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Practice Guide – Children Living in Statutory Out of Home Care

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Practice Guide – Children Living in Statutory Out of Home Care

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Contents

Practice Guide – Children Living in Statutory Out of Home Care

  1. Purpose ………………………………………………………………………………………………………. 4

  2. To be used by ………………………………………………………………………………………………. 4

  3. Scope ………………………………………………………………………………………………………….. 4

3.1 Statutory out of home care ………………………………………………………………………….. 4

3.2 Out of scope ……………………………………………………………………………………………… 5

  1. Child representatives …………………………………………………………………………………….. 6

4.1 Managing risk ……………………………………………………………………………………………. 6

4.2 Proof of identity (POI) …………………………………………………………………………………. 7

  1. Pre-planning…………………………………………………………………………………………………. 7

5.1 Create an alert in the NDIS Business System ………………………………………………… 8

5.2 Streaming …………………………………………………………………………………………………. 8

5.3 Pre-planning questionnaires ………………………………………………………………………… 9

5.4 Planning conversation ………………………………………………………………………………… 9

  1. Planning …………………………………………………………………………………………………….. 10

6.1 Core supports ………………………………………………………………………………………….. 10

6.2 Capacity Building supports ………………………………………………………………………… 12

6.3 Capital supports ……………………………………………………………………………………….. 13

6.4 Resolving disputes about funding ……………………………………………………………….. 14

6.5 Plan management ……………………………………………………………………………………. 14

  1. Transition planning for 16 – 17 year olds ………………………………………………………… 14

  2. Plan implementation and monitoring ………………………………………………………………. 16

  3. Plan reviews ……………………………………………………………………………………………….. 16

  4. Case examples …………………………………………………………………………………………… 16

10.1 Michael ………………………………………………………………………………………………… 16

10.2 Outcome ………………………………………………………………………………………………. 17

  1. Supporting material ……………………………………………………………………………………… 17

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Process owner and approver

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Feedback

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Version change control

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1. Purpose

The content of this document is OFFICIAL. This Practice Guide will support you to deliver a nationally consistent approach to planning for children living in statutory out of home care.

This Practice Guide is not a standalone document and should be used in conjunction with the following planning resources:

  • Practice Guide – Participants streamed as Intensive or Super Intensive
  • Our Guideline – Reasonable and Necessary Supports
  • Our Guideline – Child representatives
  • Standard Operating Procedure – Complete the Determine Funded Supports task

2. To be used by

  • Plan Developers – Planners and National Disability Insurance Scheme (NDIS) Partners in the Community (Early Childhood Partners and Local Area Coordinators [LACs])
  • NDIA Plan Delegates

3. Scope

The NDIS has a nationally consistent approach to planning with children and families where a child participant is living in statutory out of home care. This Practice Guide will support you to understand the sensitivities and considerations when planning for participants and families in these circumstances, and to ensure the participant’s experience is consistent with the nationally agreed approach. While states and territories’ approaches to the provision of child protection services and out of home care may differ, the NDIS aims to provide a consistent planning experience for children living in statutory out of home care across the country.

3.1 Statutory out of home care

Statutory out of home care is when a child is living outside the family home as a result of a state or territory court order or direction to remove the child from the family home. In this form of out of home care, parental responsibility for the child is transferred from the parent or primary care giver to the state or territory. The two types of out of home care within scope are described below.

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3.1.1 Children living in statutory home-based out of home care

Children who are living in statutory home-based care are placed in the home of a foster or kinship carer, who is reimbursed by the state or territory for expenses for the care of the child.

3.1.2 Children living in statutory residential-based out of home care

Children who are living in statutory residential-based care are placed in accommodation, which are staffed with support workers who are responsible for their day-to-day care. This accommodation and the staffing is funded by state or territory child protection services (child protection).

3.2 Out of scope

3.2.1 Children with child protection services involvement living in the family home

Sometimes a court decides a child is in need of protection, but can safely stay in the care of their parents. Parental responsibility for the child remains with the parent, and state or territory child protection services remain involved to help the family make the changes they need to keep the child safe at home, so the family can stay together. In these circumstances, court orders will include conditions that require child protection services to be advised of and involved in any issues related to the child for example, medical, schooling, NDIS planning etc.

In these cases the usual NDIS planning process is followed. Child protection personnel should be involved in accordance with the conditions specified in a court order and/or to ensure they have visibility and involvement in matters relating to them. It is important to consider the responsibilities of child protection services to provide mainstream and universal service type supports to children and families in these circumstances. For example, they would be responsible for funding any psychological support to a child following trauma or abuse or family or parental counselling related to child protection matters.

3.2.2 Children living in a formal voluntary arrangement outside their family home

Formal voluntary out of home care arrangements (often described as Voluntary Out of Home Care – VOOHC) are the provision of care outside the family home when a child’s parent/s or primary care giver are no longer able to continue to care for their child in the family home but remain the guardian and decision maker1.

For support when planning for a child living in a voluntary arrangement, refer to Practice Guide - Children living in a formal voluntary arrangement outside their family home.

1 Note a child can only be recognised as formally in voluntary out of home care by agreement between the relevant state or territory and the NDIA.

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3.2.3 Children at risk of requiring accommodation outside the family home

At any point in time, a child participant may be at risk of requiring accommodation outside their family home because their parents are unable to care for them at home. This may be due to a child’s high and complex care needs or behaviours of concern arising as a result of their disability or other family circumstances.

Where a child participant with a disability is identified as being at risk of not being able to continue to live at home, you must consult with the NDIA Complex Support Needs team so a possible referral into the joint states and territories and NDIS early intervention and preventative pathway can be made.

For support identifying and planning for a child at risk of requiring accommodation outside the family home, refer to Practice Guide – Children at Risk of Requiring Accommodation Outside the Family Home.

4. Child representatives

Where a state or territory has parental responsibility for a child, the NDIA CEO or delegated representative cannot appoint a child representative other than the state or territory without agreement in writing from the relevant State or Territory Minister (National Disability Insurance Act 2013 Section 74 (1A).

Any decision to appoint a child representative or revoke an appointed child representative must be made by an Agency staff member with appropriate delegation. The decision to revoke the role of an appointed child representative is not a reviewable decision.

A child in statutory out of home care can have multiple child representatives at the request of state or territories. In these instances, the child representative/s may be one or a combination of the following:

  • child protection (delegated representative - case manager)
  • foster parent/s
  • another carer
  • in some circumstances, the child themselves.

For more information refer to Our Guideline – Child representatives and Standard Operating Procedure - Determine or revoke a child representative.

4.1 Managing risk

You must understand the intent of the court order in place before making any changes to the child representative/s recorded in the NDIS Business System (System). If the wrong person is listed as a child representative, they could inadvertently be invited to planning meetings or

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sent a copy of the child’s plan, revealing private information. This can place a child and their families or carers at risk of harm and is a breach of NDIA privacy obligations.

It may be appropriate to discuss with a child representative the option of applying to be a restricted access participant if this is appropriate to reduce the risks in relation to inappropriate disclosure of the child’s personal information.

You will need to review and update contacts as appropriate, detailing any changes in an interaction at each touch point. You should create a contact alert in the System where there are risks involved with the child’s information being released to a particular person.

Refer to Standard Operating Procedure – Create an alert.

If you need to update who receives correspondence based on a parenting or court order, use the Standard Operating Procedure – Manage or stop correspondence to authorised representatives.

4.2 Proof of identity (POI)

When you create a contact in the System for a person you are considering for child representative, you must verify the person’s POI.

When a government and/or other organisation is the child representative (e.g. Child Protection), a representative from the organisation should be recorded as a contact. The legal order and Guardianship or Child Protection orders should be recorded in the System. These are acceptable forms of POI and verification of identity for the Child protection representative. See:

  • Standard Operating Procedure – Add the Guardian as a contact
  • Standard Operating Procedure – Record and verify identity for an individual
  • Standard Operating Procedure – Verify identity for a third party organisation

5. Pre-planning

Child participants living in statutory out of home care are generally in complex situations, highly vulnerable and have multiple parties involved. It is important for the plan developer to remain impartial and professional in all interactions with the participant and their representatives.

As part of the pre-planning checklist you should:

  • confirm that the child is living in statutory out of home care and record this in an alert in the System
  • confirm with the state or territory child protection agency who the child representative is and who needs to be involved in the planning meeting or given the opportunity to contribute for example, the participant, state or territory child

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  • protection services, foster carer/s, guardian, parent/s, other family members, provider/s

  • discuss with the case manager the value in foster carers and/or other family members contributing to the child’s plan where appropriate. Foster carers can provide information about the day-to-day life of the child. If this is not possible, the case manager should be encouraged to obtain any information that would be useful in developing the child’s plan from foster carers and bring this with them to the planning meeting.

  • check all contacts are entered correctly in the System

  • make sure current legal orders and other agreements are uploaded to the participant’s record

  • understand and respect any cultural sensitivities or barriers to communicate effectively with the participant, for example:

    • the participant may require a male or female planner for varying reasons
    • is an interpreter required? For example, Auslan, Language Other Than English etc. Refer to Practice Guide - Assisting Communication
    • participants from Aboriginal or Torres Strait Islander descent or other cultural backgrounds may have specific cultural requirements that need to be considered and respected. Refer to Practice Guide - Aboriginal and Torres Strait Islander Planning Support.

5.1 Create an alert in the NDIS Business System

You will need to create an alert in the System noting that the child is living in statutory out of home care and record the organisation and/or individual who holds parental responsibility. Attach copies of the legal orders and include details of the order in an interaction.

Example 1: Alert: Child Protection Engagement, DHHSP. Child Protection Legal Guardian and Authorised Child Representative – Case Manager Sue Smith 52 222 8888

Example 2: Alert: NDIS not to speak to Bill Smith – Intervention Order in place, child now in care of Mother Sue Smith – DDHS Family Preservation Order in place.

5.2 Streaming

Participants who are living in statutory out of home care will be streamed either Intensive or Super Intensive to ensure they receive appropriate support throughout their NDIS experience. You need to make sure the correct streaming decision has been recorded in the System. Refer to Standard Operating Procedure - Update Participant Streaming.

Note: The term streaming is for internal use only.

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5.3 Pre-planning questionnaires

During the planning conversation, when recording responses to the Short Form Outcome Framework (SFOF) and guided planning questions, you should respond on the basis that the child has a capable parent (for example, in this case, the state or territory) who provides the same level of informal supports that would be expected from a parent of a child of that age.

Remember you are answering the questions with consideration of the state/territory being the parent and holding parental responsibility, rather than the foster carers so your responses need to consider the state/territory’s statutory responsibility as well as considering valuable matters raised by the individual foster parent responses.

For example, when asking if they can continue to care for the child in the way they currently do you should always respond - Yes.

Do not answer no to this question. If the foster carer cannot continue to care for the child, the state/territory remains responsible for the child’s care, and providing a suitable care arrangement at all times.

5.4 Planning conversation

The planning conversation allows you the opportunity to gather detailed and concise information. This is also a great opportunity for the child to tell their story and voice their goals and aspirations where possible.

The following points can support you to have a high quality conversation:

  • direct questions to the child where appropriate and where they are able to understand and respond. When questions are not able to be directed to the child they must be directed to the party with parental responsibility.
  • the child representative MUST be included in all conversations and decisions
  • at no time should a service provider or support coordinator be given any decision making power in relation to the child’s plan
  • never presume to know what the family is going through or why the child is in statutory out of home care
  • it is possible that the child has experienced trauma and this should be considered in the context of their vulnerability when discussing some subjects that may be difficult for them
  • refer to Disability Snapshots and Disability Navigator for further and specific guidance relating the child’s disability.

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You need to complete all sections of the Planning Conversation Tool with as much detail as possible to support the planning process and provide comprehensive information for the plan aapproval process.

6. Planning

Include reasonable and necessary disability-related supports in the child’s plan as guided in the Our Guideline – Reasonable and Necessary Supports. Liaise with the SME in your state or territory if you require support in determining reasonable and necessary support for a child living in statutory out of home care.

6.1 Core supports

Include reasonable and necessary disability-related Core supports in the child’s plan as guided in the Our Guideline – Reasonable and Necessary Supports.

The information below will guide you through the additional considerations for Core supports when the child is in statutory out of home care.

6.1.1 Respite

The Principles to Determine the Responsibilities of the NDIS and Other Service Systems sets out obligations for the NDIS and states and territories in providing supports (including respite supports) for children who are NDIS participants in statutory out of home care.

6.1.1.1 Respite for children living in home-based out of home care

There are two types of respite for children in statutory home-based out of home care:

  1. Ordinary respite: State or territory child protection authorities are responsible for funding or providing respite support to carers of children with disability in statutory home-based out of home care, equivalent to respite provided to children without disability of similar age in similar living arrangements. This means that a state or territory has a role in providing care related respite for NDIS participants if they would otherwise provide that service but for the disability.

  2. Additional Respite: The NDIS funds reasonable and necessary supports for NDIS child participants in statutory home-based out of home care including respite where the supports are required as a direct result of a child’s disability. These supports are provided irrespective of the child’s living arrangements. This means that you need to apply the standard reasonable and necessary criteria to any support regardless of the living or guardian arrangements for that child participant. No child should be disadvantaged because they are in statutory out of home care.

Respite supports included in NDIS plans can help to improve the sustainability of the care environment for a child.

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They can also:

  • help to stabilise the child protection placement
  • improve access for the child to ordinary respite
  • complement mainstream and standard supports provided to all children in child protection and family support systems to support child and family wellbeing.

Reasonable and necessary supports that can be funded under the NDIS to provide a respite effect include:

  • short term accommodation, overnight or weekend facility-based services
  • in-home support for carers – for example, a support worker will care for the child with a disability in a carer’s home for short periods, giving the regular carer a break or providing additional care in the home while the carer remains at home
  • disability support workers to enable the participant’s social and community participation without the carer present
  • disability support workers can be funded in some circumstances to support a child at community-based respite or activities – including one-on-one or group outings such as camps
  • equipment and transport supports to allow social and community participation or the participation in the respite supports offered by child protection
  • therapeutic and behaviour supports to build the child’s capacity and increase their independence over time.

Respite as a concurrent support

In December 2019 and March 2020, the Disability Reform Council (DRC) clarified that reasonable and necessary NDIS funded respite supports are in addition to what the states and territories provide to children with disability in statutory out of home care arrangements. NDIS funded respite supports should not be reduced because the state or territory is funding ordinary placement support respite. Respite supports funded by a state or territory government, including reasonable adjustment of that respite support if required, will be provided regardless of what funding may be offered through an NDIS plan.

Both types of respite can be used concurrently to support the child and family. It is not a requirement that one type of respite is accessed or exhausted before the other can be provided.

Respite for children living in statutory residential based out of home care

State and territory child protection is responsible for funding accommodation and staffing for children living in statutory residential-based out of home care.

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The NDIS is not responsible for funding respite, or supports to provide a respite effect for children living in statutory residential-based out of home care at the residence, as staff work on a rostered basis, and are provided with the support they need to sustain their roles by their employers.

However, the NDIS may fund reasonable and necessary disability supports for children living in a residential setting, to facilitate their access to the community and to facilitate social participation to build or maintain support networks. No child in a residential care setting should be disadvantaged, and is entitled to the same disability related supports as any other child.

6.1.1.4 Balanced package of supports

When considering how to best support children living in statutory out of home care environments, both residential and home based, it is important to consider what a balanced package of supports would look like for the participant based on their individual situation.

For children living in statutory home-based care, consider where therapeutic supports or social skills programs could be accessed concurrently with respite, with the intent to build the participants capacity to reduce respite supports over time where this is appropriate. See Section 6.2 Capacity building supports for more information.

6.1.1.5 Children with complex needs

The roles and responsibilities of the NDIA and states and territories in relation to funding respite for children with complex disability support needs are the same as for all NDIS child participants in statutory out of home care.

6.2 Capacity Building supports

Include reasonable and necessary disability-related capacity building funded supports in the child’s plan as guided in the Our Guideline – Reasonable and Necessary Supports. The information below will guide you through the additional considerations for capacity building supports when the child is living outside the family home.

6.2.1 Therapeutic supports

Child Protection is responsible for providing therapeutic supports in relation to trauma the child has experienced.

NDIA is responsible for funding disability-related therapeutic supports which could include occupational therapy, speech pathology, physiotherapy, podiatry, and specialist behaviour interventions.

Refer to the Principles to Determine the Responsibilities of the NDIS and Other Service Systems for more information.

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6.2.2 Behavioural intervention supports

Behaviour intervention and support is a vital inclusion if there are behaviours of concern that have impacted on the stability of the child’s living arrangements and social support system.

To build capacity within the caring environment and encourage building or maintaining a social support system, the inclusion of strategies to support behaviour intervention is key for children residing outside the family home. Consideration needs to be factored in planning to ensure that behavioural supports are included to the level that the child can maintain contact with their social support system on a regular basis.

These supports are recommended to:

  • support the child’s safety and wellbeing
  • promote options for increasing the child’s capacity, community and mainstream connections to achieve plan goals
  • ensure long-term sustainability of the child’s plan and informal support systems.

As a child’s capacity increases overtime, you would expect to see a reduction in the intensity of supports however; this will depend on the individual circumstances.

Refer to Standard Operating Procedure - Behaviour Intervention Supports.

6.2.3 Support Coordination

Reasonable and necessary support coordination should be included in the NDIS plan for a child in statutory out of home care to assist in strengthening the capability to connect to and coordinate informal, mainstream and funded supports in a complex service delivery environment. Specialist support coordination should also be included in NDIS plans where found reasonable and necessary.

Refer to Standard Operating Procedure – Include Support Coordination in a Plan for further information.

6.3 Capital supports

Include reasonable and necessary disability-related capital supports in the child’s plan as guided in the Our Guideline – Reasonable and Necessary Supports.

For children in statutory out of home care, funding for home modifications will not be considered at the temporary or residential accommodation service setting, only in their long term home in a family like setting. This is to meet the value for money requirement set out in the NDIS Act. Value for money in relation to high cost home modifications (that can take a significant time to put in place) cannot be demonstrated where the aim is for the child to return home or move from a residential setting to a family like environment in the short term.

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Refer to Practice Guide - Assistive Technology including: Home and Vehicle Modifications and/or Standard Operating Procedure – Include Home Modification Supports in Plans for further information.

6.4 Resolving disputes about funding

If there is a dispute about funding roles and responsibilities for supports within a participants plan, the state or territory government in their role as a parent may, like any other participant, request a plan review.

Alternatively disputes about individual participant and/or NDIS and child protection interface funding roles and responsibilities should be resolved at the local level where possible and when required escalated through the usual NDIA Critical Services Issues Response (CSIR) processes. To resolve funding disputes for children in statutory out of home care the first stage of this process is to escalate the issue to the relevant Director as required.

Refer to Practice Guide – Safeguarding the participant’s interests for more information.

6.5 Plan management

States and territories have a right to request that the NDIS plan of a child in statutory out of home care is plan managed or Agency managed, in accordance with Section 74 of the NDIS Act. Alternatively the state or territory child protection agency as the legal guardian can request in writing that the foster carer be appointed the plan nominee and manage the NDIS child participant’s plan funding.

Refer to Standard Operating Procedure – Complete the Determine Plan Management task.

7. Transition planning for 16 – 17 year olds

As a young person prepares to exit statutory out of home care they may require additional disability supports to assist with this transition, for example supports in relation to:

  • transitioning out of their statutory living arrangement into an alternative living arrangement
  • building or maintaining family or social support networks
  • leaving school and moving to employment or day time community activities
  • transitioning to the disability support pension (DSP) and meeting their ordinary daily living costs including board and lodging and transport costs.

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Consider the following when planning for 16-17 year olds living in statutory out of home care:

  • Establish if an independent specialist assessment will be required if there is unclear or insufficient evidence about the young person’s functional capacity or current and future support need requirements.

  • Determine the capacity building supports that will develop independent living skills.

  • Assess assistive technology and home modification needs in relation to any changes in the young persons living arrangement.

  • Determine if additional specialist support coordination hours will be required to support the young person to plan for appropriate accommodation if a different living arrangement is required. Refer to Practice Guide – Identifying Housing Solutions for further information.

  • Consider the young person’s support and housing needs and the longevity of these arrangements; include an assessment of eligibility for Specialist Disability Accommodation (SDA)/ Supported Independent Living (SIL) as appropriate. Note that accommodation for children in statutory care is the responsibility of their guardian (e.g. the state or territory child protection agency) until they reach 18 years of age. However, plan development discussions should consider the young person’s housing and independent living goals from 16 years. Where appropriate a young person can be assessed for SDA eligibility and placed on a wait list for SDA/SIL or other adult housing options so their goals for independent living can be met upon turning 18 years.

  • Consider arrangements for the appointment of a plan nominee if required once the young person turns 18 (as child representative roles will cease at this point). In some cases the child representative/s will become the nominee and in others they will support the child without being officially assigned as a nominee.

    Adult legal guardianship arrangements may also be explored by the young person’s current legal guardian (the state of territory). While the NDIS does not have a formal role in this process, it may be helpful to raise this issue with the young person’s representative so they are aware of their options in this area.

  • Determine if transport funding may be deemed reasonable and necessary if the young person is unable to use public transport.

  • Consider if additional personal care is required due to the change of circumstances once the child turns 18 and will no longer have access to the informal supports previously provided through the state or territory child protection system (for example by their foster carer).

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• Consider what the informal support arrangements will look like for the young person during their transition, and afterwards, and how this may differ to the level of support they required in their statutory living arrangement.

• Consider if Short Term Accommodation (STA) (including respite) may be reasonable and necessary as part of a formal transition plan to support the move to a new living arrangement.

For example, spending trial nights funded as STA (including respite) at the home they will transition to can support the participant to build capacity and prepare for the transition.

  1. Plan implementation and monitoring

Where a child participant is in statutory out of home care, copies of the participant’s plan and all related information will be provided to their nominated child protection representative upon receiving a copy of statutory orders or other relevant evidence that parental responsibility has been transferred to the state or territory.

Refer to PANDA and Our Guideline – Your Plan.

  1. Plan reviews

A change of circumstances plan review may be requested where for example; there has been a change of living arrangement, an extended hospital stay or significant or repeated school suspension.

A child entering accommodation outside of their family home may also instigate a change of circumstance review.

For children in statutory out of home care, ensure that plan review dates align with their 16th birthday to prepare for transition planning.

Refer to Standard Operating Procedure - Create a Plan Review Request (PRR).

  1. Case examples

10.1 Michael

Michael is 9 years old and lives with his foster family and 2 siblings. He is in a statutory out of home care arrangement until he is 18 years of age and does not have any contact with his biological parents. Michael’s primary disability is Autism Spectrum Disorder. Michael attends school 5 days per week, and receives support through Education to engage in his learning for most of his school day. The school have a behavioural management plan in place to assist staff in responding to Michael as the need arises.

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Michael’s foster parents report that they are required to pick him up from school early approximately three times per week due to safety concerns arising from his behaviour. This is causing significant stress for them as they struggle to juggle work and childcare commitments. They also report challenges spending time with their other children as the functional impact of Michael’s disability includes behaviours that require the attention of a parent at all times to ensure his own and others safety.

There is a positive behaviour support plan in place and the therapist is working closely with all of Michael’s caregivers to help reduce and better manage behaviours of concern.

Michael has expressed that he would like to spend more time attending activities on the weekend and is enjoying building his capacity and independence. This is an important goal for Michael in his next plan.

Child Protection provides Michael with the opportunity to spend time with another foster family one weekend per month, but the family have expressed that they are exhausted and this is not giving them enough of a break or sufficient time to spend with their other children.

10.2 Outcome

Michael’s NDIS plan provides funding for the following reasonable and necessary supports:

  • funding for the continuation of support from the therapist with oversight of his positive behaviour support plan
  • Capacity Building funding to continue to assist Michael in building his ability to manage his emotions, and independence
  • Short Term Accommodation (respite). This can be accessed alongside the current respite provided by Child Protection, to help improve the sustainability of the care environment
  • Social, Community Civic Participation to allow Michael to access the community with a disability support worker. It is envisaged this will help Michael meet his goal to spend more time on activities in the community, and also help provide a ‘respite effect’ for his family so they can attend to their other children’s needs.

11. Supporting material

  • NDIS Act 2013
  • NDIS Rules
  • NDIS Operational Guidelines
  • Principles to Determine the Responsibilities of the NDIS and Other Service Systems

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12. Process owner and approver

General Manager, Service Guidance and Practice.

13. Feedback

If you have any feedback about this Practice Guide, please complete our Feedback form.

14. Version change control

Version Amended by Brief description of change Status Date
redacted: s22(1)(a)(ii) - irrelevant material

V3.0 2021-12-22 Statutory out of home care Page 18 of 18 This document is uncontrolled when printed.

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