ACT GOVERNMENT
SUBMISSION
Joint Standing Committee on the National
Disability Insurance Scheme - Inquiry into the August 2020
Scheme - Inquiry into the NDIS Quality and Safeguards
Commission
OVERVIEW
This submission was co-ordinated by the ACT Community Services Directorate (CSD). Input was received from a range of relevant stakeholders from both within government and independent statutory submissions. CSD would like to thank the ACT Public Trustee and Guardian and the Official Visitors for Disability Services for their contributions to this response.
The contributions herein support a consistent approach to quality supports and safeguarding for NDIS participants. In particular, the Public Trustee and Guardian expressed a warm welcome to nationally consistent safeguards and oversight of providers of service to their clients; and the hope that such oversight will support the maintenance of the highest standards across the market in support of NDIS participants.
The Public Trustee and Guardian also took the opportunity to commend the Commission on the work it undertook with Prof. Julian Troller researching the causes and contributors to death of people with disability and to identify mortality trends concerning the deaths of people with disability, and the proposed use by the Commission in a longer term program to mitigate systemic risks of harm to people with disability and to prevent avoidable deaths.
For ease, the comments which follow are grouped under the most relevant of the Committee’s Terms of Reference, however, I ask you to consider them more broadly as they may relate to more than one item or generally to the operation of the Commission and this inquiry.
RESPONSE
The effectiveness of the Commission in responding to concerns, complaints and reportable incidents – including allegations of abuse and neglect of NDIS participants
When enquiries are made of the Public Trustee and Guardian by members of the community expressing concerns about the quality of service provision, the office refers the matter to the Commission. The Public Trustee and Guardian acts as an agent for the protection and support of rights, choices, security and justice for people in the ACT Community but does not have specific powers to investigate these types of complaints. The Public Trustee and Guardian staff have made such referrals on behalf of clients with varying responses. On occasion Public Trustee and Guardian officers have been asked to pursue investigations themselves – this is frequently neither appropriate nor possible. On other occasions they have contributed to investigations being made by the Commission and remain happy to do so.
The Public Trustee and Guardian continues to use and benefit from the local services and mechanisms for oversight including official visitors and advocacy services who respond quickly and with contextual knowledge to any concerns expressed. Outcomes of these actions are sometimes directed to the Commission and the Public Trustee and Guardian has limited experience or understanding of the process which then occurs.
The ACT Human Services Registrar, responsible for the regulatory oversight of providers of social services in the ACT (care and protection, community housing and specialist disability services), cited
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similar experiences, noting a particular occasion when collaborating with the Official Visitors for Disability Services. The Official Visitors had raised concerns with the Commission (and the National Disability Insurance Agency) about a provider operating in the ACT and the quality of support being provided to a participant. While understanding that investigations are necessarily confidential and that procedural fairness dictates that equal and due process is afforded to complainants and those complained about, the HSR was not assured that the process undertaken met these agreed benchmarks. The response that was received by the Official Visitors in relation to the referral indicated both to the HSR and to the Official Visitors that the investigation did not succeed in identifying the observable issues or to take steps to rectify them. This raised concerns that neither the Commission nor the Agency retains sufficient resources to adequately pursue the issues raised.
After further pursuing this issue with the Commission the HSR was advised that the outcome was arrived at following an investigation that met the processes and standards of the Commission. Unfortunately, this did not include speaking to the participant, but was limited to asking the provider for documents, which were produced and accepted at face value. As the previous regulator of disability service providers in the ACT, the HSR is concerned that this response implies a limited understanding of the qualities of a targeted compliance review or complaint investigation.
The Official Visitors added advice that a further attempt was made to lodge a later complaint, of a similar nature, about the same provider. The Official Visitors spoke with the NDIS Fraud Hotline and met with the Commission. The responses received from both organisations left the Official Visitors with the impression that neither organisation was keen to pursue the issues unless the Official Visitors undertook the groundwork to gather all of the necessary evidence. The Official Visitors noted that it is their legislative role to refer matters on to organisations that are better resourced than the Official Visitors, if the issues are unable to be resolved on the ground. The responses were disappointing, and the Official Visitors remain unaware of whether the issues were investigated.
The Official Visitors also note that, while efforts were made some time ago to develop an information sharing agreement between the Commission and the Official Visitors in relation to complaints, this has not been finalised as far as the Official Visitors are aware. The draft agreement was very one sided, with an emphasis on information being provided to the Commission but with little surety that information would be provided back to the Official Visitors. The Official Visitors have welcomed the Commission seeking to discuss complaints with them to ensure that a range of perspectives are brought to its investigations. The Official Visitors have raised concerns, however, that the Commission does not provide feedback to the Official Visitors when a matter is finalised. The Official Visitors can therefore be visiting participants and houses without knowing whether issues raised with the Commission have been addressed and if there are continuing concerns that may impact on residents’ safety and quality of life.
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The adequacy and effectiveness of provider registration and worker screening arrangements, including the level of transparency and public access to information regarding the decisions and actions taken by the Commission;
The ACT Office for Disability provides strategic advice to government and community to create an inclusive Canberra so that people with disability are able to fully enjoy their rights as citizens of the ACT. The Office reported that it has no line of sight of any decisions or actions taken by the Commission about ACT providers. Moreover, that it has not been consulted at any stage by the Commission or made aware of any action including those actions that could impact on service delivery for NDIS participants. It was a recognised expectation throughout the establishment of the Commission, and through transition, the mutual objectives of both the Commission and the ACT Government would be supported by the open and proactive exchange of relevant information.
The effectiveness of communication and engagement between the Commission and state and territory authorities;
The Public Trustee and Guardian noted that it joined with other Australian Public Guardian/Advocates earlier in 2020 in writing to the Commission in respect to its annual and bi-annual Activity Monitor reports specifically seeking publication of data in relation to complaints, engagement, reportable incidents and behaviour support planning at a state/territory level. The Commission responded positively by making that data available by request rather than in its published reports.
The Senior Practitioner, however, raised serious concerns about the lack of information sharing from the NDIS Commission regarding registered providers. Equally, the Human Services Registrar, with an ongoing legislative and service quality interest in this sector, expressed similar difficulty in obtaining relevant data. Data is a significant issue both from a safety/safeguarding and communication aspect. Certain arrangements were agreed to on the basis and expectation that there would be open and proactive exchange of relevant information.
The Senior Practitioner further stated that as the authorisation of restrictive practices is a jurisdictional responsibility of the Territory, not having sight of the unauthorised restrictive practices being reported for Territory citizens prevents the ACT Government generally and the Office of the Senior Practitioner specifically, from providing support or adequate safeguards for vulnerable citizens. The Commission has no legal standing to authorise restrictive practices within jurisdictions and the reduction and elimination of restrictive practices has been nationally agreed to. It does, however, retain a vital intelligence source for jurisdictions on emergency uses of restrictive practices (provisions for which exist in ACT legislation) and other trend data which would support a closer working relationship between the ACT and the Commission to achieve common goals. Data provided on unauthorised uses of restrictive practices as a matter of course, by jurisdiction and nationally would assist all State and Territory Senior Practitioners (or similar offices) to further discharge the commitment to reducing and eliminating the use of restrictive practices.
An example of how this applies in practice relates to the Senior Practitioner’s ability to identify and contact registered positive behaviour support providers. The ACT Senior Practitioner has a legislated responsibility to educate and build the capacity of providers in the ACT to reduce reliance on restrictive
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practices in favour of positive behaviour supports. However, the ACT Government no longer has responsibility for the registration and oversight of Positive Behaviour Support Specialists, as access to the relevant stakeholder group is held by the Commission. Efforts to obtain an accurate list of providers operating in the ACT has been problematic. This significantly limits education and capacity building opportunities at a jurisdictional level, potentially contributing to further episodes of unauthorised restrictive practices.
Other examples provided by the Human Services Registrar where reasonable requests for data have not been responded to are:
- NDIS participants under the age of 65 years residing in aged care facilities for the purposes of linking those participants with Official Visitors (also known outside the ACT as Community
Visitors)
- Providers registered in the ACT with at least one NDIS claim within the previous 12 months for the purposes of understanding the Senior Practitioner remit and furthering the Human Services Registrar’s understanding of the unregistered market which still comes under her jurisdiction. With regards to communication and engagement, ACT Government officials provided input that that there is little engagement from the Commission at the local level; including both engagement with government and disability providers. The Commission is not involved in the local ACT Governance arrangements with the National Disability Insurance Agency. Further, there appears to be little transparency of the operations of the Commission at a jurisdictional level.
The ACT Government is also concerned that during the pandemic, despite alerts sent to the sector by the Commission, providers were not submitting information requested of them by the Commission. This included business continuity information, how providers were protecting service users and ensuring that essential services would continue. Anecdotally, it appears that this was due to a lack of trust by providers and a poor relationship between the ACT disability community and the Commission, however this cannot be supported by data or other evidence. It was a concern of the ACT Government at the time of establishment, by combining the ACT with NSW as a region, that this may be the result.
The human and financial resources available to the Commission, and whether these resources are adequate for the Commission to properly execute its functions
As a consequence of many of the concerns detailed herein, several stakeholders have come to the position that there are not sufficient resources within the Commission to adequately undertake the level of inquiry required for complaints investigations or oversight of the quality of services being delivered to ACT participants.
Any related matters
Overall, the ACT Government has concerns that the Commission is not a connected part of safeguarding in the ACT. More broadly, the feedback received points to a lack of an integrated systemic approach to the support of vulnerable people with disability. Whilst there is a willingness of local NDIA officials to work collaboratively there is still a gap and a lack of coordination both at a client and systemic level.
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The ACT Government acknowledges that a regulatory process is only one part of a safeguarding framework and that the inclusion and empowerment of people with disability in decisions taken about them and for them are paramount. People with disability are best protected from harm, or exploitation, through a combination of visibility in and inclusion by society, formal oversight and informal safeguarding, that which is provided by natural supports and is supported by their ability to engage with the formal sector. This is considered by some to be the most import safeguard in people’s lives. Specifically, there are concerns that the Information Linkages and Capacity Building component of the NDIS is not meeting the clear intent of the 2015 Policy Framework document to build and develop these mechanisms for and with people with disability. For example, the ILC policy states that:
Investment in community education, broad-based interventions and capacity building and supports for carers and families is needed. This investment sustains and strengthens
informal support and promotes the social and economic inclusion and meaningful
participation of people with disability.
The ACT Government supports further work and review of ILC in the context of safeguarding.
CONCLUSION
Thank you for the opportunity for the ACT Government to provide a response to this inquiry. I appreciate the input is frank and thank the contributors for their honesty. Any improvement in communication with the Commission for participants and those who make referrals and the resources for the Commission to respond in a timely and transparent way is welcomed.
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