BY DARREN O’DONOVAN

The eligibility test for accessing the National Disability Insurance Scheme (NDIS) has risen to the front pages of the nation’s media amidst debates about the future position of autism within the scheme. This post introduces the criteria for qualification for the NDIS, and highlights a number of emerging issues in their application. This piece argues that while allegations of ‘surges’ and ‘blow outs’ are easy to make, the reality is more complex.

Who is eligible for the NDIS?

There are two pathways into the National Disability Insurance Scheme. The first, the “disability pathway” is laid down by section 24 of the NDIS Act; the second, the “early intervention” pathway, by section 25. The disability pathway requires that:

(a) The person have a disability attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments, or one or more impairments attributable to a psychiatric condition;

(b) the impairments are likely to be permanent;

(c) the impairments result in substantially reduced functional capacity or psychosocial functioning in undertaking, at least one of the following activities; communication; social interaction; learning; mobility; self-care or self-management;

(d) The impairments affect their capacity for social or economic participation; and

(e) The person is likely to require support under the NDIS for their lifetime.

Thus media reports suggesting that the NDIS is limited to those who are “incapacitated” or have “severe” and “profound” disability are inaccurate. The focus of NDIS eligibility has always been upon those with “substantially” reduced capacity to function day to day.

The second, early intervention pathway, has the following requirements:

(a) The person’s impairment is likely to be permanent;

(b) Early intervention supports are likely to benefit the person by reducing their future needs for disability related supports;

(c) The National Disability Insurance Agency is satisfied that the provision of early intervention supports will improve, mitigate, avoid the deterioration of, the person’s functional capacity; and

(d) the Agency is satisfied that early intervention support for the person is most appropriately funded or provided through the NDIS.

Those who qualify through the early intervention pathway do so on the basis that an early investment in support will reduce future costs and a lifetime of benefits for them. Media references to a surge in numbers or a cost “blowout”, need to be counterbalanced by a greater awareness of the “insurance logic” of NDIS. The funding of NDIS support (under section 34 of the NDIS Act) is centred on a value for money analysis, which evaluates how investing in support to grow a person’s capacity to participate in society can lead to reduced government spending in the long run. Advocates for the NDIS are thus rightly underlining that the scheme is about sensible investment, not a standard welfare model.

What are the key challenges to establishing eligibility for the NDIS?

Before making decisive claims about the ease of accessing the NDIS, or the numbers of persons who have done so, we should engage with key findings about the reality of Agency processes over the past couple of years. As the recent reports of the Commonwealth Ombudsman and the National Audit Office and even Administrative Appeal Tribunal decisions show, decisions about access to the scheme have often been delayed, disorganised and rushed. We must strike a balance in our engagement with this; we need to create a culture of solutions as much as criticism. It is nevertheless very rare to see a tribunal make the statements such as those made by Deputy President Humphries last month:

In reality, what was before the Tribunal was indicative simply of Mrs Simpson’s application falling between the cracks, and being overlooked. Sadly, the Tribunal is familiar with far too many cases where the statutory pathway for internal review has not been observed in a timely way, for reasons which appear related to pressures on the agency arising from the volume of applications it is dealing with.

It is therefore important that in last month’s landmark Simpson and FJKH decisions, the Tribunal underlined that NDIS applicants and participants should have a timely and “meaningful opportunity” to appeal the Agency’s decisions. The right of an applicant to proceed to the tribunal where the Agency’s decisions are unreasonably delayed represents an important practical safeguard. The call by Deputy President Humphries in this month’s decision of FFVQ and National Disability Insurance Agency for the relevant Minister to urgently consider the need for financial and administrative responses to alleviate delays and “haphazard” decision-making is an important intervention underlining the implementation challenges facing the scheme.

Decision-making contemplated under the NDIS Act is complex and individualised. The rate of appeals within the scheme is high, reflecting the contestable nature of legislative criteria. As the reader will see below, decisions need to be properly resourced by a range of medical documentation and the ability to map the current and future impacts of a person’s disability on their daily lives. The remainder of this piece will discuss three sites of contestation in establishing NDIS eligibility, with the aim of exploring how the legislative framework can be made more coherent and clear for its users.

(i) Interpretive Silences

The operation of the NDIS Act has revealed a problematic lack of express definitions and a number of interpretive gaps. For instance, the core terms of “condition” and “impairment” are not defined, creating an irritating circularity to the eligibility requirements in section 24. The requirement that a person have “substantially reduced capacity” in one of six activity domains is perhaps the best example of how normative silences and gaps in the legislation can generate inconsistency and exclusion.

The NDIS Becoming a Participant Rules (secondary legislation) provide three instances where the “substantially reduced” criterion will be deemed to have been satisfied:

(a)     the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or

(b)     the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or

(c)     the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.

In Mulligan v National Disability Insurance Agency, Justice Mortimer of the Federal Court underlined (at [77]) that this rule does not exhaustively define the concept of substantially reduced” functional capacity. Outside of the listed circumstances, a decision-maker must still assess the degree of impairment and whether the loss of capacity is sufficiently “substantial”. The above examples do not, for instance address ongoing, serious chronic conditions, where assistance is not usually required. Neither the primary or secondary legislation provide express general criteria relevant to judging the severity of an impairment or a generally applicable definition of “substantially reduced capacity”.

This normative gap is compounded by the failure of the primary and secondary legislation to adequately address another core question: reduced capacity to do what? The Act provides that we must assess the individual’s functioning in six broad domains of activity: self-care, learning, mobility, self-management, communication, and social interaction. Three of these are given a broad outline definition in the NDIS operational guidelines, but the remainder are under-defined, with the guidelines only providing a number of examples falling within each domain.

Those whose impairments may fluctuate day to day are a particularly vulnerable cohort in assessing functional capacity. Eligibility for the NDIS also rests on an individual’s capacity to adequately narrate or map the specific impacts of their disability on their everyday lives. A common complaint I often hear from people at community fora is that “the Agency didn’t want to hear about my bad days”. This reflects the use of the term “usually” in the NDIS rules above, and the Agency’s operational guideline that capacity should be assessed outside of “acute episodes” (a term not further defined in guidelines). Individuals can present well on a particular day or month, but lack the capacity to undertake ongoing activities. The activities of self-management and self-care, for example, are arguably only achievable with constant functioning. For instance, the periodic loss during regular acute episodes of the capacity to “manage finances” or “take responsibility for oneself” – specifically listed as examples in Agency policy – can have the most serious consequences for life outcomes, such as interactions with the justice system or extreme poverty. We need to pressure our politicians to provide greater clarity around the forms and levels of functional capacity, which are key to determining eligibility, rather than simply engaging in impressionistic “system wide” debates about the NDIS

(ii) Heavy Evidential Thresholds

Applicants are required to supply a significant amount of medical evidence to establish eligibility for the NDIS. The range of competences needed to navigate the health system and collate the relevant documents mean vulnerable individuals will have to be supported by the Agency or through access to advocates. The requirement that a person’s condition is “likely permanent” provides an example of the range of documents and inquiries which can be necessary for a person to qualify under either the early intervention or disability pathway.

The NDIS rules require that the Agency must be satisfied that there is no “known, available and appropriate treatment which is likely to remedy the impairment” for a person to gain entrance to the scheme. This likelihood analysis does not require exhausting all treatment options, but only those likely to remedy­­ the condition. As the scheme is expected to have approximately 480,000 participants upon its full rollout, the NDIS is generating an extraordinary demand for diagnostic services. Individual states remain financially responsible for ensuring “preliminary assessment and disability diagnosis” for the NDIS under the relevant Council of Australian Governments agreement. It is likely that vulnerable applicants to the NDIS will present with patchy medical history or will struggle to document their past attempts at securing treatment. If applicants do not have adequate assistance, the NDIS may therefore replicate and reinforce socio-economic disadvantage.

BBMC, the first published tribunal decision on individuals with a long established mental illness, provides a good example of what it can take to satisfy the permanence requirement in some contexts. A young woman had suffered from severe anxiety disorder from the age of nine. Her treatment history with approximately four psychologists and five psychiatrists helped her clear the permanence requirement, with doctors asserting her impairment was “reasonably permanent” with only a “management” plan in place. It will be rare for an applicant to present with such an extensive set of documents, involving multiple teams of specialists. Those in regional, low socio-economic status or culturally and linguistically diverse communities may struggle to secure similar diagnoses or access such services.

The Agency, under section 55 of the Act – can require individuals or organisations provide it with any documents in their custody, which are relevant to determining whether an individual qualifies for the scheme. This allows the collation of existing diagnoses and a paper trail from relevant government agencies and providers. The power to secure evidence extends to a variety of sensitive material, which were not created for the purposes of an administrative process such as determining entitlement to the NDIS. A recent Canberra Times piece saw leading psychiatrists express concern about how this might affect the freedom of interaction between doctors and those with mental illness. The quality of these records may reflect the underfunded, uncoordinated heritage of government disability services across Australia. As a result a heavier evidential threshold may fall upon applicants who have less interaction with disability services due to their vulnerability or social exclusion. Diagnoses secured and framed in one bureaucratic context can also unwittingly produce negatives outcomes under NDIS language – it can be difficult to disentangle medical language which refers to the alleviation or management of symptoms from positive statements of the existence of a likely remedy to a condition.

Significant legal issues would arise were a decision-maker to find that an “appropriate” treatment may exist, even though the person’s treating doctor has not endorsed it. The decisions of the Federal Court in Harris v Department of Employment, reaffirmed in the recent tribunal decision in TTVN, states that where they believe a treating doctor’s clearly expressed view is incomplete or contestable, an administrative decision-maker should help the applicant secure specialist or alternative advice. As the rules contemplate that treatment can be “known” and “available” but inappropriate, a clinical evaluation may be essential where a decision-maker rejects a treating doctor’s approach on the basis that a treatment option exists.

The NDIS Operational Guideline on Access accepts that where a request to a prospective participant to undergo an assessment or examination is made “the agency will support the prospective participant to comply with the request by providing assistance, including financial assistance where appropriate”. No further insight is given into which instances such support is deemed “appropriate”. Advocacy organisations should be supported in their campaign to highlight how differential access to diagnoses and evidence could lead to poorer outcomes for low socio-economic status and culturally and linguistically diverse communities communities.

(iii) The need for legislative refinement

The final theme emerging from the operation of the NDIS Act is that aspects of the legislation are unclear. The best example of a confusingly expressed provision is the requirement under s 24(1)(e) that a person must be ‘likely to require support under the National Disability Insurance Scheme for the person’s lifetime’. As Senior Member Toohey & Professor McCullum of the Administrative Appeals Tribunal commented in the Mulligan decision:

It is difficult to know what to make of s 24(1)(e). It is easier to say what it does not mean than what it does mean.

The confusing boundaries of s 24(1)(e) were accepted by the Ernest and Young Independent Review of the Act which supported its removal unless the role of the subsection could be clarified by interpretation.

The section threatens to generate a circularity in that a person’s eligibility is determined by the supports they might be entitled to when they are deemed eligible. The Agency continues to rely upon the provision, taking the following approach to it:

For example, if a person’s support needs arise from a health condition and are most appropriately provided through another service system (i.e. the health system) then the person will not require support under the NDIS for their lifetime. Rather, the person will require support under the health system.

The author believes, however, that the answer to s 24(1)(e)’s existence lies in the reference in the relevant explanatory memorandum, to early intervention being an “alternative” way of accessing scheme. The ‘lifetime’ criterion exists to ensure that individuals whose capacity may improve are admitted as early intervention participants first, not through the disability pathway. The Agency should proceed with caution and confine the operation of this controversial provision to this goal of avoiding double qualification for the NDIS.

The continued unamended existence of s 24(1)(e) reflects the stalled political governance of the NDIS. The need for uniform agreement amongst the state and federal government on funding models and the parameters of the scheme have complicated the usual process of legislative upkeep. This has increasingly resulted in the Agency having to solve at the policy level, what would be more legitimately and effectively solved through legislative refinement. It also lies at the heart of the recently reported view of lawyers working in the sector that litigation on aspects of the legislative framework is inevitable.

The NDIS: A fundamental test for Australia’s body politic

This post has attempted to explore some of the reasons why decision-making under the NDIS Act is evolving, complex and difficult to navigate for those in the scheme. It is vital to give potential applicants to the NDIS, and service providers planning for the future, clearer messages about where they stand, so that they can fight from that position, whether it is outside or inside the scheme. This will also arrest the worrying dynamic where politicians or the public turn away from the powerful insurance logic of the NDIS towards the limited horizon of budget line items and electoral cycles. The Australian legal community should help refute any allegations of a “failure of concept” by highlighting how the careful and consultative design of administrative rules is key to delivering the vision of NDIS. Those of us who do not have the lived experience of people with disability also need to listen and engage with more depth with the NDIS, and be accountable for how society has traditionally positioned an entire cohort of our fellow citizens.

 

Dr Darren O’Donovan is a Senior Lecturer in Administrative Law at La Trobe Law School.

Suggested citation:  Darren O’Donovan, ‘Renewing the NDIS: Refocusing the Eligibility Debate’ on AUSPUBLAW  (17 July 2018) <https://auspublaw.org/2018/07/renewing-the-ndis-refocusing-the-eligibility-debate/>