Inquiry Into the Capability and Culture of

the National Disability Insurance Agency

Submission by the Commonwealth Ombudsman, Iain Anderson

15 December 2022

Introduction and summary

The Office of the Commonwealth Ombudsman (the OCO) welcomes the opportunity to make a submission to the Joint Standing Committee on the National Disability Insurance Scheme (NDIS) inquiry into the Capability and Culture of the National Disability Insurance Agency (NDIA).

In response to the terms of reference, the OCO highlights the Ombudsman’s recent report on the NDIA’s preparation to meet the Participant Service Guarantee.

This information may assist the Committee’s consideration of the terms of reference, specifically:

a) the capability and culture of the NDIA, with reference to operational processes and procedures, and nature of staff employment; and b) the impacts of NDIA capability and culture on the experiences of people with disability and NDIS participants trying to access information, support and services from the Agency.

Our role

The purpose of the OCO is to:

provide assurance that the organisations we oversee act with integrity and treat people fairly; and
influence systemic improvement in public administration in Australia and the region.

We seek to achieve our purpose by:

identifying administrative deficiencies through independent review of complaints about Australian Government administrative action;
fostering public administration that is accountable, lawful, fair, transparent and responsive; and
providing a level of assurance that Commonwealth, state and territory law enforcement, integrity and regulatory agencies are complying with statutory requirements and have sound administrative practices in relation to covert, intrusive and coercive powers within our jurisdiction.

Oversight of the National Disability Insurance Agency

The OCO can receive complaints about the NDIA’s administrative actions and decisions. The OCO can also consider complaints about organisations which are contracted to deliver services on behalf of the NDIA, such as local area coordinators.

As part of its role, the OCO also monitors issues arising from complaints about the NDIA, the media or feedback from stakeholders. The OCO uses this information to identify systemic administrative issues that have the potential to adversely impact many NDIS participants. The OCO has published reports on the NDIA’s administration of reviews1, the NDIA’s handling of Assistive Technology requests2 and the NDIA’s handling of an access request from an individual who was incarcerated.3

These reports highlight the types of systemic issues previously identified. For example, each report consistently identified, among other issues, delays in decision-making and communication clarity. The OCO subsequently assessed whether the recommendations made in those reports

Performance Monitoring

Implementation Rates of Recommendations

were implemented or not.4 The OCO found that, of the 37 accepted recommendations made in those reports, 86 per cent were implemented or partially implemented. This compares with 92 per cent for other agencies the OCO also assessed.

Complaints Received in 2021-22

In 2021-22, the OCO received 858 complaints about the NDIA. This is a 16 per cent increase in complaints received compared to 2020-21 (741). During the same period the number of NDIS participants increased by 15 per cent. The most common issues raised in complaints were plans (30 per cent), reviews (15 per cent), and service delivery (15 per cent). Within those issues, complaints concerned:

Plans—the final plan outcome, and dissatisfaction with the plan amendment and implementation process.
Reviews—dissatisfaction with the process and decision made with the review of a decision, and the process associated with a participant-requested plan review.
Service delivery—dissatisfaction with the process of NDIA’s handling of complaints made to its complaints service.

Source of Complaints

In 2021-22, the NDIA was the fourth largest (6 per cent) source of complaints to the OCO in its general Commonwealth jurisdiction. The largest was Services Australia–Centrelink (52 per cent).5

Ombudsman’s Role in Relation to the Participant Service Guarantee

In addition to receiving complaints from individuals about the NDIA, the OCO also has a specific statutory reporting role in relation to the Participant Service Guarantee (PSG).

Section 204A of the National Disability Insurance Scheme Act 2013 (NDIS Act) requires the Ombudsman to, as soon as practicable after the end of each financial year, prepare and give to the Minister for the NDIS a report about the PSG addressing some or all the matters prescribed by the National Disability Insurance Scheme Rules (the Rules).

In circumstances where amendments to the Rules have not yet been made which will clarify the scope of the Ombudsman’s report, we will be informed by the Tune Review6 and the exposure draft of the PSG Rules published by the Department of Social Services in September 2021.

Our first report under s 204A was provided to the Minister on 30 November 2022. The Minister is required to table the report in Parliament within 15 sitting days after the Minister receives it. The report is limited to one aspect of the NDIA’s work in relation to the PSG. It identifies the NDIA has progressed its work on the PSG, but further work is required by the NDIA, including in relation to policies and procedures.

The Participant Service Guarantee as Capability and Culture

In the OCO’s view, the PSG is critical to any discussion about the NDIA’s capability and culture. The PSG responds to common participant complaints, such as delays in NDIA decision-making and a lack of information about the NDIA’s processes.

The PSG sets 20 timeframes for the main actions and decisions the NDIA may undertake. It also sets out 5 engagement principles and associated service standards, which set the expectation for how the NDIA will engage with participants and their families or support persons. The PSG is currently incorporated in the NDIA’s Participant Service Charter.

Through the inclusion of both quantitative (timeframes) and qualitative (engagement principles) requirements, the PSG aims to strike an appropriate balance between the quality of NDIS

Ombudsman’s Participant Service Guarantee Investigation

In anticipation of the OCO’s statutory reporting role in relation to the PSG, the OCO published an own motion investigation report titled, Investigation into the National Disability Insurance Agency’s Preparation to Meet the Participant Service Guarantee in June 2022. A copy of the report is provided at Attachment A. The OCO also published an Easy Read version of this report in July 2022. A copy of the Easy Read version is provided at Attachment B.

The report considered the NDIA’s approach to planning for the PSG, monitoring and reporting the NDIA’s performance against the timeframes, engagement principles and service standards in the Charter, and actions taken to embed the PSG in how the NDIA delivers services to participants.

At the time the report was released, the then acting Ombudsman said, ‘an equal focus on meeting the PSG timeframes and engagement principles will ensure the NDIA delivers a service that is responsive to participants.’8 The investigation found the NDIA had created a solid foundation for delivering on the PSG to ensure the NDIA can deliver a timely and quality experience for NDIS participants. In particular, the NDIA had made good progress in measuring and reporting against, and meeting, the PSG timeframes.

While the NDIA was also making good progress towards measuring and reporting on the engagement principles and service standards, the OCO considered further development was required to enable the NDIA to report meaningfully on these qualitative elements of the PSG. The OCO acknowledges qualitative measures which set the standard for how the NDIA engages with participants may be more complex to measure and report on than quantitative measures, but as the Tune Review identified, qualitative measures are no less important.

In OCO’s view, a robust performance framework that enables the NDIA to report on qualitative aspects of the PSG is key to ensuring the quality of the NDIS participant experience. For this reason, OCO recommended the NDIA develop a PSG qualitative performance measurement and reporting framework, which includes at a minimum the sources of performance information, how each are used in reporting and details of how often each will be reviewed.

The report also considered the NDIA’s quality assurance processes in the context of the PSG engagement principles. The report found that the NDIA had commenced work to identify how it could adapt or amend its existing quality assurance processes to incorporate the engagement principles and further refinement work was underway.

The report observed that if the PSG is not incorporated into the quality assurance processes appropriately, it is possible that PSG service standards will be measured inconsistently, or the NDIA will miss opportunities to gain assurance that it is performing at the standard required by the engagement principles. To this end the report recommended the NDIA review it’s End-to-End Quality Assurance review guides in line with the engagement principles.

The NDIA accepted all recommendations in the report and the OCO will follow up implementation of its recommendations with the NDIA throughout the course of 2023.

Case study: responding to a change of circumstances request

The following case study provides an insight into the lived experience of an NDIS recipient and their NDIA nominee, and relationship with the PSG. It is provided as an example of how the NDIA’s culture and capability can directly affect NDIA recipients. This case study is based on a de-identified real-world approach to the OCO that occurred in 2021.

The Complainant’s Case

e The complainant, C, lives with significant disabilities affecting their ability to communicate.

e Achange of circumstances review application, including a request for Specialist Disability Accommodation (SDA), was lodged on C’s behalf by their NDIA nominee, N, owing to N’s concerns about C’s physical safety at their Supported Independent Living. Hospitalisation occurred several times due to injuries sustained there.

e The NDIA approved the review application and categorised it as high risk due to the reported issues of physical safety. A planning meeting concerning the review and a new plan was held between the NDIA and N.

e Following this meeting, whenever N contacted the NDIA they were informed the review application was ‘in progress’. This continued for about 3 months until the review was finalised and a new plan approved.

e However, N was unable to ascertain whether the SDA quote which N had requested had been approved. N therefore contacted the OCO to lodge a complaint about approval of the SDA quote.

e The NDIA decided C was eligible for SDA funding around 6 weeks after N’s approach to the OCO. By that time, however, the accommodation was no longer available.

PSG timeframes

The NDIA advised the OCO that 4 PSG timeframes applied to C’s case. These are summarised in the table below.

PSG TIMEFRAME	ACTUAL TIMEFRAME (CALENDAR DAYS)
DECIDE WHETHER TO DO A PLAN REASSESSMENT, IF YOU ASK US TO	21
DO A PLAN REASSESSMENT WE HAVE AGREED TO	42°

MAKE BIG CHANGES | 50 208

to a plan

give you acopy of | 7 Timeframe met, the plan after it however NDIA did not has changed provide actual days.

The OCO’s investigation, and NDIA’s response

As part of its investigation, the OCO asked the NDIA to explain why PSG timeframes were not met. The NDIA explained:

-e After the planning meeting, the NDIA “did not action the approval of the plan, including SDA, in a timely manner due to high work volumes, staff moves and a breakdown in communication between various work areas of the agency.”

-e The NDIA did not act on several escalation requests because:

© Staff were slow to action escalation requests, or had been slow to respond to enquiries or call back requests, with staff movement contributing to a “breakdown of continuity and an absence of follow-up on plan approval”.

-o The NDIA enquiries inbox was experiencing delays in the processing of emails due to high volumes.

-o Anoversight meant the SDA quote emailed to the enquiries inbox was not uploaded to C’s record.

-o The Standard Operating Procedure relevant to C’s case was not followed.

In response, the OCO provided the NDIA with several comments and suggestions to address the issues raised by C’s case. The NDIA recognised the errors that occurred, and issued an apology. The NDIA agreed or noted all of the OCO’s suggestions.

1 ‘Administration of Reviews Under the National Disability Insurance Scheme Act 2013’, May 2018, hhttps://www.ombudsman.gov.au/_data/assets/pdt_file/0029/83981/NDIS-NDIA-Final-report-on- administration-of-reviews-under-the-Act. pdf

2 ‘Administration of National Disability Insurance Scheme Funded Assistive Technology’, August 2020, hhttps://www.ombudsman.gov.au/_data/assets/pdf file/0015/111363/Administration-of-NDIS-funded- assistive-technology.pdf

3 ‘Investigation into the actions of the National Disability Insurance Agency in relation to Mr C’, February 2020, hhttps://www.ombudsman.gov.au/__data/assets/pdf_file/0018/110619/Investigation-into- the-actions-of-the-NDIA-in-relation-to-Mr-C. pdf

4 “Did They Do What They Say They Would?‘, September 2020, hhttps://www.ombudsman.gov.au/_data/assets/pdf file/0013/111460/Did-they-do-what-they-said-they- would-report.pdf; and ‘Did They Do What They Said They Would? Volume 2’h https://www.ombudsman.gov.au/__data/assets/pdf file/0021/115374/Did-they-do-what-they-said-they- would.-Reviewing-our-recommendations,-Volume-2,-October-2022.pdf

Commonwealth Ombudsman 2021-22 Annual Report, page 133.

® David Tune, Review of the National Disability Insurance Scheme Act 2013 (known as the Tune Review)

7 Tune Review, page 153.

Page 7

Ombudsman Media Release, 23 June 2022: Ombudsman Investigation into the National Disability Insurance Agency’s (NDIA) Preparation to Meet the Participant Service Guarantee (PSG)

Commonwealth Ombudsman, 23 June 2022

This timeframe has since changed from 42 days and is now 28 days.