NDIA Accountability Project

Reliance on charities and flaws in disability employment services

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Submission

Dear Mr Andrews,

Terms of reference

a. The impact of boundaries of NDIS and non-NDIS service provision on the demand for NDIS funding, including: i. the availability of support outside the NDIS for people with disability (e.g. community-based or ‘Tier 2’ supports), and ii. the future of the Information, Linkages and Capacity Building grants program;

This is nothing new. Money is being thrown at a ‘Bunyip-aristocracy’ of third-rate charities to do a frustratingly bad job with outstanding consistency. My own experience of Local Area Coordinators and Linkage Services is that they think giving you a list of phone numbers and email addresses amounts to substantive work on their part. Then you as the individual (or the whole family) must navigate the red tape nightmare. Find a service prepared to accept you, enter a contract, then hope the NDIA approves the deal. In that time, 6 to 12 months may have passed and in my own experience, ceiling hoists and wheelchairs can easily be caught up in the bureaucratic merry-go-round. As an example, a few years ago, I had to call the NDIS 1300 number about having some urgent repairs to my then motorised wheelchair.

While attending to that matter, I asked the Agency representative about the status of my application for a new motorised wheelchair. He found a file note, but no appended paperwork. Asking me to re-send the paperwork, I reflected how fortunate it was that several months previously, the occupational therapist who had written the required assessment report had also provided me with a copy. She had moved back home to New Zealand and were it not for my retention of many old emails, my application for a replacement chair would have had to start anew. Consequently, let’s stop this re-writing of history that says the NDIS is doing so much better than the former State-run system. It is not doing so, regardless of how many glossy brochures and emails the NDIS puts out to the contrary. I was a client of NSW Home Care since 1987, who after major traumatic spinal surgery and three months flat on my back, needed a lot more care assistance. This was to a level increasingly beyond what my family could provide, so the Home Care referral was crucial. Home Care provided me with generally good services over many years. It was a State Government agency that did its own paperwork and did not expect you as the client to do all the paperwork yourself; and then do it pro-bono!

I will not accept in reply the NDIA’s politically correct malarkey about ‘choice and control’. What I need is services rather than platitudes bound up in red tape. Services are the one thing the NDIS does not provide; rather I must navigate my way through the mediocre offerings of the Bunyip aristocracy. If you try to spurn the NDIA’s providers,

  • The Agency is far less likely to fund your proposal.

This is what I found when challenging the NDIA’s ruling that my claim for ‘employment support’ to cover my practising certificate as a solicitor. The certificate was deemed insufficiently related to disability. Despite there being a narrow path where my success was possible, the NDIA and Administrative Appeals Tribunal concurred on the linkage to disability not being satisfied, agency finding upheld and precedent not overturned (See Johnston and National Disability Insurance Agency [2020] AATA 2583 Johnston and National Disability Insurance Agency [2020] AATA 2583 - BarNet Jade - BarNet Jade, and comment on this from Joshua Dale at NDIS – Defining What Is Reasonable And Necessary - Carroll & O’Dea Lawyers (codea.com.au) and Bill Madden NDIS: Whether funding a lawyer’s practising certificate is a reasonable and necessary support. – Bill Madden’s WordPress). The AAT chose not to entertain my arguments which it deemed matters of policy – the fact that I could line up multiple papers and articles raising real doubts as to the value of Disability Employment Services and show their constant failure to put many in successful sustained employment. This was likely ‘a can of worms’ few want opened. If these bodies were not fit for purpose, then it raised a very real question over what the true nature of meaningful disability employment support involved.

Neither the AAT nor NDIA wanted this issue explored, but I did. The point for me was that those entities supposedly designed to help people with disability find work, could be argued greater handicaps than any individual’s impairments. My own experience with DES supports (confirmed by the literature review deemed ‘policy’ – see Appendix 1: The case against the disability employment sector) had shown me their considerable limitations: see Adam Johnston – ADJ Consultancy Services | engage.dss.gov.au a submission to the Department Of Social Services explaining why I have not bothered with disability employment services since 2016. To say one was sick of the broken promises, mismanagement and incompetence of the sector would be an understatement. This was something increasingly obvious throughout the charitable sector (see: Adam-Johnston-310865.pdf (treasury.gov.au)) but public policy has for some years moved more and more public functions to the charitable sector. Again, in my experience many of these bodies inspire neither confidence nor build capacity. They are not organisations one would readily choose to be dependent upon but due to my disability and the structural dependence of the NDIA on the NGO sector, neither one of us can leave charity behind. This shows that far from being the ‘once In A Generation’ reform, it is more of the same old charity, vulnerability and dependence; a point made in this paper: https://novaojs.newcastle.edu.au/hass/index.php/humanity/article/download/63/58.

It Is Also To Be Wondered Whether This Nation Has Already Forgotten What Was Revealed About The Church And Charitable Sector’s Misdeeds In The McClelland Royal Commission Into Institutional Responses To Child Abuse And Neglect. Even after all Of That (And Comparable Overseas inquiries In Places Like Ireland And The US), The Ndia Still Deems It Appropriate To Place People With Disability In The Care Of Churches And charities.

Finally, I might be able to find informal supports outside the NDIS, but this relies on very supportive family and friends, in a network few others will be fortunate enough to have. However, what happens when family members (principally my mother) are no longer able to care for me? To think that this will fall anywhere other than within the NDIS (for me and most others) is laughable. In my view it is just as laughable as ‘inclusive education’; I went back to the Special Education (after a short, unsuccessful stint in ‘the mainstream’ and have long defended special education’s necessity for some people, including me: see: hhttps://www.aph.gov.au/~media/wopapub/senate/committee/eet_ctte/completed_inquiries /2002-04/ed students withdisabilities/submissions/sub001 doc.ashx. Declaring that supports will be provided by the community is one thing; finding them, working out who funds them and then working out whether people with disabilities can access them is quite another matter. If this was not the case, people like Anne Marie-Smith would likely not be dead, while other elderly people would not be periodically found dead (and sometimes long dead) in their homes. Keeping the fiction of ‘community support’ going may look good on a piece of Productivity Commission modelling and will artificially lower outlays for the NDIS and other social service departments but it is a false economy. Similarly, if one goes back to the Productivity Commission’s ‘Disability Care and Support’ report, the employment of people with disabilities was supposed to rise, as was the availability of support workers and the living standards of both. Neither has happened and, we continue to prop up an unsustainable charitable model. The false economy of what we are doing is shown by The crisis in the caring workforce | Australian Visa Professionals (avpmigration.com.au) and is confirmed by even more recent statements from the likes of the University of NSW at https://newsroom.unsw.edu.au/news/social-affairs/concerning-trends-and-challenges-ahead-ndis-workforce-major-new-report-finds and http://unsworks.unsw.edu.au/fapi/datastream/unsworks:66998/bincdf1e78b-f5e3-470d-8601-ee2cdadb3d42?view=true&xy=01. ABS figures as to the employment of those with disability, both before and after the NDIS – continuing significant under-employment.(see for example: Disability and the labour force | Australian Bureau of Statistics (abs.gov.au)). Many of the predictions made in the ‘Disability Care and Support’ report have not materialised. The Commission may have wanted to move disability policy from welfare to ‘insurance’ but it was never clear how such a shift (more in wishful thinking than reality) was going to change much, other than impose new administrative arrangements.

Meanwhile, tax expenditures cost billions of dollars in foregone public revenue, yet we maintain charitable status and allow individuals and corporate givers to legally minimise their tax. This will not stop ‘the crunch’ coming in the care workforce but will leave the governments of Australia significantly underfunded to deal with it. It is time to stop dressing up tax minimisation as ‘virtue’ if we wish to address serious structural and funding problems in the NDIS – not to mention many other areas of government service provision. One has been an advocate for significant tax reform for some time, with little success (see https://treasury.gov.au/sites/default/files/2020-

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09/115786 JOHNSTON ADAM.docx and https://consult.treasury.gov.au/budget-policy- division/2018-19-pre-budget- submissions/consultation/download_public_attachment?sqId=question.2017-09- 12.3768452384-publishablefilesubquestion&uuId=519819481). Charitable support is not mainstream community support or infrastructure, though with the rate all governments have transferred numerous public functions to the private or charitable sector over the past 40 years or so, you would be forgiven for thinking otherwise. However, do not think for a moment that we the recipients are happy with the change. While fortunate to have avoided the experience of poverty in my life, disability and the NDIS mean many frustrations of interviewees quoted in this article (Charity and Shame: Towards Reciprocity | Social Problems | Oxford Academic (oup.com)) chime with me. I think there is also cause to wonder whether the Australian nation state still sees me as a citizen, given how much of the formerly public goods and services I continue to rely upon have been outsourced to the NGO sector – taken up in this article: https://researchers.mq.edu.au/en/publications/from-citizen-to-charity-case-has-contracted-welfare-breached-the-. I think there are real questions about the transformation of public, social services to a dubious market model, as summarised in this slide show: https://www.pc.gov.au/ data/assets/pdf file/0007/209752/subpfr356-human-services- identifying-reform-attachment4.pdf. This system is not safe, nor is it stable and it relies on some of the poorest and most marginalised people in the country (the disabled) being savvy market operators. This is not a fair demand on people with disabilities, be they adults or children, or their families. And this ‘reform’ was supposedly the advice of Productivity Commission ‘experts?’ Anyone who is an adult with disability knows from often bitter experience to be wary around those claiming expertise.

The ultimate difficulties in accessing services inside or outside the NDIS is summarised in many authoritative articles – see Alexander, S., et al. (2019). “Attachment security, early childhood intervention and the National Disability Insurance Scheme: a risk and rights analysis.” Children Australia 44(4): 187-193. https://browzine.com/articles/350005658; Johnson, E., et al. (2020). “Principles of disability support in rural and remote Australia: Lessons from parents and carers.” Health & Social Care in the Community 28(6): 2208- 2217. https://browzine.com/articles/391003562; Loadsman, J. J. and M. Donelly (2020). “Exploring the wellbeing of Australian families engaging with the National Disability Insurance Scheme in rural and regional areas.” Disability & Society: 1-20. hhttps://doi.org/10.1080/09687599.2020.1804327; Russo, F., et al. (2020). “Parental Experiences of Engaging With the National Disability Insurance Scheme for Their Children: A Systematic Literature Review.” Journal of Disability Policy Studies 32(2): 67- 75. https://browzine.com/articles/402252371; Barr, M., et al. (2020). “Parent experience of the national disability insurance scheme (NDIS) for children with hearing loss in Australia.” Disability & Society: 1-25 https://doi.org/10.1080/09687599.2020.1816906. The question the Committee should be asking is: where are the benefits the NDIS was

supposed to bring? I do not see them, and it appears I am not alone. It is noteworthy that many similar concerns were expressed by families in 2011 to the NSW Ombudsman about the NSW Department of Ageing, Disability and Home Care (ADHC) Final-consultation-report-families-of-children-with-disabilities.pdf (nsw.gov.au). Remove the references to ADHC and then replace them with NDIS. You could release the same report today with further amendment.

Nothing has changed beyond there being a mushrooming of publicly subsidised third-sector, third rate quasi-bureaucrats. They push pens across paper, dutifully documenting their mediocrity and the policy malaise that is the NDIS, a system that drowns in assessments, reports, reviews, and plans. I called for a general basket of basic ‘disability related goods and services’ that people can access without an NDIS plan to be made available some time ago: see https://www.parliament.nsw.gov.au/lcdocs/submissions/61436/0251%20Mr%20Adam%20Johnston%20(partially%20confidential)Redacted.pdf and https://www.parliament.nsw.gov.au/lcdocs/submissions/61437/0251a%20Mr%20Adam%20Johnston.pdf. The NDIA should have as a priority simplifying the whole process so that people don’t have to document or justify every part of their lives, at 12- or 24-month intervals. ADHC may not have been perfect, but it never traumatised people in that way.

  D. How the NDIS is funded, including:
          i.  the current and future funding sources for the NDIS,
          ii. the division of funding between the Commonwealth, States and Territories, and
          iii. the need for a pool of reserve funding;

I make no apology for my belief that the former State-run system provided better basic services, which were accountable to the Government, the Parliament, and the people. Combining the NDIA’s legislated mix of statutory independence and, services being delivered by a gaggle (or is that a rabble) of third parties, it is very hard to see where all the money goes. And this is just in terms of my own NDIS budget. I do not dispute that the NDIS is unsustainable – I accept it, while acknowledging my own good fortune. However, Australia’s good fortune, already blunted by COVID-19, is stymied by our inability to achieve structural reform. See: OECD calls for widespread tax reform - MacroBusiness and OECD Economic Surveys: Australia 2021. The report includes these figures:

(Page 17)

(Page 26)

I have been writing about the need for tax reform and reform of the Federation for years, with little effect (see many of the links above). This OECD report should make us all pause as we hurtle towards a train wreck in the “lucky country”. The NDIS, in the face of ageing population, falling productivity and eye-watering Government debt, is a luxury item Australia cannot afford - a concession implicitly made by Wayne Swan and the Gillard Government when they pushed NDIS outlays beyond the Budget Estimates.

Our unwillingness to reform the tax base says we do not wish to change and make the tax or structural adjustments needed. This is a legitimate democratic decision but there will be consequences. Undoubtedly, one of these will be the priority given (or not given) to disability services. The Commonwealth’s COVID response is indicative of what can be

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expected (see the findings of the Disability Royal Commission about the failing in the Government response: Public hearing 12 - The experiences of people with disability, in the context of the Australian Government’s approach to the COVID 19 vaccine rollout - Commissioners’ draft report (royalcommission.gov.au)). For these reasons, I continue to emphasise the need to accelerate research into curative, regenerative medicine now. This is rather than structurally imposing the life-sentence of life-long disability under the NDIS, as argued here https://researchers.mq.edu.au/en/publications/what-would-grandma-say-2. Perhaps the unvaccinated disabled are not as badly off as we thought? They will not live to see ever-growing shortages, cutbacks, and deficits. There must be a reckoning of receipts and outlays at some point; the impact will not be pleasant for anyone. And again, science and innovation repeatedly shows us a better course of action; Pre-implantation genetic testing for IVF added to Medicare, Verzenio use expanded under PBS - ABC News. This is what all disability policy should be about – prevention and amelioration, with the aim of eliminating disability from the human experience. Anything less should be considered abuse, when there is a reliable, publicly funded chance to avoid impairment. This is the truly universal National Disability Avoidance Scheme (NDAS) Australia needs. Its potential puts the limitations of the NDIS into stark relief.

In the meantime we should look to automation to supplement a dwindling labour force (See: One in 10 Australian jobs are at ‘high risk’ of automation, and regional Australia is the most exposed (msn.com)). And when Australian avocado grower is looking to overseas labour and ultimately automating harvesting, it tells you much about the quality of Australian and overseas labour (Labour Solutions: Australian agriculture’s dependence on imported labour - Landline (abc.net.au)). What have Australians with disability done to deserve a labour force no-one else wants and who are being automated out of employment? It is even happening in art, as shown by Ai-Da the artist robot and AI’s place in art (art-critique.com).

So, in short, I’m sceptical about whether the NDIS has a long-term future. The OECD assessment of our productivity and ageing population suggest we will not have the wealth to fund it publicly or privately. Then there is the question of labour, which worries me more as time passes. Look at Slide 4 and you will appreciate why I worry; look at slide 5 to feel my sense of abandonment by all levels of government - https://www.pc.gov.au/__data/assets/pdf_file/0007/209752/subpfr356-human-services-identifying-reform-attachment4.pdf. Furthermore, the NSW State Parliamentary Review of the NDIS did recommend the re-establishment of a state provider of last resort. I support this reform, even though the Government declined to follow it. There is also no reason for public provision to be an option of last resort. We should not have to run a dubious charitable gauntlet simply because we are disabled. Responsibility for disability services should be fully restored to the States and Territories, with applicable reciprocity agreements between jurisdictions. The Productivity Commission did not prefer the

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federated model, but in my view, keeping much of the pre-existing infrastructure would have been preferable, as well as much less traumatic for participants and families.

e. Financial and actuarial modelling and forecasting of the scheme, including:

i. the role of insurance-based principles in scheme modelling, and

ii. assumptions, measures, and methodologies used to forecast and make projections about the scheme, participants, and long-term financial modelling;

The NDIS is not insurance. The word “insurance” is arguably taken to a point of absurdity and meaninglessness, if you apply it to people like me. It is my submission that my cerebral palsy, immobility, and attendant chronic conditions would be generally uninsurable on the open market. This is because I have always had cerebral palsy due to a premature and traumatic birth. Insurance is generally prospective and has a restorative component; this model does not as the Rules for Participant Supports very specifically state the NDIS will not support interventions designed to improve function. NDIS Rule 7.5 states that the NDIS will not be responsible for:

(c) funding time-limited, goal-oriented services and therapies:

(i) …

(ii) provided after a recent medical or surgical event, with the aim of improving the person’s functional status, including rehabilitation or post-acute care;

Given that the NDIS is not even remotely interested in curing me going to cure me, it is instructive to look at the Scheme as a whole and consider the ‘rhetoric against the reality’. I argue that far from compensating or insuring me for disability, the Scheme further intrenches my (and others’) incapacity, likelihood of unemployment, and dependency on charity. Its failure to have a progressive research approach aimed at ultimately liberating people from disability is likely reflective of its approach to employment and other aspects of life. This will be to have me, and others spend the allotted NDIS funds with third rate, third sector disability provider. If that provider is notionally an employment provider, they will be very unlikely to find any person with disability meaningful work. However, they will gladly take the money, Centrelink’s activity criteria will be met, while the disabled client will still very likely be unemployed, based on the ABS data. This is not an efficient use of anybody’s time, or NDIS funds and, it does not achieve the legislation’s stated aims around employment and economic participation. A similar complaint can be made of the NDIS’s approach to research. As my paper and presentation to a Sydney University Conference (see: https://researchers.mq.edu.au/en/publications/what-would-grandma-say-2) argues, the Agency seems content to keep participants disabled, dependent and tied to the charity sector. Is this a life, or a life sentence? I suggest the latter.

The Committee’s Fiction

The Committee should reject the curious fiction that says there was a time in utero when I was neither disabled nor legally human, and then some 40 years later a government decides to ‘compensate’ me for unspecified adverse events in utero. This is something which medical science cannot even fully explain today, yet the NDIA has no interest in investing in the science to explain or ameliorate my disability. How do you put together a risk analysis that is credible? This is where the insurance argument begins to collapse under the weight of its own contradictions.

Additionally, I do not pay an insurance premium to the NDIA and, did not come to the NDIA from another insurance firm. Rather, coming as a result of the closure of the NSW Government’s closure of the NSW Department of Disability, Ageing and Homecare and the transfer of all Homecare clients to the NDIA. This was not something I participated in willingly. Transfer to the NDIA was an act done under the duress of knowing Homecare was closing and, given my extent of disability I had nowhere else to go but the NDIA, as noted earlier. I submit that this is a point of aggravation to my claim the NDIA is an improvement. To the claim that the NDIA represents ‘social insurance,’ this phrase is neither defined, nor does it appear in the legislation. Furthermore, wouldn’t the best form of insurance be a cure? Yet this is deliberately excluded by Rule 7.5, in what I must call the greatest act of legislative cruelty in the nation’s history. This must be corrected, and people given hope that in aiming for a good or ordinary life, full functional restoration is at least an aspiration, even if not immediately attainable.

But then, there is a lot about this whole Scheme where dark questions go unanswered. One thing that does not go unanswered is the dubious way governments have employed the term ‘insurance’ now and in the past. History is instructive here, because in a major address some years before he became US President, Ronald Reagan said:

Now – we’re for a provision that destitution should not follow unemployment by reason of old age, and to that end we’ve accepted Social Security as a step toward meeting the problem.

But we’re against those entrusted with this program when they practice deception regarding its fiscal shortcomings, when they charge that any criticism of the program means that we want to end payments to those people who depend on them for a livelihood. They’ve called it “insurance” to us in a hundred million pieces of literature. But then they appeared before the Supreme Court and they testified it was a welfare program. They only use the term “insurance” to sell it to the people.

And they said Social Security dues are a tax for the general use of the government, and the government has used that tax. There is no fund, because Robert Byers, the actuarial head, appeared before a congressional committee and admitted that Social Security as of this moment is 298 billion dollars in the hole. But he said there should be no cause for worry because as long as they have the power to tax, they

could always take away from the people whatever they needed to bail them out of trouble. And they’re doing just that.

  (Ronald Reagan, A Time for Choosing (aka "The Speech"), Air date 27 October
   1964, Los Angeles, CA,
   [https://www.americanrhetoric.com/speeches/ronaldreaganatimeforchoosing.htm](https://www.americanrhetoric.com/speeches/ronaldreaganatimeforchoosing.htm)
  and
  https://www.bing.com/videos/search?q=A+Time+for+Choosing+Speech+YouTu
  be&&view=detail&mid=A91A025A52E727C72418A91A025A52E727C72418&&FO
 RM=VRDGAR (You Tube) as at 15 June 2019)

While this is a US example and Mr. Reagan spoke about the old age pension, apply the same scrutiny to the NDIS and you see it for what it truly is – a welfare program. The NDIS money comes from an additional charge on the Medicare Levy (a tax) and States have redirected disability support funds to the Commonwealth NDIS Agency. It’s a government agency holding taxpayer money; the NDIS Agency itself is structurally under the administrative umbrella of the Human Services Department. This is the Commonwealth’s welfare department. NDIS messages originally come via a Human Services email and weblink, while the NDIS portal is part of MyGov and (as highlighted in the academic literature above) NDIS offices are co-located with Centrelink offices. The Committee can and should ‘pierce the veil’ and look behind NDIS falsehoods about insurance to see the true welfare scheme. This will benefit not only me, but countless other participants as well.

                    APPENDIX 1

My case against Disability Employment providers (based on my arguments in Johnston and NDIA (2020) before the AAT. While the Tribunal was free to dismiss this as policy, I think the Parliament must determine whether it ever obtains good service for people, or value for money when it outsources service delivery to NGOs. This is not my experience. I submit that NGO disability employment service providers (amongst others) are not an efficient or prudent use of public funds:

1.  Dockery and Webster[1] make the point that long-term unemployment is a multi-
   faceted issue, requiring a range of responses. They question the true impact of
  programs (p. 181) while the last full paragraph at page 183 makes the point that
 many of the jobs gained will be temporary/casual. This has certainly been my
   experience: see submission to 'Willing to Work' inquiry at
   https://www.pc.gov.au/__data/assets/pdf_file/0004/209749/subpfr356-human-
   services-identifying-reform-attachment1.pdf. Dockery and Webster also put the

[1] See https://espace.curtin.edu.au/bitstream/handle/20.500.11937/18509/20501downloadedstream489.pdf?sequence=2&isAllowed=y

per-head expense of supposed employment programs at far greater than what I am asking for.

  1. I note the Dockery and Webster paper highlights the lack of an effective knowledge base and, the Commentary which follows it seems to concentrate on the length of time a person has spent outside the workforce. Anecdotally, I would agree; the longer you are out of the workforce the harder it is to get back in. However, I am not in that position, being a Lay member of various committees overseeing NSW Health, which pay sitting fees. It is worth noting that nothing about my application and appointment to these positions (and other roles) had anything to do with an employment agent.

  2. Even employment agents themselves (see Dr Greg Lewis,[2] attached) do not seem to be able to cite much hard data themselves, or are calling for more research. Meanwhile, the document “Employment final draft”[3] shows the difference between willingness and capacity to maintain work, due to disability and external factors. While that paper relates to autism (and not cerebral palsy, as in my case) some of the points it makes are relevant. Firstly, the importance of support (see “Various papers”[4]). While the latter series of papers dates from the 1980s, they do contain various references to the importance of ongoing support when employed. This was something which was not generally part of my experience except with my very first agent. As time passed (along with temporary jobs) the level of contact/support became less and, having a mandatory meeting was either by phone call or a requirement for a face-to-face meeting, which in recent years was a taxi at my expense. This did not please me; nor did the lack of results for my time – See my submission to the 2016 Disability Reform Discussion Paper at https://engage.dss.gov.au/des reform nov16-submissions/1481501406/. I also endorse the comments of Jane Scott at https://engage.dss.gov.au/des_reform_nov16-submissions/1481521768/. We have both experienced similarly lax service from people being paid handsomely, to largely leave us (the under-employed or unemployed) to our own devices. Then these so-called “services” are going to bill the Commonwealth for support allegedly provided to people like me and Ms Scott. It has been many, many years since I could claim satisfaction with an “employment service”. The NDIA and the Tribunal would do well to consider whether these employment agencies are billing the Commonwealth under false pretences, because I concur with Ms Scott when she says: ‘When I attend appointments they sympathise about the difficulties of

  • finding a job and ask me what kind of help my want. That’s not so that they can tailor their efforts to me as an individual. It’s because they don’t know how to help. All the system seems to require is that they log the fact that I attended the appointment. They are not “employment providers” they are “role markers”. I presume they are called employment providers so that the government can make it sound like they are offering a useful service but there seems to be no requirement for my “employment provider” to do anything which will increase my employability. They are often nice people but they don’t have the right skills to do the job and meeting them often costs me valuable time I could otherwise spend applying for jobs. When I was an English as a Second Language teacher, I knew what my students needed to improve their English. I was trained to provide it and I did. I didn’t ask my students to formulate the lesson plan. My “employment consultants” offer little in the way of effective strategies. They’ll give me feedback on cover letters and applications if I ask them to, though even when they do, I often have little confidence in its value. Most of them have made some adjustments to my resume (the adjustments made by one provider made it incorrect). Once they are satisfied that I can write a decent application, they seem to think their only task is to ensure that I keep doing it. One provider had an occupational therapist on their team. Several times, I asked to talk with her to discuss matching my particular limitations with the right employment opportunities and what kind of assistive technology might help, so that I could target my applications appropriately. They refused to give me an appointment with the occupational therapist. They said I would meet with her only after I got a job to discuss what help I needed in the job. Recently, I filled out a job application for Vision Australia which asked me whether I had a disability and what kind of adjustments I might need them to make if I got the job.’ Ms. Scott is absolutely right and, the NDIA needs to re-evaluate the place of employment agents as funded NDIS services. They are not value-for- money and most in my (and apparently Ms. Scott’s) experience are not competent. Being ‘nice’ doesn’t cut it and, the Commonwealth needs to explain why the same old incompetent charities who populated the pre-NDIS world are still here?
  1. I note that even where so-called activation policies are seen to be working, the endorsement is highly qualified: ’It should also be stressed that the implementation of activation strategies in OECD countries has generally involved significant changes in labour market policy institutions, legislation, and management principles, as well as in the design of specific programmes. This has taken time and often required experimentation and testing. But much remains to be done to provide systematic evaluations of co-ordinated policy packages that are the essence of activation strategies. Evaluations of such packages are complicated and much of the literature focuses instead on the effectiveness of specific measures on individuals’ labour market outcomes, thereby failing to capture potentially

sizeable interactions…In fact, the impact of individual programmes on aggregate employment or beneficiary caseloads is often fairly modest. This is not necessarily surprising and need not be discouraging given that most programmes are highly targeted, investment of public resources is limited and program durations are short. But it also suggests that there is scope for better co-ordination between policy domains. In part, such co-ordination can be achieved by customizing policy parameters of individual measures.’ (Journal of Labor Policy, p.16 of 20,[5])

  1. In point 4, the impact of individual employment is “often fairly modest”. I agree and, wonder how a Job Guarantee might help focus minds on true results; lasting employment. (See J52 2006,[6]) Until then, how can the NDIS defend employment providers as value-for-money? Further, why should I not conclude that ‘connected to disability’ means failure and unemployment for me as I am tended to by ‘nice’ but incompetent people who are being paid to say they are helping me find work, but in truth they are barely employable themselves.

  2. In their paper ‘Universal Welfare by Other Means’,[7] Adam Stebbing and Ben Spies-Butcher chart the rise of tax expenditures. The NGOs which the NDIS relies upon for so-called delivery of alleged employment support (given their charitable status) are part of the Commonwealth’s forgone revenue. Now, the NDIS wants to tell me that it is ‘value-for-money’ for me to give an employment allotment in a budget to a disability employment services provider. This means that more public money goes to a tax-exempt organisation which is likely to have a very marginal outcome record. To sustain the ‘value-for-money’ proposition my application should be judged against a true assessment of disability employment service providers. This is not only in terms of the individual funds directly spent in services with marginal results, but the value of forgone revenue to the Commonwealth budget, given providers’ charitable status. This will provide a true cost comparison. Furthermore, while the NDIA is legislatively required to ensure its own financial sustainability it arguably does this at the expense of both participants and the Commonwealth Treasury. There is nothing in the legislation requiring providers to be church or charitable entities. Yet, when I suggest something which does not the classic provider model, you will either say it is not closely enough linked to my disability, or that a value-for-money proposition is not met. Despite this, you will continue to support tax-exempt entities with direct funding, which is far more costly than what I propose. With what is cited and above I further dispute any claims you may make about the competence, value-for- money, or employment results produced by disability employment providers.

Equally, I would submit that the only reason these bodies are ‘linked to disability’

is that historically people with disabilities have been tied to the church and charitable sector, whether we have wanted this or not. With your rejection of my application the NDIS is using its Rules to enforce the same old wretched charity model on me. I object; see this paper for my justification: Adam David Johnston, The NDIS: The Mark of Pre-War or Post-War Public Policy Making?, hhttps://novaojs.newcastle.edu.au/hass/index.php/humanity/article/view/63. Your attention is also drawn to the paper and presentation I made to a Sydney University Conference on Research. (already submitted). It exposed the NDIS as a Scheme which aims (whether deliberately or not) to perpetuate dependence, disease and disability, to the benefit of the NDIA and its charitable partners, but certainly not to the benefit of me, my family or anyone else with a disability.

  1. The last academic paper is from Felix Driver.[8] While it concerns the Poor Laws in England, I note its discussion of perverse economic outcomes, growing public expense and increased central bureaucracy. It sounds very familiar right here and now and, I ask the NDIA and the Tribunal to reflect on why they may order me back to a failed, perverse and continually subsidised disability sector. What does that say about the NDIS and does it have a historical comparator? I submit that it doest and, that Felix Driver’s paper demonstrates this fact.

1ST SUPPLEMENTARY SUBMISSION

Employment was an agreed part of the plan, which was written with some reference to me (and it may have my name on it) but it was predominantly written by someone I never met. It has been made clear to me that Uniting are not the planners; they are just LACs and the planners are quite separate. This was not originally explained to me and, I submit the whole plan process is misleading, manipulative and deceptive by design.

Secondly, it was also known that I was trained in and sought work in the law. Due to the structure of the legal profession, only the Law Society of NSW provides such accreditation; it is not provided elsewhere by some alternative support mechanism, though the decision-maker seemed to suggest it was. My two[9] submissions[10] to the Productivity

Commission[11] argue the need for reform and the difficulties of employment for not just me, but many others. However, the Law Society is now acknowledging these issues by virtue of the establishment of its Diversity and Inclusion Committee,[12] the Business Case[13] and National Charter[14] (all attached) And, they have for many years collected ‘diversity data’ as part of an annual survey (which, when I have been offered the opportunity, I have completed; noting disability and employment status). They are clearly more readily acknowledging that disability (and other criteria) are relevant to employment. In this respect, the Law Society may be at a greater point of advancement than the NDIS itself. Lawyers Weekly[15] also regularly publishes articles on diversity and the law. (see example[16])

Therefore, I submit my employment and certain costs related to my employment clearly pertain to disability, a point the Law Society may now be more open to than the NDIS, given your internal decision. Indeed, from where I sit all elements of my life pertain to my disability; arguing that there is some neat dividing line between what is disability and what is not is quite nonsensical (and, notably pertaining to this division, the AAT recently made a rulings around nutrition,[17] pegs, feeding and breathing tubes,[18] which the Agency had cruelly dismissed as ‘health-related’). Regarding lawyers with disabilities Alexander J. Bolla Jr.[19] writes this in the US:

[11] See https://www.google.com.au/url?sa=t&rct=j&q=&esrc=s&source=web&cd=3&cad=rja&uact=8&ved=2ahUKEwjx0vrY5d3jAhVe7HMBHTfoCSsQFjACegQIAhAB&url=https%3A%2F%2Fwww.pc.gov.au%2Finquiries%2Fcomplet ed%2Faccess-justice%2Freport&usg=AOvVaw3sP4tBoPg9QDGFY6aH48rW [12] See https://www.lawsociety.com.au/advocacy-and-resources/advancement-of-women/diversity [13] See https://www.lawsociety.com.au/sites/default/files/2018-06/LS1856PolicyDICBusinessCase2018v2final.pdf [14] See https://www.lawcouncil.asn.au/files/web-pdf/1508-Charter-Diversity-and-Equality-Charter.pdf [15] See https://www.lawyersweekly.com.au/ [16] See https://www.lawyersweekly.com.au/biglaw/25922-global-law-firm-confirms-40-40-20-target [17] See https://www.disabilityservicesconsulting.com.au/resources/ndis-health-aat?rq=tribuna; see also https://www.disabilityservicesconsulting.com.au/resources/ndis-health-aat (related article) [18] See https://www.disabilityservicesconsulting.com.au/resources/coag-drc-health?rq=coag% [19] See https://scholarship.law.missouri.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=2746&context=mlr

  • The business case attached shows there are only 6% of lawyers who identify as disabled,

  • so I submit that much of what the US writer said then is true of Australia now and true for

  • me. Bolla’s so-called everybody’s problem of disabled persons’ employment is not helped

  • by NDIS inaction. Generally, the NDIS has such a narrow focus on the individual and

  • individual plans, that anything wider is not reasonably necessary unless you can directly

  • relate it to that individual.

  • However, this You Tube of a “Matter of Fact” program (ABC, May 2018, below) reveals

  • what the Agency should also be doing. Go to time index 17:43 of 21:53. The NDIS

  • apparently had mandates for participation, inclusion and community awareness, which it

  • seems to have done nothing about, having been fixated on individual plans.

  • https://youtu.be/qGdRkGgxOso

Page 18

I doubt anything much has changed since the airing of the program. The speakers then were saying that the NDIS had done nothing for inclusion or employment. If you keep using the same old bunch of charitable sector providers who pass for disability employment services, then I submit that nothing will ever change. This scenario also tells me a great deal about what the NDIS thinks of me. It further demonstrates what it takes to link spending to disability, if ‘having a disability employment agent’ is required to satisfy the last criterion.

If my presumption is correct, then it is not so much “ableism”[20] that is at issue but rather, an NDIS that wants to keep me disabled and knowing my place as dependent on the charitable sector. I submit that this characterisation of me, my abilities and ambitions is inherently discriminatory (and an insult), but it is the one the Agency is implicitly using. As such, I submit that these words apply to the Agency’s reasoning: ‘The soft bigotry of low expectations limits what we can achieve’ – Graeme Innes, ex-Disability Rights Commissioner, Australian Human Rights Commission. (Source: Making rights make sense - https://makingrightsmakesense.wordpress.com/2014/10/24/beware-the-soft-bigotry-of-low-expectations/)

Can you clarify exactly what the ‘connected to disability’ criterion looks like when it is fulfilled? Can you also justify my presumed necessity to re-enter the charity quagmire of lazy, inept and sometimes corrupt charity/NGO rent-seekers (see e.g. Submission re VET - https://www.pc.gov.au/__data/assets/pdf_file/0005/209750/subpfr356-human-services-identifying-reform-attachment2.pdf) to access employment supports funding?

I’ve written extensively on not only my loss of faith in the NGOs, but also argued that governments (and people generally) should not fund them, or provide tax relief to them (see e.g.: 2018-19 Pre-Budget Submission - https://consult.treasury.gov.au/budget-policy-division/2018-

[20] See https://www.tandfonline.com/doi/abs/10.1080/09687599.2014.923749

19-pre-budget- submissions/consultation/view respondent?show all questions=0&sort=submitted&order =ascending&_q__text=adj&uuId=519819481). The submission you already have makes clear they are not fit for purpose. Would a “real” insurance company fund charity except as a tax minimisation and ‘soft media’ strategy? I submit not, beyond the exceptions noted. The question then becomes why is the NDIS so dependent on charities and, how can that be serving my interests as a participant? And why should I accept this, if I am supposed to be a rights-bearing individual?

I had to this point thought it only reasonable to submit the professional accreditation fee, but noting the reasoning in McGarrigle (see Victorian Legal Aid - hhttps://www.legalaid.vic.gov.au/about-us/news/ndis-test-case-win-for-young-liam-mcgar-riggle-in-federal-court) the accreditation fee is only a part payment and, does not incorporate the membership fee. Following the reasoning and principle applied, I should submit both elements, which doubles the amount claimed. Even so, I argue that the time, money and expense to NDIS is more reasonable and necessary and linked to both my employment and disability than a disability employment services provider could ever be. Having dealt with several such providers, you quickly learn why most of them are in charity; there is no place for them and their deficit of competence in the real productive economy.

Finally, if you still insist the Law Society payment/s are still not to be funded, what would you permit, given my revulsion at handing the Bunyip Aristocracy of Charity more money, be it public money or my personal funds. All I would get is the same old lousy service. (Bunyip aristocracy - https://en.wikipedia.org/wiki/Bunyip_aristocracy)

*Please note that I am now employed part time. The NDIS can claim no credit for this.

Yours truly,

Adam Johnstone