Submission 9 — Women with Disabilities Australia (WWDA) — NDIS Provider and Worker Registration Taskforce

WOMEN WITH DISABILITIES AUSTRALIA

(WWDA)

Submission to NDIS Provider and Worker Registration

Taskforce

May 2024

Endorsed by:

PUBLISHING INFORMATION

Women With Disabilities Australia (WWDA) (2024). Submission to the NDIS Provider and

Worker Registration Taskforce. Women With Disabilities Australia (WWDA): Hobart,

Tasmania.

Acknowledgments

WWDA acknowledges the traditional owners of the land on which this publication was produced. We acknowledge First Nations people’s deep spiritual connection to this land. We extend our respects to community members and Elders past, present and emerging.

WWDA acknowledges that this submission was developed in consultation with Women with Disabilities Victoria (WDV) and thanks WDV for their contributions.

Women With Disabilities Australia (WWDA) receives part of its funding from the Australian Government, Department of Social Services (DSS).

Contact

Women With Disabilities Australia (WWDA)

PO Box 407, Lenah Valley, 7008 Tasmania, Australia

Email: officeadmin@wwda.org.au

Web: www.wwda.org.au

Facebook: www.facebook.com/WWDA.Australia

Twitter: www.twitter.com/WWDA_AU

Women With Disabilities Australia (WWDA) has Special Consultative Status with

the Economic and Social Council of the United Nations.

Disclaimer

The views and opinions expressed in this publication are those of Women With Disabilities Australia (WWDA) and not necessarily those of our funding bodies. All possible care has been taken in the preparation of the information contained in this document. WWDA disclaims any liability for the accuracy and sufficiency of the information and under no circumstances shall be liable in negligence or otherwise in or arising out of the preparation or supply of any of the information aforesaid. This work is copyright. Apart from any use as permitted under the Copyright Act 1968, no part may be reproduced without written permission from Women With Disabilities Australia (WWDA).

© 2024 Women With Disabilities Australia (WWDA).

ABN: 23 627 650 121

ARBN: 621 534 307

ABOUT WOMEN WITH DISABILITIES AUSTRALIA

(WWDA)

Women With Disabilities Australia (WWDA) Inc is the national Disabled People’s Organisation

(DPO) and National Women’s Alliance (NWA) for women, girls, feminine identifying and non binary people with disability in Australia. As a DPO and a NWA, WWDA is governed, run, and staffed by and for women, girls, feminine identifying and non-binary people with disability.

WWDA uses the term ‘women and girls with disability’, on the understanding that this term is inclusive and supportive of, women and girls with disability along with feminine identifying and non-binary people with disability in Australia.

WWDA represents more than two million women and girls with disability in Australia, has affiliate organisations and networks of women with disability in most States and Territories, and is recognised nationally and internationally for our leadership in advancing the rights and freedoms of all women and girls with disability. Our organisation operates as a transnational human rights organisation - meaning that our work, and the impact of our work, extends much further than Australia. WWDA’s work is grounded in a human-rights based framework which links gender and disability issues to a full range of civil, political, economic, social, and cultural rights. All WWDA’s work is based on co-design with and participation of our members. WWDA projects are all designed, governed, and implemented by women and girls with disability.

Disabled People’s Organisations (DPOs) are recognised around the world, and in international human rights law, as self-determining organisations led by, controlled by, and constituted of, people with disability. DPOs are organisations of people with disability, as opposed to organisations which may represent people with disability. The United Nations Committee on the Rights of Persons with Disabilities has clarified that States should give priority to the views of DPOs when addressing issues related to people with disability. The Committee has further clarified that States should prioritise resources to organisations of people with disability that focus primarily on advocacy for disability rights and, adopt an enabling policy framework favourable to their establishment and sustained operation.

Introduction

The proposed model

The National Disability Insurance (NDIS) Review, released in December 2023, has recommended the introduction of a graduated, risk-proportionate approach to the regulation of providers. This model would require registration or enrolment of all NDIS providers and workers and remove the link between the participant’s financial management of their plan and the registration status of providers. All participants would have access to the same set of providers who would be required to hold different levels of registration depending on the type of supports they provide.

The proposed reform would include four registration levels:

1. Advanced registration for high risk supports- with more intensive requirements and oversight.

2. General registration for medium risk supports

3. Basic registration for lower risk supports

4. Enrolment of all providers of the lowest risk supports. The goal of this recommendation is said to promote safe and effective delivery of supports without undue administrative burden. The Review has recommended a five-year transition to this new model.

Concerns from the disability community

Many people in the disability community have concerns that the proposed changes will cause an erosion of choice and control for people with disabilities.

People with disabilities and our supporters and families value our ability and right to choose our own providers. Some members of the disability community have raised concern that:

• Some workers would not be able or willing to manage the costs or administrative burden of the registration process.

• Participants could lose access to supports and services through small or mainstream providers (e.g. cleaners and gardeners).

• Participants could lose the ability to purchase mainstream consumables, including consumables that better meet their disability-specific needs, as compared to products available from registered providers.

• Losing access to mainstream services and supports will perpetuate a form of segregation.

• The proposed approach could give rise to additional costs.

• Participants may need to disclose their disability and status as an NDIS participant in order to access the services and supports they want and need. For some participants, this can create create price gauging conditions (particularly in regional or remote areas where markets are thin) and a feeling of unsafety (particularly if living alone or in isolated conditions).

Some participants have also raised concerns that registration status can create a false sense of security that a service is safe and high quality when it is not. A number of participants

have reflected that they currently they see no difference in quality or safety between registered and unregistered providers.

The importance of reforms to address safety and quality has been highlighted by both the Disability Royal Commission and the NDIS Review, which have highlighted the unacceptable violence, abuse, harm, neglect and exploitation that many people with disabilities experience – including in service settings. WWDA has long advocated for reforms to address this violence, particularly as women and girls with disabilities experience violence and abuse at a higher rate than other people with disabilities. The lack of effective regulation and monitoring of services is a contributing factor in this violence and abuse, including through the lack of visibility and regulation of unregistered providers as well as a lack of effective regulation for registered providers. These issues become even more critical for people who live or work in closed settings such as group homes or ADEs and may have limited informal support networks.

WWDA members have expressed a desire for effective regulation, notwithstanding concerns about the impact of the proposed model of registration:

“I am concerned that [the proposed model of registration] will reduce access to helpful people, especially as I’ve had a lot of trouble accessing adequate professionals. However, I also don’t know how to protect others when there is little to no punishment/consequence for what is often flat-out illegal activity and sometimes professional abuse by providers.” - Participant in WWDA Consultation on

Registration

WWDA’s Position

WWDA believes that an appropriately co-designed and co-produced approach to regulation of disability providers could support the rights of people with disabilities to be safe, without impacting the ability for people to choose their own supports and services.

Both the freedom to make one’s own choices and the right to be safe are enshrined in a range of international human rights instruments. This includes the United Nations Convention on the Rights of Persons with Disabilities (CRPD):

• Article 3 of the CRPD provides the general principles underpinning the CRPD, including respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons.

• Article 16 of the CRPD requires that State parties take all appropriate measures to protect people from disabilities from exploitation, violence and abuse and includes a specific requirement that ‘all programmes designed to serve persons with disabilities are effectively monitored by independent authorities’.

However, the analysis of the impact of the proposed model needs to consider the needs of all participants in the scheme, including those who experience overlapping forms of marginalisation, people with cognitive disabilities, and those with limited informal supports. Some of these cohorts of participants already experience limited choice within the current system.

Success of the proposed reforms is dependent on careful co-design of a new regulatory framework which addresses current regulatory shortcomings and creates a system that prioritises safety, quality, and choice.

Critically, many members of the disability community are not inherently opposed to a new model of regulation provided it is genuinely fit for purpose:

“I am not opposed to registration but it needs to be actually accessible, not cost a lot (if anything) to do so and not have a huge administrative burden. It’s already hard asking people to do reports for things like plan reviews. We don’t want those who care about their jobs to be penalised and exit the system.” - Participant in WWDA

Consultation on Registration

We have identified a number of principles which must be included in the design of any new model of provider regulation, to ensure that it is fit for purpose and does not have unintended consequences for participants. These are detailed further below:

1. People with disabilities must be at the centre and recognised as experts in our own lives

2. Promotion and maintenance of informal ‘safeguards’

3. Continued access to smaller providers and sole traders

4. Access to services and supports the person wants and needs

5. Approach to risk must be based on the individual, not the service type

6. Consideration of the diverse needs of participants

7. Holistic approach to quality and safety Quality and Safety for Women with Disabilities

Despite existing laws and policies designed to ‘safeguard’ people with disabilities from violence and abuse, women and girls with disabilities in Australia continue to face disproportionately higher rates of violence and abuse than women and girls without disabilities.1 Women and girls with disabilities are also less likely to report experiences of violence and often experience significant barriers to accessing support services.2 This pervasive violence is enabled by institutional models of care, segregation, and ableist laws and policies.3

Provider registration and screening is one form of preventative ‘safeguard’. NDIS providers who seek registration are subject to an audit against the NDIS Practice Standards and Quality Indicators. The results of the audit then inform the NDIS Commission’s decision on whether to register the provider. Registered providers also have additional obligations including reporting certain incidents to the Commission, complying with relevant NDIS Practice Standards, and ensuring that workers have undergone screening. However, the current approach to registration and regulation is extremely flawed, with a focus on compliance, and has not led to improved safety and quality of services. As highlighted by the NDIS Review:

“A frequently raised concern is that auditing is too focused on assessing the compliance of a provider’s policies, procedures, and other paperwork requirements. This appears to detract focus and effort from observing and assessing the quality of

supports a provider is delivering, considering the voices and experiences of people with disability, and identifying opportunities for providers to improve quality”4

The costs and administrative burden associated with registration have created a significant disincentive for providers to take up registration, with an estimated 154,000 unregistered providers compared to 16,000 registered providers5. From the participant perspective, registration is seen mostly as an administrative requirement that is unrelated to the quality of supports available6. As one participant told WWDA:

“[Registration] is performative busy work that does not protect or benefit participants.” - Participant in WWDA Consultation on Registration

However, for other participants, a provider’s reluctance to undertake registration requirements would be cause for concern:

“No one should be scared of these processes and I’d question why a person or organisation does not want to be registered.” - Participant in WWDA Consultation on

Registration

WWDA also heard from participants about what matters most to them in a effective regulatory model:

“I think people who provide supports should be required to go through a worker check, but I’m not sure that all businesses need to be registered if they are abiding by the NDIS code of conduct.” - Participant in WWDA Consultation on Registration

“Redress for victims, quality of service, quality review system rating system that is public, effect[ive] complaints system… Take all complaints on board, trauma informed staff, independent oversight body to scrutinise [the] NDIA and QSGC”

Participant in WWDA Consultation on Registration

For any new model of provider registration to be an effective ‘safeguard’, there must be changes to create a system that is human rights based, effectively promotes quality and safety, and does not compromise on choice and control. For example:

• Audits, when they occur, must go beyond compliance with policies and procedures and include information about quality and safety from people with disabilities who are using the service. Audit tools and processes must be designed and delivered with people with disabilities.

• Workers must be required to undergo training in human rights, cultural sensitivity, trauma-informed practice, and supported decision making frameworks.

• The NDIS Commission must have a strong focus on quality improvement and opportunities to build capacity amongst providers.

The work to improve quality and safety must be gender-responsive and build the capacity of providers to address the additional rates of violence and abuse experienced by women and girls with disabilities. It also must be recognised that registration of all disability providers in and of itself is not sufficient to address the quality and safety issues experienced by people with disabilities. Reforms to the registration process for providers and workers must be part of a comprehensive suite of co-designed and co-produced reforms which promote safety and quality and address gender-specific violence and abuse.

As outlined in the WWDA Disability Royal Commission submission on Safety and Quality, a co-designed comprehensive approach to quality and safety must be developed to address:

• The continued segregation of people with disabilities in housing, education and work which is a breach of human rights and significantly increases the experience and risk of violence, abuse, neglect, and exploitation.7

• The need for a nationally consistent supported decision-making framework that must replace substitute decision-making regimes and practices.

• Elimination of the use of restrictive practices against people with disabilities including children.

• Investment in human rights capacity building education for people with disabilities and our supporters.

• Adequate funding for independent advocacy, including access to pro-active support particularly to people with disabilities in closed settings.

• The establishment of a cohesive complaints system that is independent, accessible, and safe and provides access to justice.

• Changes to the NDIS Commission’s role to proactively promote service quality as well as preventing and responding to violence.

• Gender-specific violence experienced by women with disability including violation of sexual and reproductive rights.

Choice and Control

The founding principle of the NDIS is to ‘enable people with disabilities to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports.’8 Having greater choice and control over services has meant that people with disabilities can access the supports and services they want and need, where and when they need them. As outlined above, one of the major concerns raised about the proposed registration or enrolment of providers and workers is that it would equate to reduced choice and control for participants.

There is a concern that the proposed reforms will limit people’s ability to use services and consumables from small providers, sole traders, or mainstream providers. This includes supports and services that are not disability specific, but may be the preferred, highest quality, or most safe option. Women with disabilities have expressed significant concerns about this issue, including that:

• Some mainstream services would choose not to register. For example, if the local barber only has one client who is a NDIS participant, it is unlikely they would want to undertake any administrative process to become NDIS registered.

• Participants would have to identify their disability to the provider. In some cases, women may not want to share their disability or may have concerns that this will lead to different treatment, or risk of harm, given the level of discrimination they experience in the community.

• This process could limit access to supports relating to sexual and reproductive rights including access to sex workers who may be unwilling or unable to be a registered provider.

• Limiting use of mainstream providers or consumables will lead to greater cost to participants and the scheme, and further exclusion from the community. For example, some women with disabilities expressed strong preferences for using the

services of a local beauty therapist versus needing a support worker to assist with personal care, because it was lower in cost and felt less like a ‘clinical intervention’.

However, WWDA is hopeful that regulation of providers would not inherently equate to reduced choice and control for participants - if the model of regulation was fit-for-purpose, flexible, and co-designed with people with disabilities.

The current system

Under the current system, choice and control is only available to some participants. There is a stark difference between the choices for people who take on responsibility for managing risk and quality, and choices for those who have higher support needs and more limited informal supports. This inequity has grown as the unregistered provider market has increased and fewer small providers are choosing to be NDIS registered due to onerous registration requirements. Participants who are agency managed can only use a small subset of providers who are NDIS registered, and as a result have more limited choice and control over the services they receive. People with a cognitive or psychosocial disability are twice as likely to be agency managed,9 and are therefore not provided with the same level of choice and control as participants who are able to choose self-management or plan-management.

As noted by researchers who examined the experience of choice and control for participants in rural areas:

“Those participants who had an existing skillset were able to deal with the complexity of self-management and subsequently found more flexibility in terms of choice and control. But those who may have lacked the necessary management skills and resources required to self-manage lacked this form of choice and control.”10

Participants who choose to self-manage and use unregistered providers are taking on the responsibility for monitoring and addressing the quality and safety of services being delivered by providers. For many people with disabilities, self-directed support arrangements are central to the exercise of autonomy and choice in managing supports and services according to their own needs and preferences. Preserving the integrity of these arrangements (including those that pre-date the NDIS) is vital to the principles of self determination and person-centred support and care.

However, self-management can also pose a significant administrative burden on participants and their families, a burden that often is taken up by women in the family.11 Some participants or supporters are taking on this responsibility and monitor quality and safety through a range of strategies including requesting police checks and other screening, providing workers with training, communicating expectations, checking insurances and qualifications, conducting multiple rounds of interviews, and checking references.12 Other participants and families may have less time or resources to manage these risks and are taking a less active role in considering issues around safety and quality. The assessment for whether a participant can be self-managed or not, does not include a consideration of whether the participant or their supporters want or are able to take on responsibilities around managing safety and quality of providers, and instead focuses on financial risks and capability. There is a risk that some participants may be entering into support arrangements without the appropriate consideration or checks around safety and quality.

Any regulatory changes must be implemented with careful consideration to maintain the flexibility, control, and independence that self-directed support arrangements provide, while improving choice, control, quality and safety across the Scheme for all participants.

A path forward

When asked why they choose unregistered providers, participants cited reasons such as perceiving registration as irrelevant, desiring better quality and flexibility, and favouring the cost-effectiveness of smaller providers.13. A regulatory system that promotes quality and safety of services and provides a feasible pathway for registration or enrolment of smaller providers including sole traders would mean that all participants would benefit from being able to use a range of providers which suited their needs and who had appropriate screening and basic levels of training. This approach would also provide an opportunity to address unscrupulous practices like price gouging which could be better regulated in the context of a new registration model. It also has the potential of reducing the administrative burden experienced by families.

Establishing a consistent approach to regulation and registration of providers has the potential to increase choice for some participants. Participants who are currently agency managed would suddenly have access to a larger set of providers, as there would no longer be a distinction between providers that could be used based on type of plan management. Participants who are currently self-managed would have access to the same set of providers but could have increased information about different providers. An effective registration system would mean that the range of providers would be visible to all participants, as well as information about the types of services they provide and the type of training they may have.

Access to information about providers has been identified as being particularly important to women with disabilities:

“…a lot of finding good services is a lot of word of mouth, and you are not within those kinds of networks, it can be extra hard to know what you want and what you’re entitled to. And what is actually a good service.” - Participant in WWDA

Consultation on Registration

“I think having workers with lived experience of your diagnosis or similar conditions can be really important. And also gender identity. Because I know, I feel a lot safer with female clinicians and also clinicians and service providers that are advertised and actually practice LGBTQI plus affirming health care is also really important and providing safe spaces.” - Participant in WWDA Consultation on Registration

“I would love for questions around [service provider skills and experience], if it’s not already, and ideally for like a national search engine of some kind, that’s actually useful and usable. Because it is frustrating, trying to look up, even just neurodiversity affirming therapist… The more intersections you add, the harder it is to find someone that can understand even like a few of those.” - Participant in

WWDA Consultation on Registration

There are a range of considerations which are needed to create a new registration model that does not drive workers or providers out of the system and ensures that choice and control will be promoted. This can only occur with careful co-design, implementation and consideration of the costs and administrative burdens associated with registration.

The navigator role

The role of Navigators with specialised knowledge is a key component of any new model of regulation, particularly in relation to access to information about providers and promoting choice and control for participants. Critically, it should not be assumed that existing Local Area Coordinators can transition into the role of Navigators, unless equipped with the specialised and local knowledge required to carry out this function. As noted in the NDIS Review Final Report and Supporting Analysis:

• Navigators require more ‘condition specific’ knowledge than the Local Area Coordinator workforce currently has; and

• Local Area Coordinators are not equipped to perform co-ordination functions in regional areas with thin markets.

Additionally, participants must have access to Navigators with specialised expertise - for example, specialist knowledge in gender-based, family and domestic violence – in order to ensure they can receive supports and services that are responsive to their needs. This is consistent with the recommendations of sector representatives in the NDIS Review Co Group.

Navigators must make referral decisions on the basis of:

• Specialised understanding of the nuances of specific support needs.

• Specialised understanding of the context and impact of compounding axes of marginalisation (for example, in relation to gender, sexuality, education, ethnicity, regionality, or socio-economic status.)

• The capacity to develop place-based relationships to effectively co-ordinate access to supports and services in thin markets.

In developing a new system of regulation and registration, the NDIS must ensure that it does not create conditions which incentivise the development of relationships between Navigators and registered providers that may not be in the best interests of participants, or inadvertently create avenues where conflicts of interest emerge.

Key principles in a new registration model

WWDA recognises the potential of well-designed models of regulation to support quality and safety. We look forward to engaging with Government further in the detailed design of any new approach to registration. We have identified a number of principles which must be included in the design of any new model.

1. People with disabilities must be at the centre The effectiveness of any new registration model hinges on genuine co-design and co production with people with disabilities. Particular attention must be given to the potential unintended consequences of the proposed model and the specific concerns raised by the disability community – including those most marginalised. It must reflect that people with disabilities have different circumstances and situations, and must be responsive to the needs of all participants.

This must include listening to the experiences of those disadvantaged by the current system. This will require a purposeful approach to engaging with people with intellectual disability and families and supporters of people with high support needs. It is critical that the experiences of participants whose voices are often not heard are included in the detailed development of the model.

The new regulation model must prioritise the involvement of people with disabilities in auditing and reviewing quality and safety of services. The NDIS Review noted that the current approach to regulation of providers has not sufficiently included the voices and experiences of people with disabilities.

“The auditing process should incorporate a greater focus on observing the quality of support delivery and elevating the voices of people with disability. This should include better engagement of people with disability as consumers in auditing to identify what is important to consumers in terms of quality improvement and ensure recommended improvements are informed by consumer feedback and experience.”14

However, we are the experts in our own lives. The NDIA must work closely with Disabled People’s Organisations and Disability Representative Organisations, and clearly communicate how people with disabilities will be involved in the design, implementation, and evaluation of any new approach to registration.

2. Promotion and maintenance of informal ‘safeguards’ Research consistently demonstrates that one of the most effective ways to ‘safeguard’ people with disabilities from violence, abuse, neglect, and exploitation is through our full inclusion in the community and building and strengthening natural relationships.15 People with disabilities who are part of their communities have friendships and networks beyond service providers that can both identify concerns and provide support.

It is critical that the introduction of any new approach to registration of workers and providers does not advantage models of segregation or require use of only disability-specific services and supports. Instead, the NDIA must work to ensure that providers which promote community inclusion and participation are supported through this transition.

It is essential that the design of the new model prevents the erosion of community connection. Solutions may include setting a threshold of funds that could be used to access community-based services or supports without the requirement of registration and utilising the Point of Sale (PoS) technology to provide visibility over how these funds are being utilised. Without specific consideration of this issue there will be a range of negative unintended consequences to this new approach, that would be detrimental to people with disabilities and our fundamental right to full inclusion in the community.

Further, a new model of regulation must not undermine the existing ‘safeguarding’ practices developed by and within local disability communities. For example, peer support groups like those developed locally by the disability community in Queensland,16 play an integral role for people with disabilities in navigating the landscape of provider registration and the identification of ‘safeguards’ and risk. These groups serve as a safe space for sharing

experiences, concerns, and needs in a supportive environment, and provide a platform for exchange of information and collective and self-advocacy.

3. Continued access to smaller providers and sole traders Unregistered providers currently make up the majority of providers being used by NDIS participants. We have heard that access to smaller providers and sole traders has enabled people with disabilities to use supports that are designed around their needs, rather than designed around what a provider can offer. Currently the costs and administration required for NDIS registration has mean that it is not financially viable for small providers or sole traders to register for the NDIS. Some providers also experience barriers to registration because the process is not accessible.

Any new model of registration must be fit for purpose and support small business, sole traders, and services for one arrangements to become enrolled or registered. It must not create financial or administrative burdens that drive smaller providers out of the market. It must also be accessible, recognising that people with disabilities are not just NDIS participants but also NDIS providers.

Potential solutions may include financial incentives/support for registration, streamlined approaches to registration/enrolment for smaller providers (as has been proposed by the NDIS Review), and other supports to ensure that these reforms do not lead to a loss of providers from the market. Additionally, consideration must be given to providers who can work across other parts of the health/care market such as allied health providers. If the NDIA regulatory burden is too high, this will create disincentives for these types of providers to continue to participate in the NDIS market.

It will be essential for the NDIA to work closely with a range of unregistered providers to develop a careful transition approach and ensure the continued viability and participation of smaller providers in the NDIS market, including providers who may only have a small number of NDIS clients. A transition to a new model must ensure continuity of supports and services for participants. Particular consideration must be given to thin markets that already exist in regional or rural areas, and for particular types of supports.17 This includes supports and services established by and for multiply marginalised cohorts.

4. Access to services and supports the person needs One of the reasons participants use unregistered providers is because they are unable to find a registered provider that will offer the service they want or need. For example, in some locations it has been difficult to source psychologists who are NDIS registered. These thin markets occur in regional areas, but even in cities, access to particular specialist service providers can be difficult. If the proposed reforms lead to some unregistered providers leaving the NDIS market, participants could be left without access to the services and supports they require. Additionally, some participants use unregistered providers because their providers are known and trusted members of their community. Some participants consider this a safer option to engaging a registered provider where a support or service could provided by an unknown person. Registration and enrolment requirements cannot serve as a barrier to engaging safe and trusted providers.

Participants have also raised the need for initial registration to be processed quickly. This way, if there are no registered providers in an area, a local provider could be supported to register or enrol and provide services promptly to the participant. It is also critical that the model is accessible to providers who may only be supporting a single client who is an NDIS participant, and not create administrative hurdles that make registration untenable.

The NDIS Review has suggested that there should be no exemption to use of Registered Providers. WWDA recommends that during the initial transition to the new registration model, the NDIA create a temporary exemption process so that people do not lose their existing supports and services during the transition. This is particularly important given the disability community’s concern about the impact of a new registration process, and their view that many providers may exit the NDIS market as a result. For example, if in a specific area there are no NDIS registered psychologists, participants should be able to obtain an exemption to use a non-registered provider.

The NDIS should engage in careful market stewardship to prevent and address these gaps in service availability where they occur. This stewardship must include providing information to participants about availability of registered providers, engaging with providers and participants to understand any barriers which are occurring, monitoring the ways in which the market is developing and how providers are responding to the new reforms, and adjusting the registration and regulation approach to address any issues which are emerging.18 With careful market stewardship, exemptions might only be required during the transition period to the new approach. While WWDA welcomes the flexibility that exemptions may provide, we are concerned that long term mechanisms for exemptions might result in different rules for different people who may be more or less able to advocate for the exemption option.

5. Approach to risk must be based on the individual, not the service type The NDIS Review recommendation proposes that the level of registration required for a provider be determined based on the level of risk involved in the services they are providing. In our view, it is critical that consideration of risk is not simply dependent on service-type and that registration is not seen as the only mechanism to address risk. Further, it is critical that risk be understood within a human rights framework

WWDA believes that a risk-proportionate model cannot be based exclusively on a risk assessment of service type. The identification of risk must be connected to the circumstances of the person, their interaction with different providers, and the evidence regarding how, where and what creates risks for people with disabilities. A participant who lives alone and only has contact with a single service provider might experience a higher risk of harm than a participant receiving the same services who has contact with a range of informal supports and other providers. Similarly, a participant who experiences multiple overlapping forms of marginalisation due to their identities or attributes may experience greater risk of discrimination and harm in engaging a support worker for a service that could be considered low risk, such as cleaning support in their home.

It is also vital that a participant’s own perception of risk also inform any risk assessment process. WWDA has heard from participants who receive supports that would be classified as ‘high risk’ under the proposed model, but who expressed that due to their personal circumstances, they felt the supports presented a low risk. Many people with disabilities will be best placed to identify potential risks, as well as solutions to these risks.

In addition, registration must not be seen as a primary way of managing risk. Discussions about risk and management of risk must occur regularly with the proposed Navigator role, and be considered as part of the identification of appropriate levels of funding for supports which could help to create natural ‘safeguards’ such as Circles of Support. It is essential that

risk is regularly reviewed, particularly for participants where the level of risk or type of support may change over time.

WWDA recommends that the co-design of any new registration system must include a process to co-design a risk assessment matrix which considers the nature of the service being offered and the circumstances and views of participants. This assessment must be part of a broader consideration of safety mechanisms within a human rights framework, including funding for community connections and support.

6. Consideration of diverse needs of participants The implementation of any NDIS reforms must consider the diversity of NDIS participants in relation to ensuring choice and control, quality, and safety. This includes those who are:

• First Nations
• Women and girls
• Culturally and linguistically diverse
• LGBTQIA+ and sistergirls
• Survivors of violence including gender-based, family and domestic violence
• Regional, rural, and remote
• People with complex disability needs There are a range of specific issues that need to be considered in relation to each of these groups. Many of these cohorts of participants are already struggling to access appropriate supports and services, and so are naturally concerned that the proposed registration model will further limit their access to safe, sensitive and quality supports.

As part of the work on market stewardship, the NDIA must monitor the impact of any regulation changes on access to culturally safe supports and services. The development of an exception process to the requirement to use providers must include consideration of safety in relation to the use of providers. For example, if the only registered providers in a specific area are affiliated with a religious group, LGBTQIA+ people with disabilities may not feel safe using those services and should have the option to use unregistered providers.

7. Holistic approach to safety and quality Provider and worker registration alone cannot address the range of factors impacting quality and safety of supports and services for NDIS participants. As outlined in the WWDA Disability Royal Commission submission on Safety and Quality, a co-designed comprehensive approach to quality and safety must be developed which includes a consideration of gender specific issues around safety and quality from a co-designed and human rights approach. The intersection of regulation with other measures to promote safety and quality must be considered as part of the approach to risk and regulation.

Conclusion

WWDA believes that a genuinely co-designed approach to regulation of disability providers could contribute to the promotion of safe and effective delivery of supports and services while ensuring choice and control for all participants.

If implemented, the proposed reforms will require careful consideration of any unintended consequences, particularly for multiply marginalised participants — including women and girls. The NDIA must ensure that people with disabilities can continue to access the services and supports we want and need, and that any transition process to a new model of regulation is co-designed and co-produced with people with disabilities. Fundamentally, the reforms must ensure that the rights of people with disabilities - to choice and control and to safety — are upheld.

The development of the detailed implementation of any new model must be co-designed and co-produced with people with disabilities, in all of our diversity. It must be based firmly within a human rights approach. WWDA looks forward to working constructively with Government on the design of any changes to the registration system.

! Australian Bureau of Statistics. (disability-and-violence—april-2021). Disability and Violence - In Focus: Crime and Justice Statistics. ABS. https://www.abs.gov.au/statistics/people/crime-and-justice/focus-crime-and-justice statistics/disability-and-violence-april-2021.

2 Women with Disabilities Victoria. (2022). Facts on Violence against Women with Disabilities.

3 Women With Disabilities Australia (WWDA) (2022). ‘Submission on Quality & Safeguards in response to the Issues Paper of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability.’ December 2022. Written by Carolyn Frohmader and Dr Linda Steele for and on behalf of Women With Disabilities Australia (WWDA): Hobart, Tasmania.

4 Commonwealth of Australia (2023), Department of the Prime Minister and Cabinet. Working together to deliver the NDIS. NDIS Review: final report. Supporting Analysis. Pg 920.

Commonwealth of Australia (2023), Department of the Prime Minister and Cabinet. Working together to deliver the NDIS. NDIS Review: final report. Supporting Analysis

6 Yates, S., Dickinson, H., & West, R. (2024). ‘I’ve probably risk assessed this myself’: Choice, control, and participant co-regulation in a disability individualised funding scheme. Social Policy & Administration, 58(1), 1-17. https://doi.org/10.1111/spol.12940

7 Disability Representative Organisations (2020). Segregation of people with disability is discrimination and must end. Position Paper. https://wwda.org.au/wp-content/uploads/2020/11/SEGREGATION-OF-PEOPLE-WITH-DISABILITY-Position-Paper.pdf

8 NDIS Act (2013).

9 NDIS (2023). Plan Management Types data December 2023. Retrieved from: Participant datasets | NDIS.

10 Wakely L, Green E, Little A, Fisher K, Wakely K, Currie K, et al. The lived experience of receiving services as a National Disability Insurance Scheme participant in a rural area: Challenges of choice and control. Aust J Rural Health. 2023; 31: 648-658. https://doi.org/10.1111/ajr.13000

11 Gemma, C., Malbon, E., & Blackwell, J. (2021). Administering inequality? The National Disability Insurance Scheme and administrative burdens on individuals. Aust J Publ Admin, 80: 854-872. https://doi.org/10.1111/1467-8500.12508

12 Yates, S., Dickinson, H., & West, R. (2024). ‘I’ve probably risk assessed this myself’: Choice, control and participant co-regulation in a disability individualised funding scheme. Social Policy & Administration, 58(1), 1-17. https://doi.org/10.1111/spol.12940

13 Yates, S., Dickinson, H., & West, R. (2024). ‘I’ve probably risk assessed this myself’: Choice, control and participant co-regulation in a disability individualised funding scheme. Social Policy & Administration, 58(1), 1-17. https://doi.org/10.1111/spol.12940

14 Commonwealth of Australia (2023), Department of the Prime Minister and Cabinet. Working together to deliver the NDIS. NDIS Review: final report. Supporting Analysis. Pg 972.

15 Gooding, P. M., Anderson, J., & McVilly, K. (2017). Disability and Social Inclusion “Down Under”: A Systematic Literature Review.

16 Queenslanders with Disability Network (QDN), “Peer Support Groups,” QDN, accessed April 27,

2024, https://qdn.org.au/peer-support-groups/.

17 Wakely L, Green E, Little A, Fisher K, Wakely K, Currie K, et al. The lived experience of receiving services as a National Disability Insurance Scheme participant in a rural area: Challenges of choice and control. Aust J Rural Health. 2023; 31: 648-658. https://doi.org/10.1111/ajr.13000

18 Green, C., Malbon, E., & Carey, G. (2023). Information provision by non-government actors in the Australian National Disability Insurance Scheme: A key market stewardship function in social care quasi-markets. Australian Journal of Public Administration, 82, 507-528. https://doi.org/10.1111/1467-8500.12606.