10.1
This chapter discusses evidence received during the inquiry that focussed on systemic risks within the NDIS market and provision of services to people with disability.
10.2
In some instances, the concerns identified were in relation to existing work of the Commission, such as:
managing the transition of regulating the quality and safety of NDIS supports from states and territories to the Commission; and
data collection and reporting.
10.3
Some submitters and witnesses also considered that the Commission should expand its oversight role into areas including:
managing quality and safety of supports at the interface of the NDIS and other service systems
influence on NDIS pricing; and
promoting measures to support NDIS participants' access to natural safeguards.
The Commission's market oversight function
10.4
Paragraph 181E(i) of the NDIS Act establishes the Commission's market oversight function, which is to:
provide NDIS market oversight, including:
(i)
by monitoring changes in the NDIS market which may indicate emerging risk; and
(ii)
by monitoring and mitigating the risks of unplanned service withdrawal.
10.5
In its initial submission, the Commission provided the following description of its market oversight function:
The NDIS Commission is establishing its processes and systems so that it will be able to identify, categorise, assess and manage systemic risks to protect and prevent people with disability from experiencing harm that arises from poor-quality or unsafe supports or services provided under the NDIS.
Its market and regulatory oversight and risk function will involve:
(a)
identifying, monitoring and responding to intelligence on emerging risks based on a range of data sources, including compliance data, data collected through complaints, reportable incidents and restrictive practices reporting, and data collected through external stakeholders, such as NDIA, other regulators, and state and territory governments;
(b)
determining the most appropriate proactive and reactive regulatory responses that are proportionate to the level of risk identified across the NDIS system;
(c)
monitoring changes in the NDIS market which may indicate emerging risk and monitoring and mitigating the risks of unplanned service withdrawal; and
(d)
identifying gaps in the market for disability support services.
10.6
The committee heard a range of views about the systemic oversight roles that are, or should be, undertaken by the Commission, which are discussed below.
Management of the transition to Commission oversight
10.7
Full transition to Commission oversight was completed during this inquiry, with the Commission commencing operation in Western Australia on 1 December 2020. Much of the evidence received was therefore based on experiences with the Commission during the periods in which jurisdictions were transitioning to the Commission's oversight, with many submitters expressing dissatisfaction of the Commission's processes during this period.
10.8
The Community and Public Sector Union (CPSU) raised concerns about the transition period, noting problems in jurisdictions where the Commission has been operational such as South Australia and New South Wales. CPSU members reported that the transition was ‘policy on the run’, where state and territory systems were phased out leading to the closure of community infrastructure. There were also inconsistencies between how transitions were managed in each state, a lack of clarity regarding processes and procedures, a lack of community engagement and insufficient engagement with state regulatory bodies.
Impact of transition on providers
10.9
The Commission's communication with the disability sector was highlighted as particularly poor over this period, with submitters stating that there was significant confusion reported by providers about a range of aspects of the transition, including the responsibilities of the Commission compared to states and territories and the NDIA, and responsibilities of NDIS providers and service providers in other sectors.
10.10
For example, Autism Spectrum Australia (Aspect) asserted that the transition period was generally managed poorly and was not communicated well across the sector, stating:
It was apparent in the first year of implementation that “the plane was being built whilst flying” and there were limited processes and procedures in place, as well as thought to how specific challenging situations would be managed (for example, people with disabilities attending service in one state/territory but living in another).
10.11
Aspect stated that, in many cases, the sector has been left to discover information or updates on the Commission’s website. Moreover, some regional and remote providers were, at the date of Aspect’s submission, only just becoming aware of the Commission two years after its implementation. In addition, preparation for the disability sector in terms of meeting the Commission’s requirements—and understanding how these requirements impact on service provision—was limited.
10.12
Providers also reported that the administrative impact of the transition was significant, noting concerns about 'cumbersome' technology, and the workload associated with training staff, with little or no guidance from the Commission. For example National Disability Services observed that providers transitioning from state and territory quality systems have had very varied levels of knowledge and experience of the requirements to operate under the Commission, and that providers transitioning from ‘less sophisticated’ systems may have benefitted from greater assistance from the Commission.
10.13
Providers also reported the significant impacts of new registration and auditing requirements, with Allied Health Professions Australia (AHPA) observing that ‘one of the most frustrating aspects’ of the transition process was the costs associated with re-registration with the Commission. In particular, AHPA reported that providers had undertaken multiple audits as part of the transition process, as some third party audits undertaken to meet the requirements of registration were not accepted by the Commission, requiring providers to undergo the Commission's registration renewal process including the associated audit.
Confusion around oversight responsibilities
10.14
The committee also heard that the transition to Commission oversight had left some people with disability, advocates, and providers confused as to the correct point of contact for complaints and oversight, with submitters also expressing concern that the transition has left gaps in oversight.
10.15
Brain Injury SA asserted that for people living with complex needs in the community, the transition to the NDIS has resulted in a loss of a single point of contact for safety, oversight and coordination when crises occur. Further, service providers do not know where to go when they are not coping with the complex needs of an individual, which may fluctuate in intensity resulting in periodic crisis.
10.16
The Victorian Disability Services Commissioner (DSC) also noted that the transfer of disability services from state to federal jurisdiction has caused some confusion about the appropriate body with which to raise complaints, leading to the DSC frequently receiving complaints that are within the jurisdiction of the Commission.
10.17
The Junction Works Limited (TJW) expressed concern that the NSW Government is ‘functionally withdrawn’ from the role of providing ‘stewardship’ for people with disability in that state, including withdrawal from the provision of direct services:
[T]he three tranches of transference of government services has not been implemented successfully and is leading to a reduction in service capacity/availability to NSW residents with a disability, for instance the withdrawal/reduction of “in-home community support” by Australian Unity, and the diminishing clinical/allied health services being offered by The Benevolent Society. Furthermore those providers that acquired the supported accommodation from ADHC/FACS are struggling with the industrial and financial consequences of the transfer.
10.18
The Victorian Office of the Public Advocate (Vic OPA) observed that, as at the date of its submission (July 2020), the rollout of the NDIS in Victoria remained ‘very complicated, both at the policy and operational levels’. The Vic OPA highlighted a number of safeguards that should continue under the Commission arrangements, including:
tenure rights of people with disability;
the authorisation of the use of restrictive practices, including the role of the Senior Practitioner under the Disability Act 2006 (Vic); and
the continuation of compulsory treatment of people with disability in relation to the risks they pose to others and the legal structure in the Disability Act 2006 (Vic) authorising and monitoring this.
Oversight of state and territory facilities
10.19
Oversight of state and territory facilities was of particular concern to a number of submitters. For example, TJW expressed concern that there is currently no government department or entity that has carriage of provider of last resort services, nor responsibility for monitoring when NSW providers are failing under inadequate pricing.
10.20
Physical Disability Australia (PDA) also raised concern that the Commission has limited jurisdiction over state and territory health department facilities that continue to provide disability services under bilateral in-kind arrangements:
[These] facilities…tend to be archaic institutions [whose] residents have been long-term recipients of support under pre-NDIS arrangements. We understand that there are no reporting requirements with regard to reportable incidents and limited capacity for…service recipients to access the [Commission’s] complaints processes.
10.21
PDA would like the Commission take an active role in facilitating the transition of people with disability in state-run facilities to full NDIS participant status, where they can be assured of access to all reasonable and necessary supports to enable them to live an ordinary life.
Positive experiences of the transition
10.22
The committee also heard that the transition had progressed appropriately in other jurisdictions, and that the transition to Commission oversight was welcomed. For example, the Northern Territory Office of the Public Guardian (NT OPG) observed that prior to the commencement of the Commission there was limited Territory-based oversight and safeguarding of disability service providers. According to the NT OPG:
The Office of the Public Guardian, NDIS participants and all key stakeholders in the disability sector welcome the work of the NDIS Commission in the Northern Territory. Anecdotal evidence is that NDIS service providers are committed to the new framework of regulation, monitoring and compliance and have transitioned appropriately.
10.23
In relation to the transition to national worker screening arrangements, the Mental Health Coordinating Council (MHCC) noted that it conducted a survey of its members in line with the terms of reference for this inquiry. Most survey participants agreed that the Interim Worker Screening Arrangements in NSW were fit for purpose, and that the Commission’s requirements effectively mirror those that were in place under the NSW Disability Service Standards.
Commission view
10.24
During one of the committee’s public hearings, the then Commissioner observed that the transition to new quality and safeguarding arrangements has been different for each jurisdiction and has involved significant work to ensure that providers understand their obligations and are subject to appropriate oversight. The then Commissioner elaborated:
The commission has switched on each of its functions in each of the jurisdictions that have transitioned—New South Wales and South Australia on 1 July 2018 and everyone else bar WA from 1 July 2019. WA will be joining us on 1 December. That's involved transitioning around 20,000 providers; it's involved reaching out to participants in each jurisdiction for a range of mechanisms; it's involved reaching around a quarter of a million disability workers through the deployment of the worker orientation module; importantly, this year, it's involved being very actively a part of the response to COVID-19; it's involved doing significant work in behaviour support space, a great deal of which was outlined in detail by evidence that I and the commission's senior practitioner gave in the royal commission last week; and, importantly, it's involved in doing very significant work on capability development in the sector both generally and specifically in relation to behaviour support and the use of restrictive practices.
10.25
The then Commissioner also observed that a ‘big focus’ in the transition period has been educating people about their obligations, noting that there had been ‘significantly improved compliance’, in terms of reporting, in the six months to September 2020.
Interface with other service systems
10.26
As evidenced through the difficulties experienced during the transition period, there is a complex interface between the Commission's role and responsibilities with respect to ensuring the quality and safety of NDIS services and the roles and responsibilities of bodies providing services in other systems such as the health, mental health and justice systems. The committee heard that, even in jurisdictions where the Commission's role was more established, these complexities are still poorly understood, and may lead to gaps that expose NDIS participants and other people with disability to mistreatment, abuse and neglect.
10.27
During one of the committee’s public hearings, Mr David Carey, Chief Executive Officer (CEO), Connectability Australia (Connectability) indicated that there are certain gaps between the Commission and mainstream service systems such as police and criminal justice. Mr Carey indicated that these gaps may make investigating or prosecuting abuse and neglect more difficult:
[I]f you're a member of the community, although that incident is reported to the police…the police are very reluctant to prosecute because, if someone lacks the intellectual capacity to be a witness in a court, then the police just see it as a resource wasted.
…in that case, justice is not served for people with disabilities. The NDIS Quality and Safeguards Commission has no interest in it because the legislation doesn't allow it to subpoena or ask for that information from the police. It's not their area. And the state commission only deals with family members who may abuse clients.
So, in terms of the general community, whose members also commit crimes against people with disabilities, there's no one stop where the entirety of the data can be viewed to see the scale of the problem and what resources may be required for education, an intervention or a pursuit of a criminal matter that can result in people with disabilities feeling safer in Australia.
10.28
Connectability also observed that a key area of concern relates to general practitioners (GPs), stating that one of its biggest ‘stumbling block[s]’ has been:
…[t]rying to educate and explain to GPs why we need…information [about the purpose for which medication was prescribed] on medication charts, when they [the GPs] had been prescribing medication for behaviour management for some people for years. The lack of consultation by the Q&S Commission in the areas of GP’s is deeply concerning. We are two years on and still battling some GP’s in this area, some have just refused to continue to support our people due to the paperwork required.
10.29
Children and Young People with Disability Australia (CYDA) raised concern about the inconsistencies and gaps between jurisdictions, systems and sectors, and the potential adverse consequences for children and young people with disability. In particular, there is not harmonised legislation regarding safeguarding and protections for children and young people with disability, and there is ‘significant variation’ across jurisdictions with regards to complaints, reporting and investigation mechanisms. CYDA further stated:
We are concerned about the current lack of clarity and other issues around intersections between the NDIA, the NDIS Quality and Safeguards Commission, and other systems affecting children and young people with disability, including education, health, justice, and child protection.
Continuing interface issues for children and young people and their families/caregivers navigating these systems lead to poorer outcomes and can contribute to tragic outcomes for children who fall through the cracks between systems…
10.30
The Summer Foundation noted that the provision of support to NDIS participants in residential aged care (RAC) occurs under multiple oversight arrangements. Not only is this difficult and confusing for individuals, the Summer Foundation also submitted that providers commonly believe that, as they are not required to register as NDIS providers, they are therefore not bound by the NDIS Code of Conduct. This misunderstanding negatively impacts on the safeguarding protections available to NDIS participants in RAC.
10.31
TJW observed that there have been a number of areas where the intersection of the NSW State Government, the NDIA and the Commission have created unintended negative consequences for people with disability, families and providers. For example, TJW noted that, in NSW, the question of which department or agency is responsible for funding supports and services continues to present barriers to:
accessing mainstream health and mental health services and accessing affordable psychiatric care; and
education services, including the provision of transport to and from school for students attending Special Units within NSW schools.
10.32
The committee also heard that interface issues have caused confusion as to 'provider of last resort' arrangements.
People detained under forensic orders
10.33
During the inquiry, the committee heard that the cohort of people with disabilities in forensic detention are particularly affected by confusion around the interface of NDIS service provision and the provision of 'mainstream' services by states and territories. Forensic or criminal orders may be imposed when a person is declared 'unfit to stand trial' due to cognitive or psychiatric impairments.
10.34
Mr Patrick McGee, National Manager, Policy, Advocacy and Research, Australian Federation of Disability Organisations, observed that the Commission does not have jurisdiction over forensic services, as these are administered by state and territory governments. Mr McGee indicated that this is of significant concern as people in forensic detention may have complex or multiple disabilities, and are particularly vulnerable to abuse, exploitation and neglect. Moreover, a substantial proportion of individuals in forensic detention are Aboriginal and Torres Strait Islander peoples with disability.
10.35
Mr McGee also submitted that state agencies—for example Directors of Public Prosecution—consider forensic orders to exist for the safety of the community and may not give sufficient consideration to the rights of people with disability to whom forensic orders are applied.
10.36
The committee held a hearing focussing on this issue in May 2021. Witnesses from a range of sectors including legal practitioners, advocacy organisations, public advocates and forensic care practitioners, as well as the Commission provided evidence about the safeguarding concerns for people held in forensic detention and the potential solutions that may be available through Commission oversight.
10.37
The committee heard that people are being held in forensic detention in the 'context of a fractured monitoring and oversight system whilst the state and territory disability programs had been absorbed into the National Disability Insurance Scheme.' Mr McGee explained further:
The reality is that there is a failure of understanding across all levels of government when it comes to forensic orders. The reality of the provision of disability forensic support is it occurs in the disability and health systems, not in the justice system. The orders start in the justice system and are managed by the justice system; the provision of the support that arises out of the orders comes in disability and health systems.
10.38
Witnesses therefore called for NDIS participants under forensic orders to be brought under the Commission's jurisdiction, arguing that there is a role for the Commission in receiving complaints from this cohort and ensuring adequate safeguards and that a participant's behaviours are supported to prevent their entry into the criminal justice system. Dr Colleen Pearce, Victorian Public Advocate, explained:
One of the biggest issues for people involved in, or at risk of involvement in, the criminal justice system—including those on forensic orders—is whether they receive adequate supports and assistance to find suitable accommodation. I would add to this their ability to access suitable and appropriate supports delivered by a trained and experienced workforce. There is a serious market failure, or risk of failure, for people who need appropriate accommodation and specialised supports.
10.39
Dr Pearce considered that the Commission's functions in relation to market oversight and behaviour support provided opportunities for the Commission to monitor the experiences of people in forensic detention and provide leadership, particularly around the use of restrictive practices. Emily Piggot, representing Victorian Advocacy League for Individuals with Disability, also emphasised the Commission's behaviour support role, noting that some people may be subject to forensic orders because their behavioural support needs have never been met.
10.40
While the committee heard that people under forensic orders should be able to complain to the Commission, there is an opportunity for the Commission to play a more proactive role to protect this cohort, with witnesses critical of the Commission's 'reliance on complaints to prompt regulatory actions'. Witnesses emphasised the role that community visitors can play in monitoring forensic facilities, and argued for the role of community visitors schemes to be included in legislation, with accompanying information sharing provisions.
10.41
The committee also heard that the Commission should play a role in ensuring that there is adequate data collected about people under forensic orders.
Commission view
10.42
During the committee's public hearing in May 2021, the then Commissioner explained that the Commission had sought legal advice in relation to its functions and powers and maintained that the Commission possessed limited jurisdiction in relation to people detained under forensic orders. The then Commissioner explained that the Commission's processes for assessing quality of supports rely on audits against practice standards that relate to providers, and therefore could not be used in the context of non-NDIS supports, noting:
There are circumstances where an NDIS participant may be receiving NDIS supports from an NDIS provider, but they would not represent anything other than a very, very small proportion of the supports that are provided in these forensic settings; and, where somebody was receiving those supports and they were receiving them from an NDIS provider, our jurisdiction would be triggered.
…in a system where we don't have jurisdiction, we don't have the capacity to assess those services. So for instance, a public hospital or a public school where issues may arise—or, indeed, one of the settings you're talking about—are not subject to the registration requirements of the commission.
10.43
The then Commissioner did, however, recognise that there were significant questions to be considered in relation to NDIS participants subject to forensic orders. Mr Head highlighted that the upcoming review of the quality and safeguarding framework should test those questions, noting:
I do think, inevitably and appropriately, questions about whether or not there are aspects of the regulatory arrangements that need adjusting will be part of what that process looks like. That may also look at whether or not there are groups of people with disability who are at a higher risk of harm where the safeguarding arrangements in the framework are not necessarily focusing in on the right issues in the right ways.
Data collection and reporting
10.44
The committee heard that the Commission should play a greater role in facilitating data collection and reporting about safeguarding issues, as well as improving data collection and access to data about its activities.
10.45
The First Peoples Disability Network (FPDN) noted that the Commission’s data regarding complaints and reportable incidents is ambiguous and not disaggregated. For example, it is not known how many complaints or notices of reportable incidents were raised by, or in relation to, Aboriginal and Torres Strait Islander peoples with disability.
10.46
In August 2020, Family Advocacy also expressed concern that the Commission’s most recent activity report only provided data on total numbers of complaints and reportable incidents, without disaggregating this data by participant cohort. Family Advocacy considered that disaggregated data, such as that provided in the NDIS Quarterly report, could be used to properly inform the Commission in order to improve its activities.
10.47
The Queensland Department of Communities, Disability Services and Seniors (DCDSS) echoed these concerns and stated that as the Commission continues to establish itself and mature in its functions and expertise, it will have the ability to collect, analyse and disaggregate data for systemic monitoring and quality improvement purposes at the jurisdictional and system level. According to DCDSS, this will provide an opportunity to identify modifiable risk factors in the lives of people with disability and identify areas of action required at both the individual and systemic level.
10.48
The committee also heard that the Commission should increase its data collection and reporting on workforce matters, including data about workforce shortages and impacts on access to services for participants, as well as data to assist providers in planning and decisions to register to provide NDIS services. The committee continues to consider these matters in its Inquiry into the NDIS Workforce.
Commission view
10.49
At an early public hearing of the committee, the former Commissioner noted that the Commission had been working to improve its practices around data collection:
Some of the functions of the commission, through the modules of the commission's operating system that support those functions, allow us to capture all of the demographic information we might and to generate reports based on that… as with all areas of our operations, one of the big focuses for the commission has been to improve its data and analytics work. That's got two elements, really. One is refinement to various aspects of the operating system, and the other is having the organisational capability to analyse and present the information that comes out of that system in a way that's useful for different parts of our community.
10.50
In September 2021, the Commission also noted that it would be seeking advice from a new Complaints Function Advisory Committee in relation to systemic data gathered through the complaints function.
10.51
In response to findings of a research study that it had commissioned into deaths of people with disability, the Commission also noted that it was finalising a data analytics and reporting framework, to assist it to 'mature' its data collection systems and 'make best use of data for… quality and safeguarding activities, including… regulatory action'. The Commission noted that the commissioned research will enable it to establish a national baseline against which it would review data collected on the deaths of NDIS participants. The Commission anticipates working towards collecting, analysing and reporting data in order for it to be used by other agencies and researchers.
Natural safeguards
10.52
A number of submitters emphasised the role of support networks and community inclusion to assist in ensuring people with disability are not subject to abuse or neglect. Some submitters also called for the Commission to take a role in leading work to increase the natural safeguards for people with disability, such as ensuring opportunities to develop social connections, inclusion in the community, and changing community attitudes toward disability.
10.53
JFA Purple Orange highlighted the importance of natural safeguards in protecting people with disability from harm, noting that natural safeguards include caring relationships and opportunities for community participation. JFA Purple Orange emphasized that ‘freely given relationships are the greatest protections or safeguards for people living with disability’. During one of the committee’s hearings, Mr Robbi Williams, the CEO of JFA Purple Orange, elaborated:
[M]any people with disability in Australia have low social capital; they have a relatively low number of people in their lives who aren't paid to be there. When you have people in your life those people represent natural safeguards. If you know your neighbours, they are more likely to respond if they haven't seen you for a few days. Or if they hear something unusual in your property it is more likely to elicit a response. That's what happens when people know each other.
10.54
Consultants, Leighton Jay, Jessica Quilty and Ann Drieberg noted that it is an ‘established fact’ that people with disability experience high levels of social isolation, including as a result of being 'largely segregated from opportunities to build and sustain friendships with non-disabled people, many of whom will be able to add "social capital" to their lives'.
10.55
The consultants submitted that service providers need investment to change their service models so that their services facilitate, rather than impede friendship-building, and so that providers routinely expect this work to be a critical aspect of workers’ roles. According to Jay, Quilty and Drieberg, the Commission should lead this initiative:
If the Commission does not see that leading this change is a critical part of their role and function, then we must ask whose role is it? We concede that it seems to be an unusual role for a regulatory body, but we can’t escape the conclusion that both common sense and the [Quality and Safeguards Framework] demonstrate that it must be front and centre in their work.
10.56
The DCDSS observed that the South Australian Taskforce investigating the circumstances surrounding the death of Ms Ann-Marie Smith reinforced the value of community connections, finding that the best safeguard for any potentially vulnerable individual is to have people in their lives who are concerned with the person’s wellbeing. The taskforce found that vulnerability is increased by social isolation, lack of proper care from service providers, a lack of external systems or checks through support or local area coordination, and inadequate systems in place to vet the quality of services and to respond to concerns.
10.57
Speech Pathology Australia (SPA) criticised the ‘medicalisation’ of care of people with disability with high support needs, noting that this cohort often have support workers attending to physical needs but are not given adequate opportunities to socialise, or to leave the home in a way that would be typical of those without disability. This reflects an attitude among some support workers that communication needs and social interactions are ‘secondary’ to the rhythm of care, less important that physical care tasks, and—in some cases—seen as ‘pointless’.
10.58
Other submitters also emphasised the importance of changing attitudes to ensure the safety and wellbeing of people with disability. For example, Children and Young People with Disability Australia (CYDA) stated that:
[W]e will not see the reduction and prevention of violence, abuse and neglect against people with disability until there is a change in community attitudes towards disability, until people with disability are valued and included in the same ways as non-disabled people, and until there are effective mechanisms to support and enable the human rights of all people with disability to be upheld.
10.59
Ms Kirsten Deane, then Campaign Director, Every Australian Counts (EAC) expressed similar views, and called for the Commission to have a role in facilitating 'a much bigger conversation' around providing equity in opportunities and dismantling barriers preventing people with disability from being included in the community.
10.60
During one of the committee’s public hearings, Mr Robbi Williams, CEO, JFA Purple Orange, elaborated on how the Commission might assist in changing community attitudes toward disability, thereby helping to reduce instances of violence, abuse and exploitation:
[F]or any commission that is charged with upholding, or leading the upholding, of standards, whether they're in regulations or legislation or otherwise, it seems naturally intuitive that they would also have a role in generating a proactive conversation about how people can not only work to those standards but exceed them.
It is important to contemplate a well-rounded role for any commission where it's not just about leading mechanisms around compliance but also about leading conversation that lead to a deeper feel for the positive side of compliance—the positive outcomes that are the opposite of the things that compliance is trying to avoid happening.
10.61
Submitters and witnesses raised particular concern regarding the difficulties that people in group homes or supported independent living face in accessing natural safeguards. The committee heard that there should be progressive closure of group homes, and that actions by providers to limit a participant's access to their 'circle of support' should be classified as a restrictive practice.
NDIS pricing
10.62
A range of submitters held the view that the current NDIS pricing model did not adequately factor in quality and safeguarding measures, with some stating that the Commission should therefore play a role in influencing price setting.
10.63
For example, the Mental Health Community Coalition ACT (MHCC ACT) submitted that the NDIS Price Guide is not a reflection of the true cost of service delivery in the sector. MHCC ACT noted factors such as being unable to retain qualified staff due to low pay and poor conditions, and inadequate funding for supervision and staff development under the current pricing scheme. MHCC ACT members considered that an investigation into the assumptions and models underpinning the NDIS pricing guide is needed, as is more transparency around who is consulted in price setting and item design in the guide. MHCC ACT members do not believe that the price guide reflects consultation with organisations aiming to offer best practice, evidence informed services.
10.64
TJW also expressed concern that current pricing arrangements are not adequate to ensure that workers and newer providers understand the importance of the Code of Conduct and Practice Standards. In this respect, TJW stated that the current NDIS pricing algorithm only factors in one day of training per staff member per year, and that it is not apparent that the NDIA identifies training in the Code of Conduct and Practice Standards as an area of their responsibility. TJW suggested that the Commission lobby the Commonwealth, the states and territories for funding to specifically invest in the development of the disability workforce.
10.65
Purpose at Work raised similar concerns about the assumptions underpinning NDIS prices, stating that recent communications with the NDIA (via an FOI process) indicate that the agency did not properly consider the implications for quality and safeguarding of its most recent price changes. Moreover, the NDIA did not communicate with the Commission about the implications of its proposed decisions.
10.66
Purpose at Work recommended amendments to the NDIS Act to:
mandate communication and liaison between the NDIA and the Commission when the NDIA is making policy and pricing decisions—particularly if those decisions may have significant impacts on the ability of providers and workers to meet their obligations regarding the quality and safety of services and supports; and
require transparency about such communication and liaison, such as disclosure of this in the Commission’s Annual Report.
10.67
Stride Mental Health (Stride) asserted that the NDIA’s price limits incentivise providers to aim for the lowest cost when delivering services and supports, expressing concern that this comes at the cost of quality and safety. According to Stride, providers do not believe that the NDIA is appropriately balancing quality and safety in its pricing model. Stride submitted that the NDIA pricing approach is 'driving the sector towards a highly casual workforce with less supervision, reduced training, and reduced quality and safety', noting that this poses a risk across all NDIS services but especially for participants with complex needs.
10.68
Submitters also expressed concern that NDIS pricing does not factor in a range of specific factors associated with ensuring quality of workforce such as supervision (including ensuring appropriate spans of control), professional development and screening for specialist support items, such as behaviour support.
10.69
The committee also heard concerns from an NDIS participant that the pricing model provides no incentive to register as an NDIS provider and may have impacts on the quality of workers in the NDIS if registered providers 'can't make the NDIS work financially'.
Other systemic oversight matters
10.70
Submitters called for Commission oversight in a range of other areas that affect NDIS participants as well as people with disability more broadly. Some of these suggestions included that the Commission's jurisdiction should be expanded to oversee quality and safety for people with disability more generally, and to oversee the NDIA. A range of other specific suggestions were also submitted.
Expansion of the Commission’s jurisdiction
10.71
Several stakeholders queried whether the Commission’s current jurisdiction is sufficient to enable it to ensure quality and safety in supports and services. Concerns raised included: the Commission’s ability to enforce compliance by unregistered providers; the potentially numerous issues that are ‘out of scope’ in terms of compliance and enforcement; and the question of how to ensure quality and safety for people with disability who are not NDIS participants.
Quality and safety for people with disability who are not participants
10.72
Some submitters and witnesses called for increased protections for people with disability who are not participants, and to whom the Commission’s reach does not currently extend. Certain stakeholders called for the Commission’s reach to be extended, while others called for a new oversight and safeguarding mechanism to be established to cover all people with disability in Australia.
10.73
For example, Physical Disability Australia (PDA) expressed its disappointment that Commission’s jurisdiction is restricted to providers of NDIS supports, noting that NDIS participants represent only a small percentage of Australians with disability. PDA emphasised that people with disability who are over 65, as well as other people with disability who may not meet NDIS eligibility requirements, still require services and safe, quality supports.
10.74
The FPDN similarly noted that the Commission has little if any mandate in relation to people with disability who are not NDIS participants. The FPDN expressed concern that oversight of quality and safety for this cohort may fall to mainstream service systems, leading to gaps and inconsistencies.
10.75
Ms Romola Hollywood, then Director, Policy and Advocacy, People with Disability Australia, called for a wider oversight and safeguarding mechanism covering people with disability in all contexts and settings, stating:
The NDIS Quality and Safeguards Commission has very important work to do. However, it only provides protection to NDIS participants, who constitute around 10 per cent of people with disability in Australia. The remaining 90 per cent of people with disability receive protection through other regulatory and policy frameworks, which, as we are beginning to see through the disability royal commission, are often not sufficient.
10.76
Ms Hollywood asserted that a national, independent mechanism should be established under purpose-built legislation, with powers to investigate and enforce findings relating to violence, abuse and neglect of people with disability (either incorporated within or separate to the Commission).
Ensuring compliance by the NDIA
10.77
Some submitters and witnesses expressed concern that the Commission does not have jurisdiction to regulate the NDIS, its staff and contractors (including, for example, planners and Local Area Coordinators).
10.78
SPA observed that there have been ‘numerous examples’ of plan managers informing NDIS participants that they are able to purchase pieces of equipment, despite the equipment not being recommended by a speech pathologist and not fitting with the NDIS rules concerning low cost, low risk assistive technology. According to SPA, the Commission does not accept such complaints about plan managers. This leaves providers and families with nowhere to provide feedback.
10.79
Purpose at Work stated that although providers and workers are subject to the Practice Standards, there are not equivalent standards for the NDIA, its staff and agents. Purpose at Work recommended:
amending the NDIS Act to give the Commission jurisdiction over the NDIA, and to require the Commission to publish Practice Standards and Quality Indicators for NDIA staff and subcontractors, and
that the Commission should audit the NDIA for compliance with the Standards, with power to issue penalties and other sanctions for breach.
Other suggestions for Commission oversight of systemic issues
10.80
The committee also heard a range of general and specific suggestions for matters that the Commission should oversee. Suggestions included:
the establishment of a register of sex offenders with disability who have been found guilty of physical or sexual abuse of other people with disability;
reviewing deaths of people with disability;
greater focus on the quality of supports and services provided under the NDIS;
thematic issues facing the NDIS as a whole, such as eligibility for the scheme, and tensions between cost containment and service quality; and
greater incorporation of human rights principles in the quality and safeguarding system.
Commission view
10.81
At one of the committee's public hearings, the then Commissioner emphasised that the establishment of the Commission represents a 'fundamental change' to the way that quality and safeguarding is approached for the NDIS:
Prior to the commission's commencement, people with disability receiving supports from the NDIS had their safeguarding arrangements dealt with through a wide range of different approaches in states and territories. Some of those arrangements were significantly less comprehensive than what is part of the NDIS arrangements, and many were expressed as obligations of funding arrangements rather than set out in legislation. The NDIS arrangements provide for a single consistent approach across the country once fully rolled out, and that approach is a quality and safeguarding system legislated in the NDIS Act and underpinned by the Convention on the Rights of Persons with Disability for all Australians who are NDIS participants.
10.82
With respect to suggestions for Commission involvement in broader safeguarding issues for people with disability, in its initial submission, the Commission noted that, as part of its education and engagement work, it was developing a range of resources in response to a review it had commissioned into causes of deaths of people with disability: the Scoping review into the causes and contributors to deaths of people with disability in Australia, undertaken by Professor Julian Trollor. The Commission noted that these resources would 'deal with issues connected to the preventable deaths of people with disability', and that these included resources dealing with mealtime management that would complement changes to the Practice Standards.
10.83
At one of the committee's public hearings, the then Commissioner emphasised the Commission's work in this area has been directed to educating providers about their obligations, while working within its current jurisdiction:
there's a range of work that we do which is about making disability support providers aware… that people with disability have support needs that those providers are responsible for, that they're connected to a whole raft of other things.
Part of the focus of the commission in its early life has not just been on transition management or, indeed, educating people about their responsibilities; it's been on doing substantive work to address some of these questions. Professor Trollor's work identified poor oral health, lack of access to health assessments and those sorts of things—which are all the subject of work that we're doing, but work that we're doing without acting beyond power in terms of our regulatory functions.
10.84
In its most recent corporate plan, the Commission reflected on its evolving operating context, noting that, while the transition from state-based regulation to the national model for overseeing quality and safeguarding for NDIS supports has been completed, the Commission:
…still must continue to build its own knowledge and capability, develop engagement and communication approaches to meet the needs of the people with disability it serves, build its regulatory and data capability, improve its systems and processes, and settle its structure.
10.85
The Commission also noted that the policy settings within which it operates are evolving and highlighted that a review of the NDIS Quality and Safeguarding Framework is 'imminent'.
Committee view
Management of the transition period
10.86
The committee notes that the transition to Commission oversight caused a range of difficulties for the disability sector, particularly in relation to oversight responsibilities. These difficulties appear to have been increased by poor communication from the Commission during the transition period.
10.87
However, the committee welcomes the Commission's responsiveness to feedback and the evidence presented during this inquiry and notes the range of measures that the Commission has undertaken to improve its practices, including with respect to the management of complaints, and communication with the sector. The committee encourages the Commission to continue to listen to and work with people with disabilities, their families and advocates, and the disability sector to continue to refine and improve these practices.
Interfaces with other service systems
10.88
Approaches to safeguarding need to consider the whole of life experiences of a person with disability, including all the services with which they interact. The committee notes the complexity of the interfaces between the NDIS and mainstream services accessed by people with disability. It is clear that, at this early stage of the Commission's operation and implementation of the NDIS Quality and Safeguarding Framework, these interfaces remain poorly understood, and responsibilities of state, territory and federal bodies are inadequately defined.
10.89
In relation to the experiences of people with disability subject to forensic or other orders, the committee notes the Commission's advice that it considers its jurisdiction to extend only to overseeing or monitoring NDIS supports administered to a person in custody. However, the committee considers that the broader safeguarding concerns raised in the evidence in relation to this matter are relevant to the functions of the Commission, including those in relation to behaviour support and market oversight.
10.90
The committee has also commented in multiple reports with respect to the provision of NDIS supports to people in custody and in the criminal justice system. People with disability in the criminal justice system often face significant impediments to accessing the NDIS and receiving appropriate support. This can lead to significant adverse consequences, especially if a person continues to be held in custody because they are not receiving appropriate support to return to living in the community. Previous recommendations made by the committee in relation to these matters, including that a dedicated unit be created within the NDIA to support participants in the criminal justice system, have not been supported by the Government.
10.91
The experiences of people with disability in forensic and criminal justice settings is also an area of significant interest for the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Disability Royal Commission). The Disability Royal Commission has held hearings to explore these experiences in detail, and, in particular, experiences of Aboriginal and Torres Strait Islander people with disability, who are overrepresented in the criminal justice system.
10.92
The provision of safe and high-quality support to people with disability in forensic settings is an area of complex systems interfaces that needs far greater coordination, cooperation, and leadership to ensure the rights and safety of disabled people are upheld and protected. The committee recognises that the Commission must act within its authority, and that the Commission views this as limited to overseeing the provision of NDIS supports to people in custodial settings. However, the committee is concerned that the oversight of the Commission in criminal justice settings may be artificially limited due to the underfunding or under-utilisation of plans, or barriers to accessing the NDIS faced by people with disability in these circumstances. The committee recognises that the invidious position of people in forensic detention has arisen through deep structural failures in the broader criminal justice system as well as NDIS implementation. However, it is also clear that the NDIS Quality and Safeguarding Framework, a document intended to guide the multi-system and multi-jurisdictional approach to safeguarding the rights of people with disability, has not been adequate to ensure rights are upheld in this instance. The committee considers that these interface questions should receive careful and thorough consideration in the upcoming review of the Framework.
10.93
The committee will also continue to review and take evidence regarding the interfaces of NDIS service provision with non-NDIS services, including in the justice system, in relation to its Inquiry into Current Scheme Implementation and Forecasting for the NDIS.
10.94
The committee recommends that the Australian Government give specific consideration to the following matters in its review of the NDIS Quality and Safeguarding Framework:
clarifying the safeguarding responsibilities of Commonwealth, state and territory bodies at the interfaces of NDIS and mainstream services; and
the needs of people with disability in forensic detention, including the role of the NDIS safeguarding system in ensuring the rights of people with disability in these settings are upheld.
Data collection and reporting
10.95
The committee notes the range of suggestions offered by submitters and witnesses in relation to the opportunities for the Commission to improve its data collection and reporting practices, and to collect data on systemic safeguarding issues.
10.96
The committee also welcomes the information that the Commission is developing a data analytics and reporting framework, and that it recognises the value in making data available in a manner that is useful for other agencies and broader research. The committee looks forward to reviewing this document when it is finalised and encourages the Commission to share and invite feedback on the framework from the disability sector, as well as people with disability, their families and advocates.
10.97
The committee further encourages the Commission to actively work with the disability sector and other agencies to explore the ways in which the Commission can support increased data collection and reporting to improve understanding of quality and safeguarding issues for people with disability.
General Commission oversight and safeguarding
10.98
Submitters and witnesses took the opportunity of this inquiry into the Commission to raise a number of matters that affect the safety of NDIS participants and the quality of the services they receive. In particular, access to natural safeguards and the role that the pricing of NDIS services can play in ensuring the safety and quality of these services were raised for consideration by the committee.
10.99
The NDIS Quality and Safeguarding Framework also acknowledges the importance of natural safeguards, noting that activities to support this would be funded through the Information, Linkages and Capacity Building program, as well as through individual plans.
10.100
The committee did not receive specific evidence from the Commission regarding natural safeguards or NDIS pricing. However, the committee recognises that these factors are also important to quality and safeguarding in the NDIS. Noting the upcoming review of the Framework, the committee considers it would be appropriate for these matters to be considered as part of this review, with specific reference to the role of the Commission in providing national leadership on quality and safeguarding matters for people with disability. The committee will also continue to consider matters relevant to NDIS pricing in its current NDIS workforce inquiry.
10.101
The committee recommends that the Australian Government specifically consider the following in its review of the NDIS Quality and Safeguarding Framework:
how to improve access to and strengthen natural safeguards for all people with disability; and
the impact of NDIS pricing on the quality and safety of NDIS supports.
10.102
The committee welcomes the work that the Commission has undertaken to understand the causes and contributors of deaths among people with disability. The committee considers that this is an important step towards building the Commission's capacity to identify systemic risks to people with disability and to take and support action to address these risks.
10.103
As discussed in Chapter 3, the Commission is also well-placed to develop whole-of-sector training materials that increase understanding of disability and how to provide safe and quality supports to people with disability. The evidence to this inquiry also emphasised the systemic causes of risk to the safety of people with disabilities, including lack of inclusion in the community, and the significance of attitudes towards disability. The committee welcomes the Commission's advice that it continues to develop resource materials for the sector and considers that the Commission should emphasise systemic factors in future resources and specific training modules.
10.104
The committee recommends that the NDIS Quality and Safeguards Commission develop resources and training materials that emphasise the systemic factors that increase risks to the safety of people with disabilities, including by emphasising the importance of social inclusion and individual and systemic attitudes towards disability.