NDIA Accountability Project

A Submission to the Joint Standing Committee into the National Disability Insurance Scheme - How long do we have to wait?

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12 March

2019

Howlongdowehavetowait? ASubmissiontotheJointStanding CommitteeintotheNational DisabilityInsuranceScheme

Abstract This submission has been structured to address what the writers submit reflect the core issues requiring change to the National Disability Insurance Scheme (NDIS). In addressing the scheme, the writers therefore in effect address matters associated with the National Disability Insurance Agency (NDIA), which they describe as the operational arm of the scheme. The submission details changes that the writers contend are required if the scheme is to do what it was intended to do. The submission emphasises what the writers submit represent the need for modifications to existing practices, or, alternatively, what they suggest represent replacements for some of the existing practices, or also the inclusion of additional practices where these may be required. As a starting point however, the writers firstly address the legislation and the rules that underpin the scheme.

                             How long does it take to make changes that

Thehave,submissiontime aftertitletimerelectsbeen identifiedwhat the writersas beingcontendrequired?represents an inertia in actually making changes. The submission raises the question of -

S u b m i s s i o n W r i t e r s : M a x J a c k s o n a n d M a r g a r e t R y a n

Table of Contents

Heading Page
The Focus of the SubmissionThe Issues 3
The legislation and the rules 3
The individual planning process 5
Saying what is meant and using plain English 7
Access to information 8
Breaching the defences of the NDIA 8
Staffing 9
The concept of customer satisfaction 10
The concept of innovation 12
The concept of flexibility 13
NDIS approved 13
Evidenced based 15
Consistency 15
The need for a truly national system 16
Why does it take forever? 17
The RecommendationsMinisterial responsibility 19
Recommendation 1 21
Recommendation 2 21
Recommendation 3 21
Recommendation 4 22
Recommendation 5 22
Recommendation 6 22
Recommendation 7 22
Recommendation 8 23
Recommendation 9 23
Recommendation 10 23
Recommendation 11 23
About the RecommendationAuthors 12
Submission Writers: Max Jackson and Margaret Ryan Submission_________________________________________________________________________________________Date: 12 March 2019 2

THE FOCUS OF THE SUBMISSION

  1. This submission does not seek to address those aspects of the NDIS that may be considered as ‘working’. Instead, the submission addresses those factors that the writers have assessed as not working to the advantage of the system and hence Participants.

  2. The rational for this approach is based on the contention that no matter how effective parts of a system might be, in order for the system to work as intended it is essential that the whole system is efficient and effective.

  3. The submission has been structured to address what the writers submit reflect the core issues requiring change. The change may be by way of modification of existing practices, replacement of some existing practices or the inclusion of some additional practices. As a starting point however, the writers contend that any consideration must firstly address the legislation and the rules.

  4. The structure of the submission has been deliberately contained in terms of length as well as the breadth of the issues addressed. In doing so the submission addresses what the writers contend represent the critical issues.

  5. In identifying each of the issues the writers explain what they consider are the deficits, how the issue is not working to the advantage of the system, and any particular inefficiencies. The submission then identifies specificTHE ISSUESrecommendations related to each of the issues.

THE LEGISLATION AND THE RULES

  1. The National Disability Insurance Scheme Act 2013 (the Act) underpins the NDIS. This piece of legislation is supplemented by a legislated set of Rules.

  2. Significantly, the Act in Sections 3 and 4 sets out the Objectives of the Act (s.3) and the General Principles guiding actions under the Act (s.4). The writers point to these two sections because they argue that these two sections establish the parameters under which the scheme is required to function.

  3. However, despite the clarity of purpose as articulated in these two sections, the writers contend that based on their experience in assisting NDIS Participants and their families, many of the objects and principles are ignored or glossed over by the NDIA.

  4. TheyActuarialsubmitassessmentthat ratherandthanfinancialplacingsustainability.the Participant first, as is dictated by the objects and principles, the NDIA is more often than not driven by s.6A of the Act - As such, the writers contend that often the driver in decision-making is how funding allocations to individual Participants might be limited, as opposed to whether the funds that are allocated truly meet the individual’s reasonable and necessary needs.

  5. Certainly, while the writers acknowledge that the expenditure of public funds must be closely monitored and that there are budget imperatives, they see little

‘supporting independence and social and economic participation’, ‘exercise of choice and control’,point in an Act of Parliament‘provision expressingof high requirements quality and innovative such as -supports’, ‘certainty’, ‘be supported in their dealings or theand communication with the Agency,’or promoting the or having or to if these are relegated to after-thoughts.

  1. Surely these requirements must be considered as being sacrosanct. Instead, the writers submit that the NDIA tends to adopt an approach where funding minimisation is the first priority.

  2. As such, the writers submit that the NDIA must rethink how it applies the Act and ensure that both the letter and intent of the Act’s objectives and principles are applied and met.

  3. Indeed, on the matter of“Costs financialare onesustainability, side of the theequationwriters- benefitsnote thereferencejust as onimportant.”page 6 of the Productivity Commission Costs Study Report of October 2017, where it states that -

  4. In allocating funds to individual NDIS Participants, the writers therefore urge that the NDIA takes full account of ensuring that costs are balanced by the benefits to the individual recipient.

  5. The writers acknowledge that the NDIS is large and complex. However, complexity can be expanded or minimised by the rules that underpin such a scheme, by the way the rules are applied, and the bureaucratic impositions imposed by those who manage the Scheme.

  6. The writers further submit that the Scheme is made unnecessarily complex by the number and complexity of the ‘Rules’ that have been established to support its operation. Yet, the operational parameters are not constrained simply to a set of Rules. There are also Guidelines, Practice Guides and Facts Sheets.

  7. The writers therefore argue that this presents as a confusing array that hinders rather than facilitates the implementation of the Scheme. Yet strangely, despite the proliferation of Rules and Guidelines and the like, there are gaps whereby there is a lack of clarity as to what is required on some matters.

  8. An example of this relates to the matter of support coordination. The writers have heard various views expressed regarding support coordination, where one such view has inferred that it is a mandatory requirement. However, a perusal of all of the relevant documentation fails to elicit any clarity on this matter.

  9. The writers contend that the system has become overly bureaucratised and that those responsible for its development seem to have become obsessed with finite detail to the exclusion of making the system user friendly.

  10. As an example of the over-burden of ‘rules’ and ‘guidelines’ the following are provided:

  • redacted
  • redacted [F2018L00629]
  • National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018 [F2018L00631]

National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 [F2018L00632] National Disability Insurance Scheme (Specialist Disability Accommodation Conditions) Rules 2018 [F2018L00627]

  • redacted Amendment (Specialist Disability Accommodation – Participating Jurisdictions) Rule 2018 [F2018L00626]
  • redacted NDIS (Quality and Safeguards Commission and Other Measures) Transitional Rules 2018[F2018L00630]
  • redacted Management and Reportable Incidents) Rules 2018 [F2018L00633]
  • redacted Complaints Management and Resolution) Rules 2018 [F2018L00634]
  • redacted Provider Definition) Rule 2018 [F2018L00628]
  • redacted Protection and Disclosure of Information - Commissioner) Rules 2018 [F2018L00635]

National Disability Insurance Scheme (Practice Standards – Worker Screening) Rules 2018 [F2018L00887]

The National Disability Insurance Scheme (Complaints Management and Resolution) Rules 2018 require the Commission and NDIS providers to have proper regard to procedural fairness requirements in managing complaints.

National Disability Insurance Scheme (Approved Quality Auditors Scheme) Guidelines 2018 [F2018N00114]

National Disability Insurance Scheme (Quality Indicators) Guidelines 2018 (Notifiable Instrument) [F2018N00041]

The National Disability Insurance Scheme (Quality Indicators) Guidelines 2018 provide the detailed indicators for each of the NDIS Practice Standards. They should be read alongside the National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018.

Specialist Disability Accommodation (SDA) Design Category Requirements Guidelines NDIS Quality and Safeguarding Framework Intergovernmental Agreement on Nationally Consistent Worker Screening for the NDIS Procedures for determining breaches of the Australian Public Service Code ofredacted person planningand for processdetermining sanctions

An oft-articulated criticism of the NDIA is the process adopted in relation to the establishment of individual plans for Participants, and more importantly, the annual review of such plans.

Certainly the writers do not dispute the need for initial plans to be established in order to identify reasonable and necessary supports and the funds to be allocated to meet these support needs. Nonetheless, efficiency in planning

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should always be a first priority. The initial planning process for an individual Participant is to a large extent driven by three considerations. Firstly, the skill and experience of the planner. Secondly, the support provided by the NDIA by way of information prior to a planning meeting. Thirdly, the information the Participant brings to the planning meeting.

In relation to the skill of the planner it seems reasonable to conclude that there is a wide variation. Given that the initial planning process provides the basis on which funding will be determined, it stands to reason that each and every planner must be skilled and knowledgeable in the task of planning. The writers suggest that this is not the case and there are significant variations across planners.

Given that the scheme has now been functioning for several years and that thousands of plans have been created, the writers suggest that there must exist a valuable data base from which an assessment can be made as to strengths and deficiencies in the planning process and as to those planners who are able to meet their task as opposed to those who have not been able to meet their task. Second best in the appointment and allocation of planners must not be an option.

On the matter of pre-planning information provided to Participants and their families, the writers contend that the information available is confusing and tends to represent what might be described as an “over kill”. “, get in the game”.

In many ways, the NDIS has spawned a proliferation of entities seeking to This has meant that such agencies promote their own businesses and create their own documentation associated with the planning process. Therefore, the variation that exists is confusing to anyone who seeks to access information as preparation for a planning meeting. Inefficiency in this area reigns supreme. Clearly, there should be a single document that identifies what information is required as preparation for attending a planning meeting.

The third element associated with planner is that of the Participant and his or her family. It cannot be assumed that each and every person attending a planning meeting will necessarily arrive with the requisite information. Therefore, efficiency dictates that contact should be made with the Participant and/or his or her family prior to the planning meeting in order to ensure that the required information will be available when the Participant attends.

A further significant issue in relation to planning, and one that has been frequently identified over a significant period of time is that of the practice of annual reviews. While the writers acknowledge that an individual Participant’s needs can change over time, and that such changes can have implications for funding, nonetheless the fact that every NDIS Participant has been assessed as having a permanent and significant disability can reasonably suggest that any changes, particularly over a 12-month period, are likely to be minimal.

The writers contend that the imposition of an annual review is inefficient and for many participants is unnecessary. As such, the writers therefore further contend that a more flexible approach to reviews must be adopted and that such

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adoption must include a greater level of efficiency in those cases where a Participant may seek or require a review to be undertaken in less than 12 months.

New Participant30. While the writers acknowledge that the NDIA has announced changes to the planning process and identified it as a Pathway, nonetheless, they contend that there are a number of concerns as to the content of the advice provided.Saying31. Thesewhat isconcernsmeant andare outlinedusing plainin theEnglishsection below.

  1. As noted above, while the writers acknowledge that the NDIA has been and is continuing to establish changes to particular processes, they do express concerns including, for example, content and implementation times lines.

Participant Pathway33. To illustrate the writers’ concerns they point to the evidence as contained in the changes announced to the Reform.

“Between February34. InandrelationJune 2019”.to the implementation time lines of the proposed changes, the writers ask - Why is it necessary to define time lines as, for example,

The writers contend that once a change has been determined then the reasonable assumptionefficiencyshould be that it is implemented from a particular date as opposed to over a designated time period. As noted elsewhere in this submission the concept of has been highlighted. The NDIA must become more efficient and implementing changed processes would represent a good start. Thus, in terms of announcing when a change will be implemented why not simply announce that the particular change will take effect from a single nominated date.

de-bureaucratise35. Also as mentioned elsewhere in this submission, it is necessary that Participant the NDIA seekPathwayto the way it writes its process guidelines and the advice conveyed to Participants and others. Again, using the example of the Reform, the writers express confusion as to why the authors of such documents do not use simple, uncluttered, plain English albeit language that actual tells the reader what is meant.

skilling both Local Area Coordinators and planners to ensure36. Thethey followingcan supportquotationsa high qualityfrom therecent advicerefor you,highlightsyour familiesthe aboveand carers.“ For exampleLocal- “UpArea Coordinators and planners will be provided with skills that will improve the planning These changes will- -improveWhy not both- “ your experience with NDIS staff and the outcomes you are able to achieve.” process.“changesOr,wanotherimproveexamplethe planning” - Why not - “These process.” The writers contend that by seeking to use flowery-marketing type language this serves no purpose and can annoy readers who feel they are being “conned”.37. A third issue of concern isimplementationwhat can be described as a failure to provide full information. For example the advice provided states that in addition to the initial plan meeting a “plan meeting” will now be established. A

Submission Writers: Max Jackson and Margaret Ryan Submission_________________________________________________________________________________________Date: 12 March 2019 7

  • criticism in relation to planning is that the Participant and/or faithis representative is not given any opportunity to negotiate the funds that have been allocated to the plan.
  • Theplanfundsimplementationas decided aremeetingin essence presented as a accompli. The advice provided forWillthethererevisedbe anprocessopportunitystill leavesfor a Participantthis up in theto air.negotiateGiven histhereor ishertofundsbe a and if not why has this not be post the initial planning meeting, the question arises - stated? Surely, give a change to the process has been announced why not be absolutely clear?

  1. A fourth issue associated with the announced pathway reform relates to the adding of another layer. Local Area Coordinators will now become part the planning process by joining with the planner in meeting with the Participant. The writers argue that this represents a to heavy approach and could be overwhelming for the Participant.

  2. The writers make the point that less is often more and therefore the NDIA must be more alert to not making changes that although intended toAccess improve,to informationactually add more clutter.

  3. The writers are aware of instances where a Participant and/or his family, either as nominees or guardians, have been denied access toshop”particular information held by the NDIA in relation to the individual Participant. The writers express concern that the NDIA appears to operate as a “closed whereby particular information as relating to an individual is not made available to that individual and/or his or her family.

  4. The writers suggest that it is incomprehensible that in this day and age, where information is considered to be such a valuable asset, that an organisation like the NDIA would refuse access. One reason given as to why access is refused is because staff use the individual file as a means of conveying information to each other. The writers suggest that the NDIA’s approach to the withholding of information is contrary to the requirements in other areas. For example, medical records.

  5. The writers contend that once a person becomes an NDIS Participant, and also where the Participant has nominated a person to represent him or her, or where the Participant has a legally appointed guardian, then access to all information held by the NDIA in relation to that person must be made available to the person,Breachinghis ortheherdefencesnomineeoforthehisNDIAguardian.

                             "siege"

  6. The writers express significant concern at what they perceive as an organisation that operates under a mentality“. Given the size and complexity of the NDIA, and indeed its intent, the writers contend that it is reasonable to argue that the organisation should be open and transparent. An underlying tenet of openness and transparency is accessibility.

  1. Two experiences of the writers have demonstrated the failure, or is it refusal, of the NDIS/NDIA to engage. One of the writers wrote to the Chair of the NDIS over 12 months ago. Not only has no response been provided, but also the writer has received no acknowledgement of his correspondence.

  2. The Chief Executive Officer (CEO) of the NDIA seems to be more protected than was Bin Laden when the Americans were seeking him. Similarly, the CEO has failed to respond to or even acknowledge correspondence sent to him by the writers. He consistently failed to take calls from radio presenters when the NDIA was the subject of discussion, and he failed to participate in a session of the ABC’s Q&A program when the subject of the program was the NDIS.

  3. The writers therefore raise the question as to whether, notwithstanding the financial background and acumen of the NDIA CEO, whether or not his obvious refusal to engage his public is because he lacks any significant knowledge about disability and the needs of people with severe and permanent disabilities. Indeed, the writers raise the question as to whether the NDIA’s focus on financialStaffingconsiderations is now driven by the CEO’s background and experience.

  4. This submission contends that notwithstanding the importance of the legislation and the budget allocated to the NDIS, the NDIA staff represent the core of the system.

  5. Despite the oft-heard call concerning alleged staffing cuts and staffing caps, the fact remains that the NDIA is a huge bureaucracy. It has a monolith of a structure with there being countless management levels and a multitude of position types.

  6. Additional to staff employed as NDIA employees and therefore public servants, the NDIA also contracts out various functions including consultants, information provision, linkages and capacity building. Indeed the public record shows that there is no small amount in terms of budget allocated to contractors.

  7. While the writers acknowledge that a large bureaucracy requires a structure that not only provides the direct service but is also capable of supporting itself, nonetheless in terms of the reason why the NDIS exists the critical staff must be considered as being those who have direct contact with potential Participants and Participants, and those that are in key decision-making positions.

  8. Because of the importance of individual planning and the ultimate relationship to the allocation of individual funds, clearly as a first responder NDIA planners have a critical role to play. Because the planning process allows for appeal, then NDIA staff who have responsibility for reviewing appeals must also be considered to have a significant role.

  9. In terms of a less hands-on but nonetheless equally important role, there are of course those staff who liaise with Participants and their nominees on such matters as reports, access to the portals, and so forth. On this matter, however, the writers are aware that although the NDIA has established a call centre 1800

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number, the call centre personnel provide limited information and will not put a caller through to an actual person.

Although the NDIA may have had the best of intentions in establishing a call centre, this modern phenomenon of using a call centre as a first response does not necessarily establish good customer service, and in fact can exacerbate frustration.

In terms of staff and their relationship to NDIA participants, the writers submit that it is essential that all staff have a core set of attributes that enable them to undertake the demands of their position. In terms of those responsible for establishing plans, this core set of skills should include qualifications and knowledge of disability, experience in planning, knowledge of the planning process, and an empathy in dealing with people with disabilities and their families, particularly given that on first contact these people are likely to be anxious and unsure.

In terms of those NDIA staff responsible for reviewing appeals, again, these staff should have knowledge, qualifications and experience in disability. Further, they should have research skills in order to be able to research current best practice and what might exist in terms of innovative supports for Participants.

In terms of the various management lines within the NDIA, as with any business these staff must know their business, and must have the ability to manage lines of staff. deals“

Further, managers must adhere to the rules established by the NDIS and not seek as a matter of convenience to “do with particular entities. As”didan examplea deal“ of this, the writers were engaged with a senior NDIA manager who was reluctant to pursue the matter of service agreements and instead with Victoria’s Department of Health and Human Services in order to avoid requiring that department to establish service agreements with NDIS Participants in their care.

The writers are aware that staffing a new enterprise, and particularly one as widespread as the NDIA, is no small task. They are equally aware that the pool of potential employees may also be limited. Notwithstanding this,brokenhowever,system”the writers express concern that there are examples where staff who were operating in what was described by the Productivity Commission as “a transferred to the NDIA and in some ways continued their previous unsatisfactory practices.

Given that the NDIS has been established as a nation-wide system the writers submit that it is therefore essential that its processes and practices as applied by its staff are consistent and standardised across the system. Evidence as related to planning, reviews, information provision and the application of the legislation and the rules suggests that there are wide variations in the way in which NDIAThe conceptstaff dealof customerwith NDISsatisfactionParticipants.

Submission Writers: Max Jackson and Margaret Ryan

Date: 12 March 2019 10

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Customer Satisfaction Surveys

  1. Customer satisfaction surveys are often promoted as a market research activity designed to demonstrate the degree to which the entity’s customers consider the entity is or is not meeting their needs.

  2. The NDIA introduced customer or Participant satisfaction surveys from when its commencement and have continued with them ever since. In addition to overall surveys, significantly, the NDIA has been conducting quarterly surveys in relation to the planning process as applying to individual applicants and Participants.

  3. The most recent participant satisfaction survey as related to the planning process was submitted to COAG in December 2018.

  4. Survey reports have generally been promoted as reflecting that the system is performing to a high level and is regarded by its consumers as a valued service.

  5. The writers, however, highlight the following concerns regarding dependence on consumer• satisfaction surveys as the measure of how well the Scheme is meeting people’s needs.

  • The number and type of persons answering the survey and whether it is
  • representative of the full range of NDIS Participants.
  • The questions asked
  • Inadequate response options
  • Leading questions
  • Compound questions
  • Ambiguous questions
  • Open-ended questions
  • Rating level inconsistency
  • Assuming prior knowledge Whether or not it is actually the Participant who completes the survey
  • Whether accurate, honest answers are given – or are people frightened they
  • are going to lose the service even if they are dissatisfied The analysis of the results The application of any analysis

  1. The writers also contend that whatever the satisfaction percentage the dissatisfaction rate must not be ignored.

  2. In relation to the above, the writers note the Participant satisfaction report as provided to COAG in December 2018. The table below has been extracted from page 23 of that report. As can be noted the highest satisfaction figure for any particular question was 93% while the lowest figures was 75%.

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Given that that the report as noted above surveyed only 548 Participants, the figures provided in the 2017/2018-second quarter report to COAG provide some insight into the above.

Significantly, as at 31 December 2018, 244,653 eligible people with disabilities had joined the NDIS representing a 17% increase over the prior quarter and that in January 2019, the quarter of a million mark was reached. And further, during the quarter, an additional 31,026 had plans completed.

Therefore, it is important to translate the 7% dissatisfaction into a total Participant figure. While the figure of 25% dissatisfaction must also be translated into a total Participant figure.
Based on the cited figure of 250,000 Participants as at whatJanuaryis in my2019,plan.”7% translates into approximately 17,000 Participants while 25% translates into excess of 60,000 Participants who do not agree they - “Know

####### These are not small numbers. Thus, the writers suggest that the greatest of caution must be exercised when analysing and using survey figures based onThe conceptsmall samples,of innovationeven when promoted as being statically legitimate.

######## Innovation, as a concept, is required by s. 3 (g) of the NDIS Act.

######### Dr Helen Nugent AO, Chairman of the National Disability Insurance Agency in her Chairman’s message onto pagebuilding4 of athemarketNDIA of2017-18innovativeAnnualproviders”.Report stated that among the five key initiatives to be addressed by the NDIA includes the NDIA being - “committed The writers repeat - A market of innovative providers. innovative providers innovative

########## This submission contends that it is not possible to have if the NDIA does not fund supports. innovation

############ Indeed, it can be too easy to bandy around a word like without giving true account as to its meaning and intent. And yet, funding individual NDIS participants whose reasonable and necessary needs require an innovative approach is not supported.

################ This submission contends that innovation must be accepted as being about a new method, a new idea, a new product, a new technological innovation or a new or different way of tackling a complex problem.

Submission Writers: Max Jackson and Margaret Ryan Submission_________________________________________________________________________________________Date: 12 March 2019 12

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Individual NDIS Participants who present with multiple and complex disabilities

and challenging behaviours present as having a complex problem. A complex problem requiring innovative supports applied in a new or different way.

Case evidence suggests that the NDIA consistently rejects requests for funding innovative supports. The only conclusion must be that the NDIA still have a very long way to go in putting into practice what the Chair says is the NDIA’s commitment.

The NDIA must be bold and truly embrace the concept of innovation; otherwise there will be little advancement in service options available to people withThe conceptdisabilitiesof flexibilityand in particular those with complex needs.

A formerneed toAustralianbe as nimblePrimeandMinisteragile as weanpossiblyaddresscan.at anWe Australianneed to seeAmericanvolatility Leadershipand change andDialoguedisruptionGala asDinneropportunities,in Augustnot2015as threats.”promoted the thought that - “We

The writers submit that rather demonstrating nimbleness, agility and flexibility and rather than taking up the challenge of being bold and grasping opportunities when they present, the NDIS/NDIA represents the worst features ofureaucracy. There is a slowness to act, rigidity in process and, despite a myopic application of the rules, a lack of consistency still prevails.

The writers contend that greater flexibility in application of the system is required. There must be a willingness to experiment and to be innovativeneed and notmoreto simply apply the old public service trick of more consultations, more meetings, more interim reports, more pilot studies and the catch-cry - ‘We time’. more principle

Sadly, the is alive well when it comes to the NDIS. Yet, moreNDIS approvedmeans less - less action, less change and less innovation.

The writers suggest that in many ways the NDIS operates in a way that can be described like a state control centre equivalent to those countries who exercise state control of industries and businesses and indeed their populations.

This view is based on the fact that only those providers, no matter what type of service is provided, must be approved by the NDIS unless the Participant self- manages his or her funds or has a plan nominee.

As such, a Participant whose funds are wholly or in part managed by a registered plan management provider or whose funds are managed wholly or in part by the Agency can only use their funds to purchase from an NDIS approved provider.

Not only does this approach create a two-tired model associated with provider registration but it also creates a dichotomy in relation to Participant choice and control. That is, while there is choice and control in relation to how a Participant

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may elect to have his funds managed this has a direct impact on the choice and control as to the providers he or she might prefer to access.

The writers contend that there are a number of factors associated with service choice and service provision as they relate to the broad range of needs evidenced by NDIS Participants.

Firstly, there is a multitude of services that may be available to enable a Participant to meet the requirements of the NDIS as in pursuing his goals, objectives and aspirations, increasing his or her social and economic participation and developing his or her capacity to actively take part in the community.

And further being able to access supports that are related to the participant’s disability and likely to be effective and beneficial to the participant.

And also being able to access supports delivered by providers where such supports constitute therapeutic supports and where such supports can be directly considered to represent behavioural supports.

Secondly, supports and hence the service entities who provide them, must also be considered in the context of innovation and the importance of the NDIS funding innovative supports that can be applied to individuals whose needs are complex.

Innovation may not necessarily be available through providers that are traditionally approved by the NDIS.

Yet, non-traditional providers may be the very types of services or entities who may not bother to seek registration through the NDIS.

By way of example, the writers suggest that for some Participants beauty therapy provided by the beauty saloon or hairdresser in any High Street in any suburb or town in Australia may be best placed to provide such services. Yet, many such outlets may be unlikely to bother becoming NDIS approved. This is but one example. There are many more including private gymnasiums, swim centres or recreation providers.

The writers therefore submit that if the NDIS is serious about individual Participant choice and control then this must be translated into opportunity.

Opportunity must be accepted as being related to the nature and range of services that can be accessed, and therefore not limited by bureaucracy.

Opportunity must also be accepted as constituting flexibility in the way funds can be spent.

And, opportunity must also be accepted as representing services that might be considered as non-traditional or services or supports that might be perceived by some as passé or even basic.

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evidence based’

The NDIS approval process has the potential to create a closed shop.

The NDIS approval process has the potential to create a in that it suits the big providers who for long have been in the game or who have the funds and bureaucratic structures to meet the cost of being approved and registered.

The NDIS approval process has its roots in history,

or certainly in Victoria as a result of the 2006 Disability Act, in that it created service provider registration and auditing, supposedly as a quality and a safeguarding measure. Yet, abuse and neglect in Victoria’s disability services has been clearly evidenced by the Parliamentary Committee Report and Ombudsman Reports.

Regulation of an industry provides no guarantee yet can restrict choice.

After all, people chose to use and unregulated Uber over regulated taxis.

If the NDIS is to truly meet its guiding principle and objectives it must cease operating as a control centre.

It must loosen its control on the market place andEvidenceceasebasedthe limiting the opportunities available to Participants.

‘evidence based’

The NDIA promotes the need for what is described as support for particular funding requests.

####### By contrast, and despite this requirement, the NDIA in rejecting particular funding requests frequently fails to provide evidence to support such rejections. Instead, the NDIA tends to rely on simply citing s. 34. (1) of the NDIS Act by arguing that the particular sub-sections have not been met. This is done without any explanation being provided as to how or why.

######## When considered in the context of complex needs and individuals and the need to apply the concept of innovation, providing categorical and indisputable evidence can be tricky.

######### As an example, there have been a number of cases appealing the rejection of massage therapy as a legitimate and necessary support for particulate participants.

########## For a provider of massage therapy to be registered as an NDIS provider however, a qualified physiotherapist must be registered with the service. Therefore, what is now accepted as a legitimate therapy and for which legitimateevidencequalifications are available it is not accepted as an innovative support because the NDIA simply rejects massage therapy as being legitimate because the does not support it. to building a market of

innovative providers”

########### This submission argues that if the NDIA is “committed as promoted by the NDIA Chairman, then there must be a willingness to fund innovative supports. There must be willingness to trial innovation without the Participants having to go through the hoops of providing definitive longitudinal evidence.

Submission Writers: Max Jackson and Margaret Ryan

Date: 12 March 2019

Consistency

  1. The writers acknowledge that the scheme, by design and necessity, must meet its objective of determining the reasonable and necessary needs of each and every individual Participant and funds must be allocated accordingly.

  2. This must not be taken to suggest however, that consistency in decision-making and the application of the concepts of fairness and equality should not also prevail.

  3. Cases that have been appealed for review and that have been taken to the Administrative Appeal Tribunal provide some evidence that that decision making about funding is highly questionable.

NDIS Price Guide for New South Wales, Queensland, Victoria, Tasmania,

  1. The NDIS has produced a number of Price Guides. One example is the which is valid from 1 February 2019.

  2. There are a number of other price guides and additionally there are now three levels of price controls consisting of Level 1 – for standard supports; Level 2 – for high intensity supports; and Level 3 – for very high intensity supports.

  3. Thus, it can be argued that the NDIS is continuing to improve its pricing and hence funding allocations.

  4. However, despite this, the writers of this submission contend that despite the multitude of documents as concerning pricing, the NDIA planners and reviewersThe needstillfordemonstratea truly nationalsignificantsysteminconsistency in the allocation of funds.

  5. The NDIS was allegedly established as a national system, as in Australia-wide. A major intent in establishing such a system was to do away with the multitude of state and territoryHowbasednationalsystemsis theandsystem?instead to create a single system. Several years after its establishment and fast approaching its full rollout, the question must be asked -

  6. As an example, a cursory perusal in relation to pricing shows that there are a multitude of price guides, each established for different parts of Australia. In Victoria, special deals were done between the State government and the union covering workers in state-run residential services to move the services to the non-government sector, hence raising the question of the management independence of those agencies accepting the State employees on secondment.

  7. As noted previously in this submission, a deal was also done between the NDIA and Victoria’s Department of Health and Human Services regarding the non-use of service agreements for NDIS Participants in the department’s care.

  8. Despite the establishment of the Quality and Safeguards Commission, and the role and authority of this entity, questions still remain as to what if any role state-based Ombudsman, state-based Public Advocates and state-based Disability Commissioners may play following the full roll-out. On the above

matter

the writers note that the Commission will only apply to NDIS Participants, thus leaving many thousands of people with a disability who are not NDIS Participants in a world of uncertainty.

This of course raises the question of the application of Chapter 2 of the NDIS Act and how widespread might be the agency’s support for people with a disability who are not Participants.

Notwithstanding the unknowns about Chapter 2 regarding the broad range of people with disabilities who are non-NDIS Participants, the writers also question where the next National Disability Strategy and National Disability Agreement sit in relation to the NDIS as a system and the NDIA as its operational arm.

Notwithstanding the intent of the NDIS and the well-chosen words of the Productivity Commission in promoting its establishment, there are some realities that cannot be ignored. Significantly, kind” The NDIS has become somewhat of a political football, whereby states and territories have sought to protect their interests, where funding and “in contributions have distorted the debate, and where the decision-making processes and structures have been convoluted and elongated.

The writers therefore submit in the strongest possibleWhetherterms orthatnotif thethe NDISStandingwill everCommitteebe trulyistotallyto havenational?any import or Whetherinfluence,orthennot theit muststatesaddressand territoriesthe issuewillof authority.release theirThegripquestionsoff the disabilityasked bypie?the writers are - And -

Why does it take forever?

Albeit the NDIS is currently being fully rolled-out across Australia, nonetheless, it first came into being as an operational system and in trial sites across Australia in 2013/14. The full roll out was commenced in 2016. sites’

During its initial stages a number of what were know as ‘trial were created across Australia. In Victoria the site was in the Barwon region. out’

The writers understand that, at least in part, the intent of the trial sites was to in some way test the system’s introduction with the aim of ‘ironing any problems and establishing system-wide processes and practices.

Prior to, and since the introduction of the NDIS, there have been many reports, reviews and assessments that have addressed the systems introduction and operations.

As a result of such activities, a great many comments have been made as to what needs to occur in order to make the system more efficient, effective and user friendly.

  • Examples of such reviews and reports include:
    • Disability Care and Support Inquiry Report - 2011
    • NDIS Annual reports
    • NDIS Quarterly reports
  • NDIS Corporate plans
  • Independent Advisory Council End of Year Update (December 2015)
  • NDIS Progress Report: Year 1 (July 2014)
  • KPMG interim report: Review of the optimal approach to transition to the full
  • NDIS (July 2014)
  • Capability Review Report (February 2014)
  • NDIS Progress Report: Year 2 (July 2015)
  • Insurance principles and financial sustainability manual - November 2016
  • Insurance principles and financial sustainability manual - November 2016 Executive remuneration 2017-18
  • National Disability Insurance Scheme (NDIS) Cost - Productivity Commission Study Report - October 2017 Evaluation of the NDIS Final Report: Kostas Mavromaras, Megan Moskos, Stephane Mahuteau, Linda Isherwood with Alison Goode, Helen Walton,National LlaineyDisabilitySmith,InsuranceZhangSchemeWei andActJoanne2013 Flavel - February 2018 Commonwealth Ombudsman -Administration of reviews under the Senate Order 13 for Entity Contracts (February-Report2019)On The National Disability Insurance Agency’s Handling Of Reviews - May 2018
  1. In addition there have been a number of Reports of completed inquiries by the Federal Joint Standing Committee on the NDIS. The most recent ones include the following:
  • NDIS ICT Systems - 21/12/2018
  • Provision of assistive technology under the NDIS - 12/12/2018
  • Market readiness for provision of services under the NDIS - 20/9/2018
  • The provision of hearings services under the NDIS - 2/6/2018 Transitional arrangements for the NDIS - 15/2/2018
  • Provision of services under the NDIS Early Childhood Early Intervention Approach - 7/12/2017 Provision of services under the NDIS for people with psycho-social disabilities related to mental health conditions - 15/8/2017
  1. Based on the outcomes and many recommendations established through such activities, the writers of this submission suggest that it is most unlikely that anything new will be identified as a result of this current review being conducted by the Standing Committee.
  2. Or, in other words, the writers suggest that those with the authority to make changes to improve the system should already know what is required.
  3. Yet, here we go again, yet another review, another request for submissions and yet another request to tell theWhenpowerswillthatwhatbeneedswhattochangeshappenneedactuallytobehappen?made.
  4. Thus, the question must be - How long do we have to wait?
  5. Hence the title of this submission - or, in other words when will what needs to be done, be actually done?

Page 19

Submission Details

Writers: Max Jackson and Margaret Ryan

Submission: _________________________________________________________________________

Date: 12 March 2019

Content:

  1. The writers submit that it quite ridiculous how long change takes to be implemented. It is an indictment on the politicians and the Parliament, on the NDIS Board and the NDIA management.

  2. Clearly, there are some obvious changes that need to be made.

  3. The failure to implement the changes that will improve the system is nothing short of bureaucratic incompetence.

                    respected for their worth and

  4. This failure makes a mockery of the principle that requires people with disabilities to be dignity.

141.MinisterialIt is timeresponsibilityto act and act now.

  1. When the NDIS was created it was promoted as the most significant initiative to be ever established for people with disabilities. The system was heralded as the biggest thing to occur since the creation of Medicare and was marketed as being transformational for some 460,000 Australian with disabilities.

  2. The system was initiated and introduced by the then Labor Government. The Minister responsible for guiding the passage of the Bill had been in the role for some five years albeit the name of the portfolio was changed slightly.

  3. The table below highlights Prime Ministerial and Ministerial responsibilities over the period prior to and since the establishment of the NDIS.

Minister PortfolioFamilies, Housing, Community
Prime Party
Period in the
role
Jenny Families, Community Services
Macklin and Indigenous Affairs
Rudd Social Services
Kevin Social Services
Abbot Liberal
Andrews
18/9/2013
Scott Social Services
Turnbull Liberal
Morrison
23/12/2014
Christian Social Services
Turnbull Liberal
Porter
21/9/2015
Dan Tehan Families and Social Services
Turnbull Liberal
Appointed:
20/12/2017
Paul
Morrison Liberal
Incumbent
Fletcher

  1. The above table shows that other than the latter part of Ms Macklin’s stewardship when the creation of the system was being pursued, since late 2013 to the current time, a period of only approximately five and half years, there have been six Ministers who have had responsibility for the NDIS.

  2. Each of these Ministers, as was the case for Ms Macklin, has a broad portfolio responsibility. The writers do note however, that from December 2011 to September 2013 Ms Macklin’s portfolio included Disability Reform. From February 2018 until August 2018 Ms Prentice, a National Party Member, was

designated as Assistant Minister for Disability Reform

She was replaced in late August 2018 by Ms Henderson, a Liberal Party Member as Assistant Minister for Disability Reform, and who is the now incumbent.

So what might these details tell us?

The writers submit that there are three glaring issues that must not be ignored.

The first is that despite the promotion given to the NDIS and its indisputable significance, never has it been allocated its own separate and distinct ministerial portfolio. The writers argue that being such a major initiative, and certainly at least in the initial years of its introduction, this should have occurred.

The second matter is that over the few short years since the system was introduced, and from September 2013, there have been five Ministers and two Assistant Ministers allocated responsibility for guidingHow canthesuchsystem.a majorTheinitiativewriters beagainproperlyemphasisebedded-downthat it hasandonlyguidedbeenat somethe politicalfive andlevela halfwithyearssuch anda turnover?yet the portfolio has been a revolving door. They ask -

Consolidation of the system needs stability at the very top.

The third, and argued by the writers as the most significant issue, is that of the authority and accountability of the Minister responsible for the NDIS.

On this matter, the writers contend that unless the Minister takes the lead and actually initiates and directs the changes that have been identified, promoted and spoken of for some time, little will change.

The writers suggest, in the strongest possible way, that all the recommendations that have come out of the Productivity Commission, the many suggestions made by service users, providers and advocates and the ongoing work of the Standing Committee will continue to count for nought unless the Minister actually takes the lead.

  • Why does it take forever and will the Minister continue to sit on his hands?

So they again ask

THE RECOMMENDATIONS

  1. Based on the matters addressed in the Issues Section of this submission, the writersRecommendationprovide the 1:followingLegislationrecommendations. Comment156. Decision makers within the NDIA and particularly those involved in decision- making about planning, funding and reviews must be clear as to the requirements of the legislation when it comes to sections 3 and 4. The writers emphasise that it is somewhat pointless including grandiose statements in legislationRecommendationand then basically having them ignored at the operational end. Staff working in the sector must not only understand but also apply the legally articulated principles that underpin the way in which people with disabilitiesRecommendationshould now2: Thebe acceptedrules in our society. Comment157. While the writers acknowledge that rules, guidelines and pricing guides are important and necessary, they contend that there appears to be a tendency that whenRecommendationin doubt create yet another guide. An urgent revision of the rules, guidelines and other associated documentation is undertaken with the intent of streamlining and creating a more user- Recommendationfriendly set of documents.3: Individual Planning Process Comment158. Evidence suggests that of all of the functional aspects associated with the NDIA, the stages as related to the individual planning process are the most controversial. The writers acknowledge the quarterly surveys associated with this function and they also acknowledge the very statements made by the NDIA in terms of an acceptance that further changes are required. Notwithstanding this, however, the writers express“By gainingconcerngreaterat theinsightfailureintoof thevaryingNDIAexperienceto grasp theat nettledifferenton stagesthis issueof theandNDISbe clearprocess,as tothehowNDIAtheywillintendbe betterto refinepositionthe toprocess.make Makingmeaningfulstatementsand specificsuch as improvement- to the participant pathway”. (COAG December 2018 Quarterly Report, p 23) is somewhat meaningless and an action outcomeRecommendationneeds to be articulated. That the NDIA reports as to how the percentages indicating dissatisfaction as evidenced via Participant limited surveys translates into many thousands of Participants who are actually dissatisfied.

Submission Writers: Max Jackson and Margaret Ryan Submission_________________________________________________________________________________________Date: 12 March 2019 21

Recommendation 4: Access to information

Comment159. Despite promoting itself as a user-friendly entity the writers suggest that the NDIA tends to operate in many parts as a closed shop. In this day and age of open information and the right of individuals to access information related to them, the NDIA must become more open and user friendly. This must start at the top with the Minister and the NDIA CEO. That the NDIA CEO takes action to ensure that information access by participants and those with the authority to represent them is readily available. Comment160. Despite the fact that the NDIA is a bureaucracy, this should not mean that it operates in a way that sets up barriers. That the NDIA CEO establishes frontline training for all members of his establishment who have contact with the public in any way and ensures that staff are accessible and have the requisite knowledge to deal with queries and complaints. Recommendation 6: Staffing Comment161. As noted in the body of this submission, staff represent the core of who and what the NDIA is. Therefore, it is essential that all staff are appropriately qualified, skilled and experienced staff for in the area in which they operate. The modern day phenomena of ‘genericising’ position descriptions reduce the likelihood of “getting job”. That the NDIA CEO ensures that all staff positions and levels are filled by people who have the appropriate skills, qualifications and experience, and that position descriptions truly reflect the operational requirements of their position. Comment162. The application of ongoing customer satisfaction surveys can be illusionary to the point of inferring appropriate action outcomes when in fact little occurs. Significantly, the widespread quoting by the NDIA of a high level of customer satisfaction must be accepted by the Minister and the NDIA CEO as being somewhat misleading. As noted in the body of this submission, the percentage of those who are not satisfied, even if a few percent, but certainly in those instances where it is up to 25 per cent translates into tens of thousands of NDIS Participants who are not satisfied.

Recommendation

That the NDIA acknowledge that the percentagegood we of respondents who have indicated dissatisfaction does translate into many thousands across the system andRecommendationtherefore basking8: Thein theConceptsglory of “howof Flexibility are”and Evidence-Basedmust cease.

Comment163.

                             cost of supports for people with complex needs is not well      ThereflectedNDIAinmust take into account theare commentsone side ofofthetheequationProductivity– benefitsCommissionare just       aswhenimportant".it stated that "the                    prices" and that "costs                   (PC Cost Study, October 2017, p 6 and p 297). As such, the NDIA      must demonstrate greater  flexibility when requests for funding innovative       supports are made.  Evidence based research is not always available when      Recommendationconsidered in the context of innovation.
  • That the NDIA establishes a more flexible and nimble approach when considering funds for supports that might be perceived as being new or innovative.Recommendation 9: Provider Approval

Comment164.

  The act by the NDIS of approving providers is restrictive and contrary to the       conceptRecommendationof choice and control by Participants.
  • That the NDIS allows each NDIS Participant to purchase services and supports from their provider of choice without the provider having to be approved regardless of the arrangements established by the Participant in relation to the Recommendationmanagement of his or10:herConsistencyfunds.

Comment165.

  There is little doubt that the quality and consistency of the way in which NDIA       planners in particular, and reviewers, practice their responsibilities is widely        variable.Recommendation
  • That the NDIA CEO ensures that there is ongoing analysis of planning data to establishRecommendationgreater consistency11: The Needacrossforalla staff.Truly National System

Comment166.

  There must be a true acknowledgement and acceptance by  all consistent".States and        Territories and the Federal government as to the intent of the NDIS being a truly        national, single system – not one that is defined as being "nationally-

Submission Writers: Max Jackson and Margaret Ryan Submission_________________________________________________________________________________________Date: 12 March 2019 23

Recommendation

That the Minister in conjunction with COAG representatives identifies all the roadblocks that currently exist and that are inhibiting the establishment of a trulyRecommendationnational system,12:andThetakeForeveractionIssueto removeand Whatthe inhibitors.

Will the Minister Do?

Comment167. The writers submit that procrastination and the notion of creating more reviews and more reports has become and industry in itself – and one with a high cost associated with it. They contend that the time has long past for known and necessaryRecommendationactions to be taken.

That the Minister takes immediate action to implement those recommendations that have for long been accepted as being necessary, in order to make the NDIS more efficient.

End of Submission

Submission Writers: Max Jackson and Margaret Ryan

Date: 12 March 2019 24

About the authors

  • The authors of this submission, Max Jackson and Margaret Ryan, have in excess of 80 years experience between them in the disability sector.
  • Mr Jackson has teaching qualifications and a degree in Special Education and worked as a teacher largely in the disability field for some 17 years.
  • He was Chief Executive Officer of the largest institution in Australia for people with intellectual disabilities and which had 850 people in residence when he first assumed leadership of the facility.
  • He held the position of Chief Executive Officer for a period of nine years.
  • He obtained a Master of Business Administration to support his administrative activities.
  • He was responsible for almost 1,000 staff and a significant budget.
  • In addition to a large contingent of nursing and direct care staff, the staffing contingent also included a range of professional disciplines including medical officers, psychologists, speech pathologists, occupational therapists, physiotherapists, music therapists, dieticians, swimming instructors and teachers.
  • For some 20 years, Mr Jackson conducted his own consultancy, which included consulting to the disability sector.
  • His activities included investigations, service reviews, quality assessments, and training and development including in the area of challenging behaviour (or to use the more politically correct terminology - behaviours of concern).
  • He has also provided advocacy and support for families who have a family member with a disability.
  • He, along with Ms Ryan, has also participated with families in NDIA planning and goal setting for NDIS Participants.
  • For some eight years he was also on the National Board of Special Olympics Australia. Also, at one time he was Chairman of Special Olympics, Victoria.
  • Ms Ryan has 30 years experience in the intellectual disability field. Her experience initially being through a familial involvement, but then undertaking research, presenting papers at seminars and supporting families.
  • She also worked with Mr Jackson in providing consultancy services in the disability field.
  • Jointly, Mr Jackson and Ms Ryan have, over many years, made submissions to various reviews and committees. These have included, as examples, various matters associated with the NDIS, Victoria’s Parliamentary Inquiry into Abuse in Disability, legislative reviews including Victoria’s Disability Act and the Residential Tenancy Act, a review of Youth Justice, an analysis of the Annual Reports of Victoria’s Disability Services Commissioner and responses to a number of Ombudsman inquiries.
  • The writers submit that individually and jointly they are well qualified to provide critical comment as to the effectiveness and efficiency of the NDIS/NDIA and as to whether or not it is fully meeting its remit.