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Joint Standing Committee on the National Disability Insurance Scheme - Inquiry into the NDIS Quality and Safeguards Commission Leadership Plus Submission – July 2020Leadership Plus is a disability advocacy agency providing individual advocacy to hundreds of clients
every year across Victoria, with priority given to people with Acquired Brain Injury and to Culturally and Linguistically Diverse clients in certain geographies.
The NDIS Quality and Safeguarding Commission is essential for setting and enforcing quality and safety standards for NDIS service providers. The Commission’s legislation and powers are appropriate for overseeing and regulating service providers. However, in raising issues with the NDIS Quality and Safeguards Commission we have found the response inadequate and are concerned that it is not fulfilling its purpose of ensuring quality and protecting people with disabilities.
Disability advocates were reassured by the creation of the NDIS Quality and Safeguarding Commission, and optimistic that it would be effective in ensuring quality among service providersConcerns with the Commission’s performance and protection for people with disabilities, but we are finding that the Commission does not respond well enough or quickly enough to fulfil its promise, putting people with disabilities at risk.
We are also concerned that the Commission is not recognising the value of disability advocates in extending its reach, filtering and often resolving complaints, complementing the work of the Commission.
In our contacts with the Commission we have found:
- Responses have been too slow, or absent, or ineffective
- Understanding of the Commission’s responsibility has been insufficient
- Coordination between the state authority and the Commission has been inadequate We are concerned that our experience is representative of the Commission’s capacity to respond to issues with service providers more generally.
CasesLeadershipofPlusunsatisfactoryhas raised very few resolutionissues with the NDISof mattersQuality and raisedSafeguardswithCommission,the but in each of the following five cases, the response has not been satisfactory or timely.Commission
We provide decision support assistance to people with disability who have cognitive andCasecommunication1 – Commissionchallengesstaffengagingunclearwith theof NDIS.the Commission’sA service providerrolewasandpreventingmandatethe client from seeing an advocate to provide this service and the Commission did not recognise this was an issue.
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We were working to provide decision support for a client in a residential facility, but after a change of ownership, the new owners prevented the advocate from contacting the client, to the extent of the facility cancelling a client appointment, without justification, while the advocate was in transit to the facility. Emails, messages etc did not result in successful contact with the client.
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Recognising that this was a breach of the NDIS service providers’ Code of Conduct1, we contacted the Commission.
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The situation was explained to the Commission person who responded (in NSW, apparently put through as overflow from Victoria). The response was that this was not within the Commission’s scope, as it only dealt with abuse and neglect. Even articulating that removing a person’s right to see their advocate to get support with decision-making to implement their NDIS plan did not motivate the person at the Commission to act.
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The advocate pointed out sections of the NDIS Code of Conduct and NDIS Best Practice guide where the rights of clients, and provider procedures are explicit, and reiterated that these were not being followed by the service provider.
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The Commission person then consulted with her team, returned and said they would pass the information and the advocate’s contact details to the Victorian office for them to make contact.
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The complaint call was made in November 2019 - at no stage in the more than six months since was the advocate contacted by the Quality and Safeguarding Commission, and since no details were taken of the service provider, no action has been taken.
The advocate ended up resolving the issue by pursuing a complaint with the service provider directly. This example raises the following concerns:
- The Commission may not be sufficiently staffed to receive complaints and enquiries
- Staff may not be sufficiently trained in the Commission’s roles and responsibilities
- The Commission’s processes and/or staffing are inadequate to respond to and investigate complaints in any reasonable time frame
1 “Adults with disability have the right to choose who does and who does not help them to make any decisions. Their partner, family, friends, carers, advocates, support workers and others play an important role in any person’s life”. NDIS Code of Conduct §19 - Support people with disability to make decisions
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Case 2 – lack of response or effective follow up when a person with disability’sWe were assisting a support coordinator who suspected that a family member was interfering with apersonright towithchoicedisability’sand abilitycontrolto exerciseare beingchoicedeniedand control, but were not able to get the Quality and Safeguarding Commission involved.
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We were contacted by a support coordinator concerned that Barry had been moved interstate by his father, who had history of obstructing Barry’s efforts to live independently, preventing Barry from obtaining formal assessments to make independent living possible.
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In mid-June we lodged a complaint with the Quality and Safeguarding Commission, and the Commission responded a week later
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The Commission said that the fact that the events were interstate may make it outside their jurisdiction, and they may need further personal permission from Barry to take it further, and undertook to contact us with an update or plan of action As of late July 2020, the Commission has not followed up.
This example is concerning because:
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A person with disability is being denied choice and control
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QSC staff are not aware of their capacity to act as a national body, in spite of national legislation
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In failing to act on the complaint or enable referral to any other agency, the QSC is not demonstrating or acting on its commitment to the “no wrong door” policy it is legislated to follow: “The Commissioner will operate on the basis of a no wrong door approach and if necessary will support the appropriate referral of complaints to other bodies as appropriate.”2 Case 3 – failure to actively investigate poor practice and possible abuse by aWe raised a complaint with the Commission against an accommodation provider over injuriesServicereceived byProvidera participant who reported rough handling by support workers, but the Commission failed to act over a period of more than five months.
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Our client Laurie was admitted to hospital with fractures and reported rough handling at her supported accommodation, requiring treatment and some months of convalescence with her family.
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We lodged a complaint in early February 2020, which was followed up by an investigator over the following few weeks.
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In April 2020, after no follow up or feedback, we contacted the Commission, to be told by the investigator that the matter is open and has not been followed up due to lack of time, but that the investigator will follow up with Laurie’s mother.
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In May 2020 we report a further incident of rough handling by the service provider. The investigator states they still have not followed up with the mother.
2 Explanatory Memorandum, National Disability Insurance Scheme Amendment (Quality and Safeguards
Commission And Other Measures) Bill 2017 (Cth), §171
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- In June 2020, we are told the investigator is on leave and the matter has been reassigned to another staff member who we contact to follow up, expressing concern about the lack of follow up and the new incident. As of late July 2020, the Commission has taken no action and provided no feedback or follow up.
This example is concerning because:
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The Commission is not acting to protect people with disabilities and regulate service providers, which is its reason for existence. It is particularly concerning in the context of accommodation providers where participants are completely dependent on the service provider.
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The failure to act and remedy poor practices or abuse by service providers in a timely fashion is a failure to regulate at all. Case 4 – jurisdictional issues preventing either the Commission or the stateWe reported apparently unauthorised restrictive practices in a state facility to the Commission, butagencyit has beenregulatingunable to changeeffectivelypractice or take over supervision of the participant.
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In mid May 2020 we reported to the Commission’s Senior Practitioner that a forensic accommodation facility run by DHHS was reporting restrictive practices with our client Steven but there was no order in place authorising them, and that Steven’s therapy team is meeting resistance from DHHS in implementing their recommendations.
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We were referred to a person at the Commission who reported no active oversight of Steven’s case, but was aware of his complex issues
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A week later the Commission called back, concerned about the restrictive practices and Steven’s reduced contact with his family, and was planning to meet with the State Senior Practitioner to review the matter.
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Approximately a week later, the Commission reported having contacted DHHS, but that there was no progress in pursuing transitioning supervision to the Commission. As of late July, there has been no progress.
This case is concerning because:
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Protection of the rights of people with disability by regulation of restrictive practices and oversight of facilities where it occurs is one of the Commission’s key functions.
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The transition between state and Commonwealth is not effective in this crucial area of responsibility for people with disability. Case 5 – lack of continuity or follow up on poor service by SupportedA SIL provider’s service quality was sufficiently poor that a client was losing weight and at risk ofIndependentfurther deterioration,Livingbut(SIL)followingServiceour reportsProviderwe saw no evidence of action by the NDIS Quality and Safeguards Commission.
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We were contacted by a participant’s family member who had reported a number of issues with a SIL provider to the Commission in December 2019 o Untrained staff not taking enough time with mealtimes, resulting in weight loss o Preventing the participant from returning to her own house in the evening after a medical emergency resulting in having to use a bucket for a toilet in the driveway
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In June 2020 we contacted the Commission to establish what actions had been taken, and were told an investigator had been in contact with the service provider, had given them some time to improve service quality. Advocate requested copy of the action plan and investigator committed to get back to advocate.
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We received no further feedback or contact over the following two and half weeks in spite of repeated calls and messages from the advocate.
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We received a call from the Commission to state that the case had been re-allocated to another investigator and that permission from the service provider would be sought to share the action plan, and that we would receive feedback
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In spite of repeated inquiries, no further contact was made by the Commission until late July
- A third investigator was assigned to the matter, who is still consolidating their knowledge of the matter with the advocate. As of late July 2020, there has been no actions taken on a complaint raised in December 2019.
This case is concerning because:
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The Commission is failing in its fundamental role to ensure the quality of services provided by service providers. Apparently minor failures of quality are evidence of a service provider failing to adequately train staff, exposing SIL clients to unacceptable risk and defeating the purpose of allowing people with disability to live independently using the SIL structure.
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The lack of timeliness in ensuring the provider has corrected the issues creates unacceptable risks for participants who are dependent on SIL providers for their daily activities and for protecting their quality of life.
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These examples show deficiencies in the NDIS Quality and Safeguard Commission’s ability to effectively regulate service providers. If this is indicative of the Commission’s response, it is likelySummary service providers will fail to provide quality services and threaten the wellbeing, the rights and the safety of people with disabilities.
These examples also demonstrate the Commission is failing to adequately work in conjunction with disability advocates.
Our disability advocacy agency alone deals with around 300 client matters every year, many of them involving service providers. Across the country, thousands of actual and potential service provider issues of quality and threats to safety are handled by disability advocates without the need for recourse to the Commission, effectively reducing the workload on the Commission and filtering issues which might otherwise have required its attention.
The NDIS Quality and Safeguarding Commission explicitly recognises that disability advocates are uniquely placed to support its role in supervising and regulating service providers3.
When disability advocates do bring issues to the NDIS Quality and Safeguarding Commission, it is because advocates cannot or should not solve the matter and the Commission has powers to investigate and enforce which advocates do not, or it is because advocates recognise the severity of an issue which requires the Commission’s intervention. In both situations it is imperative that the Commission’s response is timely and effective.
Advocates extend the reach of the commission, are present in the community as eyes and ears identifying issues which the Commission itself cannot. The Commission must ensure it is able to regulate service providers effectively and to respond appropriately where advocates assist it by raising issues.
3 “ In performing his or her functions, the Commissioner must acknowledge, recognise and respect the role of advocates (including independent advocates) in representing the interests of people with disability”, National
Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Act 2017
§181D (3A)
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