5.1
This chapter outlines issues raised to the inquiry regarding the interface, or overlap, of other systems and the National Disability Insurance Scheme (NDIS), where there may be gaps in service provision or planners may be refusing to provide supports because they believe that these supports are already available in other systems.
5.2
Planners have a major role in determining which supports will be funded through the NDIS and which will be funded by other sectors. However, the committee learned that gaps between the NDIS and mainstream service systems may be creating situations where people with disability are unable to get the supports they need, or are unable to find out which system will provide them with those supports. Areas where these gaps may be common include education, health, justice, housing and child protection.
5.3
The Council of Australian Governments (COAG) in 2013 agreed to a set of principles to clarify the responsibilities of the NDIS compared with other service systems, which was revised in 2015 in the Principles to Determine the responsibilities of the NDIS and Other Service Systems. Applied principles and details outlining the division of funding responsibilities exist for the following sectors:
early childhood development;
child protection and family support;
higher education and vocational education and training;
housing and community infrastructure;
5.4
The COAG Disability Reform Council, which is chaired by the Commonwealth minister responsible for the NDIS, is made up of Commonwealth, state and territory ministers who have disability and treasury portfolios. The Council in a number of its meetings has looked specifically at interface issues and agreed to measures to clarify the responsibilities of the NDIS and state systems, with these decisions published in communiques since 2013. The Council has continued to meet throughout 2020.
5.5
The Prime Minister, the Hon Scott Morrison MP, announced in May 2020 that COAG will be replaced by a new inter-governmental body, the National Federation Reform Council, and that the Australian Government was ‘looking to consolidate and reset’ the Disability Reform Council. On 23 October 2020, the Prime Minister announced that the National Federation Reform Council will hold its first meeting on 11 December 2020.
Legal framework
5.6
The National Disability Insurance Scheme Act 2013 (NDIS Act) requires the Chief Executive Officer (CEO) of the National Disability Insurance Agency (NDIA), when funding reasonable and necessary supports, to be satisfied that:
[T]he support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services by a person, agency or body…
5.7
Schedule 1 of the National Disability Insurance Scheme (Supports for Participants) Rules 2013 outlines in further detail the following potential areas of overlap between other systems and the NDIS:
Health (excluding mental health)
The NDIS will be responsible for supports related to a person’s ongoing functional impairment and that enable the person to undertake activities of daily living, including maintenance supports delivered or supervised by clinically trained or qualified health practitioners where these are directly related to a functional impairment and integrally linked to the care and support a person requires to live in the community and participate in education and employment.
The NDIS will not be responsible for:
(a)
the diagnosis and clinical treatment of health conditions, including ongoing or chronic health conditions; or
(b)
other activities that aim to improve the health status of Australians, including general practitioner services, medical specialist services, dental care, nursing, allied health services (including acute and post-acute services), preventive health, care in public and private hospitals and pharmaceuticals or other universal entitlements; or
(c)
funding time-limited, goal-oriented services and therapies:
(i)
where the predominant purpose is treatment directly related to the person’s health status; or
(ii)
provided after a recent medical or surgical event, with the aim of improving the person’s functional status, including rehabilitation or post-acute care; or
Mental health
The NDIS will be responsible for supports that are not clinical in nature and that focus on a person’s functional ability, including supports that enable a person with a mental illness or psychiatric condition to undertake activities of daily living and participate in the community and social and economic life.
The NDIS will not be responsible for:
(a)
supports related to mental health that are clinical in nature…; or
(b)
early intervention supports related to mental health that are clinical in nature…; or
(c)
any residential care where the primary purpose is for inpatient treatment or clinical rehabilitation, or where the services model primarily employs clinical staff; or
(d)
supports relating to a co-morbidity with a psychiatric condition where the co-morbidity is clearly the responsibility of another service system (eg treatment for a drug or alcohol issue).
Early childhood development
The NDIS will be responsible for personalised supports, specific to a child’s disability (or developmental delay), which are additional to the needs of children of a similar age and beyond the reasonable adjustment requirements of early childhood development service providers.
The NDIS will be responsible for early interventions for children with disability (or developmental delay) which are:
(a)
specifically targeted at enhancing a child’s functioning to undertake activities of daily living, but not supports which are specifically for the purpose of accessing a universal service such as school readiness programs that prepare a child for education; and
(b)
likely to reduce the child’s future support needs, which would otherwise require support from the NDIS in later years...
The NDIS will not be responsible for:
(a)
meeting the early childhood education and care needs of a child with a developmental delay or disability required by children of a similar age including through inclusion supports that enable children to participate in early childhood education and care settings; or
(b)
supports, which are clinical in nature provided in the health system…; or
(c)
new-born follow-up provided in the health system...
5.8
With some exclusions, the NDIS is also responsible for:
supports for children, families and carers, required as a direct result of a child’s disability, that enable families and carers to sustainably maintain their caring role;
school education supports associated with the functional impact of the student’s disability on their activities of daily living…, such as personal care and support, and transport to and from school;
employment supports related to daily living that a participant would require whether they were working or looking for work, and frequent and ongoing supports that assist a person with disability to take part in work;
housing and community infrastructure, including supports to help a participant live independently in the community, and home modifications;
transport supports to enable independent travel; and
transition supports for persons in custody.
Other inquiries related to interface issues
5.9
In February 2018, in the 45th Parliament, the Joint Standing Committee on the NDIS, in its report on transitional arrangements for the NDIS, looked at the interface between the NDIS and mainstream services, focusing on health, aged care, education, transport, housing and justice.
5.10
The committee made the following recommendations relevant to issues raised in this inquiry:
Recommendation 1
The committee recommends the Council of Australian Government (COAG) Health Council in collaboration with the COAG Disability Reform Council urgently undertake work to address current boundary and interface issues between health and NDIS services.
Recommendation 2
The committee recommends the NDIA establish an NDIA unit specialising in dealing with Participants who are hospitalised to ensure a smooth transition from hospital and avoid delays in hospital discharge and to avoid discharge to nursing homes.
Recommendation 7
The committee recommends the NDIA review its operational and funding guidelines for transport supports to ensure participants’ needs are met.
5.11
The Australian Government in its response to the report ‘acknowledged a number of implementation challenges’ that had emerged during the period of transition from state-based services to the NDIS. It supported, partially supported or supported in-principle the committee’s recommendations.
5.12
In August 2017, the Joint Standing Committee on the NDIS in the 45th Parliament also tabled a report on the provision of services under the NDIS for people with psychosocial disabilities. Chapter 5 of that report looked at NDIS participants receiving forensic disability services, noting that people ‘with psychosocial disabilities are overrepresented in the criminal justice system’. The committee made the following relevant recommendations:
Recommendation 22
The committee recommends the NDIA urgently clarifies what approved supports are available to NDIS participants in custody and how it monitors and ensures NDIS participants access the supports they are entitled to while in custody.
Recommendation 23
The committee recommends that the NDIA establishes an NDIA unit specialising in the interaction of the Scheme with the criminal justice system.
Recommendation 24
The committee recommends the NDIA develops a specific strategy to deliver culturally appropriate services for Aboriginal and Torres Strait Islander people with disabilities who are in the criminal justice system.
5.13
The Government in its response to that report supported Recommendation 22 and Recommendation 23, and made the following clarification:
The NDIA has already established a Technical Advisory Team that provides guidance and support to its service delivery network on access, planning and interaction with other government systems, including the criminal justice system.
5.14
The Victorian Office of the Public Advocate (Vic OPA) stated in evidence to this committee’s current inquiry that it had yet to interact with the Technical Advisory Scheme and ‘despite Victoria now having reached full roll out, the issues at this interface persist, with an increasing number of clients facing repeated hurdles’. The Vic OPA argued that the technical advisory team ‘does not go far enough to solve these issues’ and suggested that ‘the crux of the issue lies in the [COAG] principles themselves’. It recommended reviewing the principles with the aim of ‘making them applicable to real life circumstances’.
5.15
The 2019 Review of the NDIS Act led by David Tune AO PSM (Tune Review) also examined the interface between the NDIS and mainstream services, reporting:
At the operational level, this review heard there is a lack of clarity about the respective lines of responsibility between the NDIS and mainstream service systems. This is resulting in boundary issues and funding disputes, service gaps and confusion for NDIS participants, poor quality planning and inconsistent decisions about when a support is reasonable and necessary.
5.16
The Tune Review acknowledged that governments have carried out significant work through the Disability Reform Council ‘to clarify the boundaries between the NDIS and other service systems’ and to resolve issues in funding and service delivery in health, justice, mental health, child protection and family support, personal care in schools and school transport.
5.17
The Tune Review called for the Disability Reform Council to maintain its momentum in clarifying responsibilities between the different systems. Further, it called for the NDIA to amend the Supports for Participants Rules to reflect recent Disability Reform Council decisions ‘so as to remove legal ambiguity for NDIA decision makers about which service system is responsible for the delivery of supports’.
5.18
The Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability in January 2020 released an issues paper calling for people and organisations to respond to questions related to the violence, abuse, neglect and exploitation of people with disability in the criminal justice system. Responses to the issues paper identified the need to support people with disability when they come into contact with the criminal justice system because of an increased ‘likelihood of people with disability experiencing violence, abuse, neglect and exploitation in the justice system’.
General issues raised about interface with other systems
5.19
Evidence provided to this inquiry suggested that despite the work of the COAG Disability Reform Council, many issues remain at the interface between the NDIS and other systems, with such issues particularly evident during crisis situations.
5.20
The Public Service Research Group UNSW (Canberra) suggested that clarifying ‘who supplies what’ to people with disabilities in mainstream services like health and education’ is a lingering challenge for the NDIS and Australian governments. Indeed, evidence before the committee outlined examples of the NDIA rejecting supports on the grounds that a participant could use other systems to access these supports.
5.21
The Vic OPA argued that the overarching COAG Principles to Determine the responsibilities of the NDIS and Other Service Systems ‘fail to recognise that a clear demarcation of needs serviced by different service systems may not be possible or desirable’.
5.22
Kelmax Disability Services suggested that where a participant is involved in the criminal justice system, concerning behaviours ‘are often referred to as “offending behaviour”‘, meaning that the justice system is made responsible for funding, while the health system is made responsible for substance abuse. It argued that ‘the relationship between offending…substance abuse and the person’s disability is complex’, particularly because people with psychosocial and intellectual disabilities may have higher rates of substance abuse than other members of the community.
5.23
A further issue raised concerned planners’ limited understanding of other service systems and how they operate.
5.24
National Legal Aid noted that state and territory legal aid commissions frequently deal with issues arising because of overlap between different systems, with participants ‘spending protracted periods in prison, mental health units or hospitals while decisions about funded services are being made’. It proposed the following solutions:
Planners should receive specific training to equip them to determine whether a support is most appropriately funded by the NDIS or another system.
Work should continue towards a system-wide approach to deal with issues arising at the interface between the NDIS and mainstream services, to ensure that it is government agencies, and not NDIS participants, who are joining up multiple regimes.
Where planners do seek advice and rely upon it for decisions about whether the NDIS should fund certain supports or not, this should be provided to the participant.
5.25
The Royal Australasian College of Physicians (RACP) suggested that ‘silos’ of different sectors and systems were putting further pressure on participants, their families and carers. It argued that ‘the current policy environment does not allow for consistent engagement between experts across health, education and disability to share their expertise, collect’ data or evaluate common intervention strategies. Other submitters called for more integration of the different systems that participants may use because of their disabilities, such as disability, health, welfare and housing.
5.26
Young People in Nursing Homes National Alliance (YPINH) suggested that because plans do not explicitly address service gaps, participants are not referred to another system when they may need supports outside the NDIS:
A significant problem with the NDIS’ single sector planning approach arises where a service gap is identified in planning (such as a health service, a need for advocacy or transport) but it is not documented, meaning that these gaps remain. Only services that are funded are represented in an NDIS plan. Needs that are not deemed reasonable and necessary for the NDIS to fund are not followed up or referred to another system, and mostly remain unmet. In some cases the lack of support in a certain area impacts on the effectiveness of the NDIS services (as is the case with numerous health services, including rehabilitation).
5.27
YPINH also noted that support coordinators ‘can only pursue what has been recorded and approved [in a plan], so any omission…cannot be seriously addressed without external advocacy’.
5.28
YPINH referred the committee to a report it commissioned that recommended a ‘skilled intermediary’ for joint planning between the NDIS and local health services, along with ‘joint service delivery, service review, shared program governance and protocols for joint funding’. The report argued that ‘the issues that the health services and NDIS planners confront cannot be easily slotted into the neat categories the COAG’s Principles would prefer’. It called for ‘partnered approaches…to become the foundation of the NDIS’ interactions with non-disability programs’.
Burchell and National Disability Insurance Agency
5.29
The Public Interest Advocacy Centre (PIAC) drew the committee’s attention to the decision in Burchell and National Disability Insurance Agency (Burchell) in the Administrative Appeals Tribunal (AAT). The AAT examined whether the NDIA should have provided funding for supports related to a participant’s dysphagia but did not because the delegate considered that these supports would be more appropriately funded by another service delivery system, despite the health system not funding the supports.
5.30
The case concerned a participant, Colin Burchell, with dysphagia as a result of cerebral palsy. The NDIA rejected a recommendation from a dietician that his plan include funding for thickened fluids and supplements to ensure that he maintained a healthy weight despite his dysphagia. The AAT determined that in this instance, packaged thickened fluids and nutritional supplements were a reasonable and necessary support. In his reasons for the decision, Deputy President B.W. Rayment OAM QC examined subsection 34(1) of the NDIS Act concerning reasonable and necessary supports, which states:
For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
…
(f) the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i) as part of a universal service obligation; or
(ii) in accordance with reasonable adjustments required under a law
dealing with discrimination on the basis of disability.
5.31
The Deputy President made the following argument concerning this section of the NDIS Act:
In order to conclude that the word ‘offered’ included that which is what not made available, one would have to conclude that the ‘person, agency or body, or systems of service delivery or support services’ refers not to actual providers of services but to bodies which should exist rather than those which do exist... I am unable so to read s 34(1)(f). It seems to me to refer in its natural meaning to actual service providers.
Nor does the use of the words ‘more appropriately’ in the second limb seem to me to alter what I have written about the word ‘offered’ or about its concentration on actual service providers. I would not read the word ‘appropriately’ as requiring the CEO… to evaluate what supports should be provided by generic service providers, making a determination they should provide such a service even if they do not. A determination about what a State health authority should provide would raise all kinds of questions, including budgetary constraints, and while a consideration of what is most appropriately or more appropriately funded would have regard to the particular circumstances of the case, I do not take the section to require consideration of a political or budgetary consideration affecting generic service or other providers other than the NDIA or the NDIS itself.
5.32
The PIAC called for the NDIA to ‘update its operational guidelines to ensure that decisions are consistent with the approach in Burchell’, suggesting that the NDIA had not yet adopted this principle. It argued that ‘the burden must not fall on NDIS participants to navigate the gaps between the NDIS and mainstream services’, leading to them not having the supports they need.
The NDIA’s position
5.33
The NDIA, in its response to a question on notice, stated that it takes the following information into account when determining what supports are reasonable and necessary:
Subsection 34(1) of the NDIS Act.
The NDIS (Supports for Participants) Rules 2013.
The NDIS Operational Guidelines.
5.34
The NDIA further stated that NDIA delegates must be satisfied that the supports ‘take into account support given to the participant by other government services, family, carer networks and the community’. It informed the committee that it is currently refreshing its Operational Guidelines, which will include making ‘more information publicly available about how decisions are made’.
5.35
The NDIA also informed the committee that senior officials from the Department of Social Services (DSS), the NDIS Quality and Safeguards Commission, the NDIA and state and territory governments ‘are continuing to progress a program of work endorsed by the former Disability Reform Council to drive national reform in disability policy and implementation, including through the National Disability Strategy’ and the NDIS. A major priority of this work, it stated, ‘is to ensure effective interaction between mainstream service systems and the NDIS with a continuing focus on the interactions of NDIS participants’ with health, mental health, school education, justice, children and family services, and transport systems.
5.36
The NDIA, in its September 2019 submission to the inquiry, outlined that its Complex Support Needs pathway ‘incorporates stronger connections with other services, for example existing providers and other government services, through liaison roles’. The pathway includes dedicated, specialised NDIA planners who have ‘strong experience in high level case coordination and allied health’, and has national responsibility for state and Commonwealth clients transitioning to the NDIS who have been determined to be high risk referrals.
Health and mental health
5.37
Commonwealth, state, territory and local governments share responsibility for administering Australia’s health system. State, territory and local governments mange and administer public hospitals, deliver preventative services and funding and manage community and mental health services, while the Commonwealth Government funds the Medicare system and the Pharmaceutical Benefits Scheme.
5.38
The committee learned that confusion continues for participants with closely linked medical and disability support needs when trying to navigate the interface between the NDIS and the health system. Issues raised included:
Hospital discharge times.
Providers absorbing costs while participants are in hospital awaiting sufficient clinical support to be discharged.
Planning not involving health systems.
Limited planner expertise in health.
Lack of clear guidelines about what should be covered by the NDIS.
Cost shifting to the health sector by the NDIS.
GPs not being informed that plans include referrals to clinical services.
Different levels of funding available under different systems.
5.39
The Tasmanian Office of the Public Guardian submitted that there ‘is no effective mechanism in place or agreement between State/Territory Governments for funding additional supports to facilitate a safe discharge from hospital in a timely manner’. It reported that anecdotally, it knew of cases where participants were admitted to hospital because of a breakdown in care arrangements or deterioration in functional ability at home, and the participant did not have safe alternatives to hospital admission.
5.40
The Tasmanian Government noted that in general, the introduction of interim plans and early involvement of support coordinators for participants in hospital had been positive, but at times had led to delays because, it argued, support coordinators often expected participants to remain in hospital until a plan review had occurred, generally six months after the interim plan.
5.41
The Illawarra Disability Alliance suggested that in some cases where a person with disability is hospitalised, disability service providers may keep the person hospitalised until sufficient clinical support and nursing care can be guaranteed upon discharge. However, without funding flexibility or crisis funding allocated in plans, the disability service provider must absorb the cost, or the participant must adjust to receiving less supports later in the plan period because of funding being used to cover the increased clinical and nursing care needs.
5.42
The Tasmanian Government provided the committee with an example of the impact of the NDIS and a state health system not working together: a planner did not communicate with hospital staff to make sure that they had a mutually agreed approach for a participant being discharged from hospital. The plan recommended independent living for the participant, while the hospital recommended 24 hour supervised care.
5.43
The Queensland Office of the Public Guardian outlined the following issues related to the interface between the NDIS and the mental health system:
Insufficient resourcing to support collaboration across multiple systems, leading to poor discharge planning and extended stays in hospital.
NDIA timeframes for access, planning and plan reviews not aligning with rapid health responses to meet changing needs, leading to delays in hospital discharge.
Some NDIA planners lacking necessary clinical expertise, resulting in a failure to include key support recommendations in plans.
5.44
The RACP argued that health professionals should be able to refer patients directly to senior planners who, because of their increased training and understanding of the health system, ‘may be better placed to differentiate between what should be provided by the NDIS and what should be provided by health services’.
5.45
The committee was informed that there may be inconsistency in planners approving or rejecting supports in the following health-related areas on the grounds that they were available in other systems:
Supports related to functional impairments of eating and drinking
Some forms of assistive technology, such as devices to read and monitor blood sugar
5.46
The committee was also informed that planners may be encouraging participants to seek mainstream health services to meet their needs, but those services were subsequently refusing to accept such referrals, or were limited in how much they could address a need.
5.47
National Rural Health Alliance observed that ‘there appears to be cost shifting across’ to the health sector by the NDIS, meaning that the ‘impact on people with physical rather than intellectual disabilities is that they do not receive the level of care they need to support improvement to their condition’.
5.48
The RACP called for plans to take into account all supports needed for participants to manage their conditions, whether at home, outpatient or inpatient settings, arguing that ‘this information should explicitly cover the roles of disability supports in emergency department presentation, admission, daily ward rounds or updates and discharge planning’.
5.49
The RACP also highlighted the importance of comprehensive collaboration between the NDIS and rehabilitation medicine services for participants who are transitioning from health and rehabilitation services to the community.
5.50
The Royal Australian College of General Practitioners (RACGP) submitted that although GPs may be involved in helping a participant access the NDIS, they often are not involved in the planning process. This can be problematic, it argued, as participants may be ‘referred to various health or social services without the GP’s knowledge or input (e.g. for organising psychological reviews)’, leading to fragmentation of the patient’s health records and inappropriate supports or duplication of services. Further, the RACGP argued that although ‘there is meant to be a clear line between NDIS supports and supports the patient can access via other means (e.g. Medicare), these boundaries are blurred in actual practice’. The RACGP called for GPs to be involved in plan development and to be communicated with once a plan has been implemented or changed, with the permission of the participant. It further proposed that GPs be able to contact planners directly, with participant consent, to inform them of issues arising or the need to review supports.
5.51
A further issue concerned some participants being told that the level of funding that they could receive for a given device was higher through the Department of Health’s Hearing Services Community Service Obligation scheme. Audiology Australia argued that ‘funding for specific devices should be based on individual goals and needs and should at least be comparable across all Government-funded programs’.
Work by the Disability Reform Council
5.52
On 28 June 2019, the Disability Reform Council, at its first formal meeting, announced that it had ‘agreed to a range of disability-related health supports that will be provided through the NDIS’. This included a Hospital Discharge Delay Action Play ‘to promote timely discharge of NDIS participants from public hospitals’, and a list of disability health-related supports that the NDIS will fund, such as continence supports, respiratory supports, nutrition supports and podiatry and foot care supports.
5.53
Table 5.1 below outlines decisions made to date by the Disability Reform Council to clarify which services are included in the NDIS and which are not.
5.54
In October 2019, the Disability Reform Council also agreed to a coordinated approach to care, information sharing and concurrent supports to help address interface issues between the NDIS and mainstream mental health systems. Further, the Council welcomed ‘the establishment of a Psychosocial Disability Recovery Framework, with a strong focus on recovery and supporting episodic needs’, with this framework to be developed in consultation with states and territories.
Table 5.1: Division of services for NDIS participants accessing health services
|
|
|
|
- Allied health and other therapy needed because of a person’s disability.
- Personal care to assist with day-to-day care needed because of a person’s disability and development of skills to help a person become more independent.
- Training of carers and informal supports to implement health care plans.
- Prosthetics and artificial limbs.
- Aids and equipment such as wheelchairs, adjustable beds or hearing aids related to a person’s disability.
- Therapeutic and behavioural supports.
- Home modifications needed because of a person’s disability, to enable discharge from a hospital.
- Continence, respiratory, nutrition, diabetic management, epilepsy, podiatry and foot care, and wound and pressure care.
- Dysphagia care and supports required for participants who have difficulty swallowing, including the ongoing development, assessment and monitoring of meal plans for participants not in hospital (an interim arrangement).
|
- Diagnosis and assessment of health conditions.
- Clinical care for mental health conditions.
- Items provided as part of diagnosis, early intervention of health conditions (including ongoing or chronic health conditions) and which are not part of the everyday life of the participant and/or a result of the disability.
- Medically prescribed care, treatment or surgery for an acute illness.
- Sub-acute care including palliative care, end-of-life care and geriatric care.
- Medication, general medical and dental services and treatment, specialist services, hospital care, surgery and rehabilitation.
- Treatment, services or supports delivered by a doctor or medical specialist.
- Planning and preparation for a patient to return home after a hospital stay.
- General hearing and vision services not related to a person’s disability.
|
The NDIA’s position
5.55
As noted in Chapter 3, the NDIA informed the committee that it had established the Exceptionally Complex Support Needs Program (ECSNP) for two years, which includes an after-hours crisis referral service for NDIS adult participants who present to key emergency services because of a breakdown in disability supports. The phone line, it stated, ‘is only available for approved referrers including key emergency services such as hospitals, police and ambulance’. Following a referral, NDIS providers may be contacted for extra support or short-term accommodation. However, the NDIA noted that the After Hours Crisis Line and the NDIS do not and are ‘not intended to replace the responsibilities of state and territory mainstream or emergency services for a person in urgent need of accommodation or health related needs’.
5.56
The NDIA also stated that it has a team of Strategic Advisors that provide expert advice on, among other areas, the interface with the health sector.
Child protection and family support
5.57
The committee received some evidence concerning child protection and
out-of-home care for child participants not living with their families.
5.58
The Queensland Office of the Public Guardian suggested that for children in out-of-home care, the stability of their placements and advocacy by kinship, foster or residential carers determine how effectively the needs of this group of participants are identified and addressed in the planning process.
5.59
Healthy Minds provided an example of a 10-year-old participant of Indigenous heritage in out-of-home care, who was under the joint guardianship of her mother and a state government department. Although her first plan included funding for support coordination, Healthy Minds stated it had been unable to determine who the support coordinator was, even once this funding had been spent, with the remaining funds being unspent. The NDIA, Healthy Minds alleged, did not accept Healthy Minds’ appointment as the child’s representative, despite this being endorsed by both the state government department and the child’s mother.
5.60
Healthy Minds reported that ‘the most recent plan expired some months ago, there is no current plan in effect and the child receives no direct supports’. Healthy Minds stated that it stopped being involved with the child’s care because it was unable to make contact with the participant’s mother or any other responsible entity and had been unable to exercise its ‘professional obligations of duty of care’. Healthy Minds argued that:
She would be a perfect candidate for reasonable and necessary supports of therapy and community support to ensure she does not suffer the consequences of her disability resulting in deteriorating circumstances. In many occasions I have seen similar children eventually end up in the criminal justice system.
5.61
Table 5.2 below outlines the division of services between the NDIS and family and community services systems.
Table 5.2: Division of services for participants involved in child protection and family support
|
Services funded by the NDIS
|
Services funded by community and government family services funding
|
|
- Disability-specific supports needed because of the impact of a child or parent’s disability.
- Disability-specific training programs for parents and carers who have a disability themselves, or a child with disability.
- Disability-related supports for children, teenagers and adults in out-of-home care.
- Staffing costs for participants who are children and living in accommodation outside the family home.
|
- Response to child protection issues.
- Information and awareness campaigns regarding child safety and wellbeing.
- Counselling, parenting skills programs and family relationship services.
- Out-of-home care for children, teenagers and adults, including housing, care allowances, payments and other standard supports to sustain the arrangements.
|
5.62
On 28 June 2019, the Disability Reform Council announced an agreement between members of the Council ‘to work together to improve the service experience of families with children who are unable to live at home’, with governments committed to providing ‘stable and supported arrangements for children living outside the family home’.
5.63
Since September 2019, the NDIA has funded 24/7 staffing for children living in accommodation outside the family home, along with disability supports. However, the states and territories are responsible for the board and lodging of the children in these arrangements and for coordinating mainstream services.
5.64
In December 2019, the Disability Reform Council committed to all jurisdictions implementing arrangements by August 2020 for respite for children with disability who are in the care of state and territory child protection agencies. The Disability Reform Council also agreed to an interim response to provide state and territory child protection agencies with access to NDIS plans for children with disability in out-of-home care, with a long-term response to be developed in 2020.
Criminal justice system
5.65
People with disability are overrepresented in the criminal justice system, with First Nations people with disability in particular being about 14 times more likely to be imprisoned than the general population. Public reports suggest that bathrooms and toilets in prisons may not be accessible for some prisoners with disability, and that around 60 per cent of adult prisoners who died in prisons in Western Australia between 2010 and 2020 were people with disability.
5.66
The Australian states and territories are responsible for administering prisons, while funding for programs related to the criminal justice system is shared between the Commonwealth, states and territories. Table 5.3 below outlines the division of services between the NDIS and the justice system, as at November 2020.
Table 5.3: Division of services for participants in criminal justice systems
|
|
|
|
- Reasonable and necessary supports on the same basis as all other people in relation to a person not in custody.
- Reasonable and necessary supports in relation to the participant’s functional impairment required while the person is in custody, that must not replace the supports provided by the justice system under reasonable adjustment and universal service obligations.
- Transition supports to facilitate a person’s transition from the custodial setting to the community that are reasonable and necessary and are required specifically as a result of the person’s disability.
|
- Supports to ensure people with disability have access to similar supports available to the general population.
- Day-to-day care and support needs.
- Ensuring criminal justice system services are accessible for people with disability.
- General programs for the wider population, including programs to prevent offending and re-offending, and the diversion of young people and adults from the criminal justice system.
- The operation of secure mental health facilities that are primarily clinical in nature.
|
5.67
The inquiry was informed that there may be multiple issues arising at the interface between the NDIS and state justice systems. These included:
Lack of clarity about which system should fund which supports where offending behaviours may result from a disability.
Less funding for participants in the criminal justice system compared with participants outside the system.
Funding for NDIS participants ending when they enter custody.
5.68
The inquiry heard that divisions between disability supports and supports to prevent offending may not be clear. For example, the Queensland Office of the Public Guardian highlighted that for young people involved in youth justice, ‘there are issues about effective therapeutic and social supports for those with developmental and neurological disabilities which directly link to behaviours that place them at risk of criminalisation’.
5.69
The Vic OPA argued that there is a service gap at the interface between the criminal justice system and the NDIS, particularly in funding ‘offence specific supports’. The Vic OPA gave an example of an NDIS participant who was placed on a Supervised Treatment Order (STO) under the Victorian Disability Act 2006. The Vic OPA suggested that some of the skill deficits to be addressed through the STO could also be viewed as disability-related supports, such as supports to build communication skills and increase tolerance for coping with distress. The Vic OPA suggested that in this instance, ‘it is difficult to apply the high-level principles to determine the distinct and respective responsibilities of State justice services (offence-related) versus NDIS funded services (disability-related)’.
5.70
Kelmax Disability Services argued that the NDIS was ‘funding minimal supports when a person is in custody’, with funding sometimes comprising only support coordination and no other categories. Kelmax knew of ‘a person being released into homelessness with as little as 20 hours of Support Coordination funding’. Kelmax argued that there ‘is an over reliance on the Justice system to bridge the gap’.
5.71
Kelmax contended that the justice system features ‘systemic discrimination’ based on factors including disability, submitting:
It appears the NDIS are continuing to perpetuate this discrimination by determining funding based on whether the participants are serving a custodial sentence. We have observed a marked discrepancy in the funding people receive leaving custody/ forensic hospital compared with mainstream hospitals.
5.72
Kelmax suggested that participants involved in the criminal justice system ‘are often underfunded, compared to other participants who have not served custodial sentences’ because they may not be able to provide evidence for supports needed for the following reasons:
Lack of appropriate documentation because of a long history of service disengagement.
Lack of decision-making support and advocacy.
Lack of informal supports.
Complex relationship between cognitive impairments, substance abuse, mental illness, trauma and behaviours of concern.
A history of chronic homelessness.
5.73
Kelmax argued that instead of the NDIA ‘debating which sector the funding responsibility sits with’, it should be ‘an active part of multi-agency planning….[and] work as a team to overcome these issues’. It further proposed that the NDIA develop training and a consistent understanding on the COAG arrangements for cross-system supports for participants.
5.74
The Australian Psychological Society called for planners to be given training ‘on how disability intersects with the criminal justice system and how the needs of those in this system differ’, particularly so that planners would be better able to understand the reports needed because of the participant’s functional impairment and their offending. It further proposed that forensic psychologists be engaged to carry out assessments of participants’ needs.
5.75
The Queensland Office of the Public Guardian argued that ‘effective planning during the period of being detained’ is vital for participants in custody or authorised mental health services, to ensure their successful transition to the community. It submitted that it had heard anecdotally that funding for participants is ceased when participants entered custody. It further highlighted ‘a disconnect between the expectations of courts and tribunals requiring
24/7 support for a client to manage forensic risk and the actual supports that the NDIS is able to provide’.
Disability Reform Council and NDIA response
5.76
In October 2019, the Disability Reform Council agreed that the NDIA would introduce Justice Liaison Officers (JLOs) in the states and territories to work across their respective justice systems. These JLOs, it stated in its Communique, would:
…provide a single point of contact for workers within each state and territory justice system, providing a coordinated approach to supporting NDIS participants in youth and adult justice systems. The Council also agreed that targeted resources and training will be developed and implemented to improve the coordination of supports for NDIS participants interacting with the justice system.
5.77
The NDIA in evidence provided to the inquiry in October 2020 stated that a key priority for the Justice Working Group, as part of cross-government work between the NDIA, state and territory government, DSS and the NDIS Quality and Safeguards Commission, ‘is the implementation of Justice Liaison Officers (JLOs), who are a single point of contact for workers within each state and territory justice system’ and provide ‘a coordinated approach to supporting NDIS participants in youth and adult justice systems’.
5.78
The NDIA stated that there are 17 JLOs, operating across all jurisdictions in Australia. JLOs help justice staff working in custodial facilities to understand the NDIS pathway, and work with justice staff to ensure potential and existing NDIS participants nearing release have appropriate disability supports in place for their transition back to the community. Further, the NDIA has ongoing meetings with state and territory health and justice officials, which ‘link JLOs to custodial facilities with the aim of progressing them to be located in the facilities on a part-time basis’. These meetings, it stated, ‘also help JLOs to build connections and provide virtual support to a number of justice staff in adult and youth custodial facilities’. However, because of COVID-19, JLOs had not physically been to custodial facilities.
Childcare and after-school care
5.79
The committee was also informed that the NDIS may not be funding supports to ensure that child participants are able to access to childcare when their parents or carers are working. Roundsquared indicated that parents of children with disability had been told that their child was not eligible for core supports to pay for a support worker after school while the parent worked, even though after-school care might not be appropriate for a child with disability. Roundsquared argued:
The assumption underlying this decision is not person-centred but rather based on a bureaucratic requirement that the NDIS should not fund support that should be provided by other mainstream services such as education. Planners need to take on board that it is often not quite so simple for families to compartmentalise their lives so that they can neatly fit the criteria of different government departments. If the government is serious in wanting mothers to return to the workforce, then it has to be flexible in terms of support provided to those parents to maintain their employment and pay their taxes.
5.80
Carers NSW also discussed the issue of childcare gaps, noting that ‘inclusive vacation and after school care are considered to be the responsibility of the NSW Government’, despite some children’s support needs being too great for them to be accommodated safely by mainstream services. The impact, it suggested, was that parents often had no other option than to reduce their working hours or give up their jobs.
5.81
The NDIA informed the committee that a ‘key priority’ for senior officials from the NDIA, DSS, the NDIS Quality and Safeguards Commission and state and territory governments ‘is to ensure effective interaction between mainstream service systems and the NDIS’, focusing especially on, among others, school education and children and family services.
Transport
5.82
Chapter 3 outlines general issues raised in the inquiry about funding for transport. However, the following section considers evidence the committee received concerning the interface between NDIS funding for transport and state-based funding for transport.
5.83
The Tasmanian Government argued that NDIS funding for transport had led to participants having reduced capacity to travel to their workplace or place of study, to access their supports and to participate in the community. It called for the NDIS to adequately fund transport in participants’ plans to reflect participants’ transport needs, and to be sufficient to allow state transport subsidies for NDIS participants to end.
5.84
Cara Inc noted that many participants with complex behaviours are not able to use public transport because of the risk to their own and others’ safety.
Cara argued that Supported Independent Living participants were not receiving enough funding for transport to support a household vehicle. Further, it suggested that funding for transport is not included consistently in participants’ plans, and the extent to which funding can be used flexibly for transport is not widely communicated.
5.85
Carers NSW provided an example of state-based funding for transport and NDIS funding disconnect:
[T]he NSW Government funded Assisted School Travel Program, which provides in-kind transport for NDIS participants from school to home, cannot provide transport from home to another more appropriate location (i.e. after school care)... This means that in cases where carers may be able to access mainstream or specialised childcare services outside of school hours to enable them to engage in employment or other activities, they may not be [able to] utilise them as their child’s transport needs do not meet the criteria.
Disability Reform Council and NDIA response
5.86
At its October 2019 meeting, the Disability Reform Council agreed to ‘an approach to improve the provision of transport supports under the NDIS’. This approach included interim measures for more funding for participants who are significant users of taxi subsidy schemes, as well as full reimbursement of states and territories to continue their schemes for participants until longer-term transport issues are resolved.
5.87
The NDIA’s website states that participants ‘will generally be able to access funding through the NDIS for transport assistance if the participant cannot use public transport without substantial difficulty’ because of their disability. This funding will take into account taxi subsidy schemes and ‘does not cover transport assistance for carers to transport their family member with a disability for everyday commitments’.
5.88
The NDIA has three levels of supports for transport assistance, depending on whether participants are working or studying, which are indexed on an annual basis. In exceptional circumstances, participants may receive more funding if the participant has either general or funded supports in their plan to help them participate in employment.
5.89
The NDIA informed the committee that senior government officials from the NDIA, state and territory governments, the DSS and the NDIS Quality and Safeguards Commission are continuing work endorsed by the Disability Reform Council to improve interface issues. As part of this work, it stated that the ‘School Education Working Group is developing viable approaches to the delivery of Specialist School Transport’.
Other issues raised
5.90
The committee also received evidence concerning the interface between the NDIS and the following areas:
Programs to help participants return to work.
The National Redress Scheme for participants who have experienced child sexual abuse, with the Queensland Office of the Public Guardian suggesting that ‘the planning process may be an ideal opportunity to provide’ participants with information about the Scheme, and a referral to appropriate services.
Committee view
5.91
The committee acknowledges the considerable efforts that the Australian Government, through the Disability Reform Council and recent reforms announced, has undertaken over the past few years to iron out the interface issues that remain at the point where the NDIS overlaps with other service systems. Recent laudable reforms include the following:
Increased funding for transport and increased flexibility for participants to use other NDIS funds for transport.
Increased clarity about health supports that the NDIS will fund.
The introduction of Justice Liaison Officers for participants in custody.
5.92
Despite these reforms, it appears that some of the issues identified by the Joint Standing Committee in its report in the 45th Parliament on transitional arrangements for the NDIS remain unaddressed or only partially addressed, and these issues are affecting the quality of planning and the supports that participants can access through their plans.
5.93
The committee encourages the Government to continue its work to ensure that participants are provided with adequate funding for transport to access supports in the community, and do not merely use funds that could be used on other supports. The committee will continue to observe the ongoing reforms in this area.
5.94
The committee further commends the Disability Reform Council for its recent work on child protection and out-of-home care, and the Australian Government for its commitment to fund 24/7 staffing for children in out-of-home care who are NDIS participants.
5.95
This committee reiterates the recommendation of the previous committee that the NDIA should establish a specialised unit for participants who are in hospital—in particular, that planners within this unit should have the expertise to ensure that participants being discharged have access to the supports they will need. This expertise may include a health background, or training in how to manage the interface of the health system with the NDIS.
5.96
The committee recommends that the National Disability Insurance Agency assign specialised planners to participants who are hospitalised to assist with a smooth transition from hospital to home that enables the participant to access the supports that they need.
5.97
The committee acknowledges that the NDIA has gone some way to clarifying what supports the NDIS covers for participants in custody, as recommended by the previous committee in the 45th Parliament in its report into the provision of services for participants with psychosocial disability. For example, the NDIA has created a dedicated web page for this purpose. However, the committee is concerned that participants in custody may have access to less supports than other participants. However, participants in custody should not be disadvantaged because of their circumstances. Nor should they receive lower quality plans because of limited documentation or limited access to advocacy when developing a plan. Not only will this affect their quality of life during imprisonment and after being released, it will also likely lead to further costs to the NDIS in the long-term if their needs are not addressed now.
5.98
The committee considers that the disability working group under the intergovernmental body that will replace COAG and the Disability Reform Council, along with the NDIA and DSS, should re-examine which supports the NDIS should fund for participants in custody and which supports should remain with justice systems. Further, the NDIA should develop a strategy for participants in custody, to ensure that these participants are not unfairly disadvantaged in the planning process and to develop ways for planners to mitigate factors that may negatively impact participants’ ability to self-advocate, such as:
lack of support and advocacy and informal supports;
a history of homelessness;
a history of substance abuse, trauma and mental illness; or
5.99
The NDIA should report on its efforts to develop this strategy in its quarterly reports, annual reports or other public documents, as well as its efforts to engage with this group, as it does for other diverse groups of people with disability. This strategy will be especially important given the high proportion of prisoners with disability and the high proportion of deaths in custody of people with disability.
5.100
The committee also reiterates the recommendation of the committee in the 45th parliament that the NDIA should establish a dedicated unit specialising in planning for participants who are in custody, or at the very least ensure that it assigns planners with expertise and/or training in interface issues arising between the criminal justice system and the NDIS. The committee considers, based on the information provided to the inquiry by the NDIA, that while the work of JLOs may go some way towards ensuring that participants in custody have appropriate supports in place for when they transition back to the community, core planning work is beyond the scope of JLOs’ duties. As such—and particularly given the high proportion of people in custody with disability—it is essential that planners are equipped to provide quality plans for participants in custody to ensure that this group of participants is not disadvantaged because of their circumstances or background.
5.101
Following on from these recommendations, the committee considers that more broadly, it is essential that the NDIA invest in training for planners who work with participants who may need support across different systems, so that planners are able to provide advice to participants about how to seek supports where the NDIS does not cover these.
5.102
The committee recommends that the Commonwealth, states and territories, through the appropriate inter-governmental forum, consider the appropriate division of responsibility for the funding of supports for participants in the criminal justice system.
5.103
The committee recommends that the National Disability Insurance Agency develop, publish and implement a strategy for engaging with participants in custody to ensure that these participants:
are not unfairly disadvantaged in planning, and
are assigned to planners who have the expertise to work with them.
5.104
The committee recommends that the National Disability Insurance Agency publicly report on its progress in implementing the strategy outlined in Recommendation 7.
5.105
The committee was told by multiple sources of the need for multi- or cross-system planning and for planners to be trained in how to carry this out. To address this need, the NDIA should enable collaboration between different service systems at planning meetings and throughout the planning process. This could include providing planners with further training about services outside the NDIS, and inviting representatives, if the participant consents, from these service systems to attend planning meetings. Given that such a process would require further resourcing, the committee recommends that the Australian Government ensure that the NDIA is resourced adequately to coordinate these tasks.
5.106
The committee recommends that the National Disability Insurance Agency provide further training for planners about how participants can access services outside the National Disability Insurance Scheme.
5.107
The committee recommends that the Australian Government ensure that the resourcing for the National Disability Insurance Agency and its Partners in the Community is sufficient to enable planners to collaborate effectively with different service systems throughout the planning process.
5.108
The committee considers that at a minimum, planners should be required to inform participants at their planning meetings how they have engaged with different service systems to ensure that vulnerable participants do not have service gaps and/or are unaware of where to go for supports not covered by the NDIS. This requirement will ensure that the NDIA is not cost-shifting or responsibility-shifting to other service systems without checking first whether these systems can in fact provide the supports that the participant needs. In addition, the NDIA should develop written, personalised material to give to participants at their planning meeting on how to access these services, or material in a form accessible to the participant.
5.109
The committee was concerned by reports that the NDIA may be refusing to fund supports for participants on the grounds that these supports would be more appropriately funded through other service systems, when in fact these services may not be appropriate for participants or may not be available for the participant because of their circumstances. Such decisions may increase the risk that participants would not have access to essential supports, such as those outlined in Burchell. The committee considers that the NDIS Act should be amended to clarify that the CEO of the NDIA (or their delegate) must be satisfied that such a support does exist in another service system and that the participant is likely to be eligible for and able to access it, before determining that a support would more appropriately covered by another service system than the NDIS.
5.110
The committee recommends that the National Disability Insurance Agency require planners to provide, in planning meetings, personalised material that outlines how the participant could access supports that the National Disability Insurance Scheme will not fund on the basis that the support is available in another service system.
5.111
The committee recommends that the Australian Government amend the National Disability Insurance Scheme Act 2013 to clarify that where the CEO of the National Disability Insurance Agency (or their delegate) considers that a support would be more appropriately funded or provided through another system of service delivery or support services, the CEO must be satisfied that this support is in fact available to the participant and that they are likely to be eligible and able to access it.
5.112
The committee notes the suggestion by the Tune Review that the NDIA should provide participants with reasons for decisions without participants needing to ask for an internal review to access this information. In the context of the issues outlined in this chapter, the committee considers that where the NDIA determines that a support is more appropriately funded or provided through another service system or support services, the NDIA should provide the participant with the reasons for this decision in writing and, if appropriate, in a format accessible to the participant if necessary. The committee will leave the decision about the best way to implement this recommendation, whether through legislative amendment to the NDIS Act, updates to the NDIS Rules, or changes to NDIA policy and practice, to the Australian Government.
5.113
The committee recommends that where the CEO of the National Disability Insurance Agency (or their delegate) is satisfied that a support is more appropriately funded or provided by another system of service delivery or support services, the National Disability Insurance Agency be required to provide written reasons for this view (and also in an alternative format where appropriate).
5.114
The committee was concerned by reports that where overlap exists between different Commonwealth systems that provide funding for the same devices or services, the amount may be inconsistent. The Australian Government should ensure that funding amounts are the same across different Commonwealth schemes to ensure that participants do not ‘lose out’ if they access funding through different programs.
5.115
The committee recommends that the Australian Government ensure that funding amounts for supports available under the National Disability Insurance Scheme are consistent with funding amounts under other Commonwealth schemes.
5.116
Finally, the committee notes the concerns raised by GPs that planners were referring participants to supports without first informing the participant’s GP, leading to the worry that GPs were unaware of the clinical and therapeutic supports that a participant may be accessing. The committee understands that plans are made available to participants through the NDIS participant portal, myplace, and that myplace allows participants to share their plan or parts of their plan with providers but does not allow GP access. The committee proposes that the NDIA investigate ways in which GPs, with participant consent, can be sent plans, whether via post, through My Health Record or through other appropriate means.
5.117
The committee recommends that the National Disability Insurance Agency investigate ways in which each participant’s plan could be shared, with the participant’s consent, with their general practitioner.