NDIA Accountability Project

Lack of transparency about Specialist Disability Accommodation (SDA)

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SPEAKING UP FOR YOU INC. protects and defends vulnerable people with disability through individual advocacy to address injustices and make a positive and sustainable difference to their lives.

2 September 2021

Committee Secretariat Joint Standing Committee on the NDIS ndis.sen@aph.gov.au

Dear Chair and Committee

           Submission to the Joint Standing Committee on the NDIS:
     Lack of transparency about Specialist Disability Accommodation (SDA)

Please find this letter from the NDIA Appeals Advocates of SUFY on behalf of our NDIA clients who are in the process of internal and external reviews relating to SDA. We ask the Committee to please consider the issues raised which are profoundly, negatively impacting the lives of participants of the Scheme who have an ‘extreme functional impairment’ or ‘very high support needs.’

There is an increasing number of Agency decisions where a participant, who is eligible for SDA, is refused their request for independent occupancy without explanation. Despite a participant’s preference and supporting evidence for independent occupancy being appropriate, including offers of suitable and available accommodation being received, the Agency is deciding participants will only be funded to live in shared SDA.

Those ‘other/s’ that a person is expected to share with are strangers who may have only disability and SDA eligibility in common. There are naturally implications for a participant including, impact on freedom to interact with family and friends, maintenance or development of intimate relationships, choice of care, and privacy and dignity.

   Unit F2, The Precinct, 12 Browning St, West End, Queensland 4101, Australia

SUFY IS AN INDEPENDENT INDIVIDUAL SOCIAL ADVOCACY ORGANISATION FOR PEOPLE WITH DISABILITY IN BRISBANE AND THE MORETON BAY REGION

The National Disability Insurance Scheme

The Agency has a dedicated Panel responsible for assessing these applications (the SDA Panel) however there is no readily accessible information about the SDA Panel available to participants or the disability sector and it was not reported upon in the Annual Report 2019- 20. The Agency appears to purposely withhold information relating to the SDA panel and its processes. It is therefore an area of the NDIA that operates without transparency and accountability.

Several attempts to find out general information about the SDA processes, including the role, operations and membership of the SDA Panel, has been to no avail. To illustrate this we provide the attached documents about enquiries made by SUFY:

  • Webchat enquiry about SDA, dated 16 August 2021, between SUFY and the NDIA

  • Questions on notice to the NDIA by SUFY in advance of a DSS NDIA Appeals forum, dated 16 August 2021

  • Transcript of the DSS forum, 18 August 2021, pp47 and 48 question and answer exchange between Ms Belinda Kochanowska of SUFY and

  • NDIA SDA Operational Guideline, 1 December 2020 version

  • Participant Service Charter, September 2020 version

A response to a recent FOI request was similarly unhelpful.

Another recent issue that SUFY was made aware of, is that the Agency maintains a starting point for SDA building type that is for share accommodation. This attempts to improperly shift an onus to participants to prove that they need to live alone and that because of their disability that they cannot live with others. However, neither this requirement for participants to share SDA with others on the basis of value for money, nor the reasoning for such a position is communicated to participants. The approach is not reflected in the NDIS Act or the SDA Rules or the Participant Rules, nor is it in public policy or Operational Guidelines of the NDIA. Participants are not aware that they will have to prove their unsuitability to share with strangers.

Without clear and specific statutory powers there is no basis upon which a government can compel adult citizens into communal or institutional accommodation, as is proposed by the Agency’s decision makers on SDA applications. In the absence of a power that displaces the right of a person to choose who they live with, by virtue such as criminal corrections or hospitalisation, no adult in Australia should be expected or required to live with other people unless they choose to do so. There is nothing in the NDIS framework that empowers the Agency to limit a person’s freedom of who they live with; there is no displacing the rights and liberties of a person simply because they have a very significant disability. To impute otherwise is, at a minimum, inconsistent with Australia’s obligations under the UN Convention for the Rights for Persons with Disabilities (the Convention).

SDA eligible participants are an extremely vulnerable minority of Scheme participants and their rights should be upheld, not eroded. The NDIS Act section 3(1)(a) provides that its objects include to:

  •     in conjunction with other laws, give effect to Australia’s obligations under the
Convention on the Rights of Persons with Disabilities done at New York on
13 December 2006 ([2008] ATS 12) …

We draw to the Committee’s attention the following relevant sections of the Preamble to the Convention:

  •     (e) Recognizing that disability is an evolving concept and that disability results from
 the interaction between persons with impairments and attitudinal and
environmental barriers that hinders their full and effective participation in society
on an equal basis with others,

     (j) Recognizing the need to promote and protect the human rights of all persons
with disabilities, including those who require more intensive support,

(m) Recognizing the valued existing and potential contributions made by persons
 with disabilities to the overall well-being and diversity of their communities, and that
 the promotion of the full enjoyment by persons with disabilities of their human
  rights and fundamental freedoms and of full participation by persons with disabilities
   will result in their enhanced sense of belonging and in significant advances in the
human, social and economic development of society and the eradication of poverty,

  (n) Recognizing the importance for persons with disabilities of their individual
autonomy and independence, including the freedom to make their own choices,

  (q) Recognizing that women and girls with disabilities are often at greater risk, both
 within and outside the home, of violence, injury or abuse, neglect or negligent
 treatment, maltreatment or exploitation …

 (**emphasis added**)

We further refer the Committee to Article 1, Purpose:

  •  The purpose of the present Convention is to promote, protect and ensure the full
and equal enjoyment of all human rights and fundamental freedoms by all persons
with disabilities, and to promote respect for their inherent dignity.

 Persons with disabilities include those who have long-term physical, mental,
  intellectual or sensory impairments which in interaction with various barriers may
 hinder their full and effective participation in society on an equal basis with others.

 (**emphasis added**)

Article 2 defines “discrimination on the basis of disability” as:

  •  any distinction, exclusion or restriction on the basis of disability which has the
purpose or effect of impairing or nullifying the recognition, enjoyment or exercise,

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on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation.

Most critical to this issue is Article 19, Living independently and being included in the community, which provides:

States Parties to the present Convention recognize the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that:

(a) Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement;

(b) Persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community;

(c) Community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs.

We further direct the Committee’s consideration to the relevance of Articles 3, 4, 5, 6, 12, 14, 17, 22, 23, 25 and 28. The proposition that a person with extreme functional impairment or very high support needs should by default live with strangers, and all that consequently follows, is unacceptable and inconsistent with the Convention and the objects of the Scheme.

Furthermore, the NDIS Act section 4 general principles guiding actions under the Act notably includes:

(9) People with disability should be supported in all their dealings and communications with the Agency so that their capacity to exercise choice and control is maximised in a way that is appropriate to their circumstances and cultural needs.

(10) People with disability should have their privacy and dignity respected.

(11) Reasonable and necessary supports for people with disability should: (a) support people with disability to pursue their goals and maximise their independence; and (b) support people with disability to live independently and to be included in the community as fully participating citizens;

  • The failure to disclose information relevant to the participant and decision making that impedes on rights are inconsistent with the above.

  • The Participant Service Charter (attached document 5) is also relevant because the Agency’s current approach is not consistent with it being transparent, responsive, respectful, empowering or connected.

  • In addition to the questions raised in the email to the NDIA dated 16 August 2021 (attached document 2), the Committee, and in turn the community, would also benefit from knowledge about the number of:

    • participants who have received independent occupancy SDA

      $100 internal review applications about the decision a participant is only entitled to SDA if they share with others

    • applications in the AAT where SDA eligibility and SDA building type is an issue

    • applications where the person is SDA eligible and the Agency is relying on value for money as a basis for declining independent occupancy and approving to fund 2 or 3 share instead.

  • The issues raised here, as to lack of transparency about the SDA Panel and its decision making and as to the Agency’s requirement that people share housing in a return to “deconstructed institutionalisation” against their rights and liberties, is not isolated to SUFY clients. These are issues that are of concern to other disability advocates who would be able to contribute to this issue.

Should anything else be required from SUFY please do not hesitate to contact us.

Yours sincerely,

Belinda Kochanowska Fiona Campbell NDIA Appeals Advocates