Facts M.I.A. at the NDIA?

The Agency and NDIS Minister Stuart Robert have been putting out some really bizarre comms of late. It’s no secret that they are gearing up to change the NDIS Act to improve the legal standing of Independent Assessments (IAs) and set “boundaries” on reasonable and necessary supports. They’ve been copping a lot of flak for it, including from a Joint Statement signed by 20 leading disability advocacy organisations. 

On his blog, NDIS CEO Martin Hoffman wrote about “misconceptions and misunderstandings” in the community – which I took a bit personally. But I also guess it is safe to assume patronisation is back in vogue. 

While all the comms coming out have a chaotic energy, some obvious themes are emerging. In this article, we thought we’d evaluate the messaging to separate the facts from the fiction from the irrelevant.

FACT OR FICTION? THE “HE SAID WHAT!?!” EDITION

CLAIM: A LOT OF NDIS PARTICIPANTS ARE MISUSING THEIR FUNDS - THEY’RE EVEN BUYING YACHTS! 

Unsurprisingly (at least we hope it’s unsurprising), we call bull on the yacht thing. Robert made this claim in an interview with Leon Bryner on 5AA. To be fair, it is possible that someone, somewhere has used NDIS funds to buy a yacht, but I wouldn’t put money on it. For one thing, have you ever met anyone with yacht-level spare change in their plan?  

The NDIS has a Fraud Taskforce that works with the Australian Federal Police to investigate fraud against the Scheme. You can assume it would be their job to track down any alleged spending on yachts. On the NDIA’s media page, there are six press releases about fraud-related cases. In every single situation, the fraud was committed by providers against NDIS participants.

Of course, there are always going to be a number of NDIS participants who misuse funds. We can never know exactly how often this is happening, but we can safely assume it isn’t too common. An unknown but almost certainly very small group of participants are also probably committing intentional, outright fraud and just haven’t been caught yet. But these are small-scale problems which require small-scale solutions. Rewriting the NDIS Act is not a small-scale solution.  

CLAIM: IF THE NDIS FUNDS SEX WORK, IT WILL COST THE TAXPAYER UPWARDS OF HALF A BILLION DOLLARS. 

Robert has also been telling the public that if the NDIS were to pay for sex work in reasonable and necessary circumstances, it would cost the Aussie taxpayer at least half a billion dollars. Spending of this magnitude would constitute about 2% of the Scheme’s total budget, which is rather a lot of sex.

Let’s look at the math: in the Federal Court case that started this conversation what feels like a lifetime ago, a woman with MS was funded $10,800 per annum for sexual services. Supposing all participants were funded at this level, 46,296 people would have to receive funding in their plan for this purpose for it to cost the taxpayer half a billion dollars. This represents 21% of adult NDIS participants who would need to both want this support and argue successfully for it. When the Agency tried to make a similar argument about Scheme sustainability to the Court, the ruling described their predictions as ‘rather dramatic’ and questioned the modelling behind them. 

CLAIM: THE NDIA HAS NO VISIBILITY OVER PAYMENTS MADE TO SELF-MANAGERS. 

Again on 5AA, Robert said, “We don't pay all invoices. Something like half the scheme is paid to self-managed and we, the Commonwealth, there’s no visibility at all about where payments have gone.”  Here, Robert is setting the long-term groundwork for the implementation of a direct payment system.  

It is true that the Agency does not pay invoices for self-managed participants, but they do have visibility over the spending. When making a claim, self-managers share information about the support, including the support category. Self-managed participants are also required to maintain records of their spending for at least five years, and the NDIA has the right to audit them. 

FACT OR FICTION? THE INDEPENDENT ASSESSMENTS EDITION

CLAIM: THERE WILL BE NO TIME LIMIT ON IAS - THEY WILL TAKE AS LONG AS THEY TAKE. 

There have been a few recent media stories in which people with disability have questioned whether an assessor can obtain an accurate and full picture of their functional capacity in under three hours. The NDIA has responded that there are no time limits on IAs. But the NDIA’s own IA tender says that it expects most assessments to run 2.5–3 hours, including report writing time. And while this is not a hard limit, the disability community’s concerns are not about whether any one individual can have a longer assessment; they are about whether these assessments are, as a general rule, too brief to be accurate.

And while technically true, it is facile to say that IAs will “take as long as they take.” The planning process and LAC plan implementation also have no time official time limits, but we all know that practical constraints get in the way. 

CLAIM: NDIA DELEGATES WILL CONTINUE TO MAKE ALL FUNDING AND ELIGIBILITY DECISIONS, NOT THE INDEPENDENT ASSESSORS.  

Under the NDIA’s proposed changes to planning, it is true that NDIA delegates will retain authority over eligibility and funding decisions. But they will primarily be using one piece of evidence to measure function, and that is – you guessed it – the IA. Other evidence participants have will only be used to inform a discussion about how they use their budget or add funds for supports like Assistive Technology (AT) or home modifications. The majority of the budget and the significance of a disability in terms of access criteria will be determined by the IA alone.

Can you imagine a court case where only one side was able to present evidence? Where do you think the jury would land? Decision makers are only as powerful as the evidence they are given.

CLAIM: PEOPLE WILL STILL BE ABLE TO APPEAL DECISIONS. 

People will still have the right to request a review of any decisions made by NDIA delegates, including their plan budgets and rejections of access requests. However, they cannot request a new assessment on the basis that they disagree with the results of the first one. Thus, they can appeal a decision but not the evidence on which that decision is based. Without new evidence, it is hard to see how they will obtain a different outcome.  

However, while the NDIA and thus internal reviewers are limiting themselves to a single piece of evidence, it is unlikely that the Administrative Appeals Tribunal (AAT) will impose the same restrictions. In Tribunal hearings both sides can usually present evidence. Participants who have additional assessments or other forms of evidence that contradict the IA will have a real shot at winning. But, of course, who wants the hassle and stress of going to the AAT? Moreover, the AAT can only enforce the law. The NDIS Act is meant to be reviewed by mid-2021, and we don’t yet have a draft of proposed changes. Depending on how the Act is altered, appeals to the AAT may no longer have the same standing. 

CLAIM: PLANNING AND ELIGIBILITY OUTCOMES HAVE BEEN INCONSISTENT.  

Robert and the Agency have both stressed that NDIS outcomes vary between postcodes. You would be hard pressed to find anybody who disagrees that planning has been inconsistent. The NDIA has become very good at describing the problems with the status quo. Its logic falls down, however, when it comes to presenting IAs as the solution. 

On ABC radio in Tasmania, Robert lamented that average plans in Hobart were 53% higher than average plans in Franklin, to which Leon Compton replied: “But, Stuart Robert, many people will look at your government and its track record and suspect that you – that this for you is about bringing the postcode, 7000 Hobart, down to the amount of money spent on packages in Franklin? Not bringing Franklin up?” The Minister did not love that question. 

In a doorstop interview in Launceston, Robert even went so far as to say, “I don't want to see people from low socioeconomic backgrounds who are missing out.” Which is classic Stuart Robert, father of Robodebt and champion of the poor. 

CLAIM: PEOPLE ARE PAYING TOO MUCH TO TEST THEIR NDIS ELIGIBILITY. 

This is also true. Outside of IAs, the NDIS does not currently fund the assessments required to test NDIS eligibility and has estimated that Australians are spending $130–$170 million annually on these assessments. This further exacerbates equity issues with the NDIS and is a serious problem worthy of our attention. 

It should be noted, however, that IAs will not remove all expenses associated with access requests. Potential participants will still be required to obtain a diagnosis and evidence that their disability is permanent.

CLAIM: IAS WERE RECOMMENDED BY BOTH THE TUNE REVIEW AND THE PRODUCTIVITY COMMISSION.  

Back in 2011, the Productivity Commission did indeed envision an NDIS with IAs. The model they suggested is quite similar to what the NDIA has planned: assessors with no existing relationship with the participant drawing from a toolbox of assessments that will ultimately determine funding. The Productivity Commission wrote a great report, but you can tell it was written by maths nerds determined to find the perfect formula to measure disability. Gotta love them for trying. The government seems to be treating this particular recommendation like scripture. However, there are other recommendations it has made no effort to implement. National Injuries Insurance Scheme, anyone? 

The situation with the Tune Review is a little more complicated. It also recommended the implementation of IAs, but there are crucial differences between the Tune Review’s proposed model and what the NDIA has planned. Importantly, the Tune Review argued that people should have the right to challenge the results of an assessment and request a new one. The Tune Review also seems to have envisioned a broader panel of “NDIA-approved” IA providers. Specifically, it stated that “the NDIA should not implement a closed or deliberatively limited panel of providers.” So it seems Tune was thinking of a panel of slightly more than eight providers for the whole country? It is also not clear whether the Review was recommending “NDIA-approved providers” be tender winners or more of a Heart Foundation Tick of Approval situation. It emphasised that assessors needed to be truly independent and that participants should have a choice of providers. 

CLAIM: IAS WILL USE TOOLS THAT ARE “DISABILITY-NEUTRAL”.

The NDIA has been describing the IA assessment tools as “disability-neutral.” This is honestly one of the oddest things I have ever heard. Nothing is disability neutral, even if it wasn’t designed with a specific disability in mind. 

A person’s disability may impact how they interpret and respond to the questions asked and their experience of an assessment. You would think as the National DISABILITY Insurance Agency would know this shit. 

Just a public service announcement before we finish up: for the sake of yourself and other drivers, please don’t consume Robert’s press interviews while driving: road rage is so 2020.