3.1
This chapter outlines the evidence provided in relation to the Commission's approach to communication, engagement and education across stakeholders in the NDIS, including people with disabilities, providers, advocates, states and territories, and the NDIA.
3.2
A wide range of voices called for more proactive engagement across the sector, noting the important role the Commission has to play in building capacity in participants and providers to understand the rights and obligations involved in receiving and providing supports under the NDIS. Many submitters still considered that the Commission's role is not well understood, especially among people with disabilities.
Educative and capacity-building functions
3.3
Capacity building for participants is a key component of the NDIS Quality and Safeguarding Framework (Framework), and includes providing accessible information on how the NDIS functions, participant rights, and relevant complaints processes to NDIS participants. Another core component of the Framework is building provider capacity and supporting best practice delivery of services and supports. Consistent with the Framework, the Commission's Compliance and Enforcement Policy states that the Commission's primary approach to achieving compliance and building the capacity of the sector is educating, advising and encouraging providers and staff to identify and understand their obligations and improve their practices.
3.4
Evidence before the committee, however, indicated that the Commission must do more to build the capacity of the sector through proactive education and outreach. In this respect the committee heard that there is low visibility in the disability sector on the Commission and its role and functions, and that low levels of awareness have a direct impact on the Commission's ability to ensure quality and safety. Also of concern was that the Commission may not be making sufficient efforts to educate participants about rights and obligations, or to inform participants about the complaints and other redress mechanisms that may be available.
3.5
A key concern for some submitters was the inability of some in the sector to obtain a holistic understanding of the Commission's role and functions. Purpose at Work explained this issue as follows:
As in the case of the parable of the blindfolded person and the elephant, each person typically only senses part of the Commission and its work. The publicly available information about its operations is limited to its public presentations (which often repeat already available information without adding insight), its annual Corporate Plans, its Annual Reports, its policy statements, and media releases. While there have been a number of media reports that have been critical of the Commission's work, assessing the fairness of these criticisms requires detailed knowledge of the facts, [which] are not always in the public domain.
3.6
Submitters and witnesses asserted that the Commission should proactively engage with the sector to increase awareness of its role and functions, and to help ensure people with disability have the confidence—and the capacity—to raise concerns as to the quality and safety of services and supports.
Participant education and outreach
3.7
The committee heard that many participants may still be unaware of the Commission and lack an understanding of its role and functions. Submitters and witnesses called for increased outreach and education for participants around the Commission's functions and processes, particularly in relation to complaints.
3.8
Aged and Disability Advocacy Australia (ADA Australia) noted that—notwithstanding the limited time the Commission has been in operation—there are low levels of understanding within the disability sector as to the Commission's role and relevance. According to ADA Australia, this is symptomatic of a broader lack of understanding about the complaints mechanisms available to participants and how they can be utilised. ADA Australia emphasised that the Commission must find more effective ways of explaining its functions and becoming 'relevant' to participants.
3.9
Ms Kirsten Deane, then Campaign Director, Every Australian Counts (EAC), also raised concern that while the Commission 'broadcast[s]' its role through its website, it has not taken the steps necessary to raise awareness of its role and functions within the sector. Ms Deane stated:
[I]it is…very clear that many people with disability and their families don't know that the Commission exists, what it does or how its work relates to them. The Commission needs to do a lot more to explain what it does do, how it does it and its relevant to people's lives, and it needs to be much more than simply fact sheets on a website. It needs to get out and talk to people where they are in simple, plain, everyday language that makes sense to them.
3.10
Ms Georgi Hadden, an NDIS participant, noted that it is particularly important for the Commission to proactively engage with the sector as providers may not give sufficient, relevant information to people with disability in their care. Ms Hadden stated:
[T]here is nothing in these homes or services that makes obvious where to go for a complaint. I stumbled across the [Quality and Safeguards Commission] by accident when it first came out. I would become obsessed with a particular topic and I would study the whole lot. In service A, I was saying to the staff, 'You do realise there is now a set of standards that you guys need to follow, and if you're seeing this abuse you have the responsibility to report it.' No service mentions quality and safeguard.
3.11
VALID (Victorian Advocacy League For Individuals With Disability) observed that there would be value in the Commission 'going out and getting to know' people with intellectual disability and their families, as well as advocates and service providers. VALID stated that the visibility of the Commission is a key factor in whether or not people feel confident making a complaint, asserting that the Commission 'needs to be seen in the places where people are most likely to be abused and neglected'.
3.12
Some submitters indicated that the lower levels of awareness within the sector of the Commission, its role and functions are symptomatic of more general difficulties in understanding a complex disability policy environment. In this respect, ADA Australia stated:
Finding…better ways to demystify and make the disability landscape less complex is a necessary part of the empowerment process. It begins with accurate information that promotes understanding and hopefully ends in fewer people with disability being exposed to violence, abuse, neglect and exploitation because they're empowered to act to stop it from happening.
3.13
The Queenslanders with Disability Network (QDN) asserted that limited effective engagement with the disability sector during the establishment of the Commission has meant that the role and responsibilities of the Commission are 'broadly unknown' by many people with disability. QDN noted that its members' knowledge of the Commission varies, ranging from not knowing the Commission exists, to significant misunderstanding as to the Commission's role and functions, to a lack of awareness of the rights of people with disability to report improper actions by service providers.
Educating participants on rights and on mechanisms for redress
3.14
The committee heard that the Commission must ensure that participants understand their rights with respect to the services and supports they receive, and are aware of relevant complaints and redress mechanisms. Submitters and witnesses highlighted the importance of participants being able to recognise violence, abuse, exploitation and neglect; understanding the mechanisms for reporting such conduct; and having the confidence to make a complaint.
3.15
ADA noted that disability advocates who have supported people with disability have been 'struck by just how little information is available' about the NDIA's complaints process, stating:
[E]ven for people for whom the written word is an acceptable means of accessing information, there's little available. For people who learn via other modes of information exchange, there's even less available.
3.16
According to ADA Australia, a part of any empowerment process is ensuring clients understand rights, mechanisms for raising concerns and the protections in place that help ensure there will be no retaliatory action. ADA Australia noted that while this empowerment is an integral part of the advocate role, it is not the role of an advocate to inform, educate and empower entire populations about complaints mechanisms of agencies. Rather, agencies have an obligation and a responsibility to inform and educate service users about these matters.
3.17
VALID noted that participants and families have called for plain information on: how to spot good and bad practice; what the Code of Conduct 'looks like in action'; where restrictive practices occur and why; and 'problem' providers. VALID emphasised that participants are entitled to receive the information they want and need about the Commission's work in an accessible format, so that they can make informed decisions about their supports.
3.18
QDN stated that an important piece of work for the Commission is to ensure that all participants understand their rights under the Code of Conduct.
3.19
Family Advocacy asserted that there is 'much more for the Commission to do' to comprehensively support and educate people with developmental disability to enable them to engage with the Commission to make a complaint, and to help them access and understand the safeguarding and protection that the Commission is able to provide.
Supporting Aboriginal and Torres Strait Islander participants
3.20
Other submitters emphasised the importance of proactive engagement with Aboriginal and Torres Strait Islander communities, noting that many Aboriginal and Torres Strait Islander peoples with disability may not be aware of their rights and entitlements and may not understand terms such as abuse, violence and exploitation.
3.21
Mr Damien Griffis, Chief Executive Officer, First Peoples Disability Network (FPDN), emphasised the importance of a proactive, outreach-based approach, that recognised that some communities may lack access to the internet or to phone or email communication and may have a well-founded mistrust of the government. Mr Griffis explained:
[In Aboriginal and Torres Strait Islander Communities] even the word 'disability' is often problematic, and 'Commission' is a term that would have negative connotations in some parts of the country.
That's not to say that this is insurmountable; it's just about the way you describe something and how you build confidence amongst community so that people can see value in the Commission…It's really important for people in our communities to know what it does, but it's about doing that in a way that's accessible and doesn't feel threatening, and the best way to do that is to sit down and yarn with people directly.
3.22
FPDN expressed concern that the Commission did not have an established mechanism to engage with Aboriginal and Torres Strait Islander peoples with disability, nor a strategy to increase engagement based on an understanding of disability in an Aboriginal and Torres Strait Islander context. FPDN also emphasised the importance of providing information about rights and entitlements to Aboriginal and Torres Strait Islander peoples with disability in a culturally appropriate manner.
3.23
Drawing on their knowledge of Commission initiatives conducted during the COVID-19 pandemic, the FPDN also expressed concern in relation to strategies and other initiatives that cast Aboriginal and Torres Strait Islander peoples as inherently 'vulnerable', stating:
We understand that during the COVID19 pandemic the NDIA initiated a 'vulnerability strategy' with welfare checks conducted by the NDIA. This included individuals in 'indigenous communities'. First Nations people with disability are not inherently 'vulnerable', in fact cultural strengths in our communities protect people with disability and this needs to be recognised and respected by the NDIA and the Commission.
Potential solutions
3.24
Some submitters and witnesses suggested means by which the Commission could improve its outreach to participants, and help ensure participants, their families and supporters understanding their rights and are empowered to raise issues associated with the quality and safety of supports and services.
3.25
For example, the QDN submitted that the Commission should develop and implement a strategic engagement plan with a focus on increasing awareness of the Commission, its role and intersections with the rights of people with disability to receive safe and quality services. The engagement plan should be co-designed with people with disability, families and advocacy organisations, should be made public, and should include key performance indicators against which the Commission is required to publicly report.
3.26
ADA Australia noted that it has designed a 'Self-Advocacy Toolkit' to support people with disability by providing accurate information about their rights as recipients and the simple actions they can take to exercise choice and control over the way their care is provided. According to ADA Australia, this toolkit will go some way to addressing identified needs for information and education about rights and complaints mechanisms.
Provider education and outreach
3.27
The committee heard that the Commission has not been fully effective in terms of education and outreach to service providers. Submitters and witnesses indicated that this has led to providers failing to fully understand and comply with their obligations, and to difficulties for providers seeking to understand and address issues with the quality and safety of their supports and services.
3.28
For example, Cara, a service provider in South Australia, observed that although the Commission's compliance framework states that 'the primary approach to achieving ongoing compliance and building the capacity of the sector is to educate, advise and encourage' providers, this approach is not taken in practice. According to Cara, the primary approach appears to be desktop investigation following a Reportable Incident and issuing compliance notices. Cara stated that this is a 'reactive' approach to customer safeguarding rather than a proactive and preventative approach.
3.29
Mr David Moody, then CEO of National Disability Services (NDS), called for an escalation of the Commission's educative functions. Mr Moody stated that these functions are 'tremendously critical'—particularly for new providers to the sector. Ms Phillippa Angley, NDS Head of Policy, stated that escalation of the Commission's educative role should be complemented by education from state and territory governments, particularly regarding restrictive practices and associated approval processes.
3.30
The Victorian Disability Services Commissioner (DSC) encouraged the Commission to facilitate localised community engagement programs. In this respect the DSC noted that—at its peak—it interacted with 800 providers, and it took many years for those providers to build feedback systems, incorporate staff training about complaints into their programs, and work with clients to encourage them to speak up. The DSC noted that the Commission will likely have many more providers with which to interact, with many of those providers new to the sector.
Training
3.31
The committee heard that the Commission has an important role to play in developing training for the disability sector. Submitters provided examples of specific areas of safety concerns that should be addressed, as well as training in broader concepts to support the safety and dignity of people with disability, including social inclusion and avoiding bias.
3.32
For example, Speech Pathology Australia (SPA) considered that specific areas of training for support workers should include ensuring safe eating and drinking for participants, training regarding ableism, different forms of communication, and how to enable communication access for people with complex communication needs.
3.33
Stride Mental Health (Stride) indicated that additional resources and modules to assist NDIS workers and providers to understand and implement the Code of Conduct would be useful, as would additional training on matters such as Reportable Incidents and the Practice Standards.
3.34
The committee further heard praise from some submitters about training developed to date, such as the NDIS Worker Orientation Module 'Quality, Safety and You'. Stride noted the success of this training in improving workers' and providers' understanding of the Code of Conduct. The Victorian Disability Services Commissioner also considered that the design and production of the module were 'of excellent quality', noting that the training had gained extensive national reach and 'puts the voices of people with disability forward'. The Victorian Disability Services Commissioner further encouraged the Commission to 'continue to emphasise and develop these kinds of educative programs'.
Overall communication approach
3.35
Submitters raised specific concerns in relation the accessibility of the Commission's communication materials. The committee heard that often the materials were hard to find and difficult for people with disability to understand. The committee also heard that the Commission needed to improve coordination and communication with state and territory bodies involved in providing services to people with disability, as well as with the NDIA.
Communication materials and website
3.36
SPA stated that the Commission's website is difficult to use, and that documents and pathways are often altered or moved. This makes it challenging to find required documents or items and necessitates 'constant re-learning'. In addition, SPA asserted that the website is not accessible for consumers, creating barriers to people with disability or complex communication needs seeking to make complaints or provide feedback.
3.37
These concerns were echoed by the Australian Physiotherapy Association (APA), who noted reports from their members that information on the website is difficult and time consuming to obtain or locate—thereby risking important information being missed. The APA also raised concerns that ongoing changes and updates to the website and information mean it is very difficult to keep track of new information and reforms. The APA recommended that the Commission collate and streamline their communication materials and use simple and sequential messaging to alert providers of changes to standards and regulatory requirements.
3.38
Ms Kirsten Deane, then Campaign Manager, EAC, noted that much of the information on the Commission's website 'still relies on the same kind of bureaucratic jargon that the NDIS also use', asserting that the Commission needs to communicate in a 'very simple, plain way' to ensure that its role and functions are understood by people with disability and their families. Concerns about accessibility also included concerns that, in general, the Commission's material is not easy to understand, and that this is particularly the case for Aboriginal and Torres Strait Islander people with disability.
3.39
Consultants specialising in the NDIS Leighton Jay, Jessica Quilty and Ann Drieberg observed that prior to rollout of the Commission, there was significant co-design to develop and articulate a 'revolutionary' Quality and Safeguarding Framework. The Framework and its core components are not easily accessible and have been 'out of sight and out of mind' in the Commission's work. As an illustration, Jay, Quilty and Drieberg noted that the Commission's website does not include a clear articulation of the Framework, despite it being referenced numerous times. The consultants recommended that the Commission publish the Framework in an easily accessed and prominent place on its website.
Communication with service providers
3.40
Submitters and witnesses expressed mixed views about the quality and effectiveness of the Commission's communication with service providers, with some providers expressing concern that the Commission failed to inform providers when changes were made to legislation or other requirements, and others reporting more positive experiences.
3.41
For example, Connectability stated that communication 'has been an issue since …implementation of the…Commission in 2018' and provided an example of an instance where changes to the Practice Guides regarding the definition of sexual misconduct were not communicated to providers.
3.42
SPA gave a similar example, noting that the Commission changed its rules around reportable incidents, introducing a process that was time-limited, but this was not conveyed to providers, despite the Commission having the power to subsequently fine providers for not following the new timelines. Instead, information was simply placed on the Commission's website, with no notification. SPA stated:
This places an unreasonable onus upon providers to constantly monitor a large, unwieldy and complex website in case something is changed or updated. Whilst 'provider alert' emails have been used, these are infrequent; prior to the COVID-19 crisis this was only provided bi-monthly and did not include all of the changes that were made to various processes but were more general in nature.
3.43
By contrast, Multiple Sclerosis (MS) Australia observed that its organisations across Australia have had positive interactions and experiences with the Commission and are generally very satisfied with its operations to date. Indeed, MS Australia observed that there is more work to be done by peak organisations in informing their own communities about the aims and objectives of the Commission, its independence, and its role to 'improve the quality and safety of NDIS supports and services'.
3.44
At the committee's hearing in October 2020, NDS noted that the Commission engages with them through multiple forums, and that the organisation was pleased with the lines of open communication that had been established. However, in their submission, NDS raised concerns about the Commission's approach to contacting providers in relation to complaints.
3.45
The APA observed that, at present, there is no mechanism or capacity to ensure timeliness from the Commission on behalf of providers. According to the APA, this is a particular problem when providers require a timely response to requests.
3.46
Both APA and SPA also called for enhanced consultation and engagement with the allied health sector—in particular with peak bodies—to ensure improved information-sharing between the Commission, allied health peak bodies and other regulatory bodies.
Proposed improvements
3.47
SPA emphasised that the Commission's rules and processes should be made clear to providers, with greater transparency and communication on proposed changes and time and opportunities to provide feedback. According to SPA, a specific team or direct phone line for providers to call and receive advice regarding compliance or registration, with trained responders who know the latest rules, should also be established.
3.48
According to the NSW Department of Communities and Justice (DCJ), additional resources should be allocated to improving the communication and implementation of complaint and investigation outcomes because poor communication causes confusion about how to proceed with services and delays to participants receiving appropriate supports. The DCJ recommended that proactive and robust tracking systems be developed to ensure regular updates are provided and agency contacts are retained. In addition, the DCJ recommended permitting changes to referring parties during an investigatory process. For example, where a support coordinator is the referring party, the process should allow the relevant participant's new support coordinator to follow up on investigation outcomes.
3.49
Brain Injury South Australia (BISA) asserted that interactions with the Commission need to be 'positive and engaging', so services know that the Commission is there to build and monitor quality, and that the Commission should not only contact services when there is a complaint. In this regard, BISA stated that 'respect is built for a scrutinizing and compliance focussed agency when services feel supported in what they are trying to achieve for their participants'.
3.50
The APA recommended that the Commission establish and publish specific KPI's related to NDIS provider responsiveness, including the length of time taken to:
acknowledge a received request
acknowledge a received provider registration application
process a registration application
respond to a reported incident; and
respond to general enquiries or requests for information.
Communication with people with disability
3.51
In addition to the concerns about education and outreach to participants mentioned above, the committee also heard that the Commission's approach to communicating with people with disability needs to be clearer and better tailored to this audience. For example, Allied Health Professions Australia (AHPA) argued that there is a strong need for clearer consumer guidance in relation to complaints handling and the role of individual bodies and regulators in that process, stating:
Consumers and/or participants should have a clear understanding of how and where to raise issues, and confidence in how those issues will be addressed rather than feeling they need to take a scattergun approach by sending their complaints via any avenue they have identified.
3.52
Children and Young People with Disability Australia (CYDA) expressed concern that the Commission's external communications work focusses on informing providers rather than people with disability and their families, carers and advocates. CYDA stated that there is a 'strong need' for the Commission to undertake more assertive outreach and proactive community education around its role and powers. According to CYDA, this could include providing examples of what an individual is likely to expect if they make a complaint or report to the Commission.
3.53
QDN similarly observed that its members have identified that the Commission's external communication is 'overly bureaucratic', and primarily tailored to meet the needs of service providers. QDN recommended that the Commission consult directly with people with disability to redevelop their external communication materials to ensure they are accessible—including a focus on simplified messaging and Easy English.
3.54
An NDIS participant noted that dealing with the Commission has been 'time consuming, frustrating, vexing, and very upsetting'. In this respect, the submitter asserted that the Commission appears not to be trained in dealing with disabled people who need to be treated sensitively.
3.55
Physical Disability Australia (PDA) noted that the Commission has entered into an agreement with National Disability Services to raise awareness of their work with disability service providers. However, PDA was not aware of any similar engagement with the disability community. PDA stated:
Given that the Royal Commission into Violence, Abuse, Neglect and Exploitation has entered into an agreement with the Australian Federation of Disability Organisations to promote the engagement of people with disability in their inquiries, it would be good to see the [Quality and Safeguards Commission] similarly engage with the representative peak organisations of their principal stakeholders.
Communication with specific cohorts and communities
3.56
The committee also heard that the Commission must undertake further work to tailor its communication approaches to specific groups of people with disability, including, in particular, Aboriginal and Torres Strait Islander peoples with disability.
3.57
FPDN stated that the Commission does not have an established mechanism to engage with Aboriginal and Torres Strait Islander peoples with disability, nor a strategy to increase engagement based on an understanding of disability in context. Moreover, there appear to be no measures in place which demonstrate a commitment to outreach and education to ensure people with disability understand, and can access the protection, safeguarding and culturally appropriate response functions the Commission is meant to provide.
3.58
In addition, the FPDN indicated that the means by which the Commission communicates with participants and providers (mostly by telephone and email) is inaccessible for many Aboriginal and Torres Strait Islander peoples with disability. Moreover, terminology used by the Commission is confusing and inaccessible, and there has been little investment in culturally appropriate outreach and education programs co-designed by Aboriginal and Torres Strait Islander peoples and representative organisations.
3.59
The CEO of the FPDN stated that there needs to be the establishment of a First Peoples advisory committee, to provide advice to the Commission on engagement with Aboriginal and Torres Strait Islander communities.
3.60
VALID emphasised that the Commission must engage with people with intellectual disabilities and their advocacy organisations to co-design new ways of working with and learning from people who use specialist services.
Communication with State and Territory bodies
3.61
Submitters and witnesses expressed mixed views regarding the effectiveness of the Commission's communication with state and territory bodies.
Views expressed by State Governments and State bodies
3.62
The Northern Territory Office of the Public Guardian (NT OPG) noted that its experience of communication and engagement with the Commission has been positive, noting that the Commission had conducted information sessions with NT OPG staff, and demonstrated an 'overall willingness and responsiveness' to address inquiries.
3.63
The NT OPG also stated that it advocates for a 'high level of transparency and public access to decisions taken by the Commission', asserting that this is essential to maintaining participant confidence and ensuring continuous improvement in service quality. Further, data on the work of the Commission should be publicly available, and specific to individual states and territories.
3.64
The Victorian Disability Services Commissioner observed that communication and engagement between its office and the Victorian office of the NDIS Commission has been 'very effective so far', with the Commission open to receiving referrals and collaborative in its approach to ascertaining the agency best-placed to deal with issues. However, the Victorian Public Advocate noted that, despite there being an otherwise good relationship, shortcomings in information sharing arrangements meant that her office has been unable to follow-up up on incidents referred to the Commission.
3.65
The ACT Government reported that there is little engagement from the Commission at the local level—including with Government and with disability service providers. Moreover, the Commission is not involved in the local ACT Governance arrangements with the NDIA, and there appears to be little transparency of operations of the Commission at a jurisdictional level.
3.66
The ACT Office for Disability has reported that it has no 'line of sight' of any decisions or actions taken by the Commission about ACT providers. Moreover, the Office reports that it has not been consulted at any stage by the Commission or made aware of any action including those actions that could impact on service delivery for NDIS participants. The ACT Government emphasised that it was a recognised expectation that during the establishment of the Commission and through transition that the mutual objectives of the Commission and the ACT Government would be supported via open, proactive exchange of information.
3.67
At the time of providing their submission, the Tasmanian Government stated that, in regard to worker screening, communications could be improved—particularly those relating to providing information and technical detail for integrating with the Worker Screening National Clearance Database.
3.68
The NSW Government called for increased communication between the Commission and state authorities in relation to restrictive practices.
Views expressed by the disability sector
3.69
Providers, peak bodies and other actors in the disability sector held less favourable views about the effectiveness of communication between the Commission and States and territories. In particular were concerns in relation to information sharing between the Commission and State authorities, and concerns about both double handling and areas where responsibility for following through on a matter is unclear.
3.70
Cara described communication between the Commission and state and territory bodies as 'ineffective', as the Commission frequently requests information from providers that would be better obtained directly from State authorities in areas such as health or child protection. This is due to a lack of protocols for information-sharing between the Commission and state authorities.
3.71
Autism Spectrum Australia (Aspect) similarly noted that communication and engagement between the Commission and State and Territory authorities had been 'incredibly complicated and, historically, very limited', and that there had been a number of disagreements between the Commission and State and Territory authorities on several key matters.
3.72
Due to a lack of communication and engagement between the Commission and state and territory authorities, there has been a large amount of administrative 'double handling'. To address these issues, Aspect recommended that:
the Commission collaborate with relevant state authorities to streamline systems and provide consistency for providers across state boundaries;
there be clear and consistent messaging from all relevant bodies;
there be agreed terms and language used by all relevant bodies; and
there be a focus on the reduction of red tape and duplicated reporting.
3.73
Other submitters suggested increased use of liaison roles and processes in all jurisdictions, and improved engagement between the Commission and state and territory authorities in relation to state-based projects that relate to the Commission's work.
3.74
The Parliament also passed amendments to support information sharing by the Commission in October 2021. The National Disability Insurance Scheme Amendment (Improving Supports for At Risk Participants) Bill 2021 that broadened circumstances in which information, including information about a participant can be recorded used and shared, as part of the government's legislative response to the Robertson Review.
3.75
While submissions to this inquiry were supportive of the principle of increased information sharing, concerns were raised in relation to the information sharing provisions in the bill that these provisions may infringe on the privacy of participants, and applicants to the worker screening process.
Communication and coordination with the NDIA
3.76
The committee heard from a range of submitters who were concerned about the communication and coordination between the Commission and NDIA, including concerns about ensuring consistent messaging from the NDIA and Commission, that there remain gaps in the division of responsibility between the two bodies, and that the Commission should play a greater role in influencing the practices of the NDIA.
3.77
Consultants Leighton Jay, Jessica Quilty and Ann Drieberg stated that there 'undoubtedly needs to be a strong relationship and consistent messaging' between the NDIA and the Commission. The committee heard that there are 'numerous examples' of mixed or contradictory messages coming directly or indirectly from the two organisations, asserting that this issue needs to be monitored and actively addressed.
3.78
The committee also heard from a submitter assisting an NDIS participant as a friend and advocate about their concern that the Commission failed to engage with the NDIA on safeguarding issues that are within the responsibility of the NDIA, such as whether a participant's plan is appropriate.
3.79
NDS indicated that the COVID-19 pandemic has highlighted gaps in the division of responsibility between the Commission and the NDIA, with adverse consequences for participants. NDS considered that these gaps were exacerbated by failures by the Commission and the NDIA to coordinate effectively with other service sectors, including the health sector.
3.80
VALID stated that the Commission needs a 'more direct role' in influencing the operational practices of the NDIA and local area coordinators that put participants at risk of abuse, neglect, or exploitation. According to VALID, these practices 'create the ideal conditions for the abuse, neglect and exploitation that the NDIS Commission seeks to eliminate', and include:
participants with intellectual disability often being excluded from planning meetings, which allows decisions to be made against their wishes and interests in their absence;
underfunding of support coordination in plans, leading to a reliance on service providers to act as 'last resort substitute decision-makers'; and
'consistent' denial of funding for independent decision-making supports for people with no family and just one service provider 24/7.
3.81
AHPA also observed that while the Commission does not have a regulatory role in relation to the NDIA, it is well-positioned to identify systemic failures in the planning process through its work responding to complaints and feedback from participants. Identified failures may then be used as the basis for engagement with the NDIA to support improvements in the training and guidance provided to planners.
Commission view
Overall communication and engagement activities
3.82
In September 2021, the Commission provided an update to the committee in relation to its communication and engagement activities. The Commission noted that it had undertaken a range of participant facing work including:
the establishment of a new National Engagement Team
the release of a quarterly e-newsletter for participants
ongoing distribution of information packs to existing and new participants in the NDIS, including the publication in 2021 of a Participant Information Pack and an Easy Read Participant Welcome Pack created specifically for Aboriginal and Torres Strait Islander people.
developing a National Engagement Plan 2021 and an Aboriginal and Torres Strait Islander Engagement Plan 2021 'to set out its approaches, priorities and messages to participants and their representatives'; and
engaging in collaborative work with the NDIA to promote awareness of its role, including partnering with the NDIA to visit remote communities and Specialist Disability Accommodation and Specialist Independent Living Forums 'to improve engagement with participants who are hard to reach'.
3.83
The Commission's recent engagement work with providers included:
continuing to publish provider alerts
continuing to offer the Worker Orientation Module training through its website
developing a 'New Worker - NDIS Induction' e-learning program
developing new training modules to sit alongside the Worker Orientation Module.
3.84
Further engagement highlighted by the Commission included:
the work of its two consultative committees, the Disability Sector Consultative Committee and the Industry Consultative Committee, which meet every quarter
convening Disability Advocacy Forums (most recently in 2021)
redevelopment of the Commission's website (expected early 2022) and updates to the Feedback and Complaints webpage, and
developing the next iteration of its 'If you need to speak up, speak to us' information campaign.
3.85
In mid-2021, the Commission released the Workforce Capability Framework, which is intended to 'translate the NDIS Commission's principles, Practice Standards and Code of Conduct into clear and observable behaviours that service providers and workers should demonstrate when delivering services to people with disability'. The document is written from the perspective of an NDIS participant, and describes core and additional capabilities that workers need to deliver basic and more complex supports. The Workforce Capability Framework is available as an interactive website and an accessible PDF. The Commission is undertaking an 18-month project to implement the Framework, including developing a range of tools to support implementation, set to be completed in December 2022.
States and territories
3.86
In its initial submission the Commission expressed an intention to source information from Australian government agencies 'to improve the quality of supports and to ensure safe environments for all NDIS participants', noting that high-level information sharing principles had been agreed with states and territories. The Commission explained that the information sharing principles 'underpin specific agency-to-agency information sharing agreements that the NDIS Commission is settling with relevant organisations around the country', and that the Commission had identified 134 individual organisations with which it would enter into formal agreements.
3.87
In September 2020, the then Commissioner provided information about information sharing arrangements with states and territories to the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability:
So we've got, in that case, a very high-level set of principles, and then we've gone through a very arduous process of working between the Commission and not a kind of central function in a State Government, but with individual agencies, Public Guardians, Police Forces, a range of other human service and law enforcement agencies so that there's a specific protocol about how we work with that agency to share information.
And I guess the focus there has been to concentrate on how it is that information sharing is intended to produce outcomes for people with disability rather than focusing on this as just an elaborate administrative process.
3.88
The Commission provided these principles to the committee in an attachment to its initial submission to the inquiry. The four principles are that:
Principle one:
All parties commit to working together to support the lawful exchange of information necessary for the NDIS Commission and state or territory bodies to effectively regulate NDIS providers and ensure the health, safety and wellbeing of NDIS participants including through:
open and honest identification of information about risk
operational implications including existing working arrangements with other regulatory bodies
timely and accurate exchange of information.
Principle two:
The transition of quality and safeguarding functions to the NDIS Commission provides all parties with an opportunity to review interactions between existing and future service systems to ensure consistent quality and safeguarding arrangements for NDIS participants and providers into the future, including:
early advice and raising potential gaps, opportunities or concerns
relevant bodies have the opportunity to contribute to the transition process
taking a whole-of-government approach to work together and effectively across organisational boundaries
the ongoing and proactive sharing of information held by the NDIS Commission, that is appropriate and relevant to share with state and territory agencies.
Principle three:
All parties commit to achieving clarity in the transition of roles and responsibilities to ensure that people with disability receiving supports or services under the NDIS are not disadvantaged throughout the process.
Principle four:
All parties commit to working collaboratively to mitigate and respond to known, emerging and unexpected risks to NDIS participants and providers including through:
early advice about concerns
effective and timely communication and exchange of information between relevant bodies.
NDIA
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With respect to the Commission's engagement with the NDIA, the then Commissioner noted that the Commission does not regulate the NDIA, and that complaints about planning are a matter for the Agency. However, a 'warm referral' process is in place if a complainant wishes to raise an issue with the Agency.
Committee view
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The Commission has a key role to play in building capacity in all stakeholders in the NDIS to understand their rights and responsibilities under the new system. Noting that the NDIS remains a relatively new system, and the systemic disadvantages faced by people with disability, it is also crucial that the Commission takes a proactive approach to engaging with participants to ensure they understand the supports and protections available to them. Likewise, the committee considers that proactive communication and outreach from the Commission to NDIS providers is also crucial to ensuring providers deliver supports that are safe and of appropriate quality.
3.91
While there have been shortcomings in the Commission's approach to engagement during the process of becoming fully established, the committee is pleased to see the work undertaken by the Commission to identify and address many of these concerns. The committee welcomes the steps the Commission has taken so far and offers some further suggestions around systems and approaches that can build and strengthen the Commission's work in this area.
Engagement Plans and Strategies
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Evidence presented to the committee demonstrated a need for the Commission to develop an overarching strategy for building visibility of its work among providers and people with disabilities and engaging in capacity-building activities with participants and providers. The committee supports this approach and considers that such a strategy should emphasise a proactive role for the Commission, especially in this early phase of its work. At the time of drafting, the Commission has not published the National Engagement Plan 2021 and Aboriginal and Torres Strait Islander Engagement Plan 2021, which were highlighted by the Commission in the information provided to the committee in September 2021; it is therefore unclear whether these documents meet the committee's expectations in this regard. The committee looks forward to reviewing these documents when they are released.
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Individual sectors that rely on the Commission's safeguarding work should also be specifically included in any overarching strategy. In this respect, the committee welcomes the development of the Aboriginal and Torres Strait Islander Engagement Plan 2021. However, the Commission should also clearly articulate how other cohorts of people with a disability are included in its communication plans and strategies, including children and young people, NDIS participants in residential aged care and people in various levels of supported accommodation. Noting the recent project for implementation of the NDIS Workforce Capability Framework, the Commission should also articulate how the Framework fits into the Commission's overall communication and engagement strategy.
3.94
Finally, it is not clear to the committee what process was undertaken to develop the Commission's National Engagement Plan 2021. The committee expects that any overarching strategy developed by the Commission should be developed through extensive consultation with the disability sector and co-designed with people with disability, their families, and disability advocacy organisations.
3.95
The committee recommends that the NDIS Quality and Safeguards Commission develop an overarching communications and engagement strategy for building visibility of its work among providers and people with disabilities and engaging in capacity-building activities with participants and providers. The strategy should specifically include: children and young people, Aboriginal and Torres Strait Islander people with a disability, and NDIS participants living in residential aged care.
Communication with states and territories
3.96
The committee also remains concerned that inadequate communication between the Commission and state and territory governments and organisations appears to be causing confusion for both participants and providers, despite some state bodies reporting satisfaction with the Commission's approach.
3.97
These concerns extend to the lack of clarity around information sharing between the Commission and state and territory authorities. It is especially concerning to the committee that some jurisdictions have reported that they do not have adequate information to enable them to assess whether the Commission's actions will impact service levels for people with disability in their jurisdiction. The need for clear and comprehensive information sharing arrangements is increased for areas of the Commission's work that intersect with state and territory responsibilities, such as worker screening and restrictive practices. While the committee acknowledges that the Commission appears to be working towards developing arrangements with state and territory bodies, the adequacy of these arrangements is yet to be demonstrated and understanding and awareness of any arrangements in the disability sector appears limited.
3.98
The committee is also keenly aware of the importance of ensuring the privacy and confidentiality of the personal information of people with disability. In this regard, the committee notes that significant concerns were raised by people with disability and their advocates in relation to recent legislation that amended provisions in the Act governing information sharing by the Commission.
3.99
The committee therefore considers that, where not already in place, information sharing protocols should be developed with states and territories, covering the overall approach to information sharing between the Commission and states and territories, including two-way information sharing with appropriate safeguards to ensure the appropriate balance is maintained between upholding both the privacy and safety of people with disability. Additional specific protocols should also be in place to cover areas of intersecting state, territory, and Commission responsibility, such as worker screening, restrictive practices and residential settings. To increase confidence and clarity for the wider disability sector and for people with disabilities, to the extent possible, these information sharing protocols should also be made publicly available.
3.100
The committee recommends that the NDIS Quality and Safeguards Commission develop information sharing protocols with states and territories, and, as appropriate, publish these protocols on its website. Information sharing protocols should cover general information sharing and information sharing in relation to specific areas such as worker screening, restrictive practices and residential settings. Where arrangements are already in place, the committee recommends the Commission review these agreements to ensure appropriate clarity around two-way information sharing and to ensure that privacy safeguards are in place.
Engagement with the NDIA
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The committee notes that coordination and engagement with the National Disability Insurance Agency (NDIA) is integral to the Commission's role as a safeguarding body. Both the Commission and the NDIA are responsible for ensuring that current and potential participants are informed about the NDIS and their rights when receiving supports through the scheme. The NDIA also has an important safeguarding role through its planning processes.
3.102
In addition, a core function of the Commission is to provide advice and recommendations to the NDIA and its Board in relation to the performance of the NDIA's functions, and the Commission's market oversight function also includes monitoring risks based on data collected from the NDIA.
3.103
The committee also considers that increased clarity about the division of responsibility between the Commission and the NDIA will assist in the goal of increasing understanding by participants and providers about the role and functions of the Commission.
3.104
The committee recommends that the NDIS Quality and Safeguards Commission and National Disability Insurance Agency together develop and publish protocols for coordination and engagement to ensure consistent messaging and clear division of responsibilities.