What the Ombudsman Said- The NDIS Review Processes

These days it seems barely a week can go by without the NDIA finding itself in hot water. One of this month’s bad news stories came with the release of the Commonwealth Ombudsman’s report into the Agency’s administration of reviews. The report was provoked by the 400 complaints the Ombudsman received between July 2016 and January 2018 about the handling of NDIS reviews. Guided by the feedback of the complaints, they conducted an investigation into of the Agency's review processes. Spoiler alert: the results aren't pretty.

It might seem like overkill to dedicate a whole report to one small aspect of the NDIS, but reviews are actually a pretty big deal. They are the primary mechanism that the community has to ensure that the bureaucratic machinery of the NDIS acts in accordance with the legislation. Moreover, they assist people with disabilities to get the supports they need and are entitled to under the Act. You can read more about the reviews process in this DSC blog.

In every quarter of 2017, the most popular topic of complaints was the timeframe of reviews. The Ombudsmen reported multiple cases of reviews being delayed for 8-9 months. When your reviews process takes longer than the gestation period for most mammals, it gives you a pretty good idea that something is amiss. Participants’ plans were expiring before the Agency had made a review decision. Perhaps more concerningly still, there does not appear to be any triage process to ensure that urgent cases are dealt with first. Participants at risk of homelessness might have to wait a full nine months before they hear back from the Agency.

The NDIS Act requires the NDIA to finalise review decisions "as soon as is reasonably possible." The Agency appears to have seized on this vagueness with vigour. They currently have no timeframe for making decisions and participants have no way of telling how long the process is going to take. This alone would discourage many people from requesting a review.

The NDIA told the Ombudsman, by means of justification for these delays, that they have been prioritising the achievement of bilateral targets for access requests, plan approvals and scheduled plan reviews. Amazingly, internal reviews and unscheduled plan reviews were considered unexpected work. It apparently did not occur to them that of the over 400,000 people on the NDIS, a significant portion of them would undergo a change of circumstances or would want to review their plan. As of February, the Agency was receiving 620 new requests a week and had a backlog of over 4,800 requests awaiting a decision. This unexpected workload was turning into quite a burden.

But the grievances did not end there. The Ombudsman also received complaints that the Agency was:

• Not always acknowledging when they received requests for review. This left participants wondering if their request had been lost in the mail and what action they should take. It is like when you order something from China on eBay and are left to agonise for the next three months about whether you just threw away a bunch of cash. Except in this case, what you have ordered might be the supports you need to survive.
• Not always responding to participants’ request for updates. Some participants even made multiple requests, all of which were ignored.
• At times confusing requests for internal reviews with requests for unscheduled plan reviews. While the titles are confusingly similar, the difference is crucial. If a participant is unhappy with the results of an internal review, they can take the decision to the Administrative Appeals Tribunal (AAT) and let the law decide. But if they receive a surprise unscheduled plan review and are still unhappy with the results then they have to request another internal review before they can go to the AAT. This simple mistake can can double everybody’s workload and greatly increase the participant’s waiting time.
• Not providing participants with a sufficient justification for decisions made in review. Many participants received letters that justified decisions by referencing the Operation Guidelines or NDIS Act, without highlighting the relevant sections. I can barely imagine anything more frustrating than being told to read the whole NDIS Act and guess what was on the reviewer’s mind when they denied your request.
• Not providing accurate information to participants about their right to review. Some participants reported experiences of LAC and ECEI partners discouraging them from requesting a review by warning them that they might lose other supports in their plan. While it certainly true that participants should carefully consider the risks associated with unscheduled plan reviews, many of these warnings were interpreted as threats. A participant’s right to make an informed decision was compromised by the fear that they would be penalised for their choice.

The Agency has taken some steps to address these issues. They have accepted all the recommendations of the Ombudsman’s report and in November 2017 set to work a national backlog team (I really hope they have team T-shirts). Additionally, they have announced other initiatives including:

• Implementing new participant pathways experiences that aim to increase the quality of plans and thus reduce the need for reviews.
• Changing the ICT system to allow minor adjustments to be made to a participant’s plan without triggering a whole plan review.
• Changing the ICT system to allow staff members to approve funding for assistive technology if the expenditure is within a certain benchmark.
• Trialling an Early Solutions Team in NSW, that will have the authority to triage review requests, identify alternatives to review and make small changes to plans.

In other exciting news, the AAT has recently ruled that it will now hear cases prior to the completion of an internal review if the NDIA has not completed the review with a reasonable time frame. What constitutes a reasonable timeframe is yet to be defined. Yet we can reasonably hold out hope this will mark the end of participants having to wait 9 months before they can even apply to take their case to the Tribunal.

Hopefully, these reforms will herald some positive changes in the administration of reviews. However, there is an elephant in the room that we cannot ignore- staffing caps. The Agency is currently capped at 3,000 staff members.  While this limit is in place, the Agency can hardly be blamed for having priorities competing for attention and being tempted to outsource (hello Serco). The NDIA might rearrange its resources to address the scandal of the month, but there will always be another week, another headline, and more people with disabilities missing out.

We often talk about the sustainability of the NDIS, yet too often, we limit the conversation to financial sustainability. Equally important to the longevity of the Scheme is its ability to elicit the support of the Australian public. Nothing endangers that support more than outrageous failures that get splashed across the mainstream press. Why would the public keep funding a Scheme that is perceived not to be working? It is, therefore, essential that we have an NDIA that is empowered and enabled to place participant outcomes at the centre of everything they do. In the meantime, we will see what next weeks headline brings.

You can read the full Ombudsman’s report, including recommendations and NDIA’s response, here:  udsman.gov.au/media-releases/media-release-documents/commonwealth-ombudsman/2018/15-may-2018-ombudsman-releases-ndia-reviews-report