This chapter discusses the Committee’s findings in relation to the assessment and review process for the Disability Support Pension (DSP). It comprises the following sections:
Committee conclusions and recommendations
Impact of new processes since audit
21 days to provide medical evidence
Committee conclusions and recommendations
The Committee notes that the assessment and review processes audited by the Australian National Audit Office (ANAO) were found to be in keeping with legislation, policy and guidance.
The Committee, however, also notes that the ANAO found that improvements could be made to the efficiency and risk management of the Department of Human Services’ (DHS) processes as these stood at the time of the audit.
New assessment processes have now been introduced since the ANAO concluded its fieldwork in April 2015. Changes include the requirement to submit original medical records in place of using treating doctors’ reports, and the introduction of a new Disability Medical Assessment (DMA) stage after a Job Capacity Assessment has been completed.
Submitters to the Inquiry claimed that these new processes have not improved the efficiency or effectiveness of the program. The time to complete assessments and reviews has increased, and some submitters have claimed that the new processes may result in an increase in the number of appeals and percentage of changed decisions.
DHS has stated that the new processes ‘add an additional level of assurance to the Disability Support Pension (DSP) claim process.’ However, despite these new processes, the aggregate set aside rate of reviews and appeals in 2015–16 is 16.4 per cent—or that approximately one person in six who appeal an initial rejection is ultimately granted the DSP. Furthermore, two-thirds of reviews under the 2016–17 measure will not be subjected to one step—a DMA—in the review process.
The Committee concludes that the quality of communication with claimants and recipients under review could be improved. This is likely to improve the timeliness of conducting assessments and reviews and also the number of appeals. In particular, the Committee notes the evidence it received regarding a lack of clarity in outlining what information people should include in their claim or review response; program of support requirements; and clearer use of the terms ‘fully diagnosed, treated and stabilised’. In this regard, the Committee encourages DHS to consider the recommendations made by Victorian Legal Aid (VLA) regarding improving communication with claimants and recipients.
The Committee accords with the view that it should be a key principle of DSP administration to make the right decision as early as possible in the process. DHS gave evidence to the Committee that ‘it would be in the interests of the DSP customer, as well as, of course, the department and the broader cost-effective use of resources to try to get all the information that is relevant to the decision process as early as we can’.
The Committee agrees with submitters that there are likely to be efficiencies to be gained in the assessment process and that the rate of successful reviews and appeals could be reduced with improved communication. The Committee therefore recommends that an evaluation of these elements be conducted by the Departments.
The Committee recommends that the Department of Social Services and Department of Human Services undertake a transparent review, which should include independent expert input and stakeholder engagement, of the changes to the evidentiary process introduced to consider:
the impact on timeliness and efficacy of decision making in assessing new claims and recipients under review;
the consequences and trends for reviews and appeals; and
ways to improve communication.
The Committee considers that the current period of 21 days for clients under review to provide documents may be insufficient. The Committee is concerned to hear this timeframe has caused additional stress on vulnerable individuals and notes the further challenges a short timeframe places on people in regional areas in producing documentary evidence.
DHS has advised that being asked to provide ‘current and existing’ medical evidence does not require recipients to attend appointments or obtain reports from medical specialists at short notice. The Committee heard evidence that this view does not reflect the experience of those undergoing reviews and is not being clearly communicated to individuals (including via the information sheet provided to those undergoing reviews).
Given the stated requirement that the medical evidence be ‘current’, the Committee notes that many recipients would nonetheless require updated medical records, particularly for long-term conditions, which in turn would require a recent medical appointment and documentation.
It is also apparent from the DHS information sheet, and the experience of submitters, that the likelihood of extensions to the timeframe; the discretion applicable to the departmental definition of ‘current medical evidence’; and the possibility of obtaining DHS assistance in contacting medical professionals is not made explicit to those selected for review.
The Committee is concerned by the evidence it has received suggesting that recipients undergoing review, and their families and carers, suffer stress and financial hardship in complying with the 21-day timeframe to respond. DHS has advised that extensions to the 21-day timeframe are available and the Committee notes that 35 per cent of people under review requested extensions. DHS has advised that if people request and require an extension they will receive it—yet individuals report long wait periods on the telephone service to get what is in effect an automatic extension.
The Committee recommends that the Department of Human Services consider the merits of increasing the time given for clients under review to provide documents, noting the current period of 21 days has proven insufficient in many cases. Further to this, that the Department of Human Services consider the additional time constraints that people in regional areas may face in producing documentary evidence in a short timeframe.
The Committee notes the concerns raised by submitters with the Program of Support (POS) requirements: that requiring enrolment in POS for DSP eligibility may unnecessarily exclude valid claimants; and the definition of ‘severe’ disability which may exclude claimants whose impairments fall across multiple categories. The Committee considers there is merit in the Department of Social Services (DSS) and DHS undertaking a post-implementation review of the POS requirements.
The Committee recommends that the Department of Social Services and Department of Human Services undertake a post-implementation review of the Program of Support requirements for claimants.
The Committee received evidence suggesting that modifications to the List 1 of manifest conditions—those on which, by diagnosis alone, a person is eligible for the DSP—may need to be made, particularly in relation to chromosomal disorders such as Down syndrome. Currently, people with Down syndrome are on List 2 and, as such, are required to also establish their prognosis and/or level of care required to be granted manifest eligibility. Given that everyone who has Down syndrome will have some degree of permanent intellectual disability, the Committee considers that there is merit in DSS reviewing whether to reclassify Down syndrome onto List 1.
The Committee recommends that the Department of Social Services review the List 1 of conditions that provides eligibility for manifest grants of the Disability Support Pension. The Committee recommends particular attention is given to the merits of including chromosomal disorders, such as Down syndrome, on List 1.
Review of evidence
This section outlines the evidence received by the Committee during its inquiry, and includes the following themes:
Impact of new processes since audit
21 days to provide medical evidence
The ANAO audit did not make formal recommendations regarding the assessment and review processes discussed in this chapter, although it did suggest refinements, as will be noted.
Impact of new processes since audit
Since the ANAO audit, the process for collecting and assessing medical evidence has changed. This includes requesting raw medical data instead of a treating doctor’s report (TDR) and the introduction of an additional step—a DMA, conducted by a Government-contracted doctor.
Some submissions to this inquiry have been critical of the new processes for assessing eligibility for claims and continuing eligibility for reviews. Submitters suggested that the new processes are inefficient, create delays in processing and increase the rate of appeals. The Committee agrees with evidence that suggestions made by the ANAO (relating to the old process) could be usefully applied to the new processes. This includes policy guidance and training products for decision makers, and reviewing appeals to discover any lessons to be learnt.
The National Welfare Rights Network (NWRN) is concerned that the inclusion of the DMA and removal of the TDR has ‘undermined the quality of the DHS assessment process.’ It is worth noting that the ANAO found that under the previous processes, sufficient medical evidence was collected to support assessments in most cases. Further, the NWRN said ‘there are a lot of questions to be raised about whether there was a sound reason for abandoning the use of a standard form’.
DHS has advised that the change in processes was ‘made so that assessors had access to more comprehensive medical information’. In a media release, the Minister for Human Services, the Hon Alan Tudge MP, said it ‘adds additional rigour to the assessment process.’
Primary medical evidence
The use of a TDR as the core medical evidence has been discontinued for new claims. The TDR had 14 questions to elicit information relevant to assessing the claim against the legislative requirements for the DSP. Since 1 July 2015, applicants have been advised to provide existing medical records in support of their claim. In response to a question on notice, DHS advised that the ‘change was made so that assessors had access to more comprehensive medical information’.
The NWRN contend that this change has made it ‘more difficult for claimants and their doctors to understand what information to provide to support their DSP claim’. Furthermore, submitters and witnesses state that the treating doctor remains in the best position to comment on a person’s disability and capabilities. As such, many submitters advocate for the return of the TDR:
The persons treating Doctor has a thorough knowledge of the whole person. Often they have had the doctor patient relationship for many years. They are the ones who are best able to form an opinion on whether or not the person (their patient) with a disability is able to work 15 hours or more per week, in the open market and unsupported etc.
Burden on individuals
Submitters also raised concern that acquiring primary medical records can create an unreasonable burden on the claimant or recipient (if under review). This includes:
the untargeted request for privacy-protected medical information;
the difficulty individuals have in obtaining access to medical records; and
the additional cost of medical appointments and assessments to obtain medical records.
For recipients who are under review, there is the additional burden of being asked to provide the documents within 21 days. This is explored in detail later in this chapter.
The Productivity Commission says good policy should be mindful of the compliance burden it imposes. The burden on individuals should be proportionate to the problem and avoid unnecessary costs.
A Regulatory Impact Statement was developed for this measure, which is supposed to consider the compliance burden, but has not been made available to the Committee.
New Disability Medical Assessment
The Job Capacity Assessment (JCA) remains in place. However, it is no longer the final assessment of a claim. If the JCA determines the claim (or review) meets eligibility requirements, the claimant is then subject to a DMA conducted by a Government-contracted doctor. If the JCA rejects the claim, this additional oversight process is not engaged.
Submitters have expressed doubt on the value of the DMA and concern with the delay it causes in the claim process. The specific concerns raised are:
added delays to processing claims whilst waiting for a DMA, by up to six months;
the document is of such poor quality (compared to the TDR) that it could result in appeals;
that referring all non-manifest claims for a DMA is inefficient when in some cases the person has a clear and very severe disability; and
the high bar already set by job capacity assessors when recommending eligibility (rejecting claims where there is uncertainty) will likely result in the Government-contracted doctor agreeing with their view.
NWRN has called for ‘a public transparent evaluation of the new claims assessment process’ and gave evidence to the Committee that ‘a lot of the delays in the system are the wait between the job capacity assessment and the disability medical assessment’ and that ‘there is a question of efficiency and cost-benefit’.
VLA has called for the policy to be reviewed or alternatively, for DHS to implement quality assurance standards for DMAs. VLA said ‘it would certainly be useful to have some raw data…some transparency around the DMA process, and…a clear review of the DMA process.’
DHS has said that DMAs have been conducted in a ‘timely manner’ and that it has no plans to conduct an independent review of this part of the process. However, DSS confirmed that it has commenced an internal evaluation of the introduction of the DMA. It has no intention at this stage to review the entire assessment process.
The average time taken to complete an assessment has increased from 50 days during the ANAO audit, to 52 days in 2015–16, when DMAs were introduced. Whilst the time taken to complete a review has increased from 38 days in 2015–16 to 47 in 2016–17.
The departments were asked what prompted the change in evidentiary processes. DSS advised that the changes are ‘improving consistency and equity for DSP recipients’.
In line with the ANAO’s observations, the Committee received evidence that suggests communication with DSP applicants and recipients could be improved. Submissions indicate that this is an ongoing issue, compounded by poor communication regarding the new assessment processes.
Evidence suggests that clearer communication on what information is needed to support a claim would reduce the time taken to assess claims and the rate of appeals. When the ANAO examined the average time taken to process a DSP claim, it found that when a claim was delayed, the main reason was that the claimant failed to provide all the information needed to assess the claim. Furthermore, the DSS advised the committee that between 20 and 25 per cent of appeals against rejected claims result in a changed decision and that these are primarily as a result of additional information being provided to support a claim.
The Committee heard evidence that ‘better information being given to applicants and better decision making by Centrelink at an earlier stage would reduce unnecessary hardship to people experiencing disability… The high set-aside rates for decisions at all stages of appeals set out in the ANAO report demonstrate that...many people who should be receiving disability pension are missing out on the correct entitlements for significant periods of time. Better information at an earlier stage also assists applicants to decide to not pursue unnecessary and unmeritorious claims or appeals’.
The Committee also heard evidence that due to a poor understanding of the DSP criteria, additional medical evidence is often provided after the initial claim. This creates questions on its validity, as medical evidence must reflect the person’s condition on the day of their initial claim. One witness testified decision makers are often reluctant to accept later evidence because on face value it is describing the person’s condition sometime after the claim was made. The witness argued, however, that the evidence could be used as the person’s ‘condition has not deteriorated or improved in that time’.
Children and Young People with Disability Australia report that people with disability ‘frequently experience significant barriers in obtaining clear, concise and accessible information about the DSP’.
The ANAO determined that there is ‘potential for reviews and appeals activity to be reduced by improving communication with customers’. This includes reducing unnecessary applications for review or appeal.
In particular, the ANAO noted that this could be done by:
improving the appeals data to enable Human Services and DSS to better understand the reasons for successful appeals and assist in improving the application processes and quality control frameworks; and
Human Services more clearly explaining the basis for rejecting a claim so that claimants can make an informed decision on whether or not they should submit an appeal.
In response to this recommendation, DHS advised the ANAO:
Human Services is conducting further work to expand the communication of trends and/or reasons for stays and variations arising from Social Security Appeals Tribunal decisions, and it intends to develop a reporting tool to collect this information and provide intelligence to inform the business.
DHS also advised the Committee:
The Department of Human Services (the Department) is of the view that the information available to applicants is extensive but is always seeking to improve our communications across all available channels…
In all cases in which a claim for DSP is rejected, the Department telephones the claimant to personally advise the outcome of the claim, the reason the claim was unsuccessful, the avenues of appeal and, if applicable, to provide advice about alternative payment and services. The claimant also receives a letter containing this advice.
Communicating program of support requirements
It is a requirement for DSP claimants to have already commenced a program of support (POS) before making their claim for the DSP if they do not have a severe impairment. Submissions expressed concern that poor communication of the POS requirement results in claims being lodged before a POS is commenced and subsequently rejected, creating inefficiency in the claim process. DHS report that in 2015–16 POS requirements were a relevant factor in determining 3.8 per cent of claims. Of these, 1,190 claims were granted and 2,678 claims rejected due to the claimant not being engaged in a program of support.
Submitters suggest that improving information available before a claim is lodged would increase the number of people enrolling in a POS before applying for DSP, thus reducing the number of rejected claims. VLA suggest that the webpage, claim form and rejection letters be updated to include clear information about the POS requirement. Currently, neither the POS page nor the DSP page clearly outlines who is required to complete a POS and who is exempt.
DHS, in response to a question on notice, said it is reviewing all DSP eligibility information on its website. Its intention is to include a clear and simple explanation of the POS and other eligibility requirements by:
updating the DSP claim form and supporting information; and
releasing Videos on Demand on the Department’s website to explain DSP eligibility and assessment procedures.
These products are scheduled for release in the first half of 2017.
Currently, direct communication to all claimants on the POS requirement is not provided. DHS explained that this is not appropriate or relevant due to the claimant’s POS requirement being unclear until they have lodged their claim and medical evidence and because fewer than five per cent of claims are rejected on this basis. DHS noted that it does conduct a personal telephone Service Officer Interview with unsuccessful claimants. This contact includes advice about ‘connections to recommended POS services’.
Clearer use of ‘fully diagnosed, treated and stabilised’
The ANAO found that 35.8 per cent of claims are rejected because the medical conditions did not meet the requirement of being ‘fully diagnosed, treated and stabilised’. Submitters raised concern that this terminology is used inconsistently, creating confusion, and cannot be easily applied to complex diagnoses.
The ANAO found that:
…in practice Job Capacity Assessors use the term ‘permanent’ to distinguish a medical condition where the functional impacts are expected to persist for at least two years, from a temporary medical condition. Under the Determination a condition is only ‘permanent’ if it has been ‘fully diagnosed, treated and stabilised’ by an appropriately qualified medical practitioner. There would be merit in Human Services using terminology in Job Capacity Assessment reports that is consistent with the Determination.
VLA claim that JCA reports will often list conditions as ‘permanent’ but not fully diagnosed, treated and stabilised. VLA says this leads to ‘considerable confusion and frustration on the part of applicants’.
Other submitters suggest that clearer definitions of ‘diagnosed, treated and stabilised’ are needed to recognise complex diagnoses, mental illnesses, and the current state of medical evidence for some conditions. One submitter’s daughter suffers from a permanent genetic condition that often results in hospitalisation and operations. A DHS assessor denied their daughter the DSP on the false basis that ‘ongoing treatment’ meant the condition was not stabilised. Chronic Fatigue Syndrome (ME/CFS) patient organisations said that currently there is no agreed medical treatment for ME/CFS, making it difficult for these patients to neatly fit into the DSP requirements.
VLA recommends that the legal definition of ‘permanent’ be better communicated and the Impairment Tables made more accessible.
21 days to provide medical evidence
Recipients subject to review are currently given 21 days to provide additional medical evidence to support their claim. Many submitters have voiced concern that 21 days is insufficient, unfair and creates an unnecessary emotional and financial toll on recipients and their families. Villamanta Disability Rights Legal Service (VDRLS) notes recipients face likely limitations on accessing specialists at short notice and limited financial and cognitive ability to respond in the short timeframe. Furthermore submitters note that if the letter is delayed in the post, the recipient will have less than three weeks to respond.
Submitters also point out that people in regional and remote areas face additional challenges such as the cost of travel and lack of available appointment times. People with Disabilities Western Australia (PWdWA) contend that the blanket 21-day policy does not take this into consideration when assessing or reviewing claims for DSP. ME/CFS patient organisations quoted another recipient who made a similar point:
“[I] live in a regional area, 4 hours trip and 3 month waiting list to get to see my specialist (accommodation and travel costs at my own expense...).”
Submitters and witnesses generally proposed extending the timeframe. The Committee heard evidence that there is ‘a strong argument for providing more time. If there has been identification of reviews through a process, then arguably you could provide people with six months’ notice of a review’.
The Committee heard that ‘people with an intellectual impairment or an acquired brain injury will likely have been assessed under the old tables, without the need for a neuropsychological report…Obtaining those reports for a person with those disabilities in a regional area is hugely difficult. They may have to wait up to a year for specialist reviews in the public health system or obtain private funds to pay for reports that normally are above $1,000’.
DHS advised the committee at the hearing that it does provide support where needed, including ‘directly contacting treating health professionals’ or use the department’s own medical practitioners and allied health professionals to expedite aspects of the assessment process.
DHS also advised that individuals who are concerned about the timeframe can contact Centrelink and request an extension. However, VDRLS noted that it can be difficult for recipients to contact Centrelink, which makes this option unreliable.
DHS clarified that recipients are not ‘required to attend appointments with medical specialists and obtain reports at short notice,’ they are asked to provide ‘current and existing medical evidence’. DHS also noted that, ‘In practice, the Department also allows an additional 7 days for a total of 28 days’.
Under the 2016–17 review measure, 13,000 reviews have been conducted. Of those, 35 per cent have requested an extension to provide supporting medical evidence.
Proposed policy changes
This section outlines three key policy changes proposed by witnesses, in relation to:
Changes to manifest grants
Program of Support
Submitters advocated for changes to the legislation regarding the POS requirement. NWRN and VLA had concerns that requiring enrolment before claiming DSP arbitrarily excludes people who by any reasonable assessment, would not benefit from the program due to their permanent impairments.
Exemptions are allowed under the determination for claimants who enrolled in POS before claiming the DSP and it is determined they will not benefit from continued participation due to their impairment.
VLA recommend that the POS requirement is not applied to those unable to benefit from the program, whether or not they first enrolled in the program. VLA told the Committee that the requirement acts as an ‘unreasonable barrier’ by delaying access to the DSP.
Another concern raised was in relation to the definition of a severe impairment. Under the legislation, claimants are exempt if they have 20 impairment points under a single table, which is defined as a severe impairment. NWRN argue there is no rational basis for differentiating a person with a single severe impairment from someone with multiple impairments that can be as severe.
Victorian Legal Aid has called for a formal public evaluation of the POS provisions to consider the cost-benefit analysis of the program and the impact on people with disability.
Changes to manifest grants
Down Syndrome Australia advocate for Down syndrome to be included on List 1 of conditions that provide eligibility for Manifest grants of DSP.
List 1 ‘catalogues conditions which are accepted as manifest (clearly and obviously meet all the DSP qualification criteria) on diagnosis alone’, and therefore claimants are eligible for DSP without the need for a JCA. Currently Down syndrome is on List 2, which requires a further step before eligibility can be confirmed without the need for a JCA. In the case of Down syndrome, assessors need to ‘Establish prognosis and/or level of care required as prognosis can vary and investigate whether there is an existing IQ score’, noting that ‘If IQ score indicates manifest eligibility, use this’.
Down Syndrome Australia consider this is inappropriate, noting that ‘Down syndrome is the most common cause of intellectual disability and everyone who has Down syndrome will have some degree of intellectual disability. It is not a ‘medical condition’.’
Given the permanent nature and inherent intellectual disability of Down syndrome and other chromosomal disorders, Down Syndrome Australia suggests that these conditions be moved to List 1 and recipients be granted manifest eligibility without additional assessment.
In contrast to the short timeframe in which recipients are required to gather medical information, Financial Counselling Australia argued that the benchmark of 49 days for Centrelink to process claims is too long. DHS has a target of processing 70 per cent of claims within 49 days (ANAO found it achieved this in 68 per cent of cases surveyed).
Furthermore, submitters draw attention to the cumulative time taken when applications are rejected and have to be appealed, noting that the average time taken to complete internal reviews in 2014–15 was 70 days. Submitters raised concern of reports that administrative errors often further extend the process.
Submitters contend that these timeframes place significant financial burden on applicants who are often on the lower Newstart payments during this time and face an increased risk of eviction and homelessness. Financial Counselling Australia recommends the targets for completing assessments and reviews be revised.
DHS advised that it is working with DSS to develop ‘a revised key performance measure for DSP claim timeliness…to take into account the recent changes to the DSP assessment process.’