Dissenting Report
By Senator Rachel Siewert
Introduction
I can’t support the implementation of the new disability
impairment tables at this time. While I support the move to a functional model
of disability, as opposed to a purely medical one, the process by which the
tables were drafted and tested and the much more stringent nature of the
assessment will have unacceptable impacts on some people living with a
disability.
Most witnesses who gave evidence and those advocates who
made submissions, noted difficulties with the tables and their potential
consequences. I have the greatest concern about: lack of consultation;
insufficient testing; inadequate regard for regional and remote people living
with disabilities; gaps in the tables; increasingly large numbers of people
living with disabilities going on to Newstart; inability of the labour market
to provide meaningful and sustainable work; and insufficient commitment to
monitor the outcome of these changes.
Until these concerns are addressed I have serious
reservations about supporting the new tables.
Consultation and Testing
The limited number of consultations with people living with
a disability and with the disability sector, both before and after drafting is
extremely concerning. Furthermore, witnesses criticised the confidential nature
of the consultations: saying 'without the ability to speak openly about
proceedings, any representative is seriously curtailed in their ability to
consult well'.[1]
The Australian Federation of Disability Organisations (AFDO)
noted:
We would certainly like to see government taking more
opportunities to come to us before they begin consultations with people with
disability to understand our particular needs and for us to get a sense of the
context in which they are operating rather than coming back to them and saying,
'This has been an issue for us,' and finding out they have had some particular
constraints at their end or some things that they need to balance out. It is
much easier if there is some dialogue from the start.[2]
It is apparent that the new impairment tables have not been
thoroughly tested. The small sample size of 215 people is not statistically
sound. Moreover, when divided over the fifteen tables, there are ten tables
where the number of people tested under that table is six individuals or less.
This is a too small a sample size. The trial was conducted entirely in Victoria
and therefore does not provide an adequate representation of the rest of
Australia, in particular rural and remote communities. It is unclear whether
people with a disability from non-English speaking backgrounds or Aboriginal
and Torres Strait Islanders were consulted.
The trials revealed, in cases where an inter-rater
comparison was completed there was a 35% percent conflict between primary and
secondary assessors.[3]
As AFDO highlighted, this brings into question the validity of assessments
which cannot be applied consistently.[4]
It is extremely troubling that these tables, which have the
potential to impact on thousands of vulnerable Australians, have not been
subject to more rigorous examination. Many witnesses shared this concern.[5]
Due to this totally inadequate testing I have no confidence
that the tables will adequately assess a person’s disability or functionality.
People Living with Disabilities in Regional and Remote Areas
I am concerned that the adverse consequences of the new
tables will be particularly severe for people living with a disability in
regional and remote Australia. Trialling of the tables, as discussed
previously, did not adequately evaluate the impact on people in remote areas
and more generally in rural and regional Australia.[6]
As AFDO highlighted, use of the new tables will rely heavily
on allied health practitioners such as occupational therapists to provide
information for diagnosis. In many regional and remote areas these specialists
may not be available, or may be recent graduates with minimal experience.[7]
Furthermore, the tables clearly prohibit the consideration
of environmental concerns when determining DSP eligibility, creating serious
questions of equity for people living with a disability in remote and regional
Australia. For example, this group are subject to the same requirement of
looking for work within 60 minutes commuting time of their residence. In some
areas with minimal public transport, this is an unreasonable expectation, even
with Mobility Allowance.
AFDO, painaustralia and Physical Disability Australia (PDA)
all raised concerns about the inability of the tables to consider issues such
as: access to public transport and taxis; distances required to travel to work;
attitudes of employers and availability of jobs.[8]
Ms Sue Egan of PDA highlighted the importance of individual
circumstances in determining eligibility:
We believe that, for people with a physical disability, an accessible
worksite and being able to get to and from work are crucial, particularly for
people who work in rural areas where there is no accessible public transport. I
live in a rural area myself and I work from home, but if I did not work from
home there would be no accessible transport for me to get to work, as I have a
disability as well. So I think that those factors need to be taken into account
when considering whether a person should qualify for a DSP...I think that the
whole assessment process—not just looking at the tables—needs to take into
account situations for the individual, because not everybody with a disability
is the same. We are all different. No two people will have matching symptoms or
outcomes. Everybody is different, and I am sure that that will come across in
other sectors as well. [9]
Almost 50% of people living with a disability on DSP in
Australia live in regional and remote areas. It is extremely concerning that
the needs of this large group are not being properly taken into account.
Gaps in the Tables
Many conditions are not properly captured by the impairment
tables. In particular, co-morbidity, chronic or persistent pain and
intellectual disability.[10]
Co-Morbidity
There are concerns that individuals who have co-morbid
conditions, scoring 15 points across the tables, are likely to face major
difficulties in the employment services system but will no longer be eligible
for DSP. The current "miscellaneous" Tables 20 and 21 have been
removed. This, as the National Welfare Rights Network (NWRN) has highlighted, 'will
significantly limit options for many people with co‐morbidities, which can be degenerative
and ongoing'.[11]
The tables compound difficulties already experienced by
people with co-morbid conditions under the September 3 changes brought in by
the Family Assistance and Other Legislation Amendment Act 2011. Under
this new legislation, only those who are assessed to have a severe impairment
will be exempt from completing a program of support. However, the method for
determining severe impairment does not account for co-morbidity, as there is a
requirement for 20 points in a single table. People with co-morbid conditions
who are not judged to have a severe impairment will not be put straight on to
DSP. They will most likely be placed on Newstart and yet be unable to meet the
requirements of participation in a program of support.
Frank Quinlan, CEO of the Mental Health Council of Australia
(MHCA), provided evidence on this issue to the inquiry on Family Assistance and
Other Legislation Amendment Bill:
Several Australian and international studies have shown that
people with disabilities such as mental disorders and substance abuse disorders
will usually have co-occurring disorders, and a person with co-occurring
disorders is likely to have greatly exacerbated negative impacts. A person with
two or more moderate level disorders occurring across the tables when combined
could result in a total equivalent of a severe impairment, when you combine
substance, mental and physical disorders. The current amendment does not allow
for cumulative totals across the tables and therefore does not take account of
co-occurring disorders.[12]
Chronic Pain
There was concern that pain was considered a symptom only
and not a condition under the new tables. The tables were interpreted by painaustralia
to indicate that:
[S]evere chronic pain will not be assessable as impairments
even though they may have major function impacts on daily activities and
preclude the sufferers from being able to apply for, let alone maintain, 15 or
more hours per week in the labour market without the need for ongoing support.[13]
There was concern from this group that chronic pain
conditions which do not attract an underlying diagnosis, may be disadvantaged
by this exclusion.[14]
Intellectual Disability
According to trials undertaken by the National Council on
Intellectual Disability (NCID), all people with an IQ score of 70–79, who
currently receive DSP would fail to qualify under the revised tables. 20,000
people fall into this group, which is already over represented in hostels,
prisons and homelessness statistics.[15]
While I am aware that the NCID are currently in negotiations with the
Department it is unclear whether this issue has been resolved. This is deeply
concerning.
Labour Market
One of the most problematic issues raised during this
inquiry was the failure of people with disabilities to secure sustainable
employment. Evidence submitted indicates that the majority of people living
with a disability will be unsuccessful in finding lasting employment; that the
job market is not ready to meet the needs of people living with a disability
and that disability employment services may not be ready to absorb the expected
inflow of new job seekers. This is extremely concerning, if, as expected, 38%
of new DSP applicants are rejected under the new tables, it is clear many more
people will be placed on Newstart and are unlikely to find the employment this
measure is designed to achieve.
According to NCID, the current outcomes of the Disability
Employment Services program reveal a 26-week employment outcome rate at 16%.
This means 84% of people with disability entering the disability employment
service will not get a sustainable job.[16]
Anglicare believes this is largely due to the job market, which is currently
not able to meet the employment needs of jobseekers with a disability.[17]
In their evidence, they outlined the reasons for this:
It looks at the decline in jobs which might be termed
entry-level roles, the increase in the requirement for complex-thinking tasks
and the decrease in manual tasks and simple tasks that are done one at a time.
That not only rules out people with disabilities but also makes the competition
much more fierce for roles for people who do not have the capacity or the
desire to apply for those other jobs, so the people with disabilities are
missing out twice. We know that people who are on disability support pension
traditionally have a much lower level of educational attainment than the
general job market, so we can make a generalisation and say that it is going to
be quite difficult for people, in particular those with intellectual
disabilities or periodic disabilities such as mental health, to access some of
those roles.[18]
This apprehension is shared by ACOSS:
...the DSP assessment process as a whole does not take
account of the labour market response to disability, for example whether work
of the kind a person is capable of performing is available where they live and
whether employers discriminate against people with a particular disability...[I]t
is important to acknowledge that the labour market is still hostile to
disability. The overall employment rate of people with significant functional
impairments in 2009 was 42% compared with 70% for the wider community.[19]
It is very concerning that the government is pursuing
measures that reject more people from the DSP, given the inability of the
present job market to absorb workers living with a disability.
Payment Gap
People who are unable to get sustained employment and unable
to qualify for DSP will be living on Newstart, on $34 a day. Many witnesses
highlighted the inadequacy of the Newstart allowance, particularly for those
with a disability.[20]
Anglicare said:
Significant numbers of people who are denied the DSP will be
placed onto Newstart Allowance which is $128 a week less than the pension, has
a much harsher income test and Taper withdrawal rate and is inferior to the DSP
in many ways (for example, there is no eligibility for the Pensioner Education
Supplement and the Liquid Assets Waiting Period applies).[21]
People living with a disability accrue extra costs on top of
ordinary living expenses for medication, equipment, transport and even
electricity. Some people will find it very difficult to meet activity
requirements and will be confronted by a complex and punitive compliance regime
I am very concerned at what will happen to people currently
on DSP when they are subject to review with the new tables. According to FaHCSIA,
under the old tables 2.2% or 18,100 people in 2010-11 were required to
undertake a medical review, and 1.6% or 298 individuals lost eligibility.[22]
It is not possible to tell with certainty how many people
would lose eligibility when reassessed using the new tables but if the results
of the trial are any indication around 38% of those 18,000 or 4,500 may no
longer qualify for DSP and be placed on Newstart. This is exceptionally
problematic considering many of these people will have been on the DSP for
years, if not decades[23]
and have little prospect of securing sustainable employment.
As NWRN stated:
If moved onto a lower level of payment, such as Newstart Allowance,
a person would face significant cuts to their standard of living and be faced
with a major financial crisis with a reduction in their weekly and yearly
income by a third. The reduction in income will be felt most harshly as they
may still face substantial additional costs as a result of their disabilities.[24]
And:
We believe that those people who have been on the disability
support pension for quite some time, in particular, will face the potential
threat of having their entitlements assessed under these new and, I think,
generally acknowledged more onerous provisions, and will lead to an unfair
outcome if they are cancelled based on the new provisions.[25]
This impact has to be examined in light of other changes
taking place to the DSP. As noted above, the September 3 changes mean that
people who do not reach 20 points on one impairment table will be required to
be on a program of support for up to 18 months. Until they complete this
program they will not be assessed for DSP eligibility and they will be on Newstart.
As NWRN noted in their evidence 'We need to look in context at the numbers of
people who will be moved from the disability support pension or be rejected in
the future'.[26]
It is beyond doubt that the cumulative impact of the
September 3 changes and the new impairment tables will see more and more people
living with a disability placed on the inadequate Newstart allowance. This is
extremely concerning.
Monitoring
In response to these many concerns AFDO and NWRN have
recommended, should Schedule 3 proceed, that the government commit to regular
consultation with people with disabilities and their organisations and
qualitative and quantitative monitoring of the employment and financial
outcomes of people whose claim for DSP are rejected.[27]
We strongly supported this recommendation, and believe a
review needs to occur within the first 12 months to respond to any possible
negative impacts.
As AFDO commented:
They need to provide to the public appropriate data about how
the tables are operating, what is happening to the numbers of people who go
onto disability support pension, what is happening to those people who are put
onto Newstart, whether those people are in fact getting the employment outcomes
which are the alleged intent of these tables and whether people with disability
have qualitative narrative responses to the impairment tables about their
experience that can be useful in refining and making sure the tables and any
guidelines associated with them are most useful to people with disability. We
would particularly like to see, regardless of what happens with some of the
specifics we have outlined here today, government asked to consult with people
with disabilities and their organisations six months in and to provide us with
the sort of data that I have just outlined, both qualitative and quantitative.[28]
We strongly supported this recommendation.
Conclusion
I have many concerns regarding the process by which the
government devised the new impairment tables. The consultation has been
insufficient, the testing inadequate, important conditions not covered and too
many people with disabilities face rejection, including those already on DSP. I
am concerned that the government has rushed the development of these new tables
in order to fast track reform of the DSP with a view to reducing access to this
pension. The result, given the poor sustainable employment outcomes, will be
more people living with a disability in poverty on the inadequate Newstart
allowance.
We therefore make the following recommendations:
Recommendation 1
1.2
That Schedule 3 of the Bill should not proceed.
Recommendation 2
1.3
That the impairment tables be further developed based on a functional
model, with proper consultation, testing and monitoring.
Senator Rachel Siewert
Australian Greens
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