages of the planning process when the participant met with an NDIA delegate.
7.38
This chapter has briefly canvassed some of the other issues raised in evidence to the inquiry. The committee's views on these issues are set out separately in Chapter 9. The following chapter outlines some of the preliminary next steps that the committee considered as part of its thinking on the way forward.