6.1
This chapter discusses the evidence received during the inquiry in relation to the Commission's complaints handling processes, including requirements that providers have internal complaints handling processes.
6.2
Key concerns in relation to complaints handling included:
that the Commission's complaints process is difficult to access, due to complexity and lack of clarity in the way it operates, as well as significant barriers faced by participants; and
that the process is frustrating for parties, including due to a lack of information provided by the Commission regarding to timeframes for resolution or progress of a complaint, confusion about the Commission's referral process, and perceptions from participants that the Commission's processes favour providers.
Complaints handling
6.3
The Commission has a broad remit in relation to complaints regarding NDIS providers within its jurisdiction. Guidance issued by the Commission states that a ‘complaint’ is:
…an expression of dissatisfaction made to or about an organisation, related to its products, services, staff or the handling of a complaint, where a response or resolution is explicitly or implicitly expected or legally required.
6.4
Complaints management and resolution is primarily governed by the NDIS Act and the National Disability Insurance Scheme (Complaints Management and Resolution) Rules 2018 (Complaints Rules). In addition, the Commission has published guidance for providers to support best practice in the handling of complaints.
6.5
The NDIS Act includes requirements in relation to internal complaints management systems for registered providers, and this chapter outlines some of the evidence received in relation to these systems. However, a key area of concern for stakeholders was the handling of complaints by the Commission. This reflects commentary by the Commonwealth Ombudsman which observed that approximately 80 per cent of the complaints it receives about the Commission relate to how the Commission handles complaints. Key issues included the accessibility of the complaints process; lack of dedicated support for people with disability; and the Commission’s communication with complainants.
Internal complaints mechanisms
6.6
The committee heard concerns in relation to how providers make use of their internal complaints systems to address complaints and support complainants. For example, Mr Tim Chate, a solicitor with the Intellectual Disability Rights Service, emphasised that internal dispute resolution mechanisms are only effective if the provider is ‘professional…morally good [and] motivated’, stating that: ‘if you’ve got a service provider that’s being difficult and just doesn’t want to provide…services then [the system] doesn’t work’.
6.7
The Australian Services Union submitted that workers who report a concern, complaint or reportable incident to key personnel within a provider are rarely advised of the outcome of the report they have made. This leaves workers in the situation of not knowing if they should take further action or if the issue they have raised has been addressed.
6.8
The committee also heard that complaints may be escalated to the Commission without sufficient attempts being made to resolve the complaint through the provider’s internal complaints resolution process. For example, Brain Injury South Australia noted that while the Practice Standards require a provider to have a complaints management and resolution system in place, these systems are frequently under-utilised.
Access to the Commission's complaints processes
6.9
Several submitters and witnesses expressed concerns regarding access to the Commission's complaints process for people with disability, their families and supporters, and also for advocates and providers. Evidence suggested that:
there is insufficient clarity around how the complaints process operates
people with disability face challenges in making complaints, including due to power asymmetries, the complexity of the process, and fear of reprisal from service providers; and
complainants should be supported to access external support when making a complaint.
Complexity of the complaints process
6.10
The committee heard that the complaints process is complex and that it is unclear how the process operates in practice. This may be creating difficulty for potential complainants in accessing the Commission's complaints mechanisms.
6.11
The Queenslanders with Disability Network (QDN) reported ‘general confusion’ around the complaints process, including whether they can make a complaint to the Commission; when and how to make a complaint; who may make a complaint; how a complaint is investigated; outcomes from a complaint; and what communication to expect during and after an investigation.
6.12
Aged and Disability Advocacy Australia (ADA Australia) noted that it is often difficult for complainants to identify the person or agency responsible for service delivery who should be the subject of a complaint, due to the mix of registered and unregistered providers providing supports and the use of sub-contracting arrangements. There is also lack of clarity in terms of:
the agency to which complaints should be directed (for example, whether a complaint should be made to the provider, the NDIA or the Commission)
the agency that will be addressing the complaint, and the pathway through which the complaint will travel
the person who will contact a complainant as part of the resolution process;
the point of contact with respect to the progress of a complaint
how to escalate a complaint if there is a change of circumstances or a greater perception of risk
the availability of free disability advocacy.
6.13
ADA Australia suggested that providing relevant information in the form of a diagram or flow-chart, or using audio-visual materials, might help to facilitate greater understanding and access. In addition, more should be done to promote complaints processes within the disability sector and to raise awareness about protections in place.
6.14
Another submitter who sought to raise a complaint on behalf of a friend who is an NDIS participant observed that they had found the process of lodging a complaint over the phone to be ‘incredibly confusing and difficult’. This is notwithstanding that the submitter is an experienced informal advocate. The submitter said that they were 'very distressed’ by the complexity and confusion of the complaints process and wondered how a person with disability would be able to navigate the process. The submitter was also concerned that opportunities to lodge a complaint may be limited for many people with disability, which would mean that it would not be safe for them to wait for a response from the Commission when seeking to complain.
Clarifying who can make a complaint
6.15
The committee heard that it is sometimes unclear who may make a complaint to the Commission regarding the quality and safety of supports and services—despite the Commission’s stated policy that anyone may make a complaint. Further, participants and providers had received inconsistent advice from the Commission in relation to this matter.
6.16
For example, Anglicare SA submitted that in some cases where a staff member has made a complaint to the Commission about another provider, the Commission has advised that the participant to whom the complaint relates (or their nominee) must make the complaint—rather than Anglicare SA—due to potential conflicts of interest. This may have adverse consequences for participants, who are often unwilling or unable to make a complaint—for example due to fear about potential impacts on their supports and services.
6.17
Ms Kirsten Deane, then Campaign Director, Every Australian Counts (EAC), indicated there is some confusion about whether it is possible for third parties to make complaints. In addition, the Commission may not be consistent in terms of whether it decides to investigate a complaint from a third party, and there is not clear guidance on this matter.
6.18
The Victorian Office of the Public Advocate (Vic OPA) recommended that the Commission encourage individuals and organisations with significant concerns about the wellbeing of a participant to communicate those concerns to the Commission. The Commission should then provide meaningful feedback to any such individual or organisation where:
the Commission, on reasonable grounds, considers the individual or organisation to be playing a positive role in the participant’s life; and
the provision of such information would assist the individual or organisation to promote and protect the rights and wellbeing of the participant.
Difficulties for participants
6.19
Several submitters and witnesses noted that NDIS participants face numerous difficulties in making complaints. In addition to the complexity of the complaints process, the committee heard that participants experience power asymmetries in their interactions with providers and the Commission and may also fear reprisals from service providers. As also discussed in Chapter 3, many participants experience difficulty obtaining clear information about rights and responsibilities under the NDIS.
6.20
The Australian Lawyers Alliance (ALA) asserted that the Commission has an important role to play in ensuring complainants are well-supported during the complaints process and called for consideration of whether the current requirements of the Commission relating to complaints enable or hinder fair process. Factors which may make the complaints process less accessible for participants include:
the 'well-documented' power asymmetry in the complaints process, which may lead to participants struggling to be heard, understood and believed;
fear that making a complaint will lead to worsened service provision, due to retribution;
making a complaint may be a source of re-traumatisation;
complainants are often unaware of their rights.
6.21
In addition, the administration and bureaucracy associated with the complaints process may also compound these difficulties. Mr Thomas Ballantyne, a representative of the ALA, submitted: ‘we can’t have paperwork being a reason that someone doesn’t want to go to the Commission’.
Power asymmetries and fear of reprisals
6.22
Stride Mental Health (Stride) stated that the complaints process would benefit from consideration of the risk of retribution and vulnerability that participants experience, which can prevent complaints being made. Stride noted that this is particularly pronounced for participants in supported accommodation who may face homelessness as a result of making a complaint.
6.23
Ms Romola Hollywood, then Director, Advocacy and Research, People with Disability Australia (PWDA) noted that there are ‘many barriers’ facing people with disability seeking to make complaints. For people with disability who live in closed settings, it is difficult or even frightening to make a complaint, and a person may only be able to make a complaint through the worker or service provider who might be the subject of the complaint.
6.24
VALID emphasised that people with intellectual disability do not feel safe to complain, as they are justifiably concerned about disapproval or retaliation from those they rely on for support. Moreover, a person with intellectual disability may have previously made a complaint and found the process to be daunting or pointless. VALID emphasized that people with intellectual disability will only make complaints if to do so is ‘straightforward and absolutely safe’.
6.25
Ms Georgi Hadden, a participant, also spoke to the committee about the difficulties that she had faced in making a complaint, with a focus on fear of reprisal from service providers. Ms Hadden stated:
In my situation, because I was vocal in speaking out, not just on me but on other people, the consequences of that were having my assistance cancelled for three days, where I could not access the food or I couldn't access my medication, despite what you read, because I don't have memory… For three days I was refused medication. One worker in Service A told me that management had told them to tell Georgi that they had lost the key.
6.26
Additional power asymmetries were reported by participants who felt the Commission's processes favour providers, which is discussed further below.
Challenges for particular cohorts
6.27
The committee heard that difficulties making complaints are magnified for certain cohorts, including people with communication difficulties, Aboriginal and Torres Strait Islander people with a disability, and people with disability from culturally and linguistically diverse backgrounds.
6.28
Speech Pathology Australia (SPA) observed that people with communication disabilities often face significant barriers to being able to report abuse, neglect or mistreatment, because they are not provided with the opportunity, time or means to do so in a way that ‘fits’ their communication abilities. People with cognitive disabilities also face additional challenges making complaints, as they often have a limited understanding of their rights, which increases their vulnerability.
6.29
The First Peoples Disability Network (FPDN) stated that making a complaint to the Commission is particularly difficult for Aboriginal and Torres Strait Islander peoples with disability, owing to a lack of trust in government institutions and concerns over disruptions to services and supports. This issue was of particular concern given the lack of culturally safe and appropriate services:
[E]ven for those First People with disability located in metropolitan areas, there is a lack of culturally appropriate disability support. Where services may be limited, making a complaint may risk ongoing service for an individual or create service issues within the wider community.
For many First People with disability, the NDIS may be the first time they have had access to any form of formal disability support, leading to a reluctance to raise issues or concern for fear of losing what they may have only recently gained.
External support for people engaging with the Commission
Importance of independent advocacy and specialist legal assistance
6.30
Several submitters and witnesses stressed the importance of ensuring people with disability making or considering a complaint to the Commission have access to independent advocacy and specialist legal assistance. The committee heard that advocacy and other support services are often under-resourced and may lack the capacity to assist people with disability in their dealings with the Commission. Submitters and witnesses called for increased funding for advocacy and other critical services, to help ensure people with disability have the necessary support to engage with the Commission on issues regarding the quality and safety of their supports.
6.31
Spinal Cord Injuries Australia (SCIA) emphasised that people with disability who have been subject to neglect or abuse must have access to advocacy support to assist with preparing and lodging complaints and with mediation processes. There is also a need for greater and more certain funding for advocacy, as the advocacy sector plays a 'vital role' in ensuring safety in the lives of people with disability by providing them with 'a voice to empower change where there are perceived barriers, physical and attitudinal'.
6.32
ALA expressed concern that there is a high level of unmet legal need amongst people with disability, noting that the legal system is inaccessible for people with disability and may produce unjust outcomes. Specialist legal services also remain under-resourced and struggle to meet growing demand. The ALA noted a 2014 survey of community legal centres across Australia, which reported that only half had processes in place to ensure that legal services were directed towards people with disability. The ALA argued that specialist legal services should be appropriately resourced and expanded, with increased funding for community legal services and Legal Aid lawyers with disability expertise.
6.33
The Vic OPA stressed the importance of independent advocates, representative bodies and consumer organisations in assisting participants with complaints, noting that the NDIS Quality and Safeguarding Framework recognises the role of formal advocacy and the importance of critical services being sufficiently resourced. The Vic OPA also raised concern that many advocacy bodies report operating with limited resources and increased demand.
The Commission’s relationship with advocacy organisations
6.34
Submitters and witnesses called for the Commission to work more effectively with advocacy organisations in order to ensure that people with disability understand their rights and are able to engage effectively with Commission processes. The committee heard that this must include clarifying the role of advocates; strengthening links with advocacy organisations; and making increased efforts to ensure participants have advocacy support in place at the commencement of the complaints process.
6.35
The Vic OPA suggested that the Commission is failing to recognise the role of advocates in supporting participants, noting that in one example:
[A] participant with a cognitive impairment was supported by a funded disability advocacy organisation to make a complaint to the NDIS Commission about financial exploitation by a registered service provider. The NDIS Commission in turn indicated it could only receive the referral with the consent of the participant, who, due to the nature of their impairment, could not consent. The NDIS Commission did eventually accept the complaint but excluded the advocate from the complaints process, depriving the participant from that necessary support.
6.36
VALID (Victorian Advocacy League For Individuals With Disability) noted that the Commission lacks guidance on how advocates can support participants in complaints processes, and called for the Commission to quickly establish a formal protocol with advocacy organisations that clarifies the role of advocates in the Commission’s complaints and investigatory processes and includes specific processes for the involvement of advocates for people who are unable to provide consent.
6.37
Ms Kirsten Deane, then Campaign Director for EAC, argued for a ‘much closer relationship’ between the Commission and advocacy bodies, to ensure people with disability understand their rights and are able to complain; and to ensure that they are effectively supported through the complaints process. Ms Deane also emphasised that the Commission must refer complainants to advocacy bodies where it is appropriate to do so.
6.38
QAI similarly recommended that the Commission establish referral pathways with National Disability Advocacy Program (NDAP) providers, independent state-funded disability advocacy organisations, Community Legal Centres and State Legal Aid Commissions to ensure participants who are particularly vulnerable are supported through complaint and investigation processes.
6.39
Mr Thomas Ballantyne, ALA, suggested that there may be merit in establishing specialist legal or advocacy services for the Commission, similar to the services that exist for the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability:
I note that with the royal commission, for example, there is a system for people getting advice from legal aid before they give evidence, and in some cases other firms, and there's resourcing directed at that. If you think about it, it's actually quite a similar situation, in terms of bringing your experience to the Royal Commission, as it would be bringing it to the [Quality and Safeguards] Commission, so ensuring…that support network is very important.
Commission position
6.40
During one of the committee’s public hearings, the then Commissioner emphasised that ‘anyone can lodge a complaint’, and that the Commission receives complaints from 'people with disability, from family members, from workers, from advocates and from a range of others'. While the Commission also seeks to determine the extent to which the person with disability wants an issue to be raised if a complaint is made of their behalf, the then Commissioner clarified that 'whoever makes the complaint would be classified as the complainant' and the Commission will work with the complainant.
6.41
The then Commissioner also acknowledged that it is difficult for many people with disability, their friends and families to make complaints, and explained that the Commission is working to make the complaints process more accessible:
The Commission has done quite a lot of work in terms of its own approach to how it works with people who are anxious or distressed when they make a complaint, and we've actively encouraged people to make complaints. We are seeing an uplift in the number of complaints that we're handling, which is encouraging, and that a reasonable proportion of those complaints are from people with disability, members of family or close friends. We are going to have to continue to reassure people that it's okay to complain.
6.42
With regard to encouraging complainants to seek support and assistance from advocacy organisations, the then Commissioner stated:
We…provide people with information about what the commission does and how it deals with matters, but we also make people aware of what individual and systemic advocacy is and how it can be accessed…[T]he specifics of what we would say to somebody would depend on the circumstances that they were dealing with and the assessment of the complaints officer about how best to support that person.
6.43
In response to a question on notice, the Commission noted that its Complaints Management and Resolution Guidance document, which is available on the Commission website, states that:
advocates can make complaints;
the NDIS Commission will work with NDIS participants, their representatives (including advocates) and providers to resolve complaints; and
the NDIS Commission provides information about the use of independent advocates.
6.44
Standard letter templates used by Complaints officers also include optional language to suggest that the recipient 'consider obtaining an advocate' and explains how to find one using the Disability Advocacy Finder tool, with the link to this tool included in the correspondence.
6.45
The then Commissioner also stated that the Commission is ‘very committed’ to working with advocates, noting that the Commission facilitated national workshops for advocates in July 2018 and July 2019 which were valuable for both the Commission and for advocates. The Commission’s intention is to continue to run ‘quite specific targeted consultation’ with advocacy organisations.
General concerns about the Commission's complaints process
6.46
The committee also heard that people with disability, their friends and advocates, and providers had encountered other difficulties once engaged in the complaints process. The committee heard that initial responses to a complainant or provider were of variable quality, and that the Commission's referral processes could be clarified. A range of other concerns were also identified, including allegations that the Commission's processes prefer providers.
Initial responses by the Commission
Information for complainants
6.47
The committee heard that complainants had experienced inconsistent responses from the Commission in relation to complaints, and that, to build trust in its systems, the Commission should do more to explain to participants how a complaint will be investigated, including following up to advise on the progress of a complaint as well as communicating the outcomes and findings when an investigation is finalised.
6.48
Villamanta Disability Rights Legal Service (Villamanta) indicated that the Commission has been effective at acknowledging receipt of complaints. However, Villamanta submitted that the quality of responses is variable, stating that where a person attempts to make a complaint, the Commission ‘appears to …[try] to set expectations about what it can and cannot do’. This discourages prospective complainants and negatively colours perceptions of the complaints process.
6.49
Villamanta also observed that there is a ‘failure to provide…expectations or timeframes in writing’ at the commencement of a complaint. This lack of written correspondence leaves complainants with uncertainty as to what to expect and when to expect it, as they must rely on conversations with case managers rather than clear documentation from the Commission.
6.50
The Northern Territory Office of the Public Guardian (NT OPG) stated that the certainty and timeliness of the Commission’s initial responses to complaints and reportable incidents ‘requires improvement’, stating:
After a concern, complaint or reportable incident has been made to the Commission, the Commission’s assessment of risk and proposed plan or investigation to address the concern or complaint has, at times, been unclear to the Office of the Public Guardian, the participant and their family. This uncertainty creates confusion and risk for all stakeholders including the NDIS participant and the NDIS service provider.
6.51
Some providers reported positive experiences engaging with the Commission’s complaints processes. For example, the Mental Illness Fellowship of Australia (MIFA) noted that the Commission had responded positively to one of its members regarding a complaint process initiated by a participant. MIFA observed that the provider involved in the process found that the Commission sought to understand the different perspectives involved in the complaints, and that staff of the Commission were polite and courteous. The Commission provided timely information about next steps in the process and advised on when the organisation could expect a response.
6.52
However, the committee also heard that the Commission's processes lack meaningful engagement with providers. For example, Autism Spectrum Australia (Aspect) noted that there is limited communication ‘back’ to providers who make initial complaints, which causes concern for providers as they do not know whether the people with disability they support are safe.
Notifying providers of complaints
6.53
National Disability Services (NDS) observed that where a participant raises a complaint directly with the Commission, the provider that is the subject of the complaint may not be notified until some months have passed, making it difficult to investigate the root cause of the complaint:
[F]or example, a provider has reported to NDS that a complaint made in January was only notified to the provider in September. The provider was unaware there was a complaint for this duration and was providing services throughout this time.
6.54
NDS also urged the Commission, when responding to a complaint, to initially approach relevant staff by email where possible—so that there is a record of engagement between the parties. According to NDS, phone calls to frontline staff can be made at unsuitable times and may be confusing to the individual. In addition, staff may be confused about whether they are under investigation for a serious matter or whether the inquiry is more exploratory in nature. Additionally, if a provider has no knowledge of the contact, they are not in a position to support the staff member being questioned.
6.55
Cara similarly indicated that the Commission can be slow to contact providers to address issues. Cara provided an example to illustrate these concerns:
Cara…received a “Compliance Warning” letter in March 2020, following a complaint originally made to the Commission between September 2018 and January 2019. The initial complaint remained unresolved by the Commission in August 2019, and passed to the Compliance Team of the Commission for further action.
Throughout this period, Cara remained willing to resolve the complaint, and responded to each request for further information as received from the Commission. The powers available to the Commission in this matter appear to have been exercised incorrectly, and Cara is still unaware if the original complaint of 2018 has been resolved to the satisfaction of the participant.
The Commission’s referral process
6.56
Some submitters and witnesses indicated that the Commission’s referral processes require improvement to ensure complaints are directed to the relevant authority and to assure complainants that their concerns will be addressed.
6.57
For example, Ms Romola Hollywood, then Director, Policy and Advocacy, PWDA expressed support for the Commission’s ‘no wrong door’ policy. However, greater consideration should be given to how the Commission’s referral process operates in practice, as confusion as to which agency is responsible for a matter may lead to delays in investigative processes and to important issues being neglected.
6.58
The Vic OPA noted that while there have been improvements in information-sharing arrangements between the Commission and state-based authorities such as Public Advocates, privacy obligations in the NDIS Act and associated Rules continue to stymie effective referrals and limit the role advocates are able to play in the complaints process. The Vic OPA stated:
In some instances, the NDIS Commission has been unable to update [the Office of the Public Advocate] on the progress of its work in relation to a referral, thereby diminishing [the Office of the Public Advocate’s] ability to undertake a more targeted advocacy response. The information sharing schedules cannot overcome legislative restrictions on the…Commission when it comes to sharing information. Ultimately, it is participants who are disadvantaged.
6.59
A submitter who had complained on behalf of a participant considered that if a complaint needs to be transferred within the Commission to an officer in a particular jurisdiction, there should be a process of ‘warm referral’ or ‘warm transfer’, so that the person lodging a complaint does not have to tell their story over again.
6.60
The committee also heard that there is a lack of overall coordination across regulatory frameworks that affect allied health practitioners, which can cause confusion in relation to the appropriate body responsible for different types of complaints.
6.61
Other concerns regarding the overall complaints process included:
that it is difficult for complainants to track the progress of complaints and that the Commission does not inform complainants of progress
the time taken for the Commission to resolve complaints and complete investigations
poor or no communication in relation to the outcome of complaints; and
concern over the Commission's use of mediation in the complaints process.
Allegations that the Commission's processes favour providers
6.62
Several submitters and witnesses expressed concern that the Commission often appears biased in favour of service providers and may not give sufficient attention to complaints made by participants.
6.63
For example, ADA Australia considered that the Commission is sometimes ‘too willing’ to accept the word of the provider and ‘not dig deep enough’ into the facts underpinning a matter. In the absence of transparency, it may appear to a complainant that the Commission has ‘willingly accepted whatever a provider told them’ in its eagerness to close a case, and has failed to provide the complainant with the protections that were implied or promised.
6.64
QDN noted that among its members who are aware of the Commission, there is an ‘overwhelming’ view that the Commission works closely with providers but is inaccessible to people with disability. QDN stated:
[S]ome QDN members believe the Commission’s work is largely focused on supporting service providers to meet their obligations and didn’t see the Commission had a role in supporting people with disability to uphold their rights, including navigating complaints processes and as a result that people with disability were missing out.
6.65
Villamanta observed that it has heard that the Commission takes the work of a provider more seriously than they do the person with a disability. In this respect, Villamanta stated:
Complainants do not consider this a fair process at all. If a service provider provides a response, there is an expectation that the Commission will provide this response to the complainant so they can comment on it.
6.66
Ms Georgi Hadden, a participant, stated that when she had made a complaint about the treatment she had received from a provider, she was questioned on the provider’s response to the complaint ‘as if I [Ms Hadden] needed to be accountable’. Ms Hadden indicated that the Commission had not given adequate consideration to evidence that she and her support worker had provided, and raised concern in relation to how information is provided to participants and providers, stating:
I asked to see what these services were saying about me and I was told that it was confidential information and they would have to ask permission of the services. If they denied that permission then I would have to go down the line of freedom of information and filling out the paperwork. I said: 'But that makes no sense I have handed you evidence which you have freely given to these people, the perpetrators. I'm here, feeling interrogated, and you will not tell me and give me everything.'
6.67
Dr John Franklin, a consultant clinical psychologist supporting Ms Hadden, also provided an account of Ms Hadden’s experience with the Commission. Dr Franklin considered that the experience indicated a bias in favour of service providers, and outlined weaknesses of the Commission's response to complaints:
The service provider is free to choose who undertakes the investigation. This is not at arm’s length and is open to accusations of lack of independence, mutual financial benefit, and undue influence.
The Commission does not require to receive a copy of the investigation and is thus not in a position to determine the adequacy of how it was conducted nor the accuracy of any summary provided.
The response of the service provider is not provided to the complainant for comment. Not only is this inequitable, in that the service provider gets to see the complaint, whilst the complainant is not afforded the same access. No reaction is sought from the complainant as to the accuracy or sufficiency of the provider’s response.
No attempt is made by the Commission to obtain detailed independent witness statements, examine any additional evidence submitted or available, or examine inconsistencies.
Considerable barriers are placed in the way of the complainant obtaining access to the processes of the Commission, the correspondence with the service provider or the substance or adequacy of any investigation.
6.68
Another submitter who had made complaints on behalf of a participant noted that their dealings with the Commission had indicated that the Commission does not put the person with disability first, but rather appears to act in the interests of service providers. As an example, the submitter noted that they had made two complaints to the Commission regarding the quality and safety of their friend’s supports and living conditions. In closing an investigation into the first complaint, the Commission advised that the relevant service provider had provided ‘a reasonable explanation and response to all of the complaint issues’, and that the provider ‘shared [the submitter’s] concerns’.
6.69
However, no information was provided as to what actions had been taken by the service provider to address the submitter’s concerns. Moreover, according to the submitter it was clear from what occurred between the lodging of the first complaint (January 2020) and the lodging of the second (June 2020) that no action had been taken by the service provider, and the health and wellbeing of the submitter’s friend had ‘deteriorated significantly’.
6.70
Ms Kirsten Deane, then Campaign Director, EAC, observed that:
The overwhelming feedback we receive is that the commission appears to be weighted in favour of providers. People really feel that the odds are stacked against people with disability and their families and they don't really feel that the commission is in their corner. They feel the commission too often accepts the explanations of service providers without thorough investigation. This leaves people with a terrible 'what is the point?' feeling. They feel like they're going through a 'tick and flick' exercise with very little change as the end result.
6.71
By contrast, 121 Care stated that its experience is that ‘allegations are truth until a [p]rovider can prove otherwise’, and that the complaints process is biased in favour of participants. 121 Care stated that this is a ‘particularly concerning attitude’ when vexatious or malicious accusations are made.
Commission view
6.72
In May 2021 the then Commissioner told the committee that the Commission had been 'alive' to feedback and evidence provided during the inquiry about aspects of the complaints process that may require addressing.
We held a national forum with advocates about three weeks ago where they talked about what advocates had been saying about the process and where we presented the initiatives that I've just referred to around process adjustment. That was a very good and constructive discussion…
The way we handle complaints is set out in the rules. Our policies and procedures give guidance to staff on how to meet our obligations under the rules. If we're getting feedback that there's unsatisfactory performance in relation to that then I'll look at it. I would say that there are often issues…about information sharing. There are arrangements in the statute around, in a sense, who has standing in a matter. So we have an obligation to a complainant around a particular matter, but there are also statutory imitations imposed on us under section 67 of the act on what we can release to whom. Those arrangements, I think, have caused some frustration for some state based office holders who would like more information from the commission on certain matters.
6.73
The then Commissioner also noted that the Commission had 'been through a comprehensive review of all of our processes and procedures in complaints management'. In September 2021, the Commission outlined six key elements of changes to the Commission's complaints management processes:
significantly increased staffing (as a result of budget increases announced in the 2020-21 Budget)
significantly revised policies and procedures, including the provision of consolidated guidance in the form of a complaints manual
a revised approach to intake assessment and streaming of complaints received by the NDIS Commission
intensive training of staff on the new policies, procedures and changes to the intake model
a new internal quality assurance process (in the form of a Quality Assurance Framework); and
a new external assurance and advisory mechanism.
6.74
The Commission noted that its new complaints approach 'is intended to enable NDIS Commission complaints officers to respond more quickly to complaints by making earlier decisions about the types of actions that are most likely to be effective in resolving the relevant complaint'. The Commission also noted that this model will include greater use of early resolution techniques and appropriate and timely referrals to other bodies. The Commission is further focussing on training its officers in conciliation and reconciliation to complement this approach.
6.75
The Commission's new 'external assurance and advisory mechanism' is in the form of a Complaints Function Advisory Committee. The Advisory Committee members will provide input, guidance and recommendations on:
the efficacy of the NDIS Commission’s complaints function
ways to improve the handling and resolution of complaints in accordance with the NDIS Act and the Complaints Rules
the removal of barriers which impact on the ability of a person to raise a complaint
systemic data gathered through the complaints function; and
ways to enhance outcomes being achieved through having a national complaints mechanism.
Committee view
6.76
While the committee notes that the Commission has a wide range of functions, it is through making a complaint that a person with a disability is most likely to engage directly with the Commission and to form a view of its effectiveness in supporting the safety and quality of supports for NDIS participants. To encourage trust in the Commission's work it is therefore crucial that participants feel that this mechanism is accessible and that they are supported to make complaints.
6.77
The committee welcomes the reforms to the Commission's complaints process. The committee further welcomes the Commission's advice that it is alive to, and seeking to be responsive to, feedback received about the complaints process, including information provided to the committee through this inquiry. It is especially encouraging to hear that the Commission has developed additional complaints-handling guidance and protocols and is making efforts to ensure adequate training for its complaints officers. The committee urges the Commission to continue to improve these documents and ensure that staff are trained to follow them.
6.78
However, the committee notes that these efforts alone will not address the significant barriers to making a complaint that still exist for many participants. Noting the volume of poor experiences in making complaints reported to this inquiry, significant work will be required by the Commission to build trust with participants to ensure they can make effective use of the complaints system.
6.79
As also discussed in Chapter 3, this work should include proactive engagement with participants, their families and advocates to provide clear and accessible advice about making a complaint. The Commission must also ensure its complaints process is genuinely accessible to people with disabilities, for example, people who use different forms of communication. Any improvements should be developed through co‑design so information and processes make sense to those who use them.
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The committee recommends that the NDIS Quality and Safeguards Commission progress as a matter of urgency the work of its new Complaints Function Advisory Committee to remove barriers to accessing the complaints process for participants, including specific barriers faced by participants who are Aboriginal and Torres Strait Islander people with disabilities, and participants with intellectual disabilities or cognitive impairments. In particular, the committee recommends that the Commission consider measures to simplify the complaints process.
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The committee is also especially concerned to hear the experiences of participants who have experienced of apparent asymmetry in the provision of complaints information and whose experiences with the Commission led them to view the complaints process as favouring providers. It is crucial that participants are able to trust that the Commission is a body that supports them and will uphold their rights. This includes upholding participants' rights to receive NDIS services that are safe and of high quality, and also upholding rights to dignity and self-determination, by supporting participants speak up when their rights are not upheld.
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The specific examples of providers' responses to complaints not being given to the person who complained should be reviewed by the Commission, with a view to ensuring that complainants feel heard and supported throughout this process. The new advisory committee established by the Commission may be an appropriate body to undertake this review, ensuring that any responses adopted by the Commission are developed through appropriate co-design and consultation.
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The committee recommends that the Commission work with the new Complaints Function Advisory Committee to establish and publish formal guidance and protocols with respect to:
informing complainants of the progress of their complaints
the role of advocates in the complaints process
timeframes for responding to complaints; and
review and verification of evidence from providers who are the subject of a complaint, including the circumstances in which it is appropriate to provide information from a provider to a complainant for comment.
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The committee also considers that immediate measures to support participants should be taken in the form of increasing access to independent advocates who can support them through the complaints process. In order to achieve this there would need to be a funding commitment from the government, and a clear and consistent process for taking complaints from third parties such as advocates.
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The committee recommends that the Australian Government allocate specific funding to advocacy organisations to assist complainants in their dealings with the NDIS Quality and Safeguards Commission. This funding should be in addition to existing funding provided through the National Disability Advocacy Program.
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The committee recommends that the Commission establish appropriate referral pathways with advocacy organisations, Community Legal Centres and State and Territory Legal Aid Commissions to ensure participants who are particularly vulnerable are supported through complaint and investigation processes. This process should be developed through a co‑design process with people with disability, their families and representative bodies and advocacy organisations.