… the reports I submitted aren’t good enough because they don’t properly address the Disability Support Pension criteria … It’s an impossible ask and I feel like I’m getting nowhere. My GP is fed up. And I’m fed up too... I’m just a file number. No one has seen how I suffer every day.
2.1
At the heart of this inquiry is the inaccessibility of the Disability Support Pension (DSP). People have difficulty demonstrating that their disability, or chronic illness, is permanent and sufficiently severe, and that they have a continuing inability to work. For those unable to demonstrate that their level of impairment is ‘severe’, the program of support (POS) requirement can also be an insurmountable hurdle.
2.2
This chapter outlines the key barriers to accessing the DSP resulting from the claims process, including the challenges experienced by people trying to gather the medical evidence required to support their DSP claim. The next chapter explores the detrimental impacts of the claims process and restrictive eligibility criteria, including for those who have not been able to access the payment and who rely on other forms of income support, such as the JobSeeker Payment.
Eligibility criteria
Conditions which are fully diagnosed, treated, and stabilised
2.3
The requirement that a condition be fully diagnosed, treated, and stabilised is a significant barrier to accessing the DSP. If a person’s condition has been determined to be fully diagnosed, treated, and stabilised, it is accepted as being permanent. However, if their condition is not considered permanent, then it cannot be assessed under the impairment tables and they will not receive DSP.
2.4
The Department of Social Services (the DSS) submitted that the DSP is potentially a lifelong pension payment, and the requirement that a condition be fully diagnosed, treated, and stabilised is longstanding policy.
Episodic, fluctuating, and complex conditions
2.5
The committee heard that the word ‘fully’ in the ‘fully diagnosed, treated, and stabilised’ requirement creates an unreasonable and unnecessary barrier to accessing the DSP. Inquiry participants also noted that some applicants experience episodic conditions and illness; rapid onset of disease; or injury from accidents, and argued that the requirement that a condition be ‘fully’ diagnosed, treated, and stabilised fails to cater to these circumstances. According to Anglicare Australia:
It is reasonable to expect that there should be a diagnosis, and that a person might be undertaking reasonable treatments, however the use of the qualifier “fully”, and the implicit assumption that some conditions can ever be stabilised, fails to recognise the lived experience of people who cannot work because of an illness or disability, or that their conditions may not be static.
2.6
One individual, Mr Peter Sutton, articulated his experience for the committee:
Most of us who are on the DSP or applying for it have multiple conditions. We are vulnerable people dealing with a number of stressors as it is, which do compound things. When I first lodged a disability support pension application it was initially declined. It took them just two weeks. I got the decision saying it was declined. I was advised that my injuries hadn't stabilised, that I hadn't exhausted treatment options and that the conditions had not been properly diagnosed. This is despite the fact that over the years there was a lot of evidence, including MRIs, CTs, ultrasounds, x-rays, nerve conduction studies, concentric muscle examinations, and treatments had included physiotherapy, pilates, hydrotherapy and nerve-root injections.
2.7
Dr Roslyn Russell from Good Shepherd Australia New Zealand told the committee that, due to the DSP’s eligibility barriers, one in five women her organisation sees are not receiving the payment when they should be. She contended that this indicated Australia was ‘failing to uphold the human rights of people with disability’.
2.8
Mental Health Australia outlined how people with psychosocial disability, who may experience episodic mental illness, are particularly disadvantaged. Inquiry participants also noted that people experiencing episodic mental illness can struggle to provide sufficient evidence that their condition has stabilised and that, for some individuals, stabilising an illness can take an extended period of time and the right combination of medication and living conditions.
2.9
According to one claimant who was unsuccessful in their claim for the DSP due to the fluctuating and episodic nature of their condition:
I did try to get on the DSP, however, it requires your condition to be diagnosed, treated and stabilised. But mental health is never stabilised – it’s always up and down, which means ultimately if you have any sort of episodic condition you’re out of luck.
2.10
In addition, people experiencing episodic mental illness may struggle to maintain engagement with treating health practitioners, treatment plans, and supports. Therefore, they may not have a definitive diagnosis or may have multiple inconsistent diagnoses.
2.11
The committee also heard that people with degenerative diseases, such as Alzheimer’s disease, have difficulty showing their condition has stabilised as it continues to deteriorate. People with fluctuating illnesses, such as Myalgic Encephalomyelitis/Chronic Fatigue Syndrome (ME/CFS) also struggle with this requirement.
2.12
Cancer Council Australia and Oncology Social Work Australia and New Zealand told the committee that people diagnosed with cancer face specific challenges with this aspect of the eligibility criteria due to the sometimes lengthy and uncertain path to recovery, where long-term side effects can keep people out of work. In her evidence to the committee, the Director of Cancer Control Policy at Cancer Council Australia, Ms Megan Varlow, said:
Most cancer survivors describe long-term symptoms and side effects which impact their ability to work over a long period, and research identifies that the risk of becoming unemployed is 37 per cent higher in cancer survivors compared to others. Further, the prognosis for someone with cancer can be uncertain, and people commonly switch treatment over time, depending on their progress. This means that they do not usually meet the eligibility criteria for the disability support pension—that is, that their condition is permanent, fully diagnosed and fully stabilised. For some people with cancer, this is never the case, even in their final months.
2.13
Given these issues, a number of submitters and witnesses advocated for the removal of the term ‘fully’ from the ‘diagnosed, treated and stabilised’ requirement in recognition of episodic and complex disability that may never fully stabilise. For example, Ms Linda Forbes from Economic Justice Australia (EJA) strongly argued for its removal, stating to the committee that ‘[t]hese 'fully' qualifiers are, in our view, irrational and create considerable confusion and distress’.
2.14
Responding to questions regarding whether consideration has been given to the proposal to remove the word ‘fully’ from the requirement, the Deputy Secretary of Social Security within the DSS, Mr Matt Flavel, said the following:
Not specific consideration. Obviously that forms a pretty core part of the law and supporting architecture around the disability support pension. Given that it's an act agreed by parliament, there have been no government initiated attempts to look at changing the way that that definition currently works.
2.15
The committee notes that the Social Security Act 1991 does not include any requirement that a condition is fully diagnosed, treated and stabilised. These terms are defined in a determination that is intended to guide the assessment of whether the condition causing a person’s impairment is permanent. Section 6(3)(a) of Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 states that ‘[a]n impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent’.
2.16
Mr Troy Sloan, the Group Manager of Pensions, Housing, and Homelessness within the DSS, articulated this further. He argued that the term has a specific definition and, as currently defined, does cater for people with episodic conditions:
I think it's important to recognise that 'fully' is defined. Quite often, general meanings are applied; but it's defined in the instrument, which talks about a person 'having undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in a significant functional improvement to a level enabling the person to undertake work in the next two years'. Within that, there is certainly allowance for an episodic fluctuating condition to be fully treated, recognising that it will fluctuate from time to time. In this case, 'fully treated' means the person in question has had reasonable treatment. We are looking at whether, with that treatment, their condition will impact on their ability to work in the next two years. In that case 'episodic' can fit within that definition as defined by the legislation. But, quite often, people get caught up on the ordinary meaning.
2.17
Despite this explanation, and as noted earlier in this chapter, this has not been the lived experience of people who have applied for the DSP. This issue was further articulated by the Australian Medical Association (AMA):
The DSP requirement for the disability or medical condition to be fully diagnosed, fully treated and fully stabilised can also be an issue for the following reasons:
defining “stabilised” is problematic when the patient may experience impairment that is progressive, episodic or fluctuating;
the patient may have a degenerative disease that is progressively impacting on their functionality and thus not clinically considered stabilised; and
defining a condition as treated is difficult when emerging treatments can be on the medical horizon.
Treatment
2.18
The DSS submitted that, where reasonable treatment may improve a person’s functional impairment, it should be explored before they are granted payment. Victoria Legal Aid, however, argued that requiring that a condition be ‘fully treated’ creates an unreasonably high hurdle in relation to the exploration of reasonable treatment options.
2.19
It was also suggested that ongoing treatment requirements can be interpreted by DSS assessors as evidence that a person’s condition is not fully treated or stabilised. According to the Australian Council of Social Service (ACOSS):
People with conditions like cancer or psychiatric illness are at particular risk of this occurring because the complexity of their illness does not align with ‘fully diagnosed, fully treated and fully stabilised’ and can be sporadic in nature.
2.20
A concern was raised during the inquiry that an individual’s autonomy and agency over their medical decisions has been impacted by the treatment requirement. Although it was noted that a person may decide not to undertake a treatment due to the serious risk of unavoidable and significant side effects, inquiry participants submitted that what was considered a ‘significant’ side effect was a subjective decision made by Services Australia.
2.21
The case of a 26-year-old woman who declined to trial a drug that would put her into medical menopause was provided as an example. The Australian Federation of Disability Organisations (AFDO) told the committee that:
In her AAT appeal, Centrelink [now Services Australia] argued that her condition was not fully treated because she refused to trial the drug… Thankfully, a Tribunal member recognised it was unreasonable to compel a young woman to undergo treatment that would prevent her from ever having children.
2.22
Children and Young People with Disability Australia (CYDA) also gave evidence that young people have felt influenced to take medications or receive treatments in order to ‘prove’ their disability.
2.23
The Chair of ME/CFS Australia, Mr Geoffrey Hallman, argued that, on the basis that a therapy may lessen an applicant’s disability, these individuals are frequently required to undergo therapies which actually worsen their impairments.
Impairment tables
2.24
Inquiry participants told the committee that the impairment tables create specific barriers to accessing the DSP. The main issue raised was the requirement for 20 points in a single table to demonstrate a ‘severe impairment’. Other criticisms were levelled at the rigid application of the tables, and their irrelevance to a person’s capacity to work.
Rating for a ‘severe impairment’
2.25
A person is afforded a rating under the impairment tables only once their condition is determined to be fully diagnosed, treated, and stabilised.
2.26
As discussed in Chapter 1, people claiming the DSP who are assessed as having 20 points or more in a single table are considered to have a ‘severe impairment’. If a person scores 20 points or more across multiple impairment tables, they must demonstrate they have tried to improve their work capacity by completing a POS.
2.27
Inquiry participants commonly argued that the requirement for 20 points or more in a single impairment table for a ‘severe impairment’ fails to recognise the cumulative impact of multiple disabilities and comorbidities.
2.28
It was suggested to the committee that there is no rational explanation for the requirement for a person to demonstrate 20 points in one impairment table. As AFDO explained:
… it is illogical to presume that people with impairments across multiple areas of function would have more capacity to find work.
2.29
Social Security Rights Victoria (SSRV) noted that the requirement assumes that a person with multiple, but individually less severe impairments, will be more able to participate in meaningful employment:
While this may be the case for some people, it is not universal. In SSRV’s experience people with multiple impairments are less able to participate in employment, especially when considering comorbidities and interactions between conditions.
2.30
ACOSS submitted that an individual’s overall incapacity should be understood through the claims process, and not ‘hampered by relatively arbitrary rules within the assessment tables themselves’.
2.31
The Chief Executive of Cystic Fibrosis Community Care, Ms Karin Knoester, noted that this was particularly an issue for Australians with cystic fibrosis. She told the committee the following:
We believe that access to the DSP is particularly difficult for people with CF due to the methodology used to assess eligibility, and while a person with CF may have more than 20 points, for example, across the assessment tables, they will be across a range of tables, not on one single table. For a person with CF to have 20 points in one table would mean they are so seriously unwell that they're actually at the end of life. The assessment criteria fail to take into account the cumulative effect upon functional impairment.
2.32
Given the above deficiencies, several inquiry participants recommended that people with disability should be able to access the DSP where they do not meet 20 points under one impairment table, but where they meet this threshold across multiple impairment tables.
Rigid and not related to a person’s ability to work
2.33
The impairment tables were criticised for not taking into account fluctuating conditions and episodic illness, and failed to recognise the range of circumstances that impact on a person’s ability to find and maintain work.
2.34
Victoria Legal Aid argued that the impairment tables dissect impairments, preventing decision-makers from taking a holistic approach to the functional impact of certain conditions and leading to artificial ratings that do not reflect the reality of a person’s capacity to work.
2.35
Evidence demonstrating the disconnect between a person’s capacity to work, and how they might be assessed under the impairment tables, was presented to the committee. For example, a client of Victoria Legal Aid, Jack, was assessed under the musculoskeletal tables and explained the poor outcome in his case:
My right-hand injury was not considered severe enough to justify 20 points under Impairment Table 2 because I still have use of my left hand. The only thing I can do with my left hand is hold a telephone. I struggle to use a computer mouse with my left. The right hand is clawed; I cannot write or use cutlery; I have no strength or feeling in it and drop things. I cannot wash dishes ... my doctor says that if I work, I’d likely … hurt myself or somebody else.
2.36
The Albany Community Legal Centre submitted that it was unrealistic to base a person’s capacity for employment on a rating in the impairment tables as they are ‘based purely on activities of daily living’.
2.37
According to Cancer Council Australia and Oncology Social Work Australia and New Zealand, the impairment tables have limited relevance for people affected by cancer:
… they may still be able to do activities of daily living such as use public transport or go shopping for food without assistance, which is different to having the ability to actively seek a job and work. It may only be after months or years following the initial diagnosis that the medical evidence is available to qualify for the DSP …
Review of the impairment tables
2.38
The existing impairment tables are due to expire in April 2022 and are currently being reviewed by the Government. In an issues paper released by the DSS, it was noted that the review will not be on the same scale as the one undertaken in 2011, as the tables appear to be ‘functioning as expected’. The issues paper articulated the focus of the review as follows:
The current structure of the Impairment Tables focuses on the ability of someone to engage in the labour market, rather than a condition they may have. This review will focus on the functioning of the current Impairment Tables, in particular, consistency and relevant advances in medical technology and assessments and will include external consultation with stakeholders (stakeholders will include advocacy and welfare groups, disability peak bodies and individuals).
The review will primarily focus on the Impairment Tables used for assessing medical eligibility to DSP. Any other concerns or issues raised will be noted and considered in future policy work subject to Government decisions.
2.39
A number of inquiry participants were critical of the consultation process being undertaken by the Government. For example, the National Manager of Advocacy and Research at AFDO, Mr Patrick McGee, outlined a number of flaws in the consultation process:
The last thing I'd like to point to is the inadequacy of the current review of the impairment tables. The current review of the impairment tables is limited to what the department are calling a functional review. This functional review has been led by DSS. There have been general consultation meetings, which have lacked any type of structure. They've written an issues paper which we believe includes data that's been cherrypicked. Our request for a fourth stream of consultation, which has just been acknowledged by the department, has been complicated and difficult. That fourth stream was to seek the views of people with lived experience of the DSP who have a disability. This takes us back, full circle, to the absence of the social model of disability, which allows or perpetuates this situation where the direct users of the program are not being consulted with.
2.40
EJA told the committee that it had to ‘push’ its way into the review process, and that only after a lot of advocacy work undertaken by AFDO and People with Disability Australia (PWDA) had the consultation process improved and broadened. Highlighting this lack of notification, Ms Linda Forbes from EJA said the following:
But I must say we weren't even aware initially, or made aware, of the fact that the impairment tables were under review, because we weren't informed. We just gradually became aware through our sister peak organisations …
Program of support requirement
2.41
Inquiry participants argued that the POS requirement significantly reduces the accessibility of the DSP. For some participants the POS is considered the biggest barrier to accessing the DSP.
2.42
Under this requirement, a person must complete a POS for 18 months over a three-year period. This involves demonstrating that a person has tried to improve their work capacity by participating in an employment services program, generally through a mainstream employment service (JobActive) or Disability Employment Services.
2.43
A person may also meet the POS requirement if they:
finish an appropriate employment assistance program, which is shorter than 18 months (such as the 12-month Transition to Work program); or
are participating in an appropriate employment assistance program at the date of claim and it is determined that their impairment prevents them from further increasing their work capacity through continued participation.
2.44
Multiple submitters stated that 18 months is a long time to participate in an employment services program while remaining on the lower-paid JobSeeker Payment, with its mutual obligation requirements. In addition, there was clear evidence to the committee that the requirement to complete a POS, in order to be eligible for the DSP, is unrealistic for many people with disabilities, chronic health conditions, and/or ongoing caring responsibilities.
2.45
Responding to questions regarding the POS requirement, the DSS argued that there are effectively three different categories of eligible claimants: individuals who are manifestly eligible; individuals who are severely impaired, with 20 points accumulated on a single impairment table; and individuals with 20 points accumulated across multiple impairment tables, but not on any single table. DSS stated that only claimants in the last category are required to undertake a POS, which represents approximately three per cent of all claimants.
2.46
Cystic Fibrosis Community Care highlighted the challenges the POS causes those people within the community suffering from cystic fibrosis:
The 18-month program of support requirement for individuals with complex conditions is particularly challenging for people with cystic fibrosis. Firstly, a person living with CF will often require several hospital admissions of two or three weeks duration every year, and this would draw the program of support process to well over two years, and that's provided an individual with CF can find a sympathetic employer in their geographic region who is able to accommodate the ongoing absences and the limitations to what work can be done. So consideration also needs to be taken into account as to the progressiveness of the condition and the imperative upon the individual to work hard to maintain a level of reasonable wellness and mental health.
2.47
Victoria Legal Aid noted that, on average, over half of all people claiming the DSP who are required to undertake a POS are rejected for failing to meet that aspect of the eligibility criteria.
Medical exemptions
2.48
The committee heard that the POS requirement results in situations whereby clearly incapacitated people are required to engage with employment services beyond their capacity. As a result, many people are too unwell to ‘actively’ participate in a POS and require a medical exemption, which delays their eligibility for the DSP as these periods do not count towards their ‘active participation period’.
2.49
Inquiry participants noted that, because of medical conditions and requirements for exemptions, some people are never able to complete a POS. Further, the Rights Information and Advocacy Centre submitted that some Disability Employment Services (DES) providers are failing to inform claimants about the implications of obtaining medical exemptions, such as delaying their eligibility for the DSP.
2.50
It was argued that completing a POS is particularly challenging for people with fluctuating illnesses. For example, MS Australia told the committee that people with multiple sclerosis, who commonly live with unpredictable and episodic changes to their symptoms and functional capacity, can require medical exemptions for POS activities, causing delays in the claim process.
2.51
The committee heard that, although the guidelines provide for circumstances where a person may be fully exempted from the POS requirement, in practice this rarely occurs.
2.52
According to one advocacy organisation which commonly makes exemption requests to DES providers on behalf of its clients with severe physical and/or mental health issues:
The response consistently received is that the provider “does not do this” and that the client needs to continue in the program. This creates a vicious cycle for the client, as they are not immediately eligible for the DSP under the ‘severe’ impairment pathway but are too unwell to participate in their POS and are unable to be exempted from the program.
A ‘hidden’ criterion
2.53
A number of inquiry participants submitted that the POS requirement is not well understood by DSP claimants. In its submission, AFDO highlighted that in one study 83 per cent of respondents had not heard of the POS requirement when they submitted their DSP application.
2.54
Several submitters told the committee that the POS requirement only became known at the point of appealing a decision to refuse the DSP. For example, according to one unsuccessful claimant:
The Tribunal eventually explained that I was not eligible because I had not participated in a Program of Support before making the claim. This was the first time I heard about the Program of Support. When I went into Centrelink to discuss the “support program,” they did not know what I was talking about. I felt like an idiot.
Reforming the program of support requirement
2.55
The committee heard overwhelming evidence in support of removing the POS requirement from the DSP eligibility criteria. For example, the Chief Executive Officer of CYDA, Ms Mary Sayers, stated unequivocally that her organisation would like the POS ‘completely scrapped’. She contended that it is unfair and forces many young people with only partial capacity to work onto either JobSeeker or Youth Allowance.
2.56
There were also suggestions that, if not abolished, POS exemptions should be more readily available or that participation be made voluntary. On this issue, Ms Linda Forbes from EJA stated:
What really needs to happen is that, rather than the person having to put up their hand and seek to exit, they are exempt from it. That would also mean that you could exempt people before the requirement were actually applied to them. It's not like having a requirement that's never going to work and then getting the person to exit; it's getting someone to think it through and exercise discretion to say, 'This particular person, in the circumstances of their case, should not be required to engage in the program of support.'
2.57
Evidence before the committee suggested the POS requirement has a detrimental impact on individuals’ health, and social and economic wellbeing. In addition, there is very little evidence as to the effectiveness of the POS requirement in assisting people into employment. These issues are further discussed in Chapter 4.
Continuing inability to work
2.58
The flaws requiring a person to demonstrate that they have a continuing inability to work were also criticised during the inquiry. A person will meet this requirement if they have medical evidence to show that they are unable to work at least 15 hours a week within the next two years because of their impairment.
2.59
MS Australia argued that this requirement is unfair:
For the purpose of assessment, ‘work‘ includes at least 15 hours per week at or above the minimum wage and if the work exists in Australia, “even if not within the person’s locally accessible labour market” - 15 hours work per week is a sentence to poverty!
2.60
The Chief Executive of Cystic Fibrosis Community Care, Ms Karin Knoester, highlighted for the committee that cystic fibrosis does not affect people uniformly, and that its impact on a person’s ability to work can vary. She also noted that, although a person may be able to work 15 hours per week, doing so could have significant negative impacts on other parts of their life:
In relation to employment, for example, one person may be able to work 15 hours a week, but in doing so it would leave them significantly exhausted and unable to manage their self-care needs, such as their intensive physiotherapy treatments and their social connections, which are so important to their good mental health. That's aside from the clinic appointments they need to have with their CF team and their physios and OTs and physicians. Without taking into account the various other debilitating factors associated with cystic fibrosis, an assessment that a person is able to work 15 hours per week and therefore is not eligible for the DSP is actually erroneous.
2.61
As discussed in further detail in Chapter 4, the limit placed on the number of hours a person can work in order to be eligible for the DSP was also criticised for limiting a person’s ability to engage in the workforce.
Claims process and evidence requirements
2.62
The committee heard that the evidentiary requirements to qualify for the DSP places a heavy burden on individuals. Further, some applicants do not have access to comprehensive medical records and may need to gather evidence for their DSP claim from multiple sources. This often results in the need to seek further evidence.
2.63
The nature of some disabilities also makes it difficult for some to acquire the necessary evidence to support their DSP claim. Mental Health Australia submitted that the functional impacts of psychosocial disability make it problematic for people to engage with the complexity of the evidence gathering and application processes.
Availability of health professionals
2.64
The committee heard that there is a shortage of specialist health professionals across a range of areas, which has led to long wait times and high costs for appointments. This shortage of specialists has led to a number of applicants being forced to approach multiple medical professionals to find appropriate support for their DSP claim.
2.65
Financial Counselling Victoria noted that the impacts of COVID-19 and lockdowns in Victoria have resulted in some medical treatments being unavailable for months, and that many waiting lists for specialists have ‘blown out’ to years in duration.
2.66
The committee also heard that this is particularly acute in rural, regional, and remote areas, with people in these communities facing particular difficulties in accessing specialists. According to one person living in a rural town:
People who need access to therapy, or counselling, it’s just not there. It took 16 months to get an appointment with a psychologist. I was given 37 referrals to different psychologists but there was no availability.
Qualification period to provide evidence
2.67
Another issue raised in evidence is the 13-week qualification period, from the date of the DSP claim, to provide evidence. This requires a claimant to satisfy the eligibility criteria for the DSP in the 13-week period commencing on the date the claim is lodged.
2.68
Victoria Legal Aid explained that the qualification period can unfairly prevent people from accessing the DSP, particularly those who have difficulty obtaining relevant medical evidence. It submitted that medical evidence supporting a person’s application often becomes available several months, or even years, after being lodged.
2.69
It noted that, where this happens during the review process, a new claim must be lodged. To remove the need to commence the process again, Victoria Legal Aid recommended introducing discretion to approve DSP claims when eligibility is established after the 13‑week qualification period.
Restrictions on who can provide evidence
2.70
The committee heard that restrictions on who can provide evidence in support of a DSP claim is also creating barriers for some applicants. For example, only reports from a psychiatrist or clinical psychologist will be accepted as evidence of a diagnosed mental health condition for the purpose of the impairment tables.
2.71
The Australian Association of Psychologists noted that this restriction has inhibited some applicants from accessing the DSP, as there is limited availability of clinical psychologists, neuropsychologists, and psychiatrists in many regions, particularly in rural and remote parts of Australia. In addition, the higher fees charged by these clinicians, compared to registered psychologists, is cost prohibitive.
2.72
Inquiry participants expressed concerns that the restrictions are unduly limiting and are causing significant stress to people applying for the DSP. For example, according to the Whitlam Institute:
By prescribing which medical professions can provide evidence for conditions, it could disadvantage or impact upon relationships built with other professionals whom applicants may have a rapport with or who may understand the person’s condition better such as, a general practitioner (GP), but who may be unable to write evidence which will be accepted by Centrelink.
First Nations people and cultural safety
2.73
The National Aboriginal Community Controlled Health Organisation (NACHHO) submitted that the claims process for the DSP is not culturally safe and fails to consider the additional barriers that First Nations people with disability face. For example, the organisation noted that many Aboriginal and Torres Strait Islander people, particularly in remote locations, commonly lack the identification documents required by Services Australia, such as a birth certificate.
2.74
Recognising these issues, a number of inquiry participants called for reforms to the DSP. For example, Victoria Legal Aid recommended that Services Australia employs Aboriginal and Torres Strait Islander people to ensure culturally competent service delivery; and that it accepts medical evidence from Aboriginal health services, rather than requiring further evidence from mainstream providers which may not be culturally safe for the applicant.
Role of health professionals
2.75
The committee heard that health professionals have varying levels of knowledge about the DSP’s eligibility requirements, impairment tables, and types of reports needed to support a claim. According to Dr Darren O’Donovan from La Trobe Law School:
Individual’s application outcomes too often reflect the familiarity of doctors with the tables, the ability of the person to advocate and navigate the layers of evidence and appeals. Where a doctor is unaware of the very specific information required to established eligibility, applicants are left with medical evidence which do not expressly address the requirements of the impairment tables.
2.76
As an example of this issue, a health professional may report that a person needs additional treatment but fail to comment on the impact this treatment may have on the person’s function. Further, some health professionals are reluctant to say that a person’s impairment is permanent or that their function will not improve. The committee heard that this issue disproportionately impacts young people with disability.
2.77
Inquiry participants also noted a gap in the language that medical professionals use in their reports and the language required by Services Australia to assess a DSP claim. As one submitter described it, the current DSP claims process is marred by a ‘magic’ words dynamic.
2.78
The committee heard that the strongest asset a person applying for the DSP can have is a doctor who understands the DSP’s eligibility criteria, the impairment tables, and how to provide evidence in the way the assessors are looking for. According to CYDA:
This creates unfair divisions between people who have choice between medical professionals and those with limited options, such as those in remote and regional areas or those reliant on the public health care system.
2.79
Inquiry participants noted that for some conditions, such as ME/CFS, there is the added challenge of a lack of understanding of their symptoms, which makes it difficult for DSS assessors to accurately assess an individual’s level of impairment.
2.80
Given these issues, it was suggested that there needs to be further support for health professionals, including training, to better understand the DSP’s requirements and the impairment tables.
Time costs involved in the collection of evidence
2.81
The committee heard that health practitioners are time poor and, therefore, can be unwilling, or unable, to engage in the evidence requirements for a DSP claim.
2.82
AFDO noted that the time required to write a comprehensive report that sufficiently addresses all the criteria is significant, and is not something all medical professionals are able or willing to commit to.
2.83
The Darwin Community Legal Service (DCLS) has estimated that the time and cost burden on the health system of a single application is at least eight hours of clinical review and treatment. Their submission noted that:
Eight hours per application across 100,000 applications a year is a cost the health care system cannot and should not bear. Add to that any follow up with the treating team, or need for more evidence, more appointments or tribunal appeals that can blow out hours spent on an application from these average figures.
2.84
According to the Aboriginal Medical Services Alliance Northern Territory (AMSANT), among some First Nations medical services, practitioners have reported feeling over-burdened and reluctant to engage in a DSP claim:
There is a strong feeling among medical practitioners that Centrelink is wasting their time. Centrelink requires that they spend inordinate amounts of time getting to understand the impairment tables, then testing and documenting their clients’ disability, only to find that Centrelink then rejects the application for reasons which are not apparent. Some Medical Officers will not assist with DSP applications for this reason.
2.85
A representative of Kin Disability Advocacy, Dr Siyat Abdi, highlighted that many disabled migrants experience unique challenges in both sourcing evidence of their disability from their home countries, and then having it recognised in Australia:
[M]igrants may not have evidence from their home countries about their disability. When they come here we find they don't have evidence to show that they have a disability, or they may not have been assessed, or the recognised assessment which they come from home with is not even recognised here in Australia. The experiences are unique difficulties in accessing health services on top of existing barriers, such as extensive wait times and financial cost. When they go and do the assessment, we find that culturally and linguistically diverse people, because they don't have the finances, cannot go to private assessments, therefore they have to wait for the public assessment. That really gives them a lot of challenge.
Financial costs of gathering medical evidence
2.86
The committee heard that there can be significant financial costs involved in gathering evidence for a DSP claim. This issue is especially pronounced for residents of remote communities, as these individuals commonly incur significant out‑of‑pocket expenses for travel and accommodation when appointments cannot be held locally in their communities or via telehealth.
2.87
Women with Disabilities Australia (WWDA) noted that to meet the evidentiary requirements, many women are having to book multiple appointments with multiple specialists, and that this places additional financial pressure on them when they are already facing financial insecurity.
2.88
The Whitlam Institute highlighted that although a certain number of psychologist appointments can be claimed through Medicare, a gap or upfront payment may be required. Further, once a patient exhausts their quota each year, they are forced to absorb the entire costs themselves.
2.89
According to Spinal Cord Injuries Australia, significant out of pocket expenses can be incurred by people seeking appropriate reports and the additional burden of rectifying reports or seeking supporting documentation from other health professionals with an understanding of the DSP.
2.90
The committee heard that, for many people without financial means, including those on lower income support payments, the cost of medical evidence is out of reach. For example, CYDA submitted that those who are surviving on JobSeeker or Youth Allowance payments, and experiencing job insecurity in the labour market, are effectively ‘costed out’ of accessing the DSP.
Ongoing evidence requirements
2.91
Several submissions raised concerns about ongoing requirements to provide evidence to maintain their eligibility for the DSP, arguing that the lifelong nature of some disabilities should negate the need for continued review. On this point, Inclusion Australia said the following:
Government needs to acknowledge the lifelong nature of intellectual disability and re-design the DSP, and other systems so they work in ways that reduce the need for unnecessary reviews and new supporting evidence of disability.
The assessment of claims
Job capacity assessments
2.92
The committee heard that Services Australia officers undertaking job capacity assessments are frequently asked to make findings outside their professional expertise. Legal Aid NSW expressed its concern that a lack of medical expertise in original decision-making is resulting in adverse outcomes for claimants.
2.93
In addition, it was argued that assessing claimants based on the number of hours they are assumed to be able to work is increasingly an 'anachronism', and that this method of assessment no longer reflects the nature and organisation of work in contemporary Australia. The Whitlam Institute submitted that the assessment criteria for work capacity should be based on an objective assessment and individual need:
The assessed capacity of hours per work does not reflect the nature and incidence of the disabilities that people live with. There are a wide range of globally accepted assessment tools that represent a fairer and more scientific means of assessing individual impairment.
Disability medical assessments
2.94
Specific concerns were raised about disability medical assessments being conducted by Government-contracted doctors, and their ability to build a complete and accurate understanding of a person’s functional ability when the assessor was unfamiliar with a claimant’s specific situation.
2.95
Carers Australia also told the committee that a person’s capacity in real life is not completely revealed by a diagnosis, a dossier of medical tests, or a single conversation with a professional:
It is best determined by an appropriate health professional who has had ongoing contact with the applicant and ideally in consultation with their carer who understands the impact of their disability on day to day living and their employment prospects.
Removal of the treating doctor’s report
2.96
The committee heard concerns about the removal of treating doctors’ reports from the DSP application process. According to one submission:
The removal of the Treating Doctor Reports (TDR) as part of the claim process in 2014/15 has made it more difficult for applicants and doctors to understand what information should ideally be provided to support a claim for the DSP.
2.97
Currently, treating doctors assist their patients to gather the evidence they need by utilising a medical evidence checklist provided by Services Australia and available via their website. This checklist provides guidance to doctors on whether the evidence collected by their patients includes relevant information about their condition to assist Services Australia assess their DSP claim.
2.98
In his evidence to the committee, the General Manager of Working Age Programs at Services Australia, Mr Brendan Moon, explained the current assessment process and under what circumstances Services Australia would contact the treating doctor:
… the structure of the way the assessments operate, as it stands, is that we collect the raw medical evidence from the claimant, which comes from the treating doctor, and then that raw medical evidence is assessed in line with the policy and the impairment tables to come to the conclusion. We may reach out to the treating doctor where there are extenuating circumstances, but that's not normal process or normal practice.
2.99
Previously, applicants were given a medical report form to be completed by their treating health professional. This included a range of questions about their diagnosis, treatment, clinical history and the functional impact of their medical condition. Treating health professionals were also able to include other medical evidence relevant to their claim.
2.100
Notwithstanding the current checklist, submitters told the inquiry that the treating doctor's report was a source of guidance and support for both claimants and doctors about the information needed to determine DSP eligibility. EJA told the committee that:
The TDR [treating doctor's report] placed claimants on an equal playing field in terms of the information they could put forward to the decision‑makers. Without the TDR, claimants and treating doctors are generally ill-informed regarding the evidence to provide at the time of claim.
2.101
According to one submission, the removal of the treating doctors report has meant that worthy claimants often miss out on DSP simply because they are unaware of the exact information they need to obtain from their doctors:
Treating doctors may have ample specialist reports on record that would establish their patient’s eligibility for DSP but they are often only informed of the relevance of these reports once their patient has been refused DSP…
2.102
A number of inquiry participants argued that treating doctor reports should be re-instated as a mandatory requirement for GPs and made billable under Medicare. On this issue, EJA said the following:
[B]ring back the treating doctor's report. Without a standard report to complete, claimants and their doctors have no guidance about what evidence to provide in support of a DSP claim, nor indeed in support of an appeal to an authorised review officer or the Administrative Appeals Tribunal. Claimants can miss out on DSP simply because the evidence provided does not address relevant impairment tables…
2.103
EJA elaborated further:
[C]laimants and their doctors are absolutely flying blind when they try to provide evidence to put in a DSP claim. It used to be that doctors were required to complete a treating doctor's report as part of the DSP claim package. If they didn't complete it and the person had ongoing issues with getting their doctor to complete it, they'd contact old DSS or Centrelink, and the doctor would be issued with a notice requiring them to. We need to get back to that because now doctors don't know what to address. Many doctors don't know of the existence of the impairment tables, and, even if they do, they don't have the time to do the research to figure it out…
2.104
In contrast, the AMA submitted that it had received ‘largely positive feedback from GPs’, following the removal of the treating doctors report and commented that the changes have ‘streamlined the administrative requirement for practitioners...’
2.105
The Central Australian Aboriginal Congress agreed that removing the treating doctor’s report requirement had simplified what doctors have to do, while reflecting on the impact this had on patients:
…we now just have to write a letter. When that came in, we thought, 'Great; it's easier for us, as GPs.' The trouble is where you don't write that letter right or you don't refer to the functional tables in the right way. You might write a really great letter, but, if you don't know how to play the game, so to speak—if you don't know that you've got to quote exactly the right parts of the functional tables for the right person—the letter gets rejected.
2.106
The AMA also noted that a GP’s ability to bulk-bill a DSP applicant under the Medicare Benefits Schedule for administrative tasks such as report writing is limited. It explained that the current Medicare Benefits Schedule item structure makes it unviable for GPs to spend significant time with patients and to review records as part of the preparation of a treating doctors report.
2.107
Instead of a return to treating doctors reports, the AMA suggested that:
[w]hat is needed is clearer and better funding mechanisms to support GPs in compiling/and or summarising the medical evidence to support a patients claim.
Committee view and recommendations
Fully diagnosed, treated, and stabilised conditions
2.108
The committee is of the strong view that the requirement for an applicant’s condition be fully diagnosed, treated, and stabilised is a significant barrier for people trying to access the DSP. Although acknowledging that the DSP is a potentially life-long payment and, hence, applicants should be appropriately diagnosed with an ongoing condition, the committee considers that the current definition is too onerous, causes significant harm, and results in material hardship for many individuals.
2.109
The committee agrees with inquiry participants that to require a disability be ‘fully’ diagnosed, treated, and stabilised is unnecessary, and fails to adequately account for people who experience episodic, fluctuating, non-stable and complex conditions. For example, the committee recognises that people with psychosocial disabilities may experience episodic illness, and that it may be difficult for them to demonstrate that their condition has fully stabilised.
2.110
The committee notes the specific challenges faced by people diagnosed with cancer, and that their path to recovery can be long and uncertain. The committee also recognises that commonly applied cancer therapies can have significant detrimental impacts on the ability of these individuals to maintain ongoing work. Based on the evidence provided during the inquiry, the committee considers that the current DSP does not adequately account for these conditions and, hence, fails these individuals.
2.111
Given these significant issues, the committee strongly supports reform to improve the accessibility and flexibility of the DSP to ensure that those who have complex and evolving needs are not excluded from receiving the DSP.
2.112
The committee recommends that the Australian Government investigates how the requirement that a condition be ‘fully diagnosed, treated and stabilised’ is preventing people with conditions that are complex, fluctuating, or deteriorate over time, from accessing the Disability Support Pension, and could be modified to ensure people get the support they need.
Impairment severity and the impairment tables
2.113
The committee is concerned that the DSP’s impairment tables create unsurmountable barriers for many applicants—particularly the requirement for 20 points in a single table to demonstrate a severe impairment.
2.114
The committee agrees that the current application of the tables fails to recognise the cumulative impact that multiple disabilities and comorbidities may have, and strongly disagrees with the assumption that individuals with impairments across multiple areas of function have more capacity to work compared to individuals with impairments in a single area of function.
2.115
Based on evidence provided, the committee is concerned that the current review of the impairment tables being undertaken by DSS is too limited in scope and will fail to address the key issues raised during this inquiry.
2.116
A more holistic approach is needed to assess an individual’s overall level of capacity. Hence, the committee is supportive of suggestions that people with disability should be able to access the DSP through an accessible mechanism that recognises the full extent of disability.
2.117
The committee recommends that the Australian Government considers reforming the approach taken to determine whether a claimant has a ‘severe impairment’, so as to allow the accumulation of 20 points across any number of impairment tables to meet the definition of a severe impairment.
2.118
The committee recommends that the Australian Government undertake an in-depth, clinical review of the impairment tables in totality, that recognises comorbidity and draws on the lived experience of people with disability; with a view to working towards a social model of disability.
Program of support requirement
2.119
The committee recognises that the POS requirement can be the biggest barrier to accessing the DSP for a number of applicants. Based on evidence provided during the inquiry, the committee considers that this requirement is unrealistic for many people who have disabilities, chronic health conditions, or ongoing carer responsibilities.
2.120
Evidence suggests that the POS requirement also results in poor employment outcomes, is inequitable, and can deny people with significant disability the DSP for an extended period of time—requiring them to live on the lower JobSeeker Payment during that period. This issue is discussed further in Chapter 4, along with the committee’s view and recommendations.
Shortage of health professionals
2.121
The committee is concerned with evidence indicating that there are shortages of health professionals across numerous areas, and that this has commonly led to extended wait times for appointments—negatively impacting on people's ability to promptly claim the DSP. It was highlighted during the inquiry that these wait times can exceed a year and that treatments can be unavailable for months.
2.122
The committee is concerned that, as a result of these extended wait times, the current qualification period of 13 weeks can unfairly prevent people from accessing the DSP. Given this, the committee agrees with suggestions that a discretion should be introduced to approve DSP claims after the 13-week qualification period.
2.123
The committee recommends that the Australian Government introduces a discretion which would allow for Disability Support Pension claims to be approved if medical eligibility is established after the existing 13-week qualification period.
Restrictions on professionals who can provide medical evidence
2.124
The committee notes that restrictions placed on the categories of professionals able to support a DSP claim are also compounding delays and creating barriers for a number of applicants.
2.125
Evidence indicated that this is particularly problematic for applicants who are unable to utilise evidence provided by registered psychologists, and instead have to rely on clinical psychologists, neuropsychologists, and psychiatrists, who commonly have limited availability and charge higher fees for appointments.
2.126
The committee is of the view that these restrictions are unduly limiting and are resulting in claimants experiencing significant stress. Hence, the committee recommends these restrictions be amended.
2.127
The committee recommends that the Australian Government considers revising the evidentiary requirements to allow evidence provided by registered psychologists.
A culturally safe process for First Nations people
2.128
The committee acknowledges that First Nations people face additional barriers when applying for the DSP and that mainstream health service providers may not be culturally safe for First Nations people. The committee is of the view that DSS and Services Australia should review the application process and supports available for First Nations people to ensure that the process is culturally safe. Amongst other issues, the review should consider accepting evidence from Aboriginal community controlled health services.
2.129
The committee recommends that the Department of Social Services and Services Australia work with Aboriginal community controlled health organisations to review the claims process and evidentiary requirements for First Nations claimants to ensure that the process is culturally safe.
Lack of knowledge and understanding regarding the eligibility criteria
2.130
The committee notes that health professionals have varying levels of understanding regarding the DSP claims process in general, and the eligibility and evidentiary requirements in particular. Evidence indicated that there is also a mismatch between the language utilised by these professionals and that required by Services Australia to assess a claim.
2.131
Suggestions to improve guidance material and publicly available information are provided in Chapter 3.
The treating doctor’s report
2.132
The committee considers that the removal of the treating doctor's report has made it more difficult for claimants, and their medical professionals, to understand what information is required to effectively support a DSP claim. Evidence indicated that this report was a source of essential information for these individuals, and that its removal has resulted in people 'flying blind'.
2.133
Inquiry participants submitted that this not only negatively impacts on a claimant's initial ability to successfully claim the DSP, but also hinders any subsequent review and appeal process, as these individuals are unsure about the evidentiary requirements to effectively support their objection. The committee is of the view that there is a need to ensure doctors are better supported to understand how DSP applications are assessed. Further, that doctors are appropriately funded through the Medicare Benefits Schedule to support their patients in making claims.
2.134
The committee recommends that the Australian Government consider reintroducing the treating doctors report, with wide consultation on how best to provide targeted resources to support general practitioners, specialists, and psychologists to identify, compile, and summarise evidence relevant to a patient’s Disability Support Pension claim or appeal.
2.135
The committee recommends that the Australian Government considers ensuring that the Medicare Benefits Schedule allows health practitioners to claim payment for providing evidence in support of Disability Support Pension claims.
Time and financial costs obtaining medical evidence
2.136
Evidence requirements for applicants to prove their disability status is placing a heavy burden on DSP applicants. Further, the committee heard that the nature of some disabilities makes it hard to acquire the necessary evidence, and that information is sometimes sought from multiple sources.
2.137
Given these issues, the committee recommends that the Government reviews the evidentiary requirements for claimants of the DSP, with the aim of streamlining the process and reducing the negative impacts and costs incurred by these individuals.
2.138
The committee recommends that the Australian Government reviews the medical evidentiary requirements for claimants of the Disability Support Pension, to ensure that the application is fully accessible. The committee envisages that such a review would consider the specific challenges faced by individuals located in regional, rural, and remote Australia; recipients of JobSeeker and Youth Allowance; recent migrants; and First Nations people.