Disability Services Board

Legacy Report

We acknowledge the Traditional Owners of country throughout Australia and recognise their continuing connection to land, waters and culture. We pay our respects to their Elders past, present and emerging.

To receive this report in an accessible format please e-mail: contact@odsc.vic.gov.au or call: 1300 728 187

October 2021

Contents

Executive Summary………………………………………………………………………………………….. 2

Background ……………………………………………………………………………………………………….. 4 Disability Services Board Membership………………………………………………………. 5 Legislative Reforms……………………………………………………………………………………….. 6 The Disability Act 2006…………………………………………………………………………………. 6

Part A: Work of the Disability Services Board ……………………………………………… 7 Summary of the DSB’s work ………………………………………………………………………… 7

Part B: DSB Effectiveness – Survey Findings ………………………………………………. 11 Sample ……………………………………………………………………………………………………………. 11 Board Representation ………………………………………………………………………………….. 11 The Role of the DSB Under the Disability Act…………………………………………….12 Resource Constraints ………………………………………………………………………………….. 16 Input into the Victorian Complaints Model………………………………………………. 16 Input into the National Complaints Model ………………………………………………. 19 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability………………………………………………………… 19 Input into the Death Reviews and Safer Mealtime Supports ………………. 20 The Disability Advisory Council and the Disability Services Board …….. 21

Part C: Environmental Scan ………………………………………………………………………….. 22 Victoria ………………………………………………………………………………………………………….. 22 States and Territories …………………………………………………………………………………. 22 Commonwealth …………………………………………………………………………………………… 23 Considerations for Future Advisory Bodies ……………………………………………. 23

Part D: Summary and Gaps ………………………………………………………………………….. 25 Summary of Achievements ……………………………………………………………………….. 25 Limitations ……………………………………………………………………………………………………. 25

Part E: Recommendations …………………………………………………………………………….. 27 Recommendation – For a Future Statutory Advisory Board ……………….. 27 Recommendation – Intensive Support Team …………………………………………. 28 Remaining DSB Priorities ………………………………………………………………………….. 29

Appendix A: The Disability Act 2006…………………………………………………………….. 31 Part 3 Division 2 – The Victorian Disability Advisory Council ……………… 31 Part 3 Division 4 – The Disability Services Board ………………………………….. 32

Executive Summary

In February 2021, the Disability Services Board (DSB) resolved to undertake a review of its work since establishment in 2006. We hope our history can inform the future of disability services regulation and complaints handling in Victoria, in terms of governance, quality and oversight.

We recognise the significance of the work of the Disability Services Commission (DSC) – promoting the voice of people with disability to speak up and to make complaints. We want to document the extent to which the establishment of the DSB along with the DSC contributed to and enhanced this work, then apply this legacy to the current environment and into the future. This includes detailing what resources were available and what more is needed to enhance future success.

This report was prepared with the assistance of the DSC which collated relevant DSB documents and other support materials. This material together with a survey undertaken of current and past commissioners, senior DSC staff, DSB members and other relevant stakeholders was provided to an external consultant to review, analyse and assist with preparation of the report.

With the extension of board member terms to July 2022, we continue to focus on our strategic objectives and provide advice to the Minister. This includes highlighting the following issues:

• continuation of Intensive Support Team (IST) work
• disability justice issues
• prioritising accessible testing and vaccines for people with disability, their carers, close family members and disability workers
• how Victoria will meet the needs of people with disability not supported under the NDIS including appropriate safeguarding mechanisms
• progress of the Victorian Disability Worker Regulation Scheme.
• monitoring and understanding the progress of the Safer Mealtime Supports training module being developed by the NDIS Quality and Safeguards Commission.

Having completed this review, we recommend that any future state government specialist social service bodies like the DSC continue to be supported by a dedicated advisory body. Further, any future legislation which establishes an advisory board should ensure:

• the board’s function is clearly defined in the Act with established performance indicators and regular feedback from those receiving the advice
• it is appropriately resourced to undertake its function
• the advice provided should be made public to raise awareness about important issues and increase opportunities to affect change
• when making member appointments the primary consideration should be meeting the function of the board
• the selection process should include a broadly advertised request for expressions of interest to encourage wide community representation

• representation would usually mean people from varied cultural communities and with a range of disabilities including intellectual disability with the necessary support arrangements to facilitate full participation by all members
• there is a level of discretion in terms of the number of members so the function of the board is not impacted by member vacancies.

The DSB would like to acknowledge the assistance and support it received from the Commissioner, senior staff members of the DSC and Jessica Quilty of DSC Consultants1 in preparing this report.

1 teamdsc.com.au/consulting

Background

The Disability Services Commissioner is appointed by the Governor in Council to head an independent oversight body resolving complaints and promoting the rights of Victorians with disability to be free from abuse.

The DSC undertakes this role by:

• responding to enquiries and complaints;
• managing the Annual Complaint Reporting requirements as outlined in section 105 of the Disability Act 2006;
• critical incident oversight including death investigations;
• commissioner-initiated investigations; and
• capacity development projects.

The legislative functions and powers of the DSC are detailed in Part 3, Division 3 of the Disability Act 2006 (the Act) and through the Ministerial referral. The Act also establishes the DSB. Its role is specified in Part 3, Division 4.

The DSB seeks to provide valuable insight into the various quality and safeguarding issues associated with the delivery of disability support services, drawing on the knowledge and expertise of board members. The DSB advises both the responsible Minister and the DSC.

The DSC commenced operation on 1 July 2007 following the appointment of Laurie Harkin AM in April of that year as the inaugural Commissioner.

The DSC’s first annual report (for 2007/08), It’s OK to complain, set out the values the DSC sought to uphold. The report states “Our values affirm the rights of people with a disability, treat all people with respect, and ensure that our processes are fair. In accordance with our principles, we seek to be accessible, responsive and accountable, achieving excellence and adhering to the principles of person centredness in our work.” Further, the report states “>(the) DSC aims to provide an independent voice for people with a disability.” More specifically, the report indicates the DSC seeks “To provide opportunities for people with a disability to have their concerns about disability service providers heard and resolved. To promote a quality culture within the Victorian disability services sector, which listens to people with a disability and delivers better service outcomes.”

The DSB’s first meeting was held at Parliament House in October 2007. The Board comprised 11 members including then President, Patricia Malowney (OAM), and Christian Astourian, who remains a current board member. Ms Malowney (OAM) remarked in her contribution to the first annual report that “After the first year of feeling our way, we need to consolidate our learnings to see whether the legislation is meeting the needs of people with disabilities, so that we can appropriately advise the Minister.”

In 2013 the National Disability Insurance Scheme (NDIS) commenced with a trial site in the Barwon area of Victoria as well as other sites around Australia. The NDIS later rolled out gradually across Australia from 2016. In 2019–20 the work of the DSC reduced significantly with the establishment of the NDIS Quality and Safeguards Commission (NDIS Commission), which increasingly oversaw the delivery of NDIS funded services in state jurisdictions, including Victoria.

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Disability Services Board

The second Commissioner, Arthur Rogers, ended his tenure on 30 June 2020 (having commenced in August 2018). On 1 July 2020, Treasure Jennings commenced as Commissioner in a joint position that also included the Mental Health Complaints Commissioner role, with the transfer of disability service complaints and other functions to the NDIA and NDIS Commission. Presently, the DSC still has a role with respect to a very small number of Department of Families, Fairness and Housing (DFFH) funded services including disability forensic services, advocacy organisations, Transport Accident Commission (TAC) funded disability services and seven DFFH group homes and respite services that are due to transfer to the NDIS in early 2022.

Following the transfer of functions away from the DSC, a planned review of the Act and legislative amendments, the DSB will likely cease to exist sometime in 2021–22.

The DSB currently has nine members with Georgina Frost as President.

This report forms advice to the Minister for Disability, Ageing and Carers about the work of the DSB and recommendations for the future. This advice intends to inform the current review of the Disability Act 2006 and future arrangements to ensure the delivery of high-quality support services in Victoria. The DSB’s reflections about important matters including the transition to the NDIS, disability justice issues and the explicit needs of people with disability in a pandemic are detailed in this report and its Executive Summary.

Disability Services Board Membership

Year	President	Board Members
2007-2010	Patricia Malowney	Christian Astourian
		Jennifer Sewell
		Scott Shephard
		Elizabeth Bishop
		Kevin Murfitt
		Chad Bennett
		Aileen McFadzean
		Bethia Wilson
		Elizabeth Kelly
		Arthur Rogers
2010-2013	Patricia Malowney	Christian Astourian
		Bronwyn McGuire
		Scott Shephard
		Karen McCraw
		Elizabeth Corbett
		Chad Bennett
		Clare Lethlean
		Bethia Wilson
		Elizabeth Kelly
		Arthur Rogers
2013-2016	Elizabeth Corbett	Christian Astourian
		Karen McCraw
		Bryan Woodford
		Elizabeth Kelly
		David Ring
		Brett Cheatley
		Christine Mathieson
		Grant Davies
		Maryanne Diamond
		Katie Haire
2016-2019	Georgina Frost	Christian Astourian
		Ruth Webber
		Helen Kostiuk
		Jill Linklater
		Bryan Woodford
		Rocca Mesa
		Glenn Foard
		Grant Davies/Karen Cusack
		Llewellyn Prain
		Chris Asquini
2019-current	Georgina Frost	Christian Astourian
		Jill Linklater
		Helen Kostiuk
		Rocca Mesa
		Bryan Woodford
		Karen Cusack
		Glenn Foard
		Argiri Alisandra
		Ruth Webber

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Legislative Reforms

In November 2016, as a result of the Victorian Parliamentary Inquiry into Abuse in Disability Services, the Victorian Government committed to strengthening the oversight powers and functions of the DSC by amending the Disability Act 2006. On 16 August 2017 a range of amendments to the Act commenced providing increased powers to the DSC. These included the ability to initiate investigations into allegations of abuse and neglect of an individual or systemic nature; to appoint authorised officers to visit and inspect relevant premises without notice; and to undertake a comprehensive annual review of all deaths that occur in disability services within the Commissioner’s jurisdiction.

Referral from the Minister – death review

Initially on 24 July 2017, the Minister requested that the DSC receive reports of unexpected deaths from the then Department of Health and Human Services (DHHS) (now DFFH) and the State Coroner. Following amendments to the Act, the Minister replaced the first referral and from 12 September 2017, requested that the DSC receive reports of expected and unexpected client deaths from DFFH and the State Coroner. The referral requested that the DSC inquire into and, at the discretion of the Commissioner, investigate any matter relating to the provision of disability services (including abuse or neglect in the provision of services) by disability service providers identified in the following:

• incident reports that the Commissioner receives from DFFH of all deaths where the deceased was a person with a disability receiving these services at the time of their death
• deaths referred to the Commissioner by the State Coroner where the deceased was a person with a disability receiving these services at the time of their death.

Further, the Minister’s referral requested that the DSC provides a comprehensive annual review of deaths that occur in disability services. This includes the number, type and outcomes of investigations conducted under this referral, any related follow-up investigations, as well as an overview of any practice or systemic issues identified. The current Ministerial referral is due to cease on 30 June 2022.

The Disability Act 2006

The Disability Act establishes the DSC, the DSB and Victorian Disability Advisory Council (VDAC). The relevant sections 11 and 12 regarding the VDAC and 20, 21 and 22 regarding the DSB are set out in Appendix A below.

Part A: Work of the Disability Services Board

Summary of the DSB’s work

Term Board Activities

2007-2008

• Orientation
• Established a cooperative and productive relationship with the DSC including the provision of reports and information regarding the work of the DSC
• Received presentations on the work of the Health Services Review Council including guidance from the Health Services Commissioner
• Established a taskforce to consider a Governance Framework and produce guidelines to assist future work

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2011-2012

• Provided advice and feedback to the DSC on resources, publications, strategic plan, complaint trends and ACR processes

• Representation on the DSC’s ACR Reference and Advisory Group (formerly the DSB’s ACR Task Group) supporting the DSC’s implementation, application and continuous improvement of the ACR tool

• Participated in DSC recruitment selection

• Participated in the Family Engagement Reference Group

• Participated in DSC annual planning days

• Joint conference presentations with the DSC including at the LEADR Conference

• Met with the Victorian Equal Opportunity and Human Rights Commission (VEORHC) regarding DSB’s perspective on complaint processes to enable parents of children with disability to complain

Submissions to:

• VEORHC Research – Experiences of Students with a Disability in Victorian Schools Issues Paper highlighting out-of-scope complaints

• the Department of Health Legislative Review on SRS on the draft SRS regulations and regulatory impact statement

• the Mental Health Draft Exposure Bill

• Letter to Protecting Victorians Vulnerable Children Enquiry supporting the DSC’s submission

2012-2013

• Chaired the ACR Reference and Advisory Group

• Participated in the Family Engagement Project to ensure that Victorians with disabilities are encouraged to apply

• Provided input into the Strategic Directions 2012–15

• Submission to the Health Services Review Act

• Presented at forums and on panels

• Involvement in State Disability Plan consultations

Personal Support

• Participated in recruitment to all positions at the DSC

2013-2014

• Letter of support for the DSC’s submission to the NDIA Board’s Strategic Plan

• Developed a positive relationship with DHHS NDIS Reform personnel who attended the Board meeting regularly since June 2014

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2014–2015

• Worked strategically and in partnership with key stakeholders to promote the design of a national complaint mechanism (while maintaining local effect) using NDIS data and gap analysis

• Represented and promoted the effectiveness of the approach of the DSC at the VicDeaf 130-year celebration and the round table on Intellectual Disability Policy – Supported decision-making for people with severe or profound intellectual disability: ‘we’re all in this together, aren’t we?’

• Promotion of the DSC’s independent complaints model to the NDIS

• Consulted widely with key stakeholders including participation in the DHHS consultations regarding the development of a national framework for quality and safeguards

• Met with VDAC to identify and promote areas of common interest and board engagement in the State Disability Plan - providing information on out-of-scope issues

• The Hon. Martin Foley MP attended the June 2015 board meeting and issues of education and people with a disability not eligible for NDIS were discussed

• Participated in a national roundtable facilitated by the National Disability Complaints Commissioners’ group on the proposed quality and safeguarding, with particular focus on complaints, critical incident oversight and restrictive practices

2015–2016

• Worked strategically and in partnership with key stakeholders to contribute to the design of the NDIS

• Promotion of a national quality and safeguarding framework that includes national oversight of complaints and incidents

• Letter to the Minister raising concerns about how pricing may impact service quality, innovation and market entry as well as improvements to Victorian safeguards to shape the NDIS

• Participated in a discrete board consultation session in June 2016 by invitation of the DHHS Office for Disability

2016–2017

• Developed strategic plan

• Continued with objectives to strengthen and maintain Victoria’s safeguarding system during transition to the NDIS

2017–2018

• Provided valuable insight into the various quality and safeguarding issues needed to prepare for Victoria’s transition from the DSC to the NDIS Commission in July 2019

• Consultation with stakeholders including Office of the Public Advocate, the Department of Premier and Cabinet, the VDAC, the Victorian Advocacy League for Individuals with Disability, DHHS and NDS

Work Experience

2018–2019

• Worked closely with the DSC

• Raised questions on the application of the Victorian Charter of Human Rights and Responsibilities to NDIS providers

• Provided advice to the Minister on:

• The important role the Victorian Government played as a ‘provider of last resort’ and the need to identify alternative options under the NDIS

• The importance of continuing reviews of disability services provided to people who have died whilst in receipt of disability services

• The approaches to meet the needs of Victorians with disability accessing mainstream health and education services

2019–2020

• Provided valuable insight into the various quality and safeguarding issues needing consideration as we prepare for the closure of the DSC

• Raised concerns about the collaboration between Victoria and the Commonwealth Government regarding Victorians with complex disability service needs and there not being a ‘provider of last resort’

• Provided advice to the Disability Royal Commission, specifically regarding the Easy Read guide to the public to make submissions which originally included a statement ‘not to lie’

Part B: DSB Effectiveness – Survey Findings

To assist in evaluating the effectiveness of the DSB, a survey was undertaken with both past and current DSB members, commissioners, senior DSC staff and key stakeholders. The DSB invited participants to reflect on both its achievements and limitations along with some aspects of the DSC’s work. This report summarises these insights to inform the review of the Disability Act, and other instruments, that may provide oversight of services to people with disability in the future.

Sample

18 people responded to the survey, they were:

• 7 DSB members
• 3 former DSB members
• 3 stakeholders
• DSC representative
• Disability Services Commissioner
• Former Disability Services Commissioner
• 2 participants’ roles were unidentified.

Board Representation

The DSB has a broad representation of stakeholders as set out in section 20 of the Disability Act. The DSB’s voice represents both lived experience and service provider perspectives. This was said to be further enhanced by the cultural diversity of the membership. By drawing on its own experiences and examples, the DSB can provide insights into quality of service for many Victorians with disability and share these insights with both the Commissioner and the Minister.

Membership of the DSB included both people with a lived experience as well as representation from service providers. So, the Board was well placed to highlight issues and concerns from both a user and provider perspective.

The DSB’s voice could have been further enhanced by representation of people with a range of disabilities, in particular intellectual disability. This could be facilitated through initiatives such as Voice at The Table.

Voice at The Table aims to increase the number of people with cognitive disabilities sitting on boards, committees and advisory groups within government, service providers, community and mainstream organisations at a local, state and national level. The organisation partners with teams and projects within government departments to help build their capacity to be inclusive and provide meaningful opportunities for people with cognitive disabilities to advise and influence policies, programs and service planning, development, delivery and evaluation. Feedback was provided about the importance of addressing accessibility requirements in board meetings and activities to enable participation of people with a range of disabilities.

The Role of the DSB Under the Disability Act

The Board must reflect the objects laid out in the Disability Act (in Part 3 Division 4 at section 22) and as an advisory board to the Minister and the Commissioner, it has limitations set by the Act. The Board’s functions are limited to:

• advising the Minister on the disability complaints system and the operations of the Disability Services Commissioner under the Act
• advising the Disability Services Commissioner on issues referred to the Disability Services Board by the Disability Services Commissioner
• providing expertise, guidance and advice to the Disability Services Commissioner
• promoting the Disability Services Commissioner and the operations of the Disability Services Commissioner
• subject to the approval of the Minister, referring matters relating to disability services complaints to the Disability Services Commissioner for inquiry.

In practice, this means that the DSB raises issues and concerns with the DSC or the Minister who in turn may take action or escalate matters. For example, the DSB raised issues and concerns about the importance of the continuation of death review work and safer mealtime supports with the Victorian Minister who in turn, raised these at a national level and directly with the NDIS Commission.

Under the Act the DSB is established as a board, however, it is not a governing body. The term ‘board’ may have been initially misleading for some incoming members, particularly given the VDAC was established as a separate advisory committee within the Act. Board members knowledge of the Act was reportedly variable, with some requiring guidance on their role and the independence of the Commissioner.

A ‘Board’ assumes governance which can be confusing and sets up a somewhat adversarial relationship (with the Commission) that isn’t intended.

Survey respondents reported that the absence of a defined purpose and terms of reference limited the DSB’s influence. The DSB was said to have lacked a clear coordinated strategy, action, reporting and recommendations.

I feel at times they aren’t really sure what they should be working on or how they should engage with the Commissioner.

It took a long time to work out the aims/purpose of the board which limited its work in the early years.

Current Strategic Plan

In 2017 the current DSB members created a set of objectives, actions and measures as set out below.

Objective 1

To influence the national model and its implementation so it has a strong quality and safeguards framework including an independent and robust complaints mechanism.

Actions

• Provide advice about the key elements of the national quality and safeguards framework to the Victorian Minister for Disability and the DSC so that robust safeguards for people with a disability are maintained.
• Work with relevant organisations to share information and to ensure the national model reflects best practice from different jurisdictions.
• Analyse and use data to develop clear advice about the desired elements of the national quality and safeguards framework
• Support the DSC to help people understand the disability complaints system during their transition to the NDIS in partnership with the NDIA.

Measures and outputs

• Provide clear advice to the Minister for Disability and DSC about the efficacy of any proposed national quality and safeguards framework.

Objective 2

Continue strengthening safeguards for Victorians with a disability.

Actions

• Request information and data on the performance of the Victorian disability complaints system and provide advice to the Minister for Disability and DSC on system issues. This includes the implementation of the increased powers and expanded role of the DSC.
• Consider the need for Victoria maintaining a robust and independent complaints mechanism for disability services post NDIS.
• Request reports about and support the DSC’s work to promote a zero tolerance culture regarding abuse of people with a disability across the sector. Where possible, provide advice on the code of conduct for disability workers being introduced by the Victorian Government.
• Request information and data to better understand the DSC’s communication and engagement strategies. Support and provide advice about how they could be further strengthened, particularly in rural and regional areas.
• Promote the work of the DSC.

Measures and outputs

• Provide clear advice to the Minister for Disability and the DSC on the efficacy of the changing system
• Effective promotion of the work of the DSC to people who receive disability services covered by the scheme.

Objective 3

Influence other service systems not covered by the NDIS to ensure they have accessible and responsive complaint processes for people with a disability.

Actions

1. Examine the complaints processes in other service systems such as Housing,	Education, Justice and Health to determine how they intersect with the DSC scheme and where there are gaps for people with disabilities. Consider whether the complaint system will be adequate following NDIS implementation.
2. Work with partners in the implementation of the State Disability Plan.

Measures and outputs

• Provide advice to the Minister for Disability and DSC on gaps in the broader service system regarding complaints mechanisms for people with a disability.
• Provide submissions where relevant on the implementation of the State Disability Plan.

Enablers

This plan will be underpinned by strong working relationships between the DSB and other relevant entities including:

• The Disability Services Commissioner and his office
• The Minister for Disability and his office
• Department of Health and Human Services
• Department of Premier and Cabinet
• Disability organisations, including advocacy organisations.

Survey participants were asked about how effective the DSB was in achieving these objectives with responses divided as shown below.

Q8: In your experience, the Board was effective in achieing its objectives. (n=17)

Strongly agree 0 Agree 8 47.06% Neither agree 3 17.65% nor disagree Disagree 6 35.29% Strongly disagree 0

A clearly defined strategy and annual work plan could have enabled the DSB to develop performance measures to review its achievements at regular intervals. It was reported that some board members resigned due to a lack of strategy and planning of the Board’s work.

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One respondent in the survey felt that the DSB should have provided relevant recommendations into the significant problems that people with disability were facing during the pandemic, such as vaccination and guidelines for support workers. Another respondent suggested more targeted submissions and correspondence to the Commonwealth could have improved its influence. However, under the Act the DSB’s role is to advise the Victorian Minister and the DSC on the disability complaints system. This limits what the DSB provides advice on and to whom.

The DSB does not have any powers to require the Commissioner or Minister to respond to its advice. Therefore, the degree to which a Commissioner or Minister is influenced by the DSB is largely within the control of the Commissioner or Minister at the time. This makes it difficult to measure the degree to which the DSB influenced policy. Some board members felt that the Commissioner and the Minister did not draw enough on their expertise and that they were not supported or resourced to be as effective as they could have.

The Board had limited access to the relevant Minister. Any reports or other correspondence was not acknowledged or actioned. The Commissioner did not seek information from the Board

By comparison, the NDIS Act requires that if the Independent Advisory Council (IAC) to the NDIS provides advice to the NDIA Board, the Board must:

• have regard to the advice in performing its functions; and
• give the Ministerial Council a copy of the advice and a statement setting out what has been done, or is to be done, in response to the advice.3

One respondent suggested that the NDIS Commission could benefit from a similar advisory body to the NDIS IAC with a very clear terms of reference. The NDIS Commission model currently draws on two consultative committees, one for the disability sector and another for industry but they are not established in legislation like the IAC.4

I am aware that the NDIS has an advisory body (separate from the Board) and I would see value in a similar body that would relate to the National Quality and Safeguards Commission. However, care would need to be taken in the framing of its ToR so that it didn’t become or be seen to be merely a nuisance to the DSB.

In the absence of defined powers, it has been argued that the DSB’s advice should have been made in the public domain to maximise influence. For example, the NDIS IAC publishes its formal advice on its website.5

I don’t believe the Board has been successful in improving protection, supports and outcomes for people with a disability under the new National Complaints Model. To be influential you typically need to operate in the public domain, especially when you have no actual power to impact decisions.

Resource Constraints

The DSB’s activities are funded out of the DSC. The DSB is resourced with secretarial support from one DSC executive officer and board members are paid to attend six meetings per year. Additional ad hoc activities can be funded at the discretion of the Commissioner, however the DSB does not have a budget of its own.

Some board members reported that the DSB was not resourced or given clear enough direction to be as influential as it could. It might have benefited from secretarial support and an annual budget independent of the DSC. Such funding could have helped to progress strategic projects that support its purpose, if clearly defined.

• Resource them properly and ensure they are able to actually perform their advisory role. If you are reliant on one board member to draft strategic aims, operating frameworks and letters to the Minister, which is what occurred during my term, something is pretty wrong with the system.

It was also reported that the DSB could have forged stronger relationships with other boards or organisations that share that purpose. If a future board continues to provide advice in the area of complaints, some dispute resolution expertise might be beneficial.

Some survey respondents argued that the DSB did not significantly influence the national complaints model. One reason cited for this was that the DSB was not provided with the right structure or sub-committee to input into the national complaints model. As the DSC’s budget to remunerate the DSB for its advice extends only to its scheduled meetings, additional sub-committees and meetings are not within budget. Some DSB members are understandably reluctant to participate outside the scheduled remunerated meetings.

Input into the Victorian Complaints Model

The DSB provided support to the DSC in the development and oversight of the statutory role of the DSC in investigating and managing complaints in Victoria.

The DSC has successfully built a clear, accessible and effective pathway for people with disability, their families, carers and other interested parties to have their concerns and complaints heard. It aims to find a mediated solution that fosters quality improvement over a punitive approach.

• The DSC is to be applauded, I believe, for creating a values-driven approach to shifting the culture within the disability service delivery system that was educationally progressive and positively oriented, rather than punitive in nature.

The DSC has led disability sector improvement through the resolution of complaints, review of incidents and individual and systemic investigations. The DSC seeks to review, improve and refine its internal processes through feedback from people with disability and the sector. The DSB is able to request operational information and confirmation that matters are being effectively handled. This transparency and sharing of information has helped to strengthen the work of the DSC.

Most respondents agreed that the DSC operates in a manner that affirms the rights of

people with disability, with respect, fairness and accountability using a person-centred approach. The majority felt that the Commission was accessible to complainants and provides options that cater for diversity. Most respondents also agreed that the Commission supported improved service delivery.

Q20: In your experience, the Commission operates in a manner that affirms

the rights of people with a disability. (n=17)

• Strongly agree 10 58.82%
• Agree 4 23.53%
• Neither agree 2 11.76% nor disagree
• Disagree 0
• Strongly disagree 1 5.88%

Respondents were, however divided about the extent to which the DSC was influenced by the DSB. As communicated throughout this report, the DSB’s influence has been difficult to measure.

Q4: When reflecting on advice provided to the Commissioner by the Board, this advice influenced the

Commissioner on the work of the DSC office regarding issues facing people with disability (n=18)

• Strongly agree 1 5.56%
• Agree 8 44.44%
• Neither agree 5 27.78% nor disagree
• Disagree 4 22.22%
• Strongly disagree 0

It is hard to know if the Board’s work to improve the fairness and accessibility of the Commission was effective, but I have the sense that its support for the DSC (which, in my experience, was invariable) was welcomed and, to that extent, was effective.

The 2017 legislative amendments provide the DSC with additional powers

to investigate and resolve matters. This was said to ‘hold providers to account’. However, others report that the Commission has generally been reluctant to exercise its limited powers and has not acted strongly enough to make significant improvements in the service outcomes for Victorians with disability. Moreover, it was reported that the DSC and DFFH have few tools to enforce provider compliance unless the failure is so great it warrants termination of registration status.

The DSB has maintained a good relationship with three Commissioners over the years and the DSC has welcomed the DSB’s support. The DSB was active in promoting the work of the DSC. The DSB’s first president reflected on the DSB’s promotion of the DSC’s complaints model in the 2013 Annual Report.

While Victoria’s Disability Act 2006 determines the functions of the Board, it is through the membership of the Board that we are able to provide a service to Victorians with disabilities. The expertise and commitment of the Board has ensured that we have been able to work closely with the Disability Services Commissioner to achieve better outcomes and to assure the rest of Australia that this is the complaints model of choice. In reflecting on the past six years I have been President I am proud to say that, through the Board’s participation, the work of the Disability Services Commissioner is better known throughout the community. This was made clear at a forum in Pakenham, attempted by over 100 Victorians with disabilities, their families and service providers to hear about what DisabilityCare Australia would mean to them. I assisted many attendees with intellectual disabilities to formulate the questions they wanted answered. A young man who was timid, and adamant at first that he did not want to ask a question, eventually stood up and asked Senator Jan McLucas ‘Will it still be OK to Complain?’ There was spontaneous applause from the room. At that moment it was evident that accessible and effective complaints processes, combined with education, have ensured that Victorians with disabilities, their families and service providers have and expect better outcomes. It’s Ok to Complain! and always should be. Tricia Malowney President, DSB

Some respondents reported that the promotional work of the DSB could have been enhanced with a more coordinated plan.

6 2013 DSC Annual Report, p.5

Input into the National Complaints Model

The DSB played a supportive role to the DSS’s engagement with the Department of Social Services (DSS) while the NDIS Quality and Safeguarding Framework was being developed.

The Board provided a mirror back to the Commission in a supportive and collaborative manner, acting as a sounding board to ensure that issues could be addressed. This continued as the DSC provided relevant resources to the new NDIS Commission and the DSB engaged in discussions with the inaugural NDS Commissioner, Graeme Head. Both the DSC and DSB’s expertise and resources were welcomed by the NDIS Commission. The national NDIS complaints model and guidelines acknowledge the work of the DSC and draw heavily on its resources including the DSC’s four A’s: acknowledgment, answers, action, apology.redacted.

Almost half of survey respondents agreed that the DSB had effective input into the national complaints model and just over half agreed that the DSB could identify gaps and provide advice on the national complaints model.

Q7: In your experience, the Board has been able to have effective input into the National Complaints Model (n=17)

• Strongly agree 0
• Agree 8 47.06%
• Neither agree 5 29.41% nor disagree
• Disagree 4 23.53%
• Strongly disagree 0

The DSB has been active in raising its concerns with the Minister that Victorians with disability must not be disadvantaged with the move to a national complaint handling scheme. It requested a comprehensive review of quality and safety mechanisms in the post NDIS transition to ensure effective mechanisms are in place for all Victorians with disability.

Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability

In August 2019, a DSB member raised the issue of the ‘be careful not to lie statement’ in the easy English submission on the Royal Commission website. This was a resource developed for people with disability (in particular intellectual disability) to give evidence to the Royal Commission. The DSB was concerned that this statement could be interpreted that people with disability are prone to lying, particularly those with intellectual disability who are more vulnerable to abuse and neglect. The DSB raised this issue with the DSC and DFFH. Consequently, DFFH’s lawyers Minter Ellison sent a letter to the Royal Commission outlining the concerns. This resulted in the statement being removed from the Royal Commission documents. This also improved DSB’s understanding of why the DSC does not take its complaint statements under oath. The process at the DSC is deliberately less formal to enable people to complain without fear of not being believed. The DSC more often takes statements under oath from workers rather than victims to promote its strong ‘speak up’ culture.

7 NDIS Commission Effective Complaint Handling Guidelines

Input into the Death Reviews and Safer Mealtime Supports

The DSB has been a great supporter of the work of the DSC’s death review function and acted as a valuable sounding board on these matters. The DSB asked searching questions in difficult areas about potentially avoidable deaths of people with disability in receipt of disability support services. The DSB assisted with addressing concerns about deaths of people with disability, communicating the need to have these reported and freely available, as well as advocating for coronial inquiries.

The DSB highlighted the importance of the death review work including the subsequent Safer Mealtime Support resources at a state government and national level, including in its discussions with NDIS Commissioner Head. The DSB has actively shared relevant information and initiatives, advocating the need for education and system changes with the Minister and other stakeholders. This has included with disability service providers, the Disability Worker Registration Board, the NDIS Commission and the Disability Royal Commission.

More than half of respondents agreed that the DSB enhanced the DCSs work to reduce preventable deaths.

Q34: When reflecting on on the work of the Commission in reviewing and reporting on the deaths of people receiving disability services, in your experience, the Board enhanced the Commissions work to reduce preventable deaths (n=17)

Strongly agree 1 5.88%

Agree 9 52.94%

Neither agree 4 23.53% nor disagree

Disagree 2 11.76%

Strongly disagree 1 5.88%

The DSB have been highly active in ensuring that safe mealtime supports and initiatives are priorities for the State Minister, the NDIS Commission and the Disability Worker Registration Board.

The DSC has been commended on its high-quality annual reports that include a review of disability service provision to people who have died. However, preventable deaths continue to occur, and some argue that service providers are not held accountable for these deaths. Arthur Rogers wrote in his annual report for 2019–20 “In our third year of investigating deaths reported to (his) office by DHHS and the State Coroner, it is disappointing to note that many of the issues that we highlighted in our inaugural Review are still evident.” He further stated that: “There continue to be potentially preventable deaths.” It was reported that whilst these annual reports are important, their impact is reliant on the Victorian Government to achieve the whole-of-government response that the reports call for. The DSB continues to advocate the need for the continuation of death reviews in Victoria or as part of the national scheme.

The Disability Advisory Council and the Disability Services Board

There is some potential overlap between the functions of the VDAC and DSB in the existing legislation. In reviewing the Act, consideration needs to be given to the degree of overlap and whether their respective functions duplicate or complement one another.

One rationale for keeping both an advisory council and board is that the DSB and VDAC have a different focus and strengths. The DSB has a broader membership representing both lived experience and service provision, which complements that of the VDAC and ensures a balanced mix of views. The knowledge and experience in the sector of DSB members means that they are in a position to pick up issues facing the sector at an early stage. Disability services is influenced by both the DSB and VDAC but with a different lens in their roles. The State Disability Plan sits predominantly with VDAC and crosses into mainstream areas such as health, employment, education and transport.

I see both as being valid - one working with Victorian service providers and one working more with consumers or people with disability and their carers

There is also an argument that the narrower focus of the DSB on the disability complaints system helps enhance the integrity of the complaints system. The focus of the VDAC is much broader reaching, therefore diminishing the capacity to enhance the complaints system. One respondent suggested the Board and Council may have a role going forward in a national advisory structure, similar to the Disability Reform Council. This would require agreement of the Federal, State and Territory Ministers.

Conversely, others argue that there is no need for both entities, that it could actually dilute the advocacy elements of both. One respondent remarked that whilst dual bodies with an overlapping role can be useful in enlarging and elucidating arguments within a debate, they can also encourage denial of content value where arguments diverge.

With disability service provision predominantly shifting to the Commonwealth through the NDIS, it is reasonable to question the role of the Board at a state level. With the development of the State Disability Plan 2021-25 and the Victorian Social Services Regulatory Reform in process, it has been argued that a consumer led advisory council like VDAC is best placed to consider and advise the Minister on disability inclusion, engagement and oversight. Similar to recommendations from the Victorian Mental Health Royal Commission, it has been suggested that advisory boards should represent people with disability through co-design and consumer led representation. However, consideration needs to be given to how representation occurs for those not able to self advocate.

I think the concept of a board is not contemporary and the use of Lived experience advisory councils are more contemporary and useful to the Commission.

If two advisory bodies were to continue to operate in the future, consideration should be given to whether there is value in further defining a clear and different purpose. For example, the DSB could advise on issues about the disability service system in Victoria, the NDS and quality and safeguarding matters. Leaving VDAC to promote and influence mainstream services to have Disability Action Plans and make their systems more inclusive. Moving forward, there is opportunity for greater collaboration and linkages between the bodies to enhance their work.

Part C: Environmental Scan

Victoria

Similar to the DSB, the VDAC’s functions are defined in the Act. The VDAC provides advice to the Minister about policies and strategies to increase the participation and inclusion of people with disability in the Victorian community. The DSB’s advice to the Minister has a narrower focus of the disability complaints system.

The Mental Health Complaints Commissioner (MHCC) Advisory Council role is not defined in the Act. Member representation is articulated in the terms of reference and members are selected on the basis of their individual ability to contribute to the purpose of the MHCC Advisory Council. If members are participating in other groups, they are not to represent those groups on the Council or expect to represent all consumers, carers, services or others. Members are informed by their individual experience, knowledge and skills and engage in a mutually valuable learning forum. Desirable experience includes current or recent experience of being a member of a consumer/carer advisory group or equivalent body.8

States and Territories

The Victorian disability advisory model is unique to Victoria. Most states and territories have a disability advisory body but not both a board and council established under legislation and not the same focus on the complaints system.

Like Victoria, the state disability legislation in Queensland, NSW and WA establishes an advisory body. In Queensland, the Disability Act 2006 is more flexible in regard to membership and focus. It enables the Minister to establish a committee to advise on complaints and as many other committees to advise on disability issues and disability services as the Minister considers appropriate.9 The NSW Disability Inclusion Act 2014 and WA Disability Services Act 199310 are more prescriptive about the advisory functions and membership makeup, but neither include a specific complaints focus.

The Northern Territory Disability Advisory Council is established as a non-statutory advisory body. The requirement for diverse representation in the memberships is prescriptive with percentage targets for people with disability, carers, Aboriginal people and people from remote communities – all with experience with government systems such as justice, health, education and NDIS. Membership also includes a representative of the Office of Disability.

The Queensland Disability Advisory Council, the Tasmanian Premiers Disability Advisory Council, Tasmania Disability Advisory Committee and the Northern Territory Disability Advisory Council all operate under a terms of reference. The NSW Disability Council publishes its set priorities each year.11 Similarly the WA Ministerial Advisory Council on Disability establishes an annual work plan to identify and address its priority areas.

The South Australian state government does not appear to have a comparable disability advisory board

However, it does manage a Disability Engagement Group. The group is a confidential contact list of people who have chosen to be available to provide independent advice on issues that are important to people with disability in South Australia.

Commonwealth

The NDIS Commission has two consultative committees which are not established under legislation. One represents industry and the other the disability sector. Member organisations are selected by the NDIS Commission and invited to put forward a person to represent the interests of their organisation at Committee meetings. This contrasts to the MHCC Advisory Council terms of reference where members participating in other groups do not represent those groups on the Council.

The NDIS Independent Advisory Council (IAC)

The IAC is established under the NDIS Act 2013. The IAC provides advice to the NDIA Board about the way the NDIA performs its functions. This can be on its own initiative or at the request of the Board. Under the legislation the Board is required to consider the IAC’s advice and give the Ministerial Council information about that advice and what it will do in response. The IAC maintains its own website where its formal advice is published.

Considerations for Future Advisory Bodies

Purpose and planning

The DSB’s purpose was not clearly defined within the Act. Although the DSB has aimed to develop plans and areas of focus some have argued it may have benefited from being required to develop an annual plan and performance measures to report against.

Defining functions in the Act

Consideration needs to be given to the benefit of defining the DSB’s functions in the Act. By contrast, the MHCC Advisory Council is invited to provide advice on matters of strategic priority, arguably enabling the Council to be more responsive to the current environment. This flexibility could have proved useful when issues of importance arose such as the impact of the COVID-19 pandemic on people with disability. On the other hand, the lack of inclusion in the Mental Health Act 2014 leaves the MHCC Advisory Council open to members potentially seeking to alter the strategic direction of the MHCC, which may pose a risk to the independence of the entity. Irrespective of the model, any future legislation should ensure the governance framework is clearly articulated and responsive to a changing environment.

Ministerial appointment

Under the Disability Act 2006, board members are appointed by the Minister. Ministerial appointment is a lengthy process and may act as a barrier to representation for some people, particularly for those with intellectual disability. Whilst it was not evident in the DSB’s membership there are many long-standing disability advocates who sit on several committees and boards. There is an argument that this method of appointment can create an ‘echo chamber’ effect on policy and practice advice. It could also potentially undermine the authenticity of an independent and representative advisory board. Irrespective of any future appointment protocol, it is important that positions are broadly advertised to encourage wide community representation.

Defining membership in the Act

The Health Complaints Commissioner (HCC) representation on the DSB was required by the Act. This may have been advantageous in the foundational years but as the DSB matured, the relevance of its representation was unclear and appeared to diminish. The requirement for HCC membership could not be changed without amending the legislation. Therefore, the benefits and risks of defining the membership with such rigidity should be weighed up in reviewing the Act.

It has also been suggested that if a future board continues to provide advice in the area of complaints, some dispute resolution expertise might be beneficial.

Advice to the Minister

The broad legislative functions of the DSB and VDAC means there could have been some overlap in advice to the Minister at times. Under the Act, the VDAC is required to consult and work with other disability advisory councils or bodies so the rational for having two bodies advising the Minister has been questioned. The VDAC could have potentially consulted with the DSB and consolidated and streamlined its advice to the Minister. On the other hand, it has been argued that the Minister benefits from having input from multiple perspectives and the DSB’s advice focussed in on the complaints system.

Board recruitment

It is important that any future board recruitment processes focus on ensuring potential board members understand the commitment and level of involvement required to effectively participate. This would help prospective members with their decision making, when and if they want to nominate as a member. Desirable experience should also be clearly identified.

Finally, consideration should be given to the potential benefits and risks of overlapping board member’s terms. This may be beneficial in inducting new members and preserving and building on the knowledge and wisdom of the Board. However, ensuring the Minister has the powers to establish a brand new advisory board with a particular skillset is equally important in being able to respond to new and emerging strategic priorities.

Part D: Summary and Gaps

Summary of Achievements

The DSB has reflected on its activities and achievements over the past 14 years. First and foremost, it established a cooperative and productive relationship with the DSC, acting as a sounding board on quality and safeguarding matters for people with disability. It provided advice to the DSC in building and enhancing Victoria’s leading disability complaints model and was valued in the role it played in refining the DSC’s processes. The DSB promoted the work of the DSC with government, key stakeholders and within the disability and wider community. The Board has continued to champion the message that “It’s OK to complain!”

The DSB played a supportive role of the DSC’s engagement with the DSS while the NDIS Quality and Safeguarding Framework was being developed. In transition to the NDIS the DSB advocated strongly that the safeguards under the Victorian model should be maintained and enhanced under the NDIS. It monitored the transition of state services to the NDIS and continues to voice concerns about potential gaps.

The DSB has been a great supporter of the work of the DSC’s death review function and has been a valuable resource to the DSC in working through these difficult matters. The Board highlighted the importance of the death review work including the subsequent Safer Mealtime Support resources at a state and national level. The DSB has actively shared relevant information and initiatives and advocated the need for education and system changes to reduce potentially preventable deaths. Most recently, it has discussed the importance of COVID-19 vaccinations to prevent the deaths of people with disability.

Over the years, the DSB has provided advice to the Minister on a range of matters including out of scope complaints and the importance of the continuation of the death review function. More recently, it raised its concerns about the ‘be careful not to lie’ statement in the easy English submission on the Disability Royal Commission website.

The DSB produced its own submissions to legislative reviews and issues papers as well as supporting submissions made by the DSC. The DSB has been a contributing member to many consultations over the years including the State Disability Plan and the NDIS Quality and Safeguarding Framework. The Board has worked diligently to inform practices that strengthen quality and safeguarding.

Limitations

The DSB does not have a clearly defined purpose and some members have felt unsure of their role at times. This coupled with resource constraints has arguably diluted the DSB’s effectiveness.

Whilst the annual work of the DSB is summarised in the DSC’s annual report and tabled in parliament, the DSB may have benefited from a clear annual workplan with measurable performance indicators. In compiling this report, it proved difficult to track the DSB’s activities over the past 14 years as it lacked a consistent approach to reviewing and reporting on its work. The DSB’s achievements could have been tracked more effectively with regular reviews against performance indicators and feedback from those it provided advice to. The advice could also have been made public to raise awareness about important issues and increase opportunities to effect change.

If the DSB had a clear purpose and a more public platform, its ability to influence still relies on adequate resourcing. As the DSB activities are funded out of the DSC it has little agency to pursue projects of strategic importance. The DSC’s budget for the DSB does not currently allow for additional remunerated meetings and activities to take place as issues arise.

The make-up of the DSB membership is largely prescribed within the Act and includes the representation by both service providers and service users. The DSB’s diversity could have been strengthened by representation of people with various disabilities. Consideration should be given to how the current appointment process could be more accessible to people with a diverse range of disabilities, experience, age and cultures. Moreover, the accessibility of meetings and activities is essential to ongoing participation.

Part E: Recommendations

Recommendation – For a Future Statutory Advisory Board

The supportive and cooperative relationships between the DSB, the DSC and Minister and the depth and breadth of activity undertaken by the DSB since its inception demonstrates its effectiveness as an advisory board. Recognising there is scope for continual improvement and taking into consideration the successes and limitations identified in this report, the following issues should be considered when establishing any future advisory board.

A successful statutory advisory board needs to be given clearly defined functions in the relevant Act. This could include the requirement to develop an agreed terms of reference.

To achieve its purpose, an advisory board must be appropriately resourced to allow for administrative and executive support and to undertake activities as issues arise. It is unrealistic to expect members who are juggling multiple obligations to volunteer their time out of meetings to undertake the research, drafting and promotional activity expected of the DSB.

Performance indicators should be set with regular reviews and feedback from those provided with advice. In the DSB’s case, regular feedback from the Minister and Commissioner would have been helpful.

In addition to recording the activities of the DSB in annual reporting to parliament, any advice could be made public to raise awareness about important issues and increase opportunities to affect change.

Diversity should always be an important consideration when establishing an advisory board. Equally important is the function of the board. The DSB was considering issues regarding the disability complaints system and the operations of the DSC. Consequently, The Act was appropriately prescriptive regarding membership of the board including the representation by both service providers and users. The DSB members included people with a range of disabilities including representing the interests of children with disability. Any future body should include a member with intellectual disability and the necessary support arrangements to ensure that all board members can participate fully.

By setting the number of board members at 11 in the Act, there is an ongoing statutory requirement to ensure vacancies are filled. This proved challenging toward the end of the DSB’s term. To avoid this any new Act could include a Ministerial discretion regarding the number of members for example between 9 and 11.

Recommendation:

The DSB recommends any future legislation which establishes an advisory board should ensure:

• the board’s function is clearly defined in the Act with established performance indicators and regular feedback from those receiving the advice
• it is appropriately resourced to undertake its function
• the advice provided should be made public to raise awareness about important issues and increase opportunities to affect change
• when making member appointments the primary consideration should be meeting the function of the board

• the selection process should include a broadly advertised request for expressions
• of interest to encourage wide community representation
• representation would ideally include Aboriginal and Torres Straight Islander people and people from varied cultural communities with a range of disabilities
• ensure there is a level of discretion in terms of the number of members so the function of the board is not impacted by member vacancies.

Recommendation – Intensive Support Team The DSB has consistently sought to ensure that during the period of transition following the commencement of the NDSI, individuals do not experience any diminution in services. The DSB continues to advocate that Victorians with disability must continue to have their voices heard via the new national complaints system administered by the NDIS Commission. Similarly, the Victorian Government has acted to assist people with disability manage the challenges associated with the major changes embodied in the NDIS.

One such initiative was the Intensive Support Team (IST) – a state-wide service established in April 2017 by the Victorian Government in response to the systemic issues experienced by people with complex support needs transitioning to the NDIS. The IST’s particular focus is on individuals who have a high risk of an adverse outcome, and the need for intervention is time critical due to the impact of the issue.

Some individuals, particularly those with complex support needs, continue to experience difficulties accessing supports and navigating new NDIS processes. The DSB discussed IST’s work with Minister Donnellan at its meeting in October 2020, commending the team’s work and encouraging its continuation. It is the view of the DSB that the IST will be needed for a considerable time yet and it recommends the Victorian Government continues to fund its work. This will be crucial until all transition issues associated with the implementation of the NDSI are resolved and individuals with complex needs can be confident their needs will be met in a timely fashion.

Further, the DSB considers the IST can be an important source of information that will assist the Victorian Government identify implementation issues and advocate for their resolution in appropriate forums such as the Disability Reform Ministers’ Meetings. One such issue relates to the provider role of ‘last resort’. It is imperative that individuals with complex needs know that, under the NDIS, they can be guaranteed a specialist provider will be available in instances where other providers cannot or chose not to deliver necessary support services.

Recommendation: The DSB recommends the Victorian Government continues to fund the work of the Intensive Support Team until it is clear that all transition issues associated with the implementation of the NDIS are resolved and individuals with complex needs can be confident their needs will be met in a timely fashion.

Remaining DSB Priorities

For the remainder of its term the DSB will continue to focus on its strategic objectives and the following issues which we wish to highlight to the Minister at this time.

Disability justice issues

The DSB remains concerned Victorians with disability are caught up in the justice system resulting in significant economic and social ramifications. People with disability, especially those with intellectual disability are overrepresented in incarceration rates. This is compounded by a lack of support when falling foul of the justice system before entering it, during incarceration and when exiting it.

There are no facilities or mechanisms for people with disability to be cared for whist incarcerated. Prisoners are often being required to act as carers. A lack of personal carers, lack of training i.e. how to push a wheelchair and hygiene issues are some of the areas currently not being addressed in the justice system.

Prioritising access to testing and vaccines for people with disability

Many of the enquiries received by the DSC in 2021 regarding the COVID-19 pandemic related to vaccinations and how they have been rolled out in Victoria. The DSC confirmed a level of confusion existed among Victorians with disability who have sought direction and assistance to navigate through the vaccination systems.

In the current COVID-19 pandemic (and future pandemics) people with disability are more at risk of serious disease and death if they become infected with a virus, than the general population. This is particularly so for those living in group homes.

People with disability should have this vulnerability recognised and consequently be prioritised to receive testing and vaccines with the necessary support arrangements to facilitate this. The DSB recommends this priority be extended to vaccinating carers, close family members, disability workers and healthcare workers.

The DSB maintains that necessary support arrangements require a multi-layered plan that enables a swift and effective response to any future pandemic or other medical/ catastrophic event. Any plan would include the flexibility to recognise and respond to culturally and ethnically diverse populations, explicitly including Aboriginal and Torres Strait Islander peoples. Concerns with the plan’s roll out should have a clear enquiry/ complaint and safeguarding mechanism to facilitate timely and fair responses.

Meeting the needs of Victorians with disability not supported under the NDIS

The DSB will continue to follow the current social services reform work undertaken by the Victorian Government. It is concerned to understand how state-funded disability services previously regulated under the Disability Act, such as the TAC, will be regulated in the future. It seeks clarity around the complaints process and where it will sit within the new legislative reform and to ensure the continuing promotion of safeguarding mechanisms broadly in as many ways and to as many communities as possible.

Progress of the Disability Worker Registration Board and Disability Worker Commission

Where the newly established Victorian Disability Worker Commission (VDWC) is receiving complaints previously directed to the DSC, the DSB seeks an understanding of:

• the VDWC’s complaints process including the number and nature of complaints received and whether they are complaints that should be with the VDWC or the NDIS Commission
• setting of standards and the registration process for workers in the disability sector
• the National Worker Screening for all NDIS workers undertaken by the Department of Justice and any adverse outcomes
• steps the VDWC is taking regarding safer mealtime supports and worker training.

To this end, the DSB will continue to liaise with the VDWC and plans to meet with the Chair of its board later this year.

Progress of Safer Mealtime Supports

Consistent with research referenced in the DSC Occasional Paper #3, the DSB remains concerned that people with intellectual disability living in group homes continue to die from causes related to the quality of care they receive. There is a disproportionately high number of deaths from aspiration pneumonia among this group of people compared to the wider population. Many of these deaths are potentially preventable if a mealtimesupport plan, informed by a speech pathologist’s assessment, is consistently implemented.

The NDIS Commission says it is building capacity of support workers in mealtimemanagement and will produce an e-learning module targeted at workers in mealtimemanagement. The DSB will continue to monitor and understand the progress of the Safer Mealt imeSupports training module being developed by the NDIS Commission.

The Board continues to support legislative change to help address this issue of saftermeal timesupports and continued improvement around the provision of high-quality care to Victorians utilising disability services.

Appendix A: The Disability Act 2006

Part 3 Division 2 - The Victorian Disability Advisory Council

11 Victorian Disability Advisory Council

(1) There is established a body to be known as the Victorian Disability Advisory Council. (2) The Victorian Disability Advisory Council is to consist of not less than 8 members and not more than 14 members as may be appointed by the Minister. (3) The Minister must ensure that members of the Victorian Disability Advisory Council are appointed from persons who – (a) reflect the diversity of persons with a disability; and (b) reflect the cultural and indigenous backgrounds of persons with a disability; and (c) have appropriate skills, knowledge and experience in matters relevant to persons with a disability, including children with a disability; and (d) in so far as is possible have personal experience of disability. (4) The Minister must ensure that a majority of the members of the Victorian Disability Advisory Council are persons with a disability. (5) The Minister must appoint one of the members to be the chairperson of the Victorian Disability Advisory Council.

12 Functions of the Victorian Disability Advisory Council

(1) The functions of the Victorian Disability Advisory Council are to – (a) provide advice to the Minister in respect of— i. whole of government policy directions and strategic planning and the implementation of initiatives for persons with a disability; ii. the barriers to full inclusion and participation in the community of persons with a disability and the strategies for the removal of those barriers; iii. any matter relating to disability referred to the Victorian Disability Advisory Council by the Minister; (b) effectively communicate with persons with a disability, the Government of Victoria and the community; (c) raise community awareness of the rights of persons with a disability and of the role of government, the business sector and the community in promoting those rights; (d) consult and work with other disability advisory councils or bodies whether at a national, state or local government level; (e) monitor the implementation of strategies for promoting inclusion and participation in the community of persons with a disability and for removing barriers to inclusion and participation. (2) The Victorian Disability Advisory Council must report annually to the Minister on the performance of its functions

Part 3 Division 4 – The Disability Services Board

20 Constitution of the Disability Services Board

(1) There is established a Disability Services Board.

(2) The Disability Services Board consists of 11 persons appointed by the Minister.

(3) The members of the Disability Services Board must include –

• (a) 3 persons who, in the Minister’s opinion, have experience of and are able to express the interests of disability service providers;
• (b) 3 persons with a disability who, in the Minister’s opinion, have experience of and are able to express the interests of disability service users;
• (c) 3 persons who, in the Minister’s opinion, have expertise that will benefit the Disability Services Board and are not disability service providers or disability service users;
• (d) 1 person who is a representative of the Secretary;
• (e) 1 person who is a representative of the Health Complaints Commissioner within the meaning of the Health Complaints Act 2016.

(4) The Minister must ensure that at least one of the members appointed under subsection (3) is a person who in the Minister’s opinion has experience of and can represent the interests of children with a disability.

(5) The Minister must appoint one of the members to be the President of the Disability Services Board.

(6) Subject to subsection (6A), each member of the Disability Services Board holds office for 3 years from the date of the member’s appointment and is eligible for reappointment.

(6A) The term of a member’s office may be extended once for a period not exceeding 3 years.

(7) The Minister may remove a member of the Disability Services Board from the office of member if –

• (a) the member is unable to perform the duties of office because of illness or absence from Victoria;
• (b) in the opinion of the Minister, the member has misbehaved, neglected the duties of the office or is incompetent;
• (c) the member is or becomes bankrupt;

(8) the Minister is of the opinion that any other act or omission of the member has adversely affected the operation of the Disability Services Board.

21 Procedure of the Disability Services Board

(1) A question cannot be decided at a meeting of the Disability Services Board unless there are at least 6 members present.

(2) The President is to preside at meetings of the Disability Services Board at which the President is present.

(3) If the President is not present at a meeting, the members present must elect one of their number to preside at the meeting.

(4) The Disability Services Board must meet at the times and places that the Minister or the President fixes.

(5) The decision of the majority of the members present and voting at any meeting is the decision of the Disability Services Board. (6) If there is a tied vote at any meeting, the person presiding at the meeting is to have an additional or casting vote. (7) If a member of the Disability Services Board disagrees with a majority of the Disability Services Board on any decision providing advice to the Minister, The member may require – (a) that his or her view be recorded with reasons; and (b) that his or her view and reasons accompany any presentation of the decision to the Minister. (8) A member of the Disability Services Board who is not an employee in the public service is entitled to receive remuneration and allowances as the Minister determines. (9) Subject to this Act and the regulations, the Disability Services Board may regulate its own procedure.

22 Functions of the Disability Services Board

(1) The functions of the Disability Services Board are to –
	(a) advise the Minister on the disability complaints system and the operations of
	the Disability Services Commissioner under this Act;
	(b) advise the Disability Services Commissioner on issues referred to the Disability
	Services Board by the Disability Services Commissioner;
	(c) provide expertise, guidance and advice to the Disability Services Commissioner;
	(d) promote the Disability Services Commissioner and the operations of the
	Disability Services Commissioner;
	(e) subject to the approval of the Minister, refer matters relating to disability
	services complaints to the Disability Services Commissioner for inquiry.

(2) The Disability Services Board may perform its functions in any manner that the
Disability Services Board determines to be appropriate.

(3) The Disability Services Board may require the Disability Services Commissioner

to report to the Disability Services Board on any matter relating to the operations of the Disability Services Commissioner under this Act.