Following strong advocacy from disability organisations, including DANA, the NDIA has announced key improvements on their recent changes to NDIS eligibility reassessments.
From about September last year, the NDIA started to roll out significant changes to the way it investigates whether people continue to meet the scheme’s eligibility requirements.
People with disability started to receive letters saying their status on the NDIS is ‘being reassessed’ and asking them to send documents to prove they are still eligible.
This new approach has caused a lot of concern to people with disability and their families, and many turned to independent disability advocates to help them navigate these issues. Yesterday, after significant pressure from the disability representative organisations, including DANA, and the disability community, the NDIA posted an update on their website from Rebecca Falkingham, their CEO, detailing changes that they intend to make to the reassessment program.
The changes are that people with disability now have 90 days, instead of 28, to get information to the Agency. The NDIA will also make more of the process clear by the end of March. There has also been an important ART decision. Details are below.
Every advocate who contacted DANA about this issue has helped make these changes happen, and we will be watching carefully to see what improvements are made. We are keen on many more changes in the future.
Procedural Fairness
A major failing of the current letters is the sheer lack of information given to people with disability. The vast majority that we’ve seen through advocates do not give any idea at all why your status on the scheme is being questioned or what triggered this re-assessment; instead, they list all the criteria for people to respond to.
Most letters also don’t indicate what part of the access test you may be failing to meet, meaning that there is pressure to go through all the steps of establishing the permanence and functional impact of your disability. Our members have reported several cases where people’s eligibility has been long-standing and permanent. They have had to go through this process, as well as others who had their status revoked for physical conditions that had not changed in decades.
The core issue with many of these letters is that the NDIA asks you to prove that you meet the criteria for a scheme you may well have already been a part of for many years.
Future letters need to take the stress they put on people seriously and make sure they are very specific and detailed about what has triggered them – instead of a laundry list of things that could potentially be in doubt.
The specifics
Because the notice people receive is so general, it’s very hard to get an idea of what to provide in response. If the NDIA had given a clearer idea of the problem, this would be a better starting point, but this just isn’t happening in practise.
If, for example, the Agency has determined that an aspect of your functional capacity is in doubt, they should make it clear what information is needed. That might mean a list of questions for your OT or specialist to answer, with an extra opportunity for you to detail the way in which you continue to require assistance.
Making sure support is available
Even if the Agency was more specific about the types of information that are needed, it’s often a separate question as to whether you have the resources to get that report from a therapist or specialist. Such reports are often very expensive and can take many months to book, assess, and write up. If you need the assistance of an advocate, it can take some time, given the capacity crunch many organisations are under.
Given those time frames, the Agency has also committed to being flexible around the 90-day timeframe, during which people make good-faith efforts to get the information that they need. We need to have these processes detailed in the notices that are sent out to people and make sure there is support for people to navigate these issues put on them.
We’re particularly worried about the impact that this might have on people who transitioned to the NDIS from state-based systems when the scheme first rolled out. These people may not have extensive information written after the NDIS started rolling out, which means that someone looking at their file might not recognise the unique situation many of these people are in. We need to see a conscientious and careful approach to eligibility for this group of people with disability in particular.
New Tribunal case offers guidance
A recent case at the Administrative Review Tribunal spells out the importance of getting this entire process right. Veronica Stephen-Miller, supported by DANA Member Villamanta Disability Rights Legal Service, was successful in getting a ‘stay’ (a pause) on the Agency’s decision to remove her from the scheme. This meant that she is able to continue accessing some crucial support from the NDIS while she appealed the decision.
The member in that case was critical of how the NDIA approached questioning her eligibility, saying that their approach was ‘troubling’ as they removed her from the scheme just six days after identifying that she may need further evidence to establish her eligibility.
This case is also important because it addresses a big part of revocation that often goes unremarked – what happens to your support while you lodge an appeal? Under the current arrangements, your NDIS Plan goes away, and your support is withdrawn. This case demonstrates you may be able to continue receiving some support while the process is wrapped up.
We will keep our members updated on the progress of these changes. If there are other elements that we can also highlight with the NDIA, please contact the team.