The NDIA's proposed Independent Assessments - a concerning development

Key points

• The Commonwealth Government is introducing independent assessments for applicants to the NDIS and participants in the NDIS. The independent assessments will assess a person's functional capacity.
• The proposed independent assessment scheme could be problematic for people with disability, because independent assessors will be expected to make decisions about functional capacity despite having a very limited period of time to assess the individual, and having little background about the individual. 
• Although the decisions of independent assessors will not be directly reviewable in the Tribunal, there is still scope for the Tribunal to prefer the evidence of a person's treating practitioner over the independent assessor's evidence, if that is the appropriate conclusion.
• Overall, there are better ways of addressing the problems identified by the discussion paper.

Background

The Commonwealth Government has announced that by mid-2021 it will introduce a requirement for all NDIA participants and applicants to be assessed by independent assessors. Disability support groups and advocates have raised concerns about the proposal and the rushed manner in which it is appearing to be rolled out. Twenty different disability advocacy groups and a peak body for service providers have jointly expressed their concerns about the proposal, as seen in this article from The Guardian [opens in new window] 

The difficulty with evaluating the proposal is that there is a lack of information about it. Surprisingly, given that the target rollout date is only a few months away, I have not been able to find a draft bill or regulations concerning the change. The Government released a Discussion Paper in November 2020 [opens in new window], which is the focus of this post.  

At [2.1], the Discussion Paper refers to an estimate that NDIS participants are collectively spending $130 - $170m on assessments associated with accessing the NDIS. The section also refers to inequity around accessing the NDIS depending on where a person lives. 

At [2.2], the Discussion Paper states that the NDIA is aware of examples of inconsistent and inequitable access and planning decisions, and from the NDIA's perspective the number of participants who review these decisions is high. Additionally, the NDIA observes that "there isn't one standard way to provide evidence on the impact of a person's disability or disabilities". 

It is apparent from [3.3] of the Discussion Paper that the independent assessor will not be determining whether or not a person has a disability, or whether the person's disability is likely to be permanent. Those matters will continue to be determined based on medical evidence provided by the person's treating medical practitioners. If the NDIA is satisfied that a person meets those criteria (together with the age and residence requirements), then it will schedule the person for an independent assessment.

The independent assessor will determine whether the person has substantially reduced functional capacity in one of the domains set out in s 24(1)(c) of the National Disability Insurance Scheme Act 2013 [opens in new window]. 

The independent assessment will be carried out in accordance with an independent assessment framework [opens in new window]. The independent assessment framework provides high-level guidance as to the objectives of an independent assessment.

At [3.5.1] the Discussion Paper indicates that independent assessments will take, on average, about three hours.

[3.9] of the Discussion Paper states that the NDIA will use the outcome of the independent assessment to determine whether the person has substantially reduced functional capacity, and thereby determine whether or not the person meets the disability requirements for participation in the NDIS.

The independent assessor's decision will not be able to be reviewed directly. Section 99 of the NDIS Act specifies what types of decision are reviewable decisions, and only these types of decisions can be brought before the Tribunal for review. However, a person will be able to continue to review the decision of the NDIA concerning the person's plan, or admission to the NDIS. 

Analysis

I am not convinced that introducing independent assessments is the optimal answer to the problems identified in the Discussion Paper. 

In my view, inequities in access to the NDIS, and the high cost of obtaining assessments are better addressed by improving access to funding to allow people to obtain assessments, rather than moving everyone to the lowest common denominator, which is what the move towards independent assessments seem to represent.

I understand the desire for increased standardisation in terms of measuring people's functional capacity. However, every person with disability is unique, and each person's disability affects them in different ways. Not all of those ways would necessarily be able to be captured by the same standardised tool. The risk of over-standardisation is that the NDIS's emphasis on individual autonomy and individual choice will be overlooked.

In any event, if the NDIA's concern was really a lack of standardisation, it could solve that problem by simply mandating that a person's treating medical practitioner uses a specified assessment tool in determining a person's functional capacity. Given that the evidence in support of a person accessing the NDIS comes from medical practitioners, I can't see why a person's treating medical practitioner could not carry out the functional capacity assessment themselves.

The position concerning appeal rights strikes me as slightly cynical. Even if you accept that an excessive number of NDIA participants are appealing NDIA decisions (and I don't), and even if you accept that this is a problem (I also don't accept this), then the solution is not restricting appeal rights - it is improving the quality of NDIA decision-making. 

If independent assessments are made mandatory, then I can easily foresee a situation where a decision by the NDIA will be along these lines: "I have received a report of Dr Bloggs, which states that Ms Jones has sufficient functional capacity in each of communication, social interaction, learning, mobility, self-care and self-management. Therefore, I find that Ms Jones does not meet the disability requirements." If the decision simply adopts the independent assessor's report, then it will be more difficult for the NDIA decision to be challenged.

With that said, a decision-maker's reliance on independent assessments is not immune from challenge in the AAT. In Ray and NDIA [2020] AATA 3452 [opens in new window] the Tribunal considered an applicant who was diagnosed with autism and ADHD. She was examined by an occupational therapist independent assessor, who assessed her in Ms Ray's home for about 3 hours. Ms Ray also tendered evidence from an occupational therapist that had been treating her for about 12 months, and evidence from a psychologist (Ms Barry) that had been treating her for about 4 to 5 years, seeing Ms Ray every 4 to 6 weeks.

The Tribunal considered the observations of Ms Barry about Ms Ray's communication difficulties were more reliable than those of the independent assessor, because Ms Barry had seen Ms Ray on 50-60 prior occasions, whereas the independent assessor had only had one 3 hour session with Ms Ray. Ms Barry's conclusions were also consistent with the Tribunal's own observations of Ms Ray. The Tribunal set aside the NDIA's decision and decided that Ms Ray met the access criteria for the NDIS.

This case encapsulates the likely problem for independent assessments. Of course a medical practitioner who has seen a person numerous times over a number of years is likely to be able to give a more accurate observation of a person than an independent assessor who sees her once for a couple of hours. If the Tribunal is going to simply prefer the evidence of treating practitioners over independent assessors, then one wonders what the point of independent assessment is. Applicants will continue to put forward reports of treating practitioners, and they may find it to their advantage to obtain a more extensive expert report than will be prepared by the independent assessor.

The Government seems fixed on bringing in independent assessments, regardless of the clear concerns of people with disability and their supporters. I can only hope that at some point, prior to introducing the legislation into Parliament, the Government will take pause and listen to these concerns. Failing that, I hope that the Tribunal will continue to uphold the interests of people with disability.