2.1
This chapter provides a brief background of the NDIS Quality and Safeguards Commission (Commission), and a high-level overview of its functions and regulatory approach. The chapter also discusses the NDIS Quality and Safeguarding Framework.
2.2
The chapter concludes by commenting on the broader concept of safety for people with a disability, including the factors that may increase the risk that a person with disability may be subject to exploitation, abuse or neglect, and the importance of natural supports and community inclusion for supporting safety.
National Disability Insurance Scheme
2.3
The NDIS is an insurance-based model for funding and supports for people with disability, families and carers. It replaces the previous state‑based system of block funding with a 'fee-for-service', market-based approach.
2.4
The main component of the NDIS is individualised packages of supports for eligible people with disability. The scheme is based on the premise that people with disability each have different support needs and should be able to exercise choice and control in relation to their supports.
National Disability Insurance Scheme Act 2013
2.5
The NDIS is established under the National Disability Insurance Scheme Act 2013 (NDIS Act). The Act sets out the objectives of the NDIS, which include:
supporting the independence and social and economic participation of people with disability
providing reasonable and necessary supports, including early intervention supports, for NDIS participants
enabling people with disability to exercise choice and control in the pursuit of their goals and in the planning and delivery of their supports
facilitating the development of a nationally consistent approach to accessing, planning and funding of supports for people with disability; and
promoting the provision of high quality and innovative supports.
2.6
The NDIS Act further provides for how a person may become a participant in the NDIS; how plans are prepared and reviewed; how the NDIA approves funding; how an entity can become a registered provider of supports; and the processes for reviewing decisions.
National Disability Insurance Agency
2.7
The National Disability Insurance Agency (NDIA) is the independent statutory agency responsible for the governance and administration of the NDIS. Its core functions include delivering the NDIS in a way that maximises choice and control for participants and promotes access to high quality supports, and managing, advising and reporting on the financial sustainability of the NDIS.
National rollout of the NDIS
2.8
The NDIS became operational on 1 July 2013 with the commencement of trial sites. National rollout of the scheme began on a geographic and age basis from July 2014, with the majority of jurisdictions beginning transition on 1 July 2016. The transition to full scheme was guided by bilateral agreements between Commonwealth, state and territory governments.
2.9
National geographical rollout of the NDIS was completed on 1 July 2020, with Christmas Island and the Cocos (Keeling) Islands joining the scheme. As at 30 September 2021, the NDIS was providing services to 484,700 participants across Australia.
NDIS Quality and Safeguards Commission
2.10
The NDIS Quality and Safeguards Commission (the Commission) is an independent agency established to improve the quality and safety of NDIS supports and services. Among other matters, the Commission is tasked with regulating NDIS providers, resolving problems and identifying areas for improvement.
2.11
The committee focused its inquiries on the operation of the Commission since its commencement, which was staggered across jurisdictions over the following dates:
From 1 July 2018 in New South Wales and South Australia
From 1 July 2019 in the ACT, the Northern Territory, Queensland, Tasmania and Victoria; and
From 1 December 2020 in Western Australia.
2.12
During the transition phase, prior to the Commission commencing operations in a jurisdiction, the NDIA was responsible for registering providers operating in that jurisdiction and the jurisdiction’s existing quality and safeguards systems applied to NDIS participants, providers of supports and services, and their workers.
Establishment and background
2.13
The Commission was established on 1 July 2018 under amendments to the NDIS Act passed in December 2017 (see Chapter 6A). This followed several inquiries that examined the safeguarding arrangements for disability services. In particular, in December 2016 the (then) COAG Disability Reform Council (DRC) agreed on the NDIS Quality and Safeguarding Framework to set out a nationally consistent approach to NDIS safeguards. The Commission is intended to give effect to several elements of the Framework.
NDIS Quality and Safeguarding Framework
2.14
The NDIS Quality and Safeguarding Framework (the Framework) was released by the DRC in February 2017. The framework is a high-level policy which seeks to establish nationally consistent protections for participants in the NDIS by setting out their rights to safe, high-quality services.
2.15
The framework replaced the existing state-based quality and safeguarding measures which were considered no longer applicable in the new market-based system of the NDIS. Based on the UN Convention on the Rights of Persons with Disabilities, the National Disability Strategy 2010–2020, and the NDIS Act, the framework consists of developmental, preventative, and corrective measures which are targeted at individuals, the workforce, and providers.
2.16
Under the framework, responsibility for safeguarding is shared across the whole range of NDIS stakeholders, as a continuum starting with participant capacity, through to the planning process and corrective regulation in the form of monitoring and responding to complaints and incidents. Under these arrangements, the Commonwealth is responsible for the following national regulatory functions:
provider registration including quality assurance
a complaint handling system
serious incident notification
restrictive practice oversight; and
investigation and enforcement.
2.17
The National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Bill 2017 amended the NDIS Act to provide the legislative foundation to give effect to the Commonwealth's regulatory responsibilities under the framework. These amendments established the Commission, and vested responsibility for the Commonwealth's regulatory functions under the Framework in the Commissioner.
2.18
At the time of the release of the framework, the Department of Social Services noted that, once capability had grown and the NDIS market had become more established, the framework would need to be reviewed to ensure it remains fit for purpose. The committee understands that a review of the Framework will commence in late 2021.
Functions of the Commission
2.19
As set out in the NDIS Act, the Commission’s functions include:
core functions (section 181E), which include the following:
to uphold the rights of, and promote the health, safety and wellbeing of, people with disability receiving supports or services
to develop a nationally consistent approach to managing quality and safeguards for people with disability receiving supports or services
to promote the provision of advice, information, education and training to NDIS providers and people with disability
to secure compliance with this Act through effective compliance and enforcement arrangements, and
provide market and regulatory oversight
registration and reportable incident functions (section 181F), such as monitoring the compliance of registered providers with their conditions of registration.
complaints functions (section 181G), such as the investigation, management, conciliation and resolution of complaints; and
the behaviour support function (section 181H), which is to provide leadership in relation to behaviour support, and in the reduction and elimination of the use of restrictive practices, by NDIS providers.
Regulatory Approach
2.20
The Commission told the committee that its regulatory approach is founded in the UN Convention on the Rights of Persons with Disabilities (UNCRPD), the Framework and the Act noting that, under the Act, the Commission 'is responsible for implementing a regulatory environment that promotes the rights of people with disability and strengthens the NDIS market'.
2.21
The Commission further explained that its regulatory approach is informed by six core regulatory functions, drawn from its functions set out in the Act:
Education and communication
Compliance and enforcement
Market and regulatory oversight and risk.
2.22
The below figure was provided to illustrate Commission's regulatory approach:
Registration function
2.23
Under its registration function, the NDIS Commission assesses whether organisations, practitioners and key personnel in organisations that provide services and supports are suitable to deliver supports and services in the NDIS. The Commission explained that the registration function involves:
(a)
determining the registration of providers to deliver services and supports to people with disability under the NDIS according to legislative and other regulatory requirements;
(b)
supporting providers to undertake the registration process, including facilitating access to suitably qualified auditors to undertake assessments against practice standards; and
(c)
monitoring registered providers’ compliance with conditions of registration.
2.24
The National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018 (Practice Standards) set out the requirements that providers need to meet to be registered as a provider and to deliver specialist supports in the NDIS.
Education and communication
2.25
According to the Commission, under its education and communication function, the Commission aims to build capacity in participants and providers to understand:
the rights of participants
obligations of providers; and
the role and function of the Commission.
2.26
The Commission noted that this function involves:
(a)
commenting on observed practice and inquiring into matters that may require attention
(d)
providing best-practice guides and training, including publishing guidance materials with examples of good and poor practice
(e)
delivering targeted education campaigns that build the capability of service providers and behaviour support practitioners in identified focus areas
(f)
delivering targeted engagement and communications campaigns that build the knowledge and awareness of participants, providers and behaviour support practitioners
(g)
building provider capability to prevent and respond to serious incidents and complaints through education and engagement, and
(h)
supporting providers to adopt best-practice approaches to positive behaviour support and ensuring they have access to specialist expertise, guidance and educational resources.
Behaviour support function
2.27
Under the Act, the Commission's role includes working with practitioners and providers to implement strategies that reduce the occurrence and impact of behaviours of concern and reduce and eliminate the use of restrictive practices.
2.28
In its initial submission, provided to the committee in August 2020, the Commission noted that, when fully implemented, the behaviour support function would involve:
(a)
developing and maintaining the Behaviour Support Capability Framework which will ensure that high-quality practitioners deliver behaviour supports by assessing providers and practitioners against the capability domains
(b)
overseeing behaviour support practitioners and implementing providers who use behaviour support strategies and restrictive practices
(c)
providing best-practice advice to practitioners, providers, participants, families, and carers
(d)
receiving and reviewing provider reports on the use of restrictive practices;
(e)
responding to the unauthorised use of restrictive practices through monitoring reportable incidents, and
(f)
reporting publicly on the level of use of restrictive practices and effectiveness of reduction strategies.
Complaints and incidents
2.29
The Commission noted that complaints management and resolution is one of its core functions. Relevantly, the Commission’s complaints functions include:
the investigation, management, conciliation and resolution of complaints;
educating people about, and developing resources relating to, best practice in the handling of complaints;
building the capability of people with disability to pursue complaints in relation to the provision of supports or services by NDIS providers;
building the capability of providers to develop a culture of learning and innovation to deliver high quality supports and services, prevent incidents and respond to complaints; and
collecting, correlating, analysing and disseminating information relating to complaints arising out of, or in connection with, the provision of supports or services by NDIS providers.
2.30
'Reportable incidents' are intended to cover serious incidents and allegations, including abuse and neglect of a person with a disability. They are defined in the NDIS Act and include:
the death, serious injury or abuse or neglect of a person with disability
unlawful sexual or physical contact with, or assault of, a person with disability
sexual misconduct committed against, or in the presence of, a person with disability; or
unauthorised use of restrictive practices.
2.31
Functions of the Commission relating to reportable incidents involve:
(a)
responding to, investigating and overseeing the management of reportable incidents, taking regulatory action where appropriate and referring matters to other relevant authorities when required
(b)
receiving and assessing reportable incidents, managing notifications of reportable incidents from providers, and referring matters to other relevant authorities as required
(c)
reviewing and sharing reportable incident data to identify systemic issues to be addressed and driving improvement actions through provider reporting on reportable incidents and compliance activity
(d)
reporting publicly on the level of reportable incidents and prevention strategies; and
(e)
overseeing the use of restrictive practices through provider reporting.
Compliance and enforcement
2.32
The Commission's compliance and enforcement functions include:
(a)
determining and taking the most appropriate regulatory response to non-compliance and/or emerging issues that require proactive compliance monitoring
(b)
determining levels of provider compliance with conditions of registration (if registered), NDIS Practice Standards, the NDIS Code of Conduct and other quality and safeguard requirements when they apply
(c)
using information-gathering powers to investigate instances of potential noncompliance
(d)
determining and taking the most appropriate regulatory response to non‑compliance
(e)
exercising influence, authority and statutory tools to compel compliance with conditions of registration (if registered), NDIS Practice Standards, the NDIS Code of Conduct and other quality and safeguard requirements; and
(f)
taking protective and punitive action in serious cases of persistent and high-risk non‑compliance.
2.33
The Commission monitors NDIS provider and worker compliance with the NDIS Code of Conduct and, if registered, conditions of registration through audits, reports of reportable incidents and complaints. The Commission has a range of compliance and enforcement actions available to use against providers to secure compliance, including powers to 'ban' a provider from the NDIS market.
2.34
The Commission noted that its compliance and enforcement function is 'focussed on preventing poor service delivery and protecting participants from harm', and that compliance and enforcement action more broadly ensures public confidence in the NDIS.
Market and regulatory oversight and risk
2.35
In its initial submission the Commission noted that it was 'establishing its processes and systems' in order to 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'.
2.36
The Commission considered that its market and regulatory oversight and risk function would 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.
Code of Conduct and Practice Standards
2.37
The NDIS Code of Conduct and the Practice Standards together set out minimum and nationally applicable expectations for conduct and practice in the NDIS. As noted above, the Commission monitors NDIS provider and worker compliance with the NDIS Code of Conduct, and, where applicable, relevant practice standards.
2.38
The NDIS Code of Conduct is established in the National Disability Insurance Scheme (Code of Conduct) Rules 2018 to set minimum expectations and conduct expected of all NDIS providers and workers employed or otherwise engaged by NDIS providers. The code applies to:
registered and unregistered NDIS providers and their employees
providers delivering information, linkages, and capacity building activities
providers delivering Commonwealth Continuity of Support Programme services for people over the age of 65
NDIS Commission employees (in addition to the Australian Public Service Code of Conduct).
2.39
The Code of Conduct requires workers and providers who deliver NDIS supports to:
act with respect for individual rights to freedom of expression, self-determination, and decision-making in accordance with relevant laws and conventions
respect the privacy of people with disability
provide supports and services in a safe and competent manner with care and skill
act with integrity, honesty, and transparency
promptly take steps to raise and act on concerns about matters that might have an impact on the quality and safety of supports provided to people with disability
take all reasonable steps to prevent and respond to all forms of violence, exploitation, neglect, and abuse of people with disability
take all reasonable steps to prevent and respond to sexual misconduct.
2.40
The NDIS Practice Standards are set out in the National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018. They are a modular set of standards developed to provide for additional quality and competency standards for registered NDIS providers proportionate to both the risk of providing different services, and the scale of an organisation.
2.41
The standards consist of a core module and specific practice standard modules relating to particular supports. The core module contains standards relating to:
the rights of participants and responsibilities of providers
provider governance and operational management; and
the provision of supports.
2.42
Specific practice standard modules apply to:
high intensity daily personal activities
specialist behaviour support
implementing behaviour support plans
specialised support coordination, and
specialist disability accommodation.
2.43
Providers who provide or are seeking registration to provide higher-risk, more complex supports must gain third party quality assurance certification audits against the relevant practice standards. Providers who provide supports that are considered lower risk or who are already subject to professional regulation (for example, through the Australian Health Practitioners Regulation Agency) may access a 'lighter touch' verification process.
Powers of the Commission
2.44
The Commission has a range of compliance and enforcement powers under the NDIS Act and the Regulatory Powers (Standard Provisions Act) 2014. Inspectors and investigators appointed by the Commissioner have, respectively, monitoring powers and investigation powers that can be used to determine whether the requirements of the NDIS Act are being met.
2.45
The Commissioner may enforce civil penalties under the NDIS Act, including for: providing support under a participant’s plan without being registered (where registration was required to provide that support); failing to comply with a condition of registration; contravening the NDIS Code of Conduct; or failing to comply with a compliance notice or banning order. The Commissioner also has sanction powers, including:
applying conditions to registration, suspending registration, or revoking registration
issuing compliance notices, infringement notices, or banning orders, and
applying for injunctions or accepting enforceable undertakings.
2.46
The Commission publishes the NDIS Provider Register, which lists any regulatory action taken against a provider, including whether registration is subject to a condition or is suspended.
2.47
Discussion of evidence received in relation to the powers of the commission is contained in Chapter 4.
Structure and Staffing
2.48
The powers exercised by the Commission are vested under the Act in the Commissioner. In exercising their powers, the Commissioner is supported by office holders responsible for specific core functions under the Act:
Registrar – oversees registration of providers
Senior Practitioner – oversees activities for behavioural support function
Complaints Commissioner – oversees complaints function
2.49
The Commissioner is also supported by staff of the Commission. Further discussion of staffing and resources for the Commission is contained in Chapter 9.
Committee’s previous comments regarding the Commission
2.50
The committee has observed the progressive implementation of the Commission’s work as it has commenced its operations across jurisdictions.
2.51
The committee noted the release of the NDIS Quality and Safeguarding Framework in its 2017 Progress report, including that the National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Bill 2017 had been introduced into the Parliament that year to give effect to the Commonwealth's regulatory responsibilities under the framework, including providing for the establishment of the Commission.
2.52
In 2019, the committee considered evidence that the impact of regulatory requirements imposed on providers seeking to register with the Commission was driving some providers to choose not to be registered, and recommended:
the NDIS Quality and Safeguards Commission urgently review the impact of its regulatory requirements on sole providers and small to medium sized businesses providing disability services and report to the parliament on its findings.
2.53
In its 2020 General issues report, the committee noted that this inquiry had been established, and highlighted issues raised in submissions to the General Issues inquiry that also appeared in submissions to this inquiry, such as:
oversight of service quality and safety
the role of the Commission in providing advice and recommendations to the NDIA about matters impacting the health, safety and wellbeing of participants with psychosocial disability
registration, auditing and reporting obligations for registered providers
oversight of unregistered providers
the application and operation of worker screening arrangements; and
the application of the NDIS Code of Conduct.
2.54
The 2020 General issues report also discussed experiences of people with disability during the COVID-19 pandemic, and how the NDIA and the Commission responded to COVID-19. Evidence received during this inquiry in relation to the COVID-19 pandemic was also considered in that report.
2.55
In its inquiry into Supported Independent Living, the committee considered that the Commission had a significant role to play in supporting the rights of NDIS participants in supported independent living settings, and made five recommendations in relation to the Commission:
Recommendation 22
5.61 The committee recommends that the National Disability Insurance Scheme Quality and Safeguards Commission implement additional oversight measures for participants in group living arrangements.
Recommendation 23
5.75 The committee recommends that the National Disability Insurance Scheme Quality and Safeguards Commission develop clear policies and guidance on vacancy management, with a focus on ensuring compatibility between tenants in shared accommodation and ensuring participant involvement in the vacancy management process.
Recommendation 25
5.119 The committee recommends that the National Disability Insurance Agency, with the National Disability Insurance Scheme Quality and Safeguards Commission, implement a mechanism to ensure participants accessing Supported Independent Living are able to change providers without compromising housing security or suffering other adverse consequences.
Recommendation 43
8.69 The committee recommends that the National Disability Insurance Agency, with the Quality and Safeguards Commission, develop and publish service standards specifically for the delivery of Supported Independent Living services.
Recommendation 44
8.70 The committee recommends that the National Disability Insurance Agency and the Quality and Safeguards Commission take a more active role in monitoring the quality of services in residences where Supported Independent Living is delivered, to ensure that participants and advocates can readily identify and address concerns with service quality.
Inquiries relating to Ms Ann-Marie Smith
2.56
On 6 April 2020, Ms Ann-Marie Smith tragically died in her home in Adelaide, South Australia. Ms Smith was an NDIS participant. Reports have asserted that Ms Smith's death followed a prolonged period of neglect, and that Ms Smith had been left in 'squalid and appalling circumstances'.
2.57
The committee is aware of several inquiries that relate to Ms Smith that have considered ways in which NDIS quality and safeguarding measures should be improved, including the following:
On 21 May 2020 the South Australian Minister for Human Services, the Hon Michelle Lensink MLC, established the Safeguarding Task Force 'with responsibility to examine and report quickly on gaps and areas that need strengthening in safeguarding arrangements for people with disabilities living in [South Australia]'. The task force delivered an interim report to the relevant minister on 15 June 2020 and a final report on 31 July 2020. The South Australian Government published the final report on 3 August 2020 and accepted all 7 recommendations.
In May 2020 the then Quality and Safeguards Commissioner, Mr Graeme Head AO, appointed the Hon Alan Robertson SC to review issues relating to Ms Smith's death. Mr Robertson's report (the Robertson Review), dated 31 August 2020, was released on 4 September 2020.
2.58
The inquiries relating to Ms Smith's death identified a number of gaps in the policy and legal framework for NDIS supports and services. The Safeguarding Task Force identified 14 'safeguarding gaps' covering matters such as the scope of the Framework and its application to unregistered providers; conflicts of interest where a support coordinator also delivers NDIS supports; and a lack investment in and access to advocacy to assist people with disability to navigate services systems.
2.59
The Robertson Review examined issues surrounding the death of Ms Smith, in particular the systems and processes of the NDIS Commission in its regulation of the NDIS provider involved. Mr Robertson made 10 recommendations, including in relation to:
processes to ensure the identification by the Commission of people with disability who are vulnerable to harm or neglect
requirements related to the provision of services to people with disability who may experience vulnerability
more proactive monitoring by the Commission, including through the establishment of a community visitor scheme by the Commission, and face-to-face visits
amendment of definitions in the NDIS Act
information sharing between the Commission and the NDIA, and between these and state and territory bodies; and
strengthening the Commission's powers to ban a person from working in the disability sector.
Legislative responses to the death of Ms Ann-Marie Smith
2.60
The Government introduced 2 bills to amend the NDIS Act in response to the Robertson Review. The National Disability Insurance Scheme Amendment (Strengthening Banning Orders) Bill 2020 broadened the circumstances in which the Commissioner may make a banning order against a provider or worker, and received royal assent in November 2020. The National Disability Insurance Scheme Amendment (Improving Supports for At Risk Participants) Bill 2021 passed both houses on 21 October 2021. That bill addressed 6 of the 10 recommendations from the Robertson Review, making amendments to the Act in relation to:
information sharing, including to lower the threshold with which information can be shared and used by the NDIA and the Commission
broadening the scope of persons who may be subject to a banning order
2.61
In a submission to the Senate Community Affairs References Standing Committee inquiry into the bill, the Department of Social Services noted that the Commission had also implemented operational changes in response to recommendations (2) and (3) of the Robertson Review. These recommendations were in relation to ensuring that vulnerable NDIS participants do not have a sole carer providing services in the participant’s own home and ensuring that there is a specific person with overall responsibility for the safety and wellbeing of each vulnerable participant.
Safety for people with disability
Safeguarding and choice and control
2.62
The NDIS Quality and Safeguarding Framework (Framework) emphasises building capacity in NDIS participants to participate in the NDIS market and supporting people with disability to make their own connections, noting that 'the actions people take themselves—or that their family, friends and others around them take—are likely to be the most important component of the quality and safeguarding system'.
2.63
A central foundation of the NDIS is that it is intended to be rights respecting, promoting choice and control for people with disabilities to pursue their goals and in the planning and delivery of their supports. The market-based system established by the NDIS is intended to promote this choice and control, by offering people with disability a wide range of providers from which to seek support. Having choice and control includes having the right to make decisions about your own life and circumstances, even if those decisions carry risk. This concept is referred to in the Framework as the 'dignity of risk'.
2.64
The 'dignity of risk', as described in the Framework, includes:
supporting people to take informed risks to improve the quality of their lives;
working with participants to define acceptable levels of risk in delivering supports to achieve goals; and
supporting participants in positive risk-taking, including recognising when the risk is something the participant can decide on.
2.65
The Framework emphasises that an approach to safeguarding that respects the dignity of risk must weigh strategies for reducing harm against the likelihood of harm occurring and its severity, and the impact this will have on choice and control. However, participants also come into the scheme at 'varying stages of readiness to take control of their supports', and some participants will be unable or unwilling to exercise choice.
'Vulnerability'
2.66
As risks inherent in the NDIS market are heightened for people who have limited ability to exercise choice and control, ensuring the safety and wellbeing of these participants must be core to the NDIS safeguarding approach.
2.67
It is also important to recognise that 'vulnerability' and being 'at risk' are not inherent in a person's impairment or disability. Environmental and systemic forces create the context which can cause a person with a disability to be at risk to violence, abuse or neglect. As also noted in the Robertson report, 'being vulnerable, or being at risk of harm or neglect, is not static' and people with disability may become vulnerable or cease to be vulnerable over time, or at a point in time.
2.68
The regulatory system envisaged by the Framework is intended to be 'risk responsive and person centred', recognising that risk can be affected by the 'extent to which the participant is at heightened risk of abuse and neglect, and the potential risk associated with the particular type of support'. Proportionality is incorporated in this approach through recognising that 'risk of harm is experienced differently by individuals, and that regulatory tools for mitigating risk must be responsive'.
2.69
The Framework identifies risks at the individual level to include a range of personal characteristics, and the level of social isolation of the person. Risks based on types of support include the effects of the support, level of personal contact involved, and the environment in which the support occurs.
2.70
The Framework highlights a role for the NDIA in identifying participants who are less equipped to exercise choice and control, noting the ways in which NDIA's planning, implementation and review processes can contribute to safeguarding:
Effective planning is a key element of quality support in a person-centred system. Participants should be supported to identify and manage risk as they interact with the NDIS through access to the level of assistance they need to develop and implement their plans.
Individual planning, implementation and review processes should also include formal safeguards. These should be proportionate to the level of risk the participant faces, based on their capacity, their natural support network and the supports available to them, as well as the level of risk they choose to accept.
2.71
However, a key concern of the inquiries responding to the death of Ms Ann‑Marie Smith was that participants who were at heightened risk of abuse and neglect were not being routinely identified by the NDIA and provided with appropriate supports to make decisions and implement their plans. Both the South Australian Safeguarding Taskforce and the Robertson Review considered that, in the case of Ms Smith, there had been a failure in the NDIA's processes to identify that Ms Smith's circumstances significantly increased her vulnerability to abuse and neglect. The Robertson Review considered that '[t]he NDIA should develop and refine a concept of vulnerability and apply a qualitative assessment to identify such vulnerability as part of the planning process', and further recommended:
The Commission should act to identify earlier those people with disability who are vulnerable to harm or neglect. Every stage of decision-making, including corrective regulation, should be alive to factors indicating that a participant may be vulnerable to harm or neglect. (Although not within my terms of reference, the NDIA should also so act in the planning process and continually.) The Commission and the NDIA should have a freer and two-way flow of information for this purpose.
2.72
Both of these inquiries also highlighted that social isolation or lack of connections to the community may increase the risk of a person with disability being subject to violence, abuse or neglect.
Natural supports
2.73
'Strengthening natural supports' is included as a developmental measure in the Framework, which notes:
Natural supports (family, friends and community connections) provide an important informal safeguard for people with disability. A person with disability who has a supportive network of family and community members and is included in their community will be better protected by these natural safeguards than they could by any safety net built by governments.
2.74
However, the Framework recognises that not all participants will have the same access to natural safeguards:
…some people with disability, particularly those exiting institutional environments, will not have strong existing networks. Others will have ageing carers and so need to identify additional supports. Carers may also need supports to maintain their role, and mainstream services and community organisations may need support to effectively include people with disability.
2.75
Activities identified in the Framework to support this measure include activities funded through the Information, Linkages and Capacity building program, and supporting the development and maintenance of these supports through participants' individual packages.
2.76
Chapter 10 includes discussion around the ways in which the Commission might support work to improve natural safeguards for participants.