“ALL I WANT FOR CHRISTMAS…IS MY INTERNAL REVIEW DECISION BACK”

“ALL I WANT FOR CHRISTMAS…IS MY INTERNAL REVIEW DECISION BACK”

Right now 100’s [1]of participants in the NDIS are waiting for the NDIA to undertake their review request. For some it’s been just a few weeks, for many its 3…4…5…6 or more months. Generally an Internal Review is initiated by a participant because of an NDIA decision not to fund a support in a person’s NDIS Plan, or as is happening more frequently now; to reduce or cut a previously funded support, when the participant’s annual plan review is undertaken.

It’s wonderful to have the ‘choice’ to seek a review, but the waiting is often stressful, frustrating and leaves participants in a type of limbo with no ‘control’ over this process. There is currently no way to track the progress of a review, and both advocates and participants report to us the frustration of calling the NDIA, of their staff not knowing, or not willing to give any details as to the progress of their Internal Review requests. The current NDIA Act does not specify a timeframe for the review process, and as stated on the NDIS website:

“The NDIA staff member responsible for the internal review will make a decision to confirm, vary or set aside and substitute the earlier decision. This decision will be made as soon as reasonably practicable.” (Italics added by author)[2].

In anyone’s’ definition of what a ‘reasonable’ timeframe would be , 6 months or more seems to be a unacceptable time to wait for a person with a disability, particularly as the review in question is often about a support they feel is vital for their wellbeing. This is exactly the sort of experience for people with a disability that the NDIS was established to overcome, and so runs counter to the whole spirit and intention of the scheme. Also many reviews will end up as appeals to the AAT if the participant is still unhappy with the decision, so this means that many people are waiting more than a year by the time a final decision is made about their review request….and meanwhile a new plan is being generated, and as you can imagine this whole process gets confusing, as well as horribly distressing for the person involved. So as the review numbers continue to grow, more and more people with a disability will have to grapple with this inadequate review process, until the NDIA is either mandated to, or chooses themselves to establish better processes and timelines.

The Recent Australian National Audit office report into the NDIA’s decision making controls, looked closely at this area, and highlighted both the deficiencies and some possible ways forward:

“The NDIA had not established efficient or effective processes for internally reviewing access decisions. New procedures introduced by the NDIA in May 2017, if implemented effectively, will provide an internal review process that is consistent with legislative requirements.”[3]

“4.26 The National Disability Insurance Agency should implement quality control and assurance processes for internal reviews of access decisions, with the aim of supporting accurate, consistent and transparent decision-making.”

 

 The NDIA agreed with this response:

“4.27 The Agency had already self-identified issues raised by the ANAO and was working on the improvements to support accurate and consistent decision making. For example, the process around requests for internal reviews of access decisions has been strengthened to ensure a segregation of duties – that is, a person not involved in the original decision completes the review.

4.28 Further analysis of the adequacy of the quality assurance process for access decisions will be considered as part of the forward internal audit program.”[4]

That’s encouraging, and we welcome the NDIA’s attempts to rectify this issue, sadly though given that these new processes have been in place since May, here in Victoria we are yet to see any evidence that this has either expedited the process or improved the NDIA’s communication regarding the progress of reviews.

Given that the scheme is in full rollout with more than 100 000 people now accessing the NDIS, an increase in reviews is to be expected, so it would seem reasonable for the NDIA and its funders to ensure that the agency is properly resourced and acts effectively to uphold the review rights of people with a disability in a timely manner. The recent Productivity Commission report stated:

“RECOMMENDATION 11.9 The Australian, State and Territory Governments should immediately start planning for a changed timetable for participant intake for the National Disability Insurance Scheme. In doing so, the Australian, State and Territory Governments should ensure that adequate continuity of support arrangements are in place and assess whether additional resources are required to ensure the scheme meets its objectives. The issue of resourcing disability services under the changed timetable should be dealt with by the Treasurers and Ministers responsible for the disability portfolio in each jurisdiction, at the next COAG Disability Reform Council meeting.”

Report after report has highlighted that the speed of the rollout is affecting the quality of the schemes implementation, and yet we have a current Federal Government that will not budge on the NDIA’s targets, and yes of course as many people as possible should be able to access the NDIS, but also people with a disability deserve both a quality and effective scheme, which does not leave people having to review often inadequate and poorly created NDIS plans. Why fund the Productivity Commission to look at the scheme and then not follow its own findings?

 

Some Possible Ways Forward:

Firstly what can anyone do right now while waiting for their Internal Review request to be actioned:

  • Engage with an Advocacy Service in your area, if you have not already done so, they can assist in following up and gathering new evidence for your review if needed. They can also assist with any subsequent appeal to the AAT, so it is good to start to share your story and build that relationship.
  • Call the NDIA, and again and again! (Tedious I know but for too long people with a Disability have been silent.)
  • Some participants have decided to visit their local NDIS Office and basically sit it out, i.e. I am not moving until you do something. This has worked, extreme and unfortunate that it has come to this, but this is the reality for some participants in the scheme.
  • Tell people your story, share with friends, online, wherever there is a forum, just being heard can help deal with the frustration and waiting.
  • Contact your local MP, they are there to represent you, and are very interested and supportive of the NDIS, and so from our experience so far will follow up on reasonable requests.
  • Put in a formal complaint to the NDIA, forms are on their website, about the waiting period and any lack of response or communication. The Agency has 21 Days to respond to this, and it may help them ’notice’ your Internal Review request. If you have no response or are dissatisfied then you can then complain to the Commonwealth Ombudsman.

With regards to the NDIS itself, some changes to the overall review/complaints processes are overdue and needed.

Some recent recommendations from both the productivity Commission, and the Commonwealth Ombudsmen, would go a long  way to helping people with a disability to have a more productive and positive experience when asking to review their plans. The NDIA  is in the people business, so being responsive, creative and flexible about resolving disputes or reviews should be their ‘bread and butter’ and not require continual reports and analysis. Never the less the Ombudsman’s’ submission included this recommendation:

“It must be remembered that, for most participants, their relationship with the NDIA will be life-long. This means that any breakdown in that relationship, especially at an early stage, may impact on their willingness to continue to engage with the NDIS.

We suggest that, in situations where disputed the issues are particularly complex or the NDIS considers its relationship with a participant may be at risk, consideration be given to providing an Alternative Dispute Resolution or mediation pathway that would allow the NDIA to use an independent arbiter to facilitate discussion between the Agency and the aggrieved party with a view to reaching a mutually agreed outcome. This is not dissimilar to the case conference approach used at the AAT, and would allow the NDIA to resolve some of its more complex matters in a timelier manner.

This sort of approach would arguably benefit the participant, the NDIA and the costs of the NDIS by way of:

  • relationships being recovered
  • unnecessary complaints and reviews to the NDIA being avoided
  • fewer matters being escalated to the Commonwealth Ombudsman, Members of Parliament and the AAT. “[5]

Likewise the Productivity Commission recommends the following:

RECOMMENDATION 5.1 The National Disability Insurance Agency (NDIA) should implement a process for allowing minor amendments or adjustments to plans without triggering a full plan review. If required, the Australian Government should amend the National Disability Insurance Scheme Act 2013 (Cwlth) to enable the NDIA to implement such a process.

RECOMMENDATION 11.5 The National Disability Insurance Agency should publicly report on the number of unscheduled plan reviews and reviews of decisions, review timeframes, outcomes of reviews and stakeholder satisfaction with the review process.[6]

In other words, some basic customer service, talk to people with a disability if they aren’t happy with their plan, and then report and be transparent for the stakeholders or taxpayers of Australia who are funding this much needed and important scheme.

Ultimately: #It’s your NDIS.

So in the spirit of the season we urge the NDIA, to complete these Internal Reviews, or at the very least to get in touch with their customers, people whose lives can be difficult enough with a disability, and let them know what the progress of their review is, so they can enjoy their Christmas a little more.

From the team here at RIAC we would like to wish everyone a very happy and joyful Christmas!

 

[1] At least 400, based on national figures shared between funded Appeals support agencies, many people submit reviews without advocate support, so the number is likely to be much higher. Also the NDIA does not publish IR numbers, previous years data access has been via Freedom of Information requests!

 

[2] https://www.ndis.gov.au/participants/reasonable-and-necessary-supports/decision-review

[3] https://www.anao.gov.au/work/performance-audit/decision-making-controls-sustainability-ndis

[4] https://www.anao.gov.au/work/performance-audit/decision-making-controls-sustainability-ndis

[5] https://www.pc.gov.au/__data/assets/pdf_file/0011/215777/sub0137-ndis-costs.pdf

[6] https://www.pc.gov.au/inquiries/completed/ndis-costs/report/ndis-costs-overview.pdf