Inquiry into the NDIS Quality
and Safeguards Commission
Submission to the Joint Standing Committee on
the National Disability Insurance Scheme
Community and Public Sector Union (PSU Group)
July 2020
Introduction
The NDIS Quality and Safeguards Commission is a fundamental part of the National Disability Insurance Scheme. Tens of thousands of Australians rely on the work they do to ensure the services they receive are safe, address their concerns and to improve the quality of disability services. In response to this inquiry, staff were surveyed by the CPSU in July 2020 about the issues in the Terms of Reference. Their responses have informed this submission which will address the following issues: Monitoring, investigation, and enforcement power; Complaints and reportable incidents; NDIS Code of Conduct and the NDIS Practice Standards; Provider registration and screening arrangements; Communication and engagement between the Commission and state and territories; Human and financial resourcing available to the Commission; and Management of the transition period. Staff at the Commission understand the vital role their work plays in ensuring the integrity of the NDIS but struggle to deal with the operational and systemic barriers within the agency. Their ability to do all they can in the interests of participants is constrained and they experience pressure from above to meet deadlines. According to many staff, processes are further weakened by poor communication from management and a siloed organisational structure. An overarching theme from the responses has been the effect of inadequate staffing levels and resources. It has resulted in high workloads, poor ICT systems and insufficient training and development opportunities directly related to their work, on their jobs, affecting the quality of care for participants and services to the community. This is worsened by budgetary constraints that make it difficult to complete work, a lack of consistency with processes and not enough engagement with providers, professional services and relevant state and territory bodies. There is recognition from staff that the Commission still is a relatively new agency so issues will arise that need to be resolved. Staff do acknowledge that APS values are generally upheld, engagement with the CPSU has improved and more recently, work from home arrangements are operating well despite initial teething problems. Ultimately, members care about the work they do and want to see a better functioning Commission. They understand the importance of their work and have identified where changes need to occur. It has been made clear by members that meaningful improvements will deliver better quality NDIS services and protect the interests of NDIS participants, some of the most vulnerable members of our community.
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Monitoring, investigation and enforcement powers
Monitoring and Investigations
The CPSU agrees with People With Disability Australia that the Commission needs more resources to proactively investigate and penalise those organisations where the abuse of people with a disability is occurring.1 The full extent of monitoring and investigation powers are not used because the Commission does not proactively undertake regular visits to disability accommodation services; they rely on complaints and reportable incidents being lodged to them or concerns arising from auditing and compliance.2 A combination of being provided with intelligence and in-person visits and checks are needed. The staffing pressures are the cause of an the inadequate number of provider and participant home visits. While the Commission does do proactive and reactive visits when made aware of potential problems, members stated that the “Workload and a lack of resources does impact on allowing for in-person visits to providers or participants where this is appropriate, which impacts on the ability to keep the person with disability at the centre of the complaint process.” This is exacerbated by other factors, a member citing the example of no fleet cars, making it difficult to visit providers unannounced. Workloads and workflow issues are also resulting in significant delays in responses to reportable incidents and whether they are investigated. Before being determined as requiring investigation, a complaint or reportable incident must be first referred to Compliance and be assessed and accepted. Concerns have been raised that there is no nationally consistent process for escalating matters. Staff stated that as a result it was unclear whether a matter would be appropriately escalated with monitoring and investigation if intelligence was received. Finally, members emphasised there was a need for whistleblower protections to encourage those staff working for NDIS providers to report incidents to ensure participants are kept safe and investigations occur. They reported whistleblowers have had service agreements and employment discontinued after contacting the Commission.
Enforcement
The Commission needs the power to enforce the findings of its own investigations. Members commented that it had been difficult to progress action on non-compliance under current powers and it resulted in reactive and haphazard responses. There are a number of enforcement tools available but there are difficulties using these powers for a variety of reasons, for example, under the legislation, not all practice standards applied to providers ‘in a transition period’, meaning compliance action could not be taken.
1 https://www.theguardian.com/australia-news/2020/may/27/ndis-providers-used-unauthorised-restraints-more-than-65000-times watchdog-reports 2 https://indaily.com.au/news/2020/05/20/state-government-was-warned-about-disability-checks/
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The CPSU notes reports that while there were 73,846 “reportable incidents” between July 2018 and December 2019, action was only taken against 17 individuals and 7 providers.3 Members cited the time limit to investigate and issue infringements of a year from the date of the incident as a factor behind it. It created a perverse incident for some providers to report incidents months after it occurred. Rather than simply fining providers, infringement notices are sent if breaches are identified. Members stated that this rarely results in a financial penalty for providers for a breach as action is not taken when it is not paid. This was because of a reticence to take legal action against providers for breaches unless a case was certain to win, one member stating that:
We don’t seem to want take anything to court unless there is 100% certainty we would win, which while I get that desire, it leaves a lot of people vulnerable as no one is taking a chance for them.
The removal or extension of the time limit to investigation and issue infringement notices and shift from simply sending infringement notices that need to be enforced via court action need to be considered.
Complaints and reportable incidents
Nearly two thirds (64.2%) of those surveyed stated they do not believe the Commission effectively responds to and investigates concerns, complaints and reportable incidents. Common themes from staff were high caseloads due to a lack of resourcing, which also makes preventative work difficult, and not enough training. One member estimated that each Reportable Incident officer holds between 80 to 120 matters while each Complaint Officer holds between 40-60 matters. Members commented about the impact that being understaffed were having on their roles:
Staff numbers are so low in the reportable incidents and complaints teams that they are unable to make a proper assessment of the incoming interactions from the public and then matters get missed or get transferred to compliance and or investigations months after incidents take place missing the key time windows for gathering evidence.
Frontline operation teams do not have adequate employee numbers to manage the volume of reportable incidents, complaints, or compliance activities currently within the Commission’s oversight. Participants are at risk due to the inability of the Commission Branch functions to perform thorough assessments to ensure the ongoing safeguarding of participants has occurred and NDIS providers are meeting legislative obligations
3 https://www.theguardian.com/australia-news/2020/may/27/ndis-providers-used-unauthorised-restraints-more-than-65000-times watchdog-reports
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Understaffed, unable to act on matters efficiently as staff are overloaded with cases, no complaints risk assessment guidelines, no clear strategy for managing complaints
Staff spoke of being told to close cases by management to meet deadlines and key performance indicators because of these workloads. Members expressed deep concerns about the impact of these pressures on their ability to do their job in the best interests of NDIS participants:
We are moving towards closing complaints as quick as possible - it is starting to be that KPIs are all that matter, in particular, the annual report. The stress of my workload has caused me to seek counselling and sometimes I just sit at my computer and cry because I cannot possibly see how I can get to my old complaints of all new ones coming in as ‘high’ risk. I continually feel inadequate and hopeless.
I am deeply concerned for myself and the team as we are pushed to close complaints before they are ready at the end of month for good stats, we also have caseloads so high we miss things and cannot provide the quality which is in our title. We have a severe lack of resources to do our job properly, have minimal support, no career development opportunities, and the expectations of complaints officers both internal and external cannot be met. It appears that everyone including Assistant Directors are heading towards burnout and are not being heard.
The reactive nature of the work means staff have little time to assist in building the capacity of the sector. The under-resourcing not only make preventative work difficult, the constant stream of new staff due to the transition period means that the Commission also had to divert finite resources to set up new infrastructure. Members stated the majority of participant issues belonged to “middle ground” where there was no breach so it would not meet the threshold for an investigation but clearly it was not best practice and it is more serious than a Reportable Incident. An example might be a person falling, medical attention not being prompt enough, leading to an amputation being needed. Because it is not a systemic issue, it should not be in Compliance and by default, it ends up with Reportable Incidents.
Inconsistent processes The division between management and staff has resulted in lengthy processes and inconsistent advice that delays informed decision making. Members spoke of high levels of approval and risk aversion, leading to double-handling and a lack of clarity about priorities, one member commenting that, “Delegations are high and staff are unable undertake tasks such as sending an email without seeking approval from a delegate at the EL level.”
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The Commission should be providing teams with support needed to do their jobs effectively including providing frontline workers with practice guides. The lack of practice guides has meant that those with clinical expertise in Behaviour Support has ended up providing practice advice support to other teams. It has worsened incoming workloads and led to role creep. A lack of practice guidance from management combined with the high workloads and expectations to close complaints more quickly has affected the management of caseloads. As teams may understand risk differently, this lengthens timeframes. These concerns are confirmed by the 2019 APS Census results for the NDISQSC. More Commission staff were more likely to disagree (37%) than agree (33%) that the work processes in place allowed them to be as productive as possible.4 An explanation of the process experienced by one member and how it can lead to delays was provided by one member:
It takes a really long time to get a matter to investigations as complaints have to do a referral to Compliance first, which needs EL1 approval. Then there is a meeting to see if Compliance will accept the referral. If so, Compliance looks at the matter and after some time may refer it to the Investigations team who may or may not accept the referral. Each area of the Commission is understaffed and is very behind in attending to matters.
The interaction between processes, inadequate staffing levels and high workloads has created unrealistic expectations and affected the quality of work as staff must work out what should be prioritised themselves. One member expressed the effect it was having:
I feel overwhelmed, I don’t know what matters are allocated to me, each staff member has to risk assess their own matters with no formal guidance, I feel I have been in a state of chronic stress for the past 2 years and I find it difficult to prioritise my work when we are told that every complaint must be allocated whether or not the staff member has the capacity to do the work.
Silos
Four in five (79.3%) believe the Commission operates in silos, resulting in issues being examined in isolation and making it difficult for staff understand the broader picture. Three quarters (73.6%) say that there is poor information sharing from management to staff. This is reinforced by results from the 2019 APS Census which found less than half (44%) agree that Internal communication within the Commission is effective. Poor communication from management teams and between functions was a commonly raised issue. The workload and poor ICT systems make it difficult for teams to work collaboratively. Several staff spoke about how the complaints team cannot see what the compliance or investigations team are doing on a particular case. One example provided by members was that staff do not know they are working on the same cases. Each team would have a different take on the case and there would be no shared risk assessment:
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There are often times when Reportable Incidents/Complaints are working on the same case as Compliance and then sometimes Investigations as well. Whilst they may be working on different issues the providers get confused, they are getting requests from 3 or 4 different people within the Commission. There should be one face and we should be working together.
Members also mentioned that there are few opportunities for state offices to seek further information decisions and that there is no sense of what is happening nationally. Communication is often verbal and not distributed widely to all staff, yet staff can have as little as one whole of office meeting a month. There are no listings for precedence of escalation of matters.
Information is passed along verbally and not distributed to all staff equally and at the same time. Seems to be a lot of decisions made at ELT meetings which aren’t transparent - no meeting minutes, and Directors don’t feed much downstream.
Changes to operating procedures often are not communicated to staff.
There is a reliance on one email from the COO or Commissioner for major announcements. Our team was restructured twice in five weeks during the pandemic. First time we found out by phone one week before. Next time we found out at team tele-link (during Covid) two weeks before. ELT informs the direction of the work of the Commission. Managers are briefed but it is up to them to inform staff. Often work without context or knowledge of other areas of Commission working on the similar projects. There has been a reluctance to produce a proper organisation chart. Only high level with minimal information.
Poor communication from management, worsened by the fact that processes are very hierarchical to get information and sign off for complaints and reportable incidents. Members mentioned the need to get sign off from high delegations which pushes back how long it takes to finalise or escalate a matter. Several members commented on the silos within the Commission and how that affects processes of operational teams across the Commission. There is limited understanding of the work in the rest of the organisation which has led to delays. One member explained that they:
“…work in complaints team and the NDIS Commission did not have any understanding about the volume of complaints that would be received, which has led to long delays in actioning complaints. The complaints team has poor visibility and connection between Reportable Incidents, compliance and investigations teams, so no one knows what is happening.
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NDIS Code of Conduct and the NDIS
Practice Standards
Members commented that the NDIS Code of Conduct is broad which works in the Commission’s favour but can be difficult to enforce. The regulation of unregistered providers using the Code of Conduct was cited as a specific problem. There were also concerns about the NDIS Practice Standards as many do not apply to transitional providers which limits its effectiveness. Members also expressed the view that the Practice Standards were sometimes vague and not prescriptive enough which led to inconsistency across the different jurisdictions.
The enforcement of the Practice Standards is affected by the lack of internal capacity within the Commission. Staff do not have medical backgrounds and many issues merged into health care. One member commented: “how could we determine whether a Provider was meeting their responsibilities, for example, to provide appropriate (and safe) ‘high intensity daily personal activities’ for Participants, when the Commission do not even have a Clinical (Medical) expert on staff to provide advice and guidance in these critical areas of care, in
the Practice Standards.”
Provider registration and working screening arrangements
Three in five (62.3%) did not believe current provider registration and working screening arrangements are adequate and effective. Members explained that the worker screening arrangements have been challenging and there have been delays. Poor communication has created gaps as information has not been shared between systems and jurisdictions. One member expressed concern that these interjurisdictional gaps “mean vulnerable people with a disability remain at risk of Disability Support Workers who have been deemed unsuitable to work in the sector.” Problems with provider registration arrangements were also mentioned. Provider registration status is often unclear. Members expressed concern that some providers have been re-registered despite breaches of the NDIS Act and auditors deeming them unsuitable. Whether providers are registered also effect the Commission’s ability to protect participants. Providers who are not registered can only be dealt with using the Code of Conduct. The Commission has no power to pursue action against providers who are not registered. Members were concerned there was no understanding of the importance of providers being registered.
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Communication and engagement between the Commission and state and territories
Members reported that communication and engagement between the Commission and relevant agencies in states and territories needs improvement and was not developed properly during the transition period. Processes to get information from the police or community services are inadequate and there is a lack of understanding about how to refer issues. One member even told the CPSU that there was no agreement to share information with police jurisdictions to do basic criminal history checks. Gaps were identified by operational staff and these concerns had been escalated for further action but information sharing guidelines have only recently been established.
Human and financial resourcing available to the Commission Staffing levels It is unsurprising that over four in five (83.0%) of members said their current workload is affecting their ability to do their job. The 2019 APS Census results for the NDISQSC found that only 22% disagreed or strongly disagreed they had unrealistic time pressures. The Average Staffing Level cap has limited the Commission’s ability to engage permanent staff to meet workloads and instead encouraged the use of insecure, contractor roles. Members report that the Commission is slow to fill APS positions and they are instead being filled by contractors. In February this year, the CPSU was advised that there were 60 Contractors working at the Commission. Despite assurances from the Commission of more resources on the front-line, there seems to be very little evidence of this, in fact the opposite is being reported by members with more resources going into two new national SES positions. There is inadequate or no cover for longer staff absences, high staff turnover in all states and a lack of mobility options for staff to help cover these gaps. Members also commented that since March numbers of staff have been pulled onto a taskforce for the above and left gaps in other areas of work, making the situation worse.
ICT system Seven in ten (69.8%) stated they currently do not have the IT systems and tools to do their jobs properly. This affirms 2019 APS Census results for the NDISQSC that only two in five (41%) said that their workgroup has the tools and resources needed to perform well.
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Members spoke about how the IT system was clunky, time consuming and had poor linkages between the various systems, not allowing for cross referencing or tracking. The current system was cited as a barrier that prevents staff from “joining the dots” as different modules did not communicate to each other. Analysing data is a manual process as wider trends and data that sits between different teams cannot be accessed. An example provided by members was that the current system cannot identify the same provider if they use different trading names, previous contacts or even search for a particular address to identify the usual place of residence prior to death. This limits the possibility for further analysis, one member expressing the desire for “…a better understanding of the broader picture to know what risks exist. We don’t know if there are patterns, we are looking at issues in isolation.” Members mentioned there is a data and analytics team in the national office, but it is not well connected to state offices. Neither the staff in the national or state offices had the time to run multiple reports and analyse the results. A common criticism was the IT system does not assist with caseload management. It was not designed in an intuitive manner and data entry requirements has led to multiple entries, sometimes incorrect with limited data analytics. Complaints can only be examined on a case by case, meaning there is limited visibility and that staff miss things as they are working in silos. Staff mentioned having to use multiple spreadsheets to manage caseloads, other datasets and undertake analysis. This is exacerbated by staffing pressures, creating pressure to close off cases prematurely, one member stating, “With hundreds of cases, you cannot remember everything going on, can’t chase everything.” Other examples provided by members included difficulties with the system affects workflow activities and make it harder to escalate matters, constant errors messages and a lack of real time data requiring, additional spreadsheets being required to support caseload management. One member provided a detailed explanation of the lack of meaningful reports and how it affected their work.
The database does not produce meaningful reports. For example, I cannot tell if a provider is reporting incidents on time without going into multiple screens and calculating the time myself. If a provider has 1000 incidents, I will not go be able to look at all of them as it takes so long. The Compliance team does not have access to the Investigation team’s activities on the database, so we do not know what action they are taking with a provider. The database is not authorised as a records management system. Every time we want to save a document, we have to save it to an external records management system, save it, move it to our documents and then put it back into the database, which takes too long.
Staff mentioned that the current system was built by DSS, that DSS controls all the data mechanisms and systems and there is a lack of real time support for data. Any changes had to be proposed to DSS six months in advance. While there have been improvements since it was first rolled out, staff often must rely on work arounds and spreadsheets.
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Members were strongly of the view that there needs to be high level priority discussions about the data systems working because of the limitations mentioned. Without the proper technology, their ability to investigate and prevent incidents is severely hampered.
Training
Providing additional training, support and guidance to staff will be necessary. Four in five (79.3%) do not believe staff receive enough training and guidance to help them do their jobs effectively. Staff expressed frustration that training was almost non-existent, and they had to learn everything on the job. The lack of training meant that new staff did not receive inductions and did not have a good understanding of the role of the NDIA. Members were strongly of the view more training and development is needed because staff must understand complex legislation and understand medical, mental health (including suicidal ideation) and disability issues to make decisions. Members gave numerous examples of the lack of training and how it affected their work they do:
Staff in Reportable Incidents are expected to understand medical, disability and mental health terminology with no requirement to have this type of skill prior to staffing. They are also expected to determine if deaths are preventable or serious injuries area.
There is very little training on anything useful. We are expected to look at medical evidence but have no medical backgrounds e.g. I had a discussion with my manager yesterday about epilepsy management plans. I flat out said how am I supposed to tell a provider they have not done it properly when I have no idea myself what they should look like. I have been asked to review a coroner’s decision. As If I know anything near as much as a Coroner! There are a lot of people without disability background, but we are supposed to know how providers should be supporting people with disability. Not only do staff need training in our own jobs, managers need desperate training in Human Resources matters and how to do their job properly!
No training in relation to suicidal ideal, self-harm etc. Don’t fit neatly in R&I space. No training to handle psychosocial disability despite complexity. When trying to review an incident when no apparent cause of death, need to look at suicidal ideation and whether provider should have mentioned it.
The Commonwealth needs to provide the Commission with funding to train staff. One member noted that teams have asked to do a Certificate IV in Government Investigations, however, they have been told there has been no funding for years. This affects the ability of the Commission to look after the best interests of NDIS participants. Members were asked what areas should there be further training in. The common responses were understanding how to apply legislation and regulation, mental health and disability issues, behaviour support and guardianship.
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Triaging
There were concerns about triaging and the management of risk with the lack of structured risk assessment mentioned as an issue. Members flagged the lack of a singular risk assessment framework or strategy to understand when a matter should be escalated and the lack of both generalist and team specific risk training. It is little surprise that seven in ten (69.8%) stated they believe that triaging decisions are being affected by poor data, While there is a triage system for complaints, some teams do not even know it exists. Members also informed the CPSU that they do not have any clear risk-based approach in terms of which matters to deal with first. No formal risk matrix for triaging makes it difficult for them to prioritise in a consistent manner and identify issues. Though there are escalation guidelines, the workloads are massive and goal post shifts, staff having to work out how to prioritise themselves. Members stated they have been asking for formal risk matrixes for some time now.
Reportable Incident Officers have been requesting a formal risk matrix to support work prioritisation action for the last 2 years. Officers were told by SES staff that the Commission would not use a risk matrix in frontline incident management. Employees were advised that we were ‘oversighting’ provider conduct which did not require a matrix.
Furthermore, members expressed concern that the lack of formal guidance affects staff who are not as experienced in applying risk, resulting in decisions that are not based on data and proper risk assessments, instead relying on the corporate knowledge of individual staff members. There is an urgent need for formal guidance and training to help prioritise workloads because what it is in place is “grossly inadequate” and creates risks. This would assist staff understand how and when to triage and to understand how risk translates across teams. Consistency around operating procedures was another common issue. Members stated that there was a lack of national consistency and that the Standard Operational Procedural was impractical and open to interpretation. Members added that they did not know what other offices are doing to manage work. For those who work in complaints, triage shifts have occurred on top of existing caseload were causing domino effect, worsening already high workloads, and meaning some matters sit for weeks and months on end. Members informed the CPSU that there has been no consistency to addressing this issue. Some state offices have imposed restrictions on triage shifts so staff cannot work on existing caseload, however. Other states doing things differently, for example, complaint officers focus on caseload whereas specific people focus on triage.
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Management of transition period
Members raised concerns about the transition period, noting problems in jurisdictions where the Commission has been operational such as in South Australia and New South Wales. They reported inconsistencies between how transitions are managed in each state, a lack of clarity regarding processes and procedures, insufficient community engagement and not enough engagement with state regulatory bodies. Comments included that:
The transition in states has not gone well, even after 2 years of working in NSW, there are still no information sharing schedules singed off. It is embarrassing that we are constantly forced to not take action or if we want to the path, to get approval from legal is so convoluted and has to pass through the state director so it’s often not pursued. There is minimal opportunity for engagement with the sector due to workloads.
There is very little community engagement, providers in SA have no real understanding of the Commission or their purpose because the engagement is poor and not well managed. The focus of transition should be unannounced visits, getting out, making contact, having forums in community with families and caters.
It is extremely concerning that members reported the transition was “policy on the run” where state systems were phased out led to the closure of community infrastructure that left a large gap that the Commonwealth did not understand. Their comments reinforce that the upcoming transitions must not be rushed and that the Commission needs to provide the support and resources to enable staff to engage with the community and relevant state counterparts.
Recommendations
To address the concerns and issues raised by staff that prevent the Commission from providing the best quality support for NDIS participants, the CPSU has a number of recommendations that should be adopted by the Commonwealth.
- Increase permanent staffing levels The Commission requires a significant expansion in the workforce. This will require removing the Average Staffing Level cap which places an artificial cap on the number of permanent APS staff, and requires roles that should be filled on a permanent basis are instead filled on a labour hire or contract basis. Increased permanent staffing levels and ensuring any vacancies are promptly filled will help to address high workloads and will enable the proactive regular visits to providers that are essential for effective regulation.
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The expansion of the workforce should also extend to building specialist capacity such as having internal clinicians who can provide advice and guidance to improve Practice Standards.
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Improve processes and consistent guidance The Commission must urgently establish consistent operating procedures and introduce formalised risk matrixes and other supporting guidance to aid the prioritisation of work and manage workloads. This should also extend to more appropriate delegations for tasks such as correspondence. There also must be a better process for the Commission to deal with what are considered cases that are serious but not systemic or a breach. These are lower-level compliance matters, not serious enough for investigation but serious enough to raise concerns about safety. They may also become serious if not dealt with at this stage. It requires systemic analysis and needs to be done in tandem with better ICT systems.
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Invest in better ICT systems There is an urgent need to improve the tools that staff have available. The Commission and DSS need to work together to ensure a more responsive and intuitive ICT system. This needs to involve staff and result in a system where staff have access to a more sophisticated case management package with increased functionality where modules can be integrated and analysis can be undertaken to identify trends and assist with cases.
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Fund training and development for staff Funding needs to be provided to enable staff training and development. Inductions that provide an understanding of the NDIS, the role of the Commission and NDIA should be mandatory and there needs to be a focus on providing training to staff on legislation and health and medical issues.
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Better investigation and monitoring The Commission needs to make full use of existing powers and undertake more proactive visits to providers. Legislation also needs to be amended to remove or extend time limits for reports to eliminate perverse incentives to delay reporting by providers and for any breaches to immediately result in fines to encourage compliance by providers. Stronger whistleblower protections are also needed for staff and those contracted by NDIS providers.
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Reduce internal silos There needs to be an improvement of management structures and communication within the Commission. This should include ensuring functions across the Commission understand and know what other functions are doing and improving the flow of
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information from management to staff, including of agency priorities. Ensuring functions are not completely centralised, for example, having dedicated resources in each jurisdiction for data analysis/intelligence may assist.
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Improve communication with other jurisdictions Transition issues such as an ongoing lack of engagement with jurisdictions should be addressed through a professional services liaison to link agency with NDIA and other external state authorities especially regarding sharing information.
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Involve staff in fixing issues The range of issues highlighted shows that staff have an important role to play in improving how the Commission operates. The Commission should genuinely consult with staff to help address issues related to the NDIS Code of Conduct worker and provider screening raised in this submission.