3.1
Two key reports were repeatedly referred to by the NDIA to support the argument that independent assessments were necessary: the 2011 Productivity Commission report into Disability Care and Support; and the 2019 Review of the NDIS Act and the New Participant Service Guarantee (Tune Review). This chapter canvasses some of the key criticisms arising in evidence concerning the NDIA's interpretation of these reports.
3.2
Chapter 4 examines in further detail the main reasons that the NDIA gave for introducing independent assessments, including in the context of those two reports.
2011 Productivity Commission report
3.3
The Productivity Commission's 2011 report into Disability Care and Support concluded that assessment tools would be 'needed to determine the level of needs and funding for a person covered by the scheme'. It proposed a 'toolbox' of assessment tools, to be 'developed within the framework of the widely accepted International Classification of Functioning, Disability and Health'. These tools should be:
Valid (testing what they purport to test);
Reliable (giving similar answers if people are re-tested, tested by another assessor, or if people with similar characteristics are assessed);
3.4
The Commission noted that at the time of reporting, there was 'currently no ideal tool to use in the NDIS' but this should not delay implementation. The NDIA should oversee the development of such tools over the longer-term 'because the NDIS would have the best evidence for their ongoing development. The tools should also be made available at no cost to researchers wanting to develop them further'.
3.5
The Commission suggested, when outlining its assessment, funding and planning process, that the assessment process should involve a 'person-centred collaborative assessment that includes self-reporting'. However, 'people making assessments would need to be independent from the client (unlike treating general practitioners)', be approved or appointed by the NDIA, and be 'properly trained in the use of the tools'. The Commission noted that "'hard" assessments would be unfair' on participants, while 'soft' assessments 'could jeopardise the scheme'.
3.6
The Commission specifically recommended that the 'supports to which an individual would be entitled should be determined by an independent, forward-looking assessment process by the NDIA, rather than people's current service use'. Further characteristics of assessments that the Productivity Commission proposed included the following:
Assessments would concentrate on what reasonable and necessary supports a participant would require;
Information about a person's relevant medical conditions and specialist assessments would be made available to the assessor;
Consideration would also be given to the informal care or natural supports available to the participant and any supports needed to assist carers in their role;
The NDIA would review assessments to determine whether they followed appropriate protocol and were consistent with the benchmark range of assessed needs for other participants with similar circumstances;
Individual budgets would be determined through a 'bottoms-up' approach by costing all of the support needs identified by the assessment process, after taking into consideration informal supports, and the person with disability (and/or their support network or disability support organisation) would create a personal plan and a concrete funding proposal to the NDIA that outlines the person's goals and the types of support that would be reasonable and necessary to achieve within the allocated budget (Recommendation 8.2);
The NDIA would collect data to assess the reliability and validity of the assessment tools, with the assessment process helping to forecast the likely long-run liabilities for the scheme; and
The NDIA should only use a tool to assess the needs of particular groups where its reliability and validity have been established for that group.
3.7
The Productivity Commission argued that 'the goal of the NDIS would be to properly fund the reasonable assessed needs of people with a disability' to avoid 'the uncertainty, chronic underfunding and unmet demand that has beset past allocation systems'. It noted that under previous systems, 'the level of support [was] determined by annual government budgets that bear no consistent relationship to people's actual needs'.
3.8
Crucially, the Productivity Commission proposed that following consultation and assessments, participants should be given a package of supports from the NDIS, and 'not a budget amount'. It also proposed that others should be involved in the process, and that the process involve existing medical reports:
…[W]hile the individual undertaking assessments would be independent, it would [be] important to involve other interested parties (a so called circle of support) in the assessment process. Ideally, these would be people who were familiar with the care and support needs of the individual, they might include family members, carers and direct support professionals. Moreover, the assessment process would draw upon existing medical reports.
3.9
The Commission envisaged that implementation of the NDIS would involve work on and testing of assessment tools from 2011 to 2013. Of further note is the Commission's recommendation that future changes to the key features of the scheme occur 'only by explicit changes to the Act itself, be subject to the usual processes of community and Parliamentary scrutiny, and require consultation with all state and territory governments'.
The Government's position on the 2011 Productivity Commission report
3.10
The NDIA in its submission to this inquiry pointed to the Productivity Commission's 2011 report, arguing that independent assessments and other proposed reforms to the scheme 'will mean that the NDIS will more closely resemble the model originally recommended by the Productivity Commission'. It emphasised that the report had recognised that the independence of health professionals supporting participants, who may then carry out an assessment, 'poses a risk for appropriate and equitable decision making'.
3.11
In its supplementary submission, the NDIA argued that understanding participants' functional capacity 'was central to the original design recommendations of the Productivity Commission and is a requirement of the NDIS Act'. However, it suggested that because of the rapid rollout of the NDIS 'and the lack of an overarching functional capacity framework', there has been 'a high degree of variability in reported function' over the last four years. The NDIA also argued that personalised budgets (as outlined in Chapter 2) and increased plan flexibility would 'deliver on the original intent of the NDIS and help to manage escalating risks regarding scheme sustainability and equity'.
3.12
The issue of inconsistencies in access decisions and plan funding, and the financial sustainability of the Scheme are discussed further in Chapter 4.
3.13
The NDIA acknowledged that the tools that it had selected had proven reliability and validity in the contexts for which they were designed, but 'this cannot be extended with great confidence to other contexts'. It also noted that 'the validity and reliability of using assessment tools side by side to build an understanding of a person's function has not been done before', but argued that 'the alternative of ignoring certain elements of a person's functioning for NDIS decision making purposes carries greater risk'. It proposed to progressively evaluate the tools to determine their validity and reliability in the NDIS context, leading to adjustment of the toolbox over time.
Criticisms of the Government's interpretation of the Productivity Commission report
3.14
Submitters provided criticism about how the NDIA had interpreted the Productivity Commission's proposals on independent assessments. These criticisms included:
The Government was 'picking and choosing and re-marketing elements of the original Productivity Commission vision in an attempt to overcome the broader systemic organisational and scheme deficiencies';
The proposal that participants could bring informal supports (such as family members) to their assessments was a 'wholly inadequate reflection' of the Productivity Commission's suggestion of a 'circle of care';
The proposal did not involve the assessment process drawing on existing medical records, as proposed by the Productivity Commission;
The proposed model of independent assessments would indeed be 'hard' on participants and thus unfair, particularly for those who were more vulnerable;
The NDIA was proposing to use assessment tools that had not been proven to be reliable and validated for particular groups, particularly Aboriginal and Torres Strait Islanders (see Chapter 5 for further discussion of this issue); and
The reforms as proposed did not take into account participant goals and aspirations, despite the Productivity Commission explicitly stating that the assessment process 'should not disregard' participants' aspirations.
3.15
Other submitters suggested that the Productivity Commission had specifically called for a needs assessment, rather than a functional assessment—that is, that the assessment process should 'identify the supports required to address an individual's reasonable and necessary care and support needs' (Recommendation 7.1). On this point, Inclusion Australia argued that:
The Productivity Commission report recognised there was no single assessment tool suitable for everyone. However, it contained information about several assessment tools that could be part of a ‘toolkit’, including I-CAN, I-CAP and SIS. Inclusion Australia understands these were rejected by [the NDIA] because they assess support needs rather than levels of function. This is inconsistent with research showing that measuring support needs predicts funding needs better than measuring functioning.
3.16
Further criticisms of the main reasons for introducing independent assessments that were listed in the Productivity Commission report, as set out at the start of this chapter, are outlined in Chapter 4.
Tune Review report
3.17
Previously, the Government commissioned Mr David Tune AO PSM to review the NDIS Act and determine ways in which NDIS processes could be made simpler. Mr Tune presented his report (the Tune Review report) to the Government in December 2019.
3.18
Chapter 4 of the 2019 Tune Review report addressed what evidence should be used and is currently used to support NDIA decision-making. The report found that standardised 'functional capacity assessments would improve the quality and consistency of NDIA decisions'. It argued that 'robust and evidence-based' functional capacity assessments would lead to the following outcomes:
Plans would be developed and approved faster;
Access and planning decisions would be made consistently and directed towards improving functional capacity; and
Participants would have a reduced administrative burden because they would not need to provide further evidence of functional capacity later in their NDIS journey.
3.19
The Tune Review noted that unclear requirements about what evidence participants need to support access requests and planning, including 'the loose and discretionary way an "assessment" is defined in the legislation', had led to disengagement by people with disability and a large number of 'reviews of access and funding decisions on the basis it was unclear what information was used by the NDIA to make the decision'.
3.20
The Tune Review suggested that feedback on the first pilot indicated that 'it is worth implementing nationally for every person with disability who would like to test their access for the NDIS or who require further evidence to support decision-making' in their plans. Further benefits that would result from introducing independent assessments nationally included mitigating the financial barriers that exist for people engaging with the NDIS, as well as a decreased likelihood that participants would need to provide further information or undergo additional assessments for plan reviews. In addition, Local Area Coordinators, it suggested, would be able to focus on linkages with community and mainstream support, goal planning and implementation.
3.21
However, the Review noted that such changes would 'require extensive consultation with participants, the disability sector, service providers and the NDIA workforce'. It also argued that the success of independent assessments would largely depend on:
The willingness of prospective participants and current participants to work with NDIA-approved functional assessors; and
Those assessors providing truly independent functional capacity assessments, so they would not be perceived as agents of the NDIA or a tool designed to cut supports from participants.
3.22
The Tune Review further highlighted that one of the biggest risks for the success of the program would be disengagement, particularly for Aboriginal and Torres Strait Islanders, people from culturally and linguistically diverse backgrounds and people with psychosocial disability. It called for the NDIA to embed a number of key protections in the rollout of independent assessments, including that:
Participants be able to choose which NDIA-approved provider in their area undertakes the functional capacity assessment;
Participants be given the right to challenge the results of the functional assessment, including the ability to undertake a second assessment or seek some form of arbitration if they are unsatisfied with the assessment, for any reason;
NDIA-approved providers be subject to uniform accreditation requirements designed and implemented jointly by the NDIA and appropriate disability representative organisations; and
The NDIA provide clear and accessible, publicly available information, including on the NDIS website, on the functional capacity assessments being used by the NDIA and the available panel of providers.
3.23
The Review also noted that in some circumstances, 'it may not always be possible to source an appropriate provider, or…it is more appropriate for non-NDIA approved providers to undertake the assessments'. Further, 'engagement issues need to be monitored closely and the panel of approved providers should be dynamic and evolve to ensure the new approach does not drive disengagement'. As such, the Tune Review recommended that the NDIS Act be amended to require participants or prospective participants to undergo a functional capacity assessment by an NDIA-approved provider 'but that this power be discretionary'.
The Government's position on the Tune Review
3.24
The NDIA in its submission argued that the Tune Review 'reinforced the importance of implementing more equitable assessments to support improved national consistency in decision-making', highlighting the Tune Review's mentions of inconsistencies and burdens for people with disability in gathering information to support access requests and planning decisions. The submission stated that the 'Government will roll out independent assessments to ensure the scheme is implemented as envisaged'.
Criticisms of the Government's position on the Tune Review
3.25
Media reports and evidence provided to this inquiry criticised the Government's interpretation of the Tune Review report, and the independence of the Review itself.
3.26
In April 2021, the Sydney Morning Herald suggested, on the basis of leaked emails and draft copies of the Tune Review report, that 'National Disability Insurance Agency officials inserted an entire chapter into the review of the scheme's legislation' (that is, the chapter of the report concerning independent assessments). The Canberra Times also reported that early drafts 'only recommended that the National Disability Insurance Agency trial independent assessments across the country', with this later replaced by the recommendation that the NDIA have discretionary powers to require a person to undergo an assessment.
3.27
A spokesman for the Minister was quoted as saying that the review was conducted independently by David Tune AO PSM, and 'Mr Tune was provided with a small secretariat team to assist him in compiling the report… but this in no way undermines his independence'.
3.28
Criticisms arising in evidence concerning the Government's interpretation of the Tune Review included that:
The Tune Review recommended 'discretionary powers for the NDIA to require a prospective participant or participant to undergo an assessment' —and not that independent assessments should be compulsory for all participants and prospective participants;
The Tune Review proposed that 'the NDIA should not implement a closed or deliberatively limited panel of providers to undertake functional capacity assessments', while the NDIA was proposing to implement a limited panel of assessors from whom people could choose;
The Tune Review strongly pushed for the NDIA to carry out extensive consultation on independent assessments, while the NDIA's consultation was limited because it asked the sector to provide feedback on particular characteristics in the delivery of independent assessments, and not whether they should go ahead or not;
Despite the Tune Review noting that the success of independent assessments will depend on 'assessors providing truly independent functional capacity assessments, so they are not perceived as agents of the NDIA or a tool designed to cut supports from participants', the NDIA intended to 'directly' fund assessor organisations through tender contracts; and
Participants would have been unable to challenge the results of functional capacity assessments, despite the Tune Review suggesting that participants be given this right or the ability to seek some form of arbitration.
Conclusion
3.29
This chapter has outlined some of the key messages concerning independent assessments in the 2011 Productivity Commission report and the Tune Review report. The following chapter builds on this material by examining the key reasons the NDIA gave for introducing independent assessments—including reasons taken from those two reports—and concerns arising in evidence about these reasons.