AFDO has joined over 20 major organisations in the disability community in calling on the National Disability Insurance Agency (NDIA) to make public the details of appeal cases it is settling with scheme participants, to promote transparency, accountability, and an overall fairer system.
Concerns about the scheme have been outlined in an open letter to the Minister for the NDIS, Stuart Robert.
Currently, 97% of NDIS appeals lodged with the Administrative Appeals Tribunal (AAT) are settled privately, with the details of those settlements remaining confidential.
This makes it difficult for participants in the scheme to see what supports and funding are provided to people in similar situations and hold the NDIA accountable.
Despite the Parliamentary Joint Standing Committee on the NDIS fully adopting PIAC’s recommendation for this information to be made public in December last year, the NDIA and the Government have refused to act.
‘Transparency and accountability are essential to promoting confidence in the system,’ said PIAC Senior Solicitor, Chadwick Wong.
‘Cases that go to the AAT are settled in a black hole of decision-making, with no-one but the NDIA able to compare and assess outcomes. This lack of transparency needs to end.
‘We stand with the disability sector in calling on the Government to promote consistent decision making around settlement outcomes by publishing this information.’
‘People with disability need to have access to consistent, clear information so we know what kinds of supports we can get funding for, and know that the NDIA is making consistent decisions about those supports,’ said Romola Hollywood, Director, Policy and Advocacy, People with Disability Australia.
‘We urge Minister Robert to listen to people with disability, and make sure that the NDIA is working for us,’ said Ms Hollywood.
MEDIA CONTACT: Gemma Pearce, PIAC Media and Communications Manager: 0478 739 280.
Below is the letter from the disability sector.
6 July 2020
The Hon Stuart Robert MP
Minister for National Disability Insurance Scheme, Minister for Government Services
CANBERRA ACT 2600
By email: email@example.com
Open letter from disability sector on the publication of NDIS settlement outcomes
We write in relation to the Joint Standing Committee on the NDIS’ Planning Interim Report of December 2019, and the Australian Government’s response of February 2020.
One of the recommendations made by the Committee, Recommendation 6, was that the National Disability Insurance Agency (the Agency) should publish settlement outcomes relating to external review by the Administrative Appeals Tribunal (AAT), in de-identified form.
This recommendation was made in the context where 97% of appeals going to the AAT are settled, with the details of those settlements remaining private.
The Committee unanimously stated that it ‘strongly’ supported this recommendation as a means of increasing transparency and accountability for participants and planners.
This recommendation is also consistent with the calls from the Tune Review for greater transparency in the Agency’s decision-making, and the need to empower participants.
We were disappointed to see the Government’s response, which noted the recommendation and raised concerns, including:
- the ‘burden’ on resources imposed by this recommendation;
- privacy issues that would arise, even if published in a de-identified form; and
- the misconception that the particular terms of an agreement reached between the Agency and an applicant could be generalised to other applicants with a similar disability.
We believe these concerns are not well-founded and should not be barriers to the implementation of the Committee’s recommendation.
Addressing the Government’s concerns
First, we do not accept that the publication of settlement outcomes would constitute a significant or unreasonable burden on resources. Entry of information into a database should be done as a matter of business-as-usual file closure procedures: it does not require gathering any additional information.
While setting up a publicly available database would require some resources, we are not aware of any attempt by the NDIA to cost this and do not believe it would outweigh the efficiency gained from the publication of such information, as discussed below.
Second, privacy concerns can be resolved by a combination of de-identification and, if necessary, consent from individuals to have de-identified facts concerning the outcome of their case included in the settlement register.
We note that the purpose of the register is to benefit system users. Those users should be given the opportunity to decide for themselves whether to have information relating to them included in the register.
Third, the publication of settlement outcomes provides useful information to both planners and participants to understand the types of supports that are available under the Scheme and the range of outcomes that have been reached. It does not encourage individuals to assume that the terms of an agreement reached between the Agency and an individual could be generalised to other individuals with a similar disability.
This is the same approach taken by the Australian Human Rights Commission to their Conciliation Register, where the Commission publishes information about discrimination conciliations in a de-identified manner. There is no suggestion that outcomes in the Commission’s register could be generalised to other individuals. This concern also overlooks the fact that systems users, advocates and legal advisors must currently rely on the limited number of AAT decisions that have been published, their personal experience and anecdotal evidence. Clearly having a register of outcomes will provide a much more accurate basis for decision-making.
Finally, the Agency’s reluctance to publish settlement outcomes seems to suggest an aversion to producing information that it considers may encourage participants to seek higher levels of funding. Any such view must be resisted. Participants are entitled to seek the support they require; it is the role of the Agency to approve (including at settlement) only those that fall within the boundaries of its legislative framework.
Benefits of publishing this information
As the Committee said in making the recommendation, the publication of this information increases transparency and accountability for participants and planners. The current experience of the disability community is that support packages between people in similar situations vary considerably depending on the determination and endurance of the participants and their carers to press for what they consider is an appropriate level of funding, socio-economic and cultural background of participants, the location of the participant (especially whether the participant is located in a regional or metropolitan area), and the level of advocacy support received.
Decisions made by planners at the start of the process should be consistent with the Agency’s understanding of what the NDIS funds. The publication of this information will ensure planners have that information to hand.
It also allows a greater degree of public accountability in ensuring the Agency makes planning decisions consistently with matters it has settled.
It allows participants to understand the types of supports that are funded, and assists participants to decide what types of supports they could seek. A survey conducted by the recent Tune Review found that, out of 985 respondents, only 41% of people had planners who ‘clearly explain[ed] how the planning process would work and the sorts of things that might be included in [their] plan’.
Over time, having a register of outcomes will reduce the number of appeals to the AAT, as planners make decisions which are more aligned with the Agency’s understanding of its powers. Participants will also better understand the types and amount of supports they can get, leading to a more efficient and streamlined appeals system.
We, the undersigned, believe this recommendation, adopted unanimously by the Committee, is necessary, straightforward to implement, and would improve the administration of the NDIS.
We look forward to hearing from you and working together on implementing this recommendation.
This open letter is copied to the Minister for Families and Social Services, the Shadow Minister for the NDIS, the Shadow Minister for Families and Social Services, members of the Joint Standing Committee on the NDIS and other interested members of Parliament.
Public Interest Advocacy Centre
ADACAS (ACT Disability Aged Carer Advocacy Service) Advocacy
Australian Centre for Disability Law
Australian Federation of Disability Organisations
Blind Citizens Australia
Consumer Action Law Centre
Disability Advocacy Network Australia
Disability Advocacy NSW
Disability Discrimination Legal Service
Disability Justice Australia Inc.
Every Australian Counts
Grampians disAbility Advocacy
Independent Advocacy SA Inc
Intellectual Disability Rights Service
Multicultural Disability Advocacy Association of NSW
National Disability Services
People with Disability Australia
Physical Disability Council of NSW
Queensland Advocacy Incorporated
Rights Information & Advocacy Centre Inc
Spinal Cord Injuries Australia
Villamanta Disability Rights Legal Service Inc.
Chief Executive Officer
Public Interest Advocacy Centre
Cc: Senator the Hon Anne Ruston, Minister for Families and Social Services
The Hon Bill Shorten MP, Shadow Minister for the NDIS
The Hon Linda Burney MP, Shadow Minister for Families and Social Services
The Hon Kevin Andrews MP, Chair of the Joint Standing Committee on the NDIS
Senator Carol Brown, Deputy Chair of the Joint Standing Committee on the NDIS
Senator Wendy Askew
Senator Anthony Chisholm
Ms Libby Coker MP
Senator Hollie Hughes
Dr Fiona Martin MP
Ms Alicia Payne MP
Senator Jordon Steele-John
Mr Andrew Wallace MP
Dr Helen Haines MP
Ms Zali Steggall OAM, MP
Mr Andrew Wilkie MP
Ms Rebekha Sharkie MP
Senator Stirling Griff
Senator Rex Patrick
Senator Jacqui Lambie