:format(webp))
Update July 2021: The NDIA no longer plans to move ahead with independent assessments. Read more
AAT REJECTS INDEPENDENT ASSESSMENT
The government’s recently announced plans to roll out independent functional assessments went down about as well as a sneeze in a Melbourne supermarket does right now. We’ve done a detailed coverage of the who, what and where of the assessments here. But the heart of the controversy is basically that there are (very reasonable) concerns that the assessments will be used as a cost cutting measure by tightening access to the NDIS and cutting participant funding.
In response, many community groups have launched campaigns urging the Agency to re-think this endeavour. But last week there was a new voice entering the debate that nobody saw coming: the Administrative Appeals Tribunal (AAT).
To be fair on the AAT, they probably didn’t see themselves getting involved with this either, especially not in such a timely fashion. AAT cases usually take foreverrrrrr to get off the ground. Moreover, the Tribunal can only comment on the legality or sensibility of government policy when it is in direct relationship to an individual case they are hearing.
With all that being considered, what are the chances that the AAT would deliver a ruling on a case with a central focus on independent assessments one week after the government announced a plan to roll out the initiative? They are odds even the most audacious gambler would rightly squirm at. Yet that is exactly what happened.
THE CASE
The applicant in the case was JR*, a woman with autism, ADHD, depression and anxiety who first applied to the NDIS in 2017 (yes, that is how long AAT cases take). Her application was rejected on the grounds that her disability did not result in ‘substantially reduced functional capacity.’
Just a couple of side notes here:
Side note 1: The criterion that people with disability need ‘substantially reduced functional capacity’ to access the NDIS is one of those things that sounds reasonable on paper, but in reality is fraught. Basically, this yard stick is subjective as hell. Ironically, this is one of the justifications for independent functional assessments, that they will result in more uniformity in access and planning decisions. However, in this case, the concern is that “uniformity” will in practice mean that the criteria are tightened, not just better defined.
Side note 2: Autism diagnoses assessed as Level 2 or Level 3 using the current Diagnostic and Statistical Manual of Mental Disorders (DSM-V) criteria are on what is called “List A,” which gives people near automatic access to the NDIS. However, there was some confusion about which level applied to JR. The Tribunal was not impressed that the NDIA had not simply requested a psychiatric evaluation to clear up whether she might in fact be on List A, thus saving everyone involved a lot of hassle. The AAT was in half a mind to order an evaluation, but decided against it on the basis that further delays were not in the applicant’s best interest.
THE INDEPENDENT ASSESSMENT
Over the years, JR has collected a pile of allied health and medical assessments that confirmed her need for disability supports.
For some unknown reason, the NDIA was not convinced. So they requested that JR undertake an assessment by an ‘independent’ Occupational Therapist (OT). In other words, an OT that had never met the applicant or her family before. This assessment was not a part of either of the two independent functional assessment pilots - rather, as part of the appeals process the Agency can request and fund additional assessments using a similar approach.
The OT engaged by the NDIA spent 3 hours with JR and then basically concluded “everything seems cool here.” The Agency then used this as a basis to ignore all JR’s other reports in favour of this one assessment by someone who hardly knew her.
And herein lies one of the central concerns that people have about independent assessments. If the NDIA is willing to dismiss all other assessments in favour of their independent one, then way too much power is put in the hands of a few allied health professionals who spend a small amount of time with the person and have their contracts decided by the Agency. If the applicant does have additional assessments from long term treating professionals, then they might be in a strong position to appeal. But many people do not have the support of an allied health or medical team. Moreover, many people do not have the time, energy or resources to appeal an NDIA decision. In such cases, one inaccurate assessment can do a lifetime of damage.
Thankfully, JR was fortunate enough to have other reports and witnesses who painted a very different picture. The AAT felt that JR’s personal psychologist was a far more reliable witness because she had seen the applicant:
“on approximately 50 to 60 occasions, including out of the comfort and familiarity of her home environment”
Whereas in contrast the independent OT has only seen the applicant:
“once for a period of three hours in her home environment.”
Incidentally, the NDIA’s tender for independent assessors refers to appointments for a minimum of 20 minutes. On average, the NDIA is predicting that the assessments will take 2.5-3 hours including report writing time. Which in most cases will be even less than the 3 hours that this OT took.
The Tribunal also noted that in her testimony, the OT made several factual errors about JR’s life. This caused the sitting member to lose faith that she really had her head around the situation.
INFORMAL & MAINSTREAM SUPPORTS
Another complicating factor in this case was that JR received a significant amount of informal support from her husband. This created the illusion that her disability had less of an impact on her life than it did. Both the NDIA and the OT made reference to JR’s various achievements and particular skills of daily living (for example, she does the family cooking). However, her husband has been working effectively with her allied health professionals to deliver capacity building supports over many years. Moreover, her situation would look very different if he was unable or unwilling to provide this support into the future.
Planners are required to consider what supports it is reasonable for a family member to provide when developing a plan. That a husband should provide his wife with some support is not out of the question. However, this is not a consideration at the eligibility stage. For the purposes of eligibility, informal supports are irrelevant.
The independent OT also repeatedly made the point that, in her opinion, the support that JR required could reasonably be provided by the health system. This is something we hear fairly regularly with NDIS access requests. However, as the Tribunal pointed out, this is once again an element of the reasonable and necessary criteria, not the disability requirements for NDIS eligibility.
Side note 3: But whether or not the support is most appropriately funded by the NDIS is a requirement of the early intervention criteria.
A WORRYING FUTURE
Importantly, the AAT can only rule on the basis of the legislation as it currently stands. But as we know, the NDIS Act is about to be updated in accordance with the Tune Review. If a central role for independent assessors is engrained in the new legislation, the AAT will have to follow this lead. They are a court of law, not a court of what we would like the law to be. All this highlights the importance of closely analysing the new legislation before it gets through parliament. Because after that we are stuck with it.
This case clearly highlights what could go wrong with independent assessments. A woman eligible for the NDIS was denied support for 3 years, and would have in fact never received support at all if she had not persisted with her appeal. The case will also be useful for the large number of people in the future who will be appealing their own independent assessment outcomes. However, if you think that this case will be enough to divert the Agency from their current trajectory, you would probably be mistaken. The NDIA has turned ignoring AAT cases, and indeed Federal Court cases, into an art form. There is only one thing likely to change their minds: ongoing, sustained and effective community campaigning of the type we have been witnessing.
