4.1
This chapter discusses evidence received during the inquiry in relation to the Commission's compliance and enforcement powers. While evidence suggests that these powers appear adequate, there was consensus from a range of submitters and witnesses across the disability sector, along with people with disability and their families, that the Commission should be more proactive in the exercise of its compliance and enforcement powers.
4.2
The role of community visitors was also raised by a range of submitters and witnesses as being key to an effective proactive monitoring and enforcement model for the Commission, with suggestions for increased coordination and support from the Commission with existing state- and territory-based schemes and for a national scheme to be established within the Commission.
The Commission’s approach to compliance and enforcement
4.3
The NDIS Act provides the Commissioner with a broad range of compliance and enforcement powers, including:
Monitoring and investigation
Suspension and revocations
4.4
However, the Commission’s Compliance and Enforcement Policy states that the Commission’s primary approach to achieving compliance and building the capacity of the sector is educating, advising and encouraging providers and staff to identify and understand their obligations and improve their practices. Further discussion about the Commission's educative and capacity building work is contained in Chapter 3.
4.5
During one of the committee’s public hearings, the then Commissioner described the system as follows:
The system is being designed to allow for a focus on prevention, development and taking of corrective action, and it's being designed to use regulatory mechanisms to drive continuous improvement in quality while also allowing the commission to respond to complaints to how incidents are managed and to the very specific issues raised by the continued use of restrictive practices.
The commission regulates all NDIS providers and registers some, and these are subject to all of the registration requirements set out in the act and the rules; for instance, the need to be routinely audited against the purpose built practice standards, the need to have mechanisms in place to manage complaints from people with disability, the need to report certain matters to the commission and the need to comply with worker screening arrangements.
4.6
The Commission provided a ‘regulatory pyramid’, below, to illustrate how it works to uphold participant choice and control and to support a responsive and effective NDIS market.
Adequacy of enforcement powers
4.7
The Commission has a broad suite of legislative powers to ensure the quality and safety of supports and services—including by enforcing compliance with the Code of Conduct and Practice Standards. The Commission may also enforce compliance via registration, including by imposing conditions on registered providers, and suspending or cancelling registration.
4.8
The majority of submitters and witnesses who commented on the adequacy of the Commission’s powers indicated that the Commission's powers appear sufficient to enable it to effectively perform its functions. However, the committee heard that there may be scope to strengthen, clarify and rationalise the Commission’s powers and to remove impediments to their exercise. This may enable better responses to allegations of misconduct and enhance the Commission’s ability to ensure the quality and safety of services.
4.9
Concerns raised by witnesses and submitters included that:
the Commission may lack legislative ‘teeth’ to have a positive impact on the quality of services and supports;
the Commission should have a power to prevent service providers from withdrawing services until other satisfactory arrangements are in place;
legislative restrictions on the ability to delegate compliance and enforcement functions may increase administrative burdens;
the evidence requirements associated with banning orders, suspensions and cancellations (of registration) may be too high for the Commission to meet within its existing resources; and
limitations on periods for investigating complaints and incidents and issue infringements may lead to rates of enforcement action.
Exercise of the Commission’s powers in practice
4.10
Several submitters and witnesses expressed concern that the Commission has been unwilling or unable to make effective use of its powers in practice.
4.11
Ms Kirsten Deane, then Campaign Director, Every Australian Counts (EAC), stated that it is ‘very clear’ from the stories and experiences of EAC members that many people with disability do not consider that the Commission is using the powers at its disposal in an effective manner. Further, the Commission may need a more diverse range of options to ensure the quality and safety of services.
4.12
Other submitters also reported dissatisfaction by participants with the Commission's processes, with some stating that this stems in part from the Commission’s ‘hands off’ approach to regulation. For example, the Intellectual Disability Rights Service (IRDS) noted that one of its clients had made a complaint to the Commission, only to be told that the Commission ‘educate[s] rather than regulate[s]’. The client also asserted that the Commission ‘too readily refers problems away’.
4.13
The First Peoples Disability Network (FPDN) similarly stated that if complaints are made to the Commission, they are dealt with from a ‘service quality and regulatory perspective’, rather than the Commission using the extent of its powers to take affirmative action to initiative investigations or ban providers where abuse, neglect and violence are identified.
4.14
Family Advocacy also expressed concern at the low rates of compliance action by the Commission in 2018 relative to the number of reports of serious misconduct:
The Committee’s Progress Report 2019 revealed [that] in 2018, of the 1,459 reports almost 500 were related to the abuse and neglect of…participants. Yet the NDIA…only revoked 316 provider registrations: 88 voluntary revocations due to a change in the business or personal circumstance of the provider; 39 revocations due to compliance action undertaken against the provider; and 189 other revocations.
4.15
The committee heard that the Commission may be reticent to take legal action against providers for breach unless a case was certain to win, noting the burdens and costs associated with court processes required to obtain a civil penalty or injunction against a provider. In this respect, the CPSU observed that the Commission generally issues infringement notices rather than fining providers directly.
4.16
Some submitters and witnesses also indicated that the Commission’s use of the tools at its disposal has been inconsistent. For example, Autism Spectrum Australia (Aspect) noted that at times the Commission has been ‘heavy handed’ in terms of compliance, while at other times the Commission has been slow to respond or has stated that relevant provider should resolve the identified issue.
4.17
Cara noted that, in practice, the Commission’s approach to issuing compliance notices does not accord with the approach in the Commission’s compliance and enforcement policy. Cara noted that the Commission has provided written communication identifying ‘themes’ of concern, but without actions or timeframes required of the provider to remedy.
4.18
The committee also heard some evidence to suggest that perceptions of the Commission as being unwilling or unable to use its powers may result from low levels of awareness around the Commission’s role and functions. For example, Purpose at Work stated:
The public will not see every action that a regulator takes or is contemplating taking, or that the regulator might be gathering the necessary evidence in order to take action. If there are contemporaneous criminal investigations, the public is unlikely to appreciate that the Commission can prejudice criminal investigations and proceedings. However, if the Commission does not appear publicly to be using its powers to the fullest extent, it will be inappropriately accused – as some have done already – of being a toothless tiger.
‘Following up’ with providers
4.19
The committee heard there were particular concerns regarding a perceived failure by the Commission to follow-through on adverse findings or enforcement actions against providers.
4.20
For example, a particular concern for the Australian Lawyers Alliance (ALA) was whether there are mechanisms for the Commission to ensure that actions or behaviours change where an adverse finding is made against a provider, and to ensure that such changes lead to new expectations and norms of behaviour in the industry. At one of the committee’s public hearings, Mr Thomas Ballantyne, a representative of the ALA, stated:
[I]t's not clear to me whether there's any policy or clear structure for returning to that provider to ensure that changes have been made. This is particularly relevant in the context of non-registered providers who aren't subject to the same auditing requirements. It's not enough just to make a finding. There needs to be ongoing training, there needs to be ongoing auditing and there needs to be ongoing transparency about what the Commission is doing to ensure that the behaviours have changed.
4.21
Villamanta Disability Rights Legal Service asserted that the most significant source of dissatisfaction with the Commission is its limited focus on outcomes, noting that for many complainants ‘it feels like the Commission is just using complaints to collect data’.
4.22
Ms Kirsten Deane, then Campaign Director, EAC, noted that people often make complaints not to resolve an issue for themselves, but to improve the quality of services for others. The committee heard that this requires greater ‘follow up’ of complaints and investigations with service providers to reassure complainants that improvements will be made.
4.23
The Australian Association of Social Workers (AASW) submitted that the Commission’s response to concerns, complaints and reportable incidents must improve—especially follow-ups to non-compliance notices. According to the AASW, some providers—particularly in Supported Independent Living settings—‘do not take non-compliance notices seriously enough’. The AASW stated that there needs to be strengthening of enforcement in this area.
Commission view
4.24
During one of the committee’s public hearings, then Commissioner described how the Commission uses its enforcement powers and functions:
[W]e have a significant number of investigations underway. We've certainly sought monitoring warrants, but we've also revoked registrations…issued banning orders and suspended registrations. We've recently issued a further infringement notice, and we use compliance notices increasingly to deal with a wide range of issues. There are a number of compliance notices in force for significant providers—that have often a very broad scope of activities—where we determine that there has been some kind of a breach, and our investigation of those matters suggests that there are actions required to ensure that the provider is complying with a set of obligations.
When we issue a compliance notice we then monitor compliance with that notice. A failure to comply with that may result in an infringement notice or, in fact, it could result in us seeking civil penalties from a court. There are matters before the commission where we are actively considering enforcement measures beyond infringement notices or compliance notices.
4.25
The then Commissioner also gave an example of compliance activity that it was undertaking in relation to the unauthorised use of restrictive practices, noting that this activity had been driven by both reporting obligations and views from the sector about the factors driving the volume of unauthorised restrictive practices. The committee heard that the compliance activity:
has two phases in each jurisdiction. The first is a requirement to respond to a notice from us to provide information around each use of that unauthorised restrictive practice and why it is unauthorised. The second phase of that action is to determine what formal compliance action we take in respect of providers who for whom there is no legitimate reason for those practices not to be authorised. That process will result in, in New South Wales and South Australia, activity through October [2020] now that they've responded to the information element of the process, with the process kicking off in the next five jurisdictions in October [2020].
4.26
The then Commissioner explained that this example illustrated how different parts of the system can work to improve quality:
So that's an example of where we've seen a trend, where we've used the powers of the commission to understand what is happening there and where we're using the compliance and enforcement tools available to us to formally require action that is specifically directed to two particular providers. We will monitor compliance with those notices and take enforcement action where necessary.
4.27
In its most recent Activity report, the Commission provided an update on this compliance work in relation to restrictive practices:
The NDIS Commission is continuing to focus compliance activity on the unauthorised use of restrictive practices. The compliance activity is directed at ensuring more participants who are subject to restrictive practices have the benefit of behaviour support plans and authorisation, regulated through the NDIS Commission’s behaviour support function. The behaviour support function focuses on positive behaviour support and behaviour support planning to reduce and eliminate the use of restrictive practices.
To inform ongoing compliance action, the NDIS Commission is undertaking detailed analysis of the use of URPs and behaviour support planning rates.
This analysis will be published by the end of 2021.
Investigating potential non‑compliance
4.28
The Commission's approach to investigating complaints and reports indicating non-compliance by providers was raised as a concern for a number of submitters, with reports of long delays in the time taken by the Commission to investigate and resolve matters. The committee also heard that requests by the Commission for information from providers to assist investigations can increase administrative burden and impose costs on providers.
4.29
Cara observed that there appears to be no set timeframes for the Commission to respond to or investigate complaints. Indeed, it was aware of cases where a complaint made to the Commission had taken over six months to be addressed, despite responses from Cara being provided in short timeframes when requested by the Commission. Cara further noted that:
The Commission does not appear to be sufficiently resourced to allow for an investigation at the request of a provider or participant, and requires providers to undertake an investigation internally, or appoint an external investigator at the provider’s discretion. Both alternatives lack the independence sought from a Commission-led investigation, and increase the administrative burden on providers operating in a price-capped environment.
4.30
The CPSU reported that its members cite high workloads due to lack of resources, and a lack of appropriate training, as barriers to the Commission responding effectively to complaints and reportable incidents. For example, one staff member of the Commission stated that:
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.
Time taken to complete investigations
4.31
Several submitters and witnesses expressed concerns about the time taken for the Commission to complete an investigation once it is initiated following a complaint or incident report. The committee also heard that the Commission rarely provides updates on the progress of investigations—either on request by an interested party or on its own initiative.
4.32
Leadership Plus observed that it lodged a complaint with the Commission concerning injuries sustained by a participant due to ‘rough handling’ by support workers. However, the Commission failed to act over a period of more than 5 months—despite repeat contact by Leadership Plus. Leadership Plus submitted that this demonstrates that the Commission is not acting to protect people with disability or to regulate service providers.
4.33
Stride Mental Health (Stride) stated that the most significant impact on the safety of participants, quality of supports and the wellbeing of the disability workforce is the timeframes in which the Commission responds to complaints and reportable incidents, with the Commission sometimes taking up to a year before an investigation is finalised.
4.34
In July 2020, The Junction Works (TJW) noted that it reported an incident involving harm to an NDIS participant on 13 March 2019. This resulted in an investigation being opened by the Commission. TJW expressed concern that the investigation remained open for 500 days at the date of their submission. Moreover, the relevant Senior Investigator was unable to provide a timeframe for completing the investigation despite numerous requests from TJW.
4.35
The committee also heard from individual participants and their families in relation their frustration about the time taken for the Commission to investigate complaints, with one individual stating that ‘[the] conclusion is that the whole system is premised on most people giving up in disgust’.
Third party costs and requests for additional information
4.36
Some submitters noted that administrative issues associated with the investigative process delay findings and implementation of improvements, while also imposing time and cost burdens on providers and other third parties.
4.37
For example, Stride noted that it has received ‘repetitive requests’ for information that has already been supplied to the Commission, as well as requests for information that is not held by community-based providers and should be supplied by a treating clinician. Stride recommended that Commission streamline the investigative process—including requests for further information—in the best interests of participants and providers.
4.38
MHCT report that some of its members have also suggested that some information requested from providers by the Commission could easily be collected using data and information already held by the NDIA. It asserted that sourcing the relevant information directly from the NDIA would be preferable to requesting the information directly from providers. Further, the MHCT noted that the Commission sometimes requests information that is not available to a provider—such as the medications used by a participant.
4.39
The Australian Medical Association raised concerns in relation to the time and resources invested by medical practices to provide clinical records to the Commission for the purposes of investigations, noting that medical practices were expected to bear these costs.
Ensuring compliance by unregistered providers
4.40
Several stakeholders expressed concern that unregistered providers are not subject to the stringent quality and safety obligations imposed on registered providers and—partially as a consequence—fewer enforcement powers are available to the Commission in relation to this cohort.
4.41
For example, the Community and Public Sector Union (CPSU) asserted that whether a provider is registered impacts the Commission’s ability to protect participants, noting that unregistered providers ‘can only be dealt with using the Code of Conduct’.
4.42
Cara observed that there are areas which are considered ‘out of jurisdiction’ for the Commission which may have a very significant impact on participants. According to Cara, these include actions by providers who are not registered, and family-related incidents that are observed by a provider.
4.43
Mr Thomas Ballantyne, ALA, also expressed concerns relating to unregistered providers, noting that it may be difficult for participants to locate information on unregistered providers via the Commission’s portal, or otherwise to assure themselves that the provider and its staff are suitable. Mr Ballantyne considered that the Commission's approach appeared to push responsibility for ensuring that a non-registered provider is appropriately qualified or skilled entirely back onto the participant.
4.44
Mr Ballantyne also acknowledged that there would be considerable difficulties associated with requiring all providers to register. However, he indicated that the need to address the risks of not subjecting providers to appropriate oversight may outweigh the administrative or compliance burdens associated with registration. Moreover, this issue might be managed by ensuring that registration requirements are not unduly onerous or costly.
NDIS Code of Conduct
4.45
A key aspect of the Commission's compliance function is the NDIS Code of Conduct (Code), which sets minimum expectations and conduct expected of all NDIS providers and workers. The Code is intended to promote the delivery of safe and ethical services to NDIS participants by both preventing and correcting poor conduct by providers and workers. Its preventive effect operates by providing a mechanism for taking action against providers who engage in unacceptable conduct in the NDIS market.
4.46
The committee heard that, while there is general support for the Code, some improvements may be needed, including around some of the language used and in relation to guidance documents for interpreting the Code.
Specific criticisms of the Code
4.47
Some submitters argued that the Code should be strengthened to assist in preventing violence, abuse and neglect of people with disabilities. For example, the Code may offer too much discretion in its interpretation by providers, and that language used in the code should be strengthened and clarified.
4.48
The Victorian Office of the Public Advocate (Vic OPA) considered some provisions of the Code to be inadequate in affirming the safety and wellbeing of participants—particularly those most at risk of neglect or abuse and those for whom a complaints-based system is insufficient. The Vic OPA also stated that the guidance accompanying the Code of Conduct offers ‘too great a liberty’ to providers in determining the extent of the policies, systems and procedures that they must put in place to eliminate abuse, and recommended that the Code be amended to articulate a stronger stance on preventing and responding to abuse within disability services.
4.49
Concerns about the language in the Code were also raised by Physical Disabilities Australia (PDA) who noted that the language in relation to preventing and responding to threats of violence, abuse and neglect remains nebulous and may be inconsistent. In this respect, PDA stated that it is possible that acting to comply with one part of the Code may inadvertently result in contravention of another. For example:
Clauses (f) and (g) [of the Code] require ‘Code-covered’ people to “take all reasonable steps to prevent and respond to”: “all forms of violence against, and exploitation, neglect and abuse of, people with disability”; and “sexual misconduct” respectively.
The ‘prevention’ aspect of these clauses potentially work against clauses (a) and (b), requiring ‘Code-covered’ people to “respect” the “individual rights to freedom of expression, self-determination and decision-making” capacity; and “privacy” of people with disability respectively.
In certain social situations, for example, a support worker may feel obliged to intervene if he or she feels the…participant they are working for is in danger and act in accordance with clauses (f) and/or (g) of the [Code]. Meanwhile the…participant may feel clauses (a) and/or (b) are being violated.
4.50
Other specific concerns raised about the code included:
That it is 'inappropriate' for the Code to apply to unregistered providers who may be unaware of the code and its application
That the Code provides insufficient guidance around how to practically work towards the goal of reducing or eliminating the use of restrictive practices
The Code (and accompanying guidance) should be better aligned with principles of trauma-informed and recovery-oriented practice to further support the needs of people with psychosocial disability; and
The Code does not appear to apply to a provider's Board of Directors.
Understanding the Code
4.51
Some submitters also considered that guidance accompanying the code for both workers and providers should be strengthened to ensure key principles are upheld and key concepts understood.
4.52
The Mental Health Coordinating Council (MHCC) suggested that the Guidance for providers and workers which accompanies the Code should:
reflect a best-practice approach to working with people with psychosocial disability by including trauma-informed recovery principles
introduce the concept of ‘will and preference’ so as to distinguish between supported decision making and substitute decision making
define a range of terms in the glossary including: ‘capacity’; ‘psychosocial disability’; supported decision-making’; ‘Guardianship’ and ‘Guardianship Order’; and ‘Financial Management Order’; and
provide an explanation for the legal framework relating to Guardianship Orders.
4.53
In addition, the MHCC indicated that some scenarios included in the Guidance may benefit from review.
4.54
The Vic OPA observed that the Code of Conduct should guide workers and providers on how and when to respond to abuse and pointed to its own Interagency Guideline for Addressing Violence, Neglect and Abuse (IGUANA) as a useful basis on which to base potential amendments to the guidance accompanying the Code.
Publishing compliance and enforcement outcomes
4.55
Evidence before the committee also indicated that increasing transparency in how the Commission exercises its powers—for example, by making compliance outcomes publicly available—may help assure the sector that the Commission is accountable for the exercise of its powers and functions. Moreover, increased transparency may enable greater levels of choice and control for people with disability over the services and supports they receive. These matters were summarised by Mr Thomas Ballantyne, ALA, as follows:
We know from other schemes and other experiences that transparency is essential not only for the effective operation of the scheme but also to maintain the trust of participants. If participants don't trust the regulatory system, they are less likely to engage with it. If they don't engage with it, the efficacy and the safeguards that are provided are completely undermined.
4.56
NDS noted that while actions resulting in penalties are summarised on the Commission’s website, the available information is not sufficient to help drive improvement across the sector. Mr David Moody, then NDS Chief Executive Officer (CEO), elaborated on the information that should be published as follows:
I'd like to see information about the nature of [a] breach, as proven, in more detail; descriptors in regard to the nature of NDIS participants' disability, while making sure that we continue to de-identify them; information in regard to the nature of the support that was provided, or was not provided, as the case may be; information as to for how long the alleged breach occurred and in what circumstances; and the actions taken by the commission and any penalties that might have attached thereto.
4.57
Physical Disability Australia (PDA) noted that the extent to which the Commission takes action in relation to complaints is unclear from the Commission’s activity reports. PDA was able to locate a ‘woefully short’ list of people and organisations that had been subject to sanctions via the Commission’s website and reported that even this list lacked detail regarding why particular actions were taken and required an ‘extensive search’ to locate. Mr Simon Burchill, PDA Manager, stated that information should be made available on the extent to which complaints and allegations of misconduct have resulted in compliance action.
4.58
The Vic OPA were also of the view that the information on the NDIS website in relation to providers and banning orders is neither accessible nor user-friendly, and that information on the Commission’s activities published in annual reports is ‘superficial’ and includes little qualitative analysis. In a market-driven environment, the publication of information on providers—including complaints made against them—should be ‘an indispensable mechanism to equip participants with the tools and knowledge to make [them] informed purchasers and consumers of…supports’. The Vic OPA also considered that the Commission should publish data on ‘thematic’ safeguarding issues, and the actions that it has taken in relation to these matters.
4.59
A number of submitters also emphasised the importance of ensuring information published about compliance activity is accessible to participants. For example, Every Australian Counts noted in relation to the register of deregistered and banned maintained on the Commission's website:
…while that language may make sense to lawyers or people who work at the Commission, it’s a bit of a mouthful for everyone else. We really want participants and their families to be checking that list. Particularly self-managed or plan managed participants who can use unregistered providers. They need to know. But how can they check a list if they don’t even know it exists? Or can’t find it on the website? Or know why they should check it in the first place?
4.60
QAI similarly expressed concern that it is particularly difficult to locate the NDIS provider register (including compliance and banning orders) via the Commission’s website, stating that it is ‘difficult to comprehend how the Commission expects participants to check service providers compliance status when the information is not linked to the NDIS participant tab on the website'.
4.61
In addition, QAI expressed concern that the Commission is failing to provide transparent information about registered providers who have changed their name since the inception of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability to ‘save face’ while stories of abuse, neglect and exploitation are reported.
Commission view
4.62
At a public hearing in September 2020, the former Commissioner agreed that information about compliance and enforcement was not easily accessible on the Commission's website and noted that planning had been initiated to refresh the website. The then Commissioner also stated that the Commission was increasingly reporting on specific activities and outcomes, and disseminating information through its consultative committees:
The commission is reporting more frequently on specific activities it's taking as well as its regular reporting, and we do increasingly push a lot of information out through our consultative committees as well. But I would accept the point, particularly given the level of concern and interest in these sorts of issues, that the commission can do more work in publicising these sorts of activities. In addition to continuing the outreach work that we've done, we have had a very strong focus in the first two years of the organisation's life on speaking to a wide range of organisations that represent people with disability as well as to provider organisations.
4.63
In September 2021, the Commission informed the committee that its website was being redeveloped, with the new website expected to be launched in early 2022.
Proactive monitoring and enforcement
4.64
A core concern for several submitters and witnesses was that the Commission takes a reactive rather than proactive approach to compliance and enforcement. The Commission was perceived as relying heavily on complaints and reportable incidents to initiate investigations and compliance processes, rather than proactively monitoring the quality and safety of services and supports. The committee heard that this approach is not effective in terms of ensuring the quality and safety of services and supports or building the capacity of the sector. Moreover, this reactive approach places a heavy burden participants, families and supporters.
4.65
Ms Kirsten Deane, then Campaign Director, EAC, also raised concern that the Commission’s system is ‘reactive, not proactive’, and relies on people coming forward to make complaints. Against the background of the COVID-19 pandemic, Ms Deane stated:
I don’t see them [the Commission] reaching out the other way. They have been very clear with providers about their set of expectations around COVID in particular, but again that’s a very different thing from reaching out to people with disability and asking whether they feel comfortable enough to make a complaint. That’s not how this system works. They rely on people with disability and their families coming forward to make a complaint. They’re not reaching out to them.
4.66
Ms Romola Hollywood, then Director of Advocacy and Research, People with Disability Australia, similarly noted that the Commission is ‘heavily reliant’ on receiving complaints before acting on reports of violence, abuse, neglect and exploitation. Moreover, the Commission’s apparent failure to proactively monitor or conduct ‘spot checks’ on providers may have a chilling effect on participants’ willingness to make complaints. Ms Hollywood argued that the Commission should carry out ‘own motion’ investigations—including checks on providers where people are at high risk of abuse due to isolation and investigations where there has been a significant underspend on supports.
4.67
The FPDN submitted that the Commission functions as a ‘passive regulatory body focussed on service quality’ and does not proactively initiate rights-based monitoring or outreach, take self-directed action in relation to unlawful practices, or challenge the systemic drivers of abuse or violence. Mr Damian Griffiths, CEO, FPDN, elaborated:
There’s too much sitting behind a desk, to be frank. It needs to be about getting out and about. And why can’t there be a function like the community visitor schemes that happen in other jurisdictions. A similar function to that, we think, would have similar value.
4.68
The NSW Department of Communities and Justice (DCJ) called for more responsive monitoring of NDIS participants—particularly those with a high degree of vulnerability (for example, those who pose a high risk of harm or who have more complex needs). The DCJ noted that many participants who are referred to its Community Safety Program have sufficient funding in their plans, but funding is under-utilised or exhausted without provision of relevant service. According to the DCJ, this indicates that there are insufficient mechanisms in place to identify services that are not providing appropriate support
4.69
A number of submitters emphasised the importance of proactive monitoring to ensure the safety of people with disability receiving accommodation supports through the NDIS. For example, the Community and Public Sector Union (CPSU) concluded that the Commission’s monitoring and investigation powers are not being fully utilised because the Commission does not proactively visit disability accommodation services, and instead relies on complaints and reportable incidents and concerns arising from auditing and compliance activities. The CPSU asserted that a combination of reactive and proactive approaches is needed.
4.70
Prader-Willi Syndrome Australia (PWSA) recommended more monitoring and investigation of supported independent living (SIL) services in supported disability accommodation settings, noting the specific vulnerabilities of people with Prader-Willi Syndrome and challenges for this cohort in holding providers accountable for unsafe and poor quality services. PWSA indicated that—as part of this process—the Commission should investigate the appropriateness of SIL quotes and rosters of care, and should ensure that SIL service provision is underpinned by a balanced service agreement.
4.71
The ALA noted that since the establishment of the Commission, it has been concerned as to whether the Commission has the legislative ‘teeth’ to have a positive impact on the quality of services and supports. Mr Thomas Ballantyne, on behalf of the ALA, elaborated on this matter at one of the committee’s public hearings, stating:
Section 55A [of the NDIS Act] holds that, if the Commissioner reasonably believes that a person has information about certain matters, they can compel the person to provide the information.
But what happens before that? How does the commissioner ever get to the point where they reasonably believe that something is going wrong? To me, from reading the act, there's not that sense of the commissioner having the power to get out there of its own volition to be proactive, to launch investigations and to deliver a comprehensive regulatory function. Now, that doesn't have to be in the act specifically, but it does have to be clearly one of their functions.
4.72
In his report to the Commissioner, the Hon Alan Robertson noted the limitations of relying on standard setting and auditing for ensuring the safety of vulnerable participants. Mr Robertson recommended that the Commission conduct occasional visits 'to assess the safety and wellbeing of individual NDIS participants, whether or not a complaint has been made or a "reportable incident notified"'. Mr Robertson further recommended that the Commission 'should miss no opportunity for face-to-face assessment of vulnerable participants'.
Community Visitor Schemes
4.73
According to the 2018 Community Visitor Schemes Review (CVS Review) final report, community visitor schemes provide independent oversight of institutions, including facilities and residences where disability supports are delivered. Visitors are appointed by statute, and have wide powers to visit, inspect and report on the experience of residents. In 2018, there were six Community Visitor Schemes for disability services in Australia; one in each State and Territory except Western Australia and Tasmania. Those States operate similar oversight mechanisms under relevant disability and mental health legislation.
4.74
The committee heard that the Commission’s capacity to monitor the quality and safety of services and supports could be enhanced via community visitor schemes. Several submitters and witnesses noted that this may be achieved by enhancing and building links with state-based programs, while others called for the establishment of a program within the Commission.
Strengthening existing Community Visitor Schemes
4.75
The committee heard that there were opportunities to improve the Commission's processes for engaging with existing community visitor programs to increase the Commission's ability to monitor service delivery and ensure that the experiences of people with disability can be heard and rapidly acted upon, such that violence, abuse and neglect do not occur. However, a number of submitters also highlighted ways in which existing state and territory based schemes could be strengthened or expanded.
4.76
Advocacy for Inclusion (AFI) noted that, according to the CVS Review, there are ‘strong arguments’ that protections offered by the Commission could be enhanced by the inclusion of official visitors to disability services as a function. AFI noted that these arguments include:
Strong internal links with key areas of risk (such as restrictive practices) which could facilitate the dissemination of information and expertise.
Direct flows of information from local sites to the Commission and from the Commission should there be trends/patterns of concern that need investigation.
The simplicity offered by a single national scheme for providers, NDIS participants and members of the public.
The ability to set a common philosophy of practice, standards and follow through. Driving national consistency of approaches to safeguarding requires investment and focus which may not be achieved if commitment is variable across jurisdictions.
4.77
The Vic OPA also observed that the CVS Review recommended that Community Visitor Programs be retained at NDIS full scheme, as follows:
[T]he role of Community Visitors should continue to be provided by state and territory-based schemes where they exist.
[T]o support Community Visitors schemes’ interface with the NDIS Commission, the following matters should be agreed between the NDIS Commission and states and territories:
authority of Community Visitors to enter the premises of NDIS providers;
data and information sharing;
compulsory reporting to the NDIS Commission on alleged reportable incidents and failure to adhere to incident management processes;
reporting on patterns of concern to the NDIS Commission and State and Territory agencies;
role of Community Visitors Scheme in relation to restrictive practices monitoring and reporting.
4.78
The Vic OPA recommended amendments to the NDIS Act to include reference to legislation authorising Victorian and other Community Visitor Programs as a key component of safeguarding arrangements in respect of NDIS services. Amendments should complement State laws by specifying that:
Community Visitors are entitled to copies of a participant’s plan; provider incident reports; and any documentation related to the participant’s tenancy arrangements.
Community Visitors and other comparable entities appointed under state and territory legislation are entitled to share information as necessary to advocate for participants and raise concerns with complaints bodies.
4.79
Concerns about information sharing and coordination with community visitor schemes were shared by the ACT Government which noted that responses received from ACT Official Visitors indicate that neither the Commission nor the NDIA is willing to pursue issues raised by Official Visitors unless Official Visitors undertake the groundwork to gather all of the necessary evidence. The ACT Government also noted concerns that, at the time of their submission, an information sharing agreement between the Commission and Official Visitors in relation to complaints was yet to be finalised. Additionally, according to Official Visitors, 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.
4.80
Some submitters suggested that there had been a weakening and separation of state-based schemes during the transition to the NDIS and the Commission. For example, Cara stated that with the transition to the NDIS, many state-based Community Visitor Schemes have ‘eroded’, and each state and territory has implemented different arrangements. In relation to South Australia:
On transition to Commonwealth governed arrangements, the scope of the South Australian Community Visitor Scheme was reduced to visit people “living in state-run disability accommodation” …This effectively removed the structure of independent visiting and safeguarding for people receiving services from non-government organisations.
4.81
Also in relation to South Australia, JFA Purple Orange stated that ways to strengthen the formal mandates of local community safeguards such as Community Visitors Schemes should be considered. JFA recommended that Community Visitors Schemes and similar initiatives be re-designed through consultation with people with disability and expanded to include an extension of mandate pertaining to visitable places, unplanned checks and audits and private dwellings.
4.82
The Northern Territory Office of the Public Guardian (NT OPG) observed that the Northern Territory's Community Visitor Scheme has limited scope and is only mandated to protect the rights of people receiving treatment from mental health services or disability secure care. The NT OPG advocated for the expansion of the scheme to include all service providers, asserting that this would provide an independent voice for participants to make complaints to their provider or to the Commission.
4.83
The Vic OPA noted that in Victoria, Community Visitors are limited to visiting Short-Term Accommodation and Assistance and SDA-enrolled dwellings, and only if certain conditions are met. This is of concern, as only around 6 per cent of participants are—or will be—eligible to access SDA. The Vic OPA indicated that this remit should be expanded.
4.84
State and territory schemes also provide oversight of mental health and other facilities as well as disability services. The CVS review noted that NDIS supports are only one aspect of the supports that a person with disability may receive, and recommended retention of the current arrangements with a view to ensuring a holistic approach to looking at a person's circumstances, for example to review NDIS supports received and also a person's access to health and mental health care and housing support.
Developing a Community Visitor Scheme for the Commission
4.85
Some submitters and witnesses considered the Commission should establish its own Community Visitor Scheme to improve the Commission’s capacity to monitor the quality and safety of services and supports. This may be in addition or as an alternative to state- and territory-based arrangements.
4.86
For example, the Intellectual Disability Rights Service (IDRS) observed that the NSW Community Visitors Program is operated by the Ageing and Disability Commission, noting that this leaves resources ‘spread thinly’. According to the IDRS, this arrangement is unsatisfactory due to unnecessary information barriers between the Commission and the people it should be protecting from abuse and neglect—many of whom cannot speak out. Consequently, the IDRS asserted that the Commission should have a Community Visitor Program to inspect group homes, meet residents, and report.
4.87
Stride Mental Health (Stride) noted that Community Visitor Programs remain largely State-based, asserting that this results in sporadic visits and to reports being given to the relevant provider but not to the NDIA or the Commission.
4.88
EAC submitted that there is support from people with disability and their families for the Commission to initiate its own investigations without needing to wait for an individual complaint. In particular, there is support for the idea of the Commission carrying out unannounced visits or ‘spot checks’ where there are concerns. EAC expressed concern that despite commitments by the (former) Disability Reform Council, the idea of a national community visitors scheme ‘appears to have stalled’.
4.89
The South Australian Public Advocate drew the committee's attention to the July 2020 Safeguarding Taskforce Report. The Taskforce was established in May 2020 to consider the systemic safeguarding gaps of the NDIS, the Commission and the state in response to the death of Ms Ann-Marie Smith. The taskforce identified 14 safeguarding gaps including that:
The commencement of the NDIS Quality and Safeguards Commission on 1 July 2018 in South Australia has created issues with the scope of the Community Visitor Scheme.
4.90
The Taskforce emphasised the merit in having a broadly empowered community visitor scheme (CVS) through which visitors can visit potentially vulnerable people in 'all group homes, all supported residential facilities and all day options programs, whether state-run or NGO-run'. The Taskforce further considered that the 'cleanest and best way to achieve this would be for the Commission to add a national CVS to its suite of functions', and explained:
The Commission should be making many more unannounced visits to service sites and needs to improve their responsiveness to notifications of adverse events or participants at risk. The CVS as part of the Commission’s range of functions would be a vehicle to achieve these tasks and it is hoped that this will soon be recognised at a national level through reviews currently underway.
4.91
In the report of the Independent review of the adequacy of the regulation of the supports and services provided to Ms Ann-Marie Smith the Hon Alan Robertson SC made the following recommendation:
(4) Consideration should be given to the Commission establishing its own equivalent to State and Territory based Community Visitor Schemes to provide for individual face-to-face contact with vulnerable NDIS participants. Such contact is also important in emphasising the personal values necessarily involved in providing services to individuals with disability. The NDIS Act should be amended to provide explicitly for this function. Until that happens, the Commission should continue to support the State and Territory Community Visitor Schemes and any doubt about State and Territory powers under those schemes in relation to NDIS participants should be resolved between the law officers of the Commonwealth and of these States and Territories. The State and Territory Community Visitor Schemes will of course continue to apply directly in relation to those with disability who are not NDIS participants.
4.92
In making this recommendation, Mr Robertson noted that 2 states do not currently have a Community Visitor Scheme, in addition to noting variation between the states and territories that do have such schemes. Mr Robertson considered that, in these circumstances, there was advantage in having a 'national and uniform' Community Visitor Scheme as a function of the Commission.
Other compliance and enforcement matters
4.93
Submitters and witnesses suggested a range of other measures that the Commission should adopt or support to increase its proactive monitoring of providers and the operation of the NDIS market more generally, as well as to more broadly enhance its compliance and enforcement activities. Matters related to calls for broader Commission oversight are discussed further in Chapter 10.
4.94
Suggestions offered included:
that the Commission should undertake more 'own-motion' inquiries;
that the Commission should take a more proactive role in monitoring risks associated with over- and under-servicing;
that the NDIA require all service agreements to include mandatory requirements that the participant be contacted during the agreement, as agreed by the participants; and
greater whistle-blower protections to encourage staff working for providers to report incidents and to ensure that participants are kept safe and investigations occur.
Commission view
4.95
In response to questions in relation to investigations undertaken by the Commission, the then Commissioner explained that an investigation by the Commission may be prompted by a range of considerations:
Sometimes an investigation will have attached to it both matters that we've observed through complaints, matters that we've observed through reportable incidents, or matters that we're concerned about through our own interaction with providers through an aspect of their registration process. …For instance, if I look at the example that I gave of the compliance action in relation to reportable incidents that is underway at the moment, obviously providers in New South Wales and South Australia have already had a notice to give information to us about these matters. We do a number of things then. Firstly, we look at whether or not all of the providers complied with the notice, and, if they didn't, what action should be taken.
The exercise as a whole started with the reportable incidents we have received, but there are a range of things that flow from that. We may, once we've been through the second stage of that process, decide to examine matters in some providers through a formal investigation. That's not triggered by a specific report of a reportable incident but triggered by the fact that we've decided to do a system-wide compliance activity on this very important issue of the unauthorised use of restrictive practices.
4.96
The Commissioner also noted that there are provisions in the NDIS Act which operate to protect complainants by allowing the Commission to take action where a complainant is or may be subject to reprisal.
4.97
The Commission informed the committee in September 2021 that it had commenced its first own-motion inquiry into aspects of supported accommodation in the NDIS and had published information about this inquiry and about own-motion inquiries in general, on its website.
4.98
In relation to community visitors schemes, in response to questions on notice, the Commission stated.w
The role of community visitors is recognised within the NDIS Quality and Safeguarding Framework as promoting and protecting the rights and wellbeing of people with disability and providing an early warning and escalation pathway for safeguarding issues to be addressed.
The Community Visitor Scheme (CVS) Review published in December 2018 considered the role of community visiting in the context of the NDIS. It concluded the contribution of CVSs should be formally recognised within the NDIS Framework and continue to be provided by states and territories.
The decision for establishing a nationally administered CVS is a decision for all Australian Governments to consider.
Committee view
Publishing compliance and enforcement outcomes
4.99
Evidence to the inquiry emphasised that publishing outcomes of the Commission's compliance and enforcement activity can play an important role in educating both providers and participants about the Commission's work and functions and clarifying the obligations on providers (and rights of participants). The committee welcomes the advice that the Commission is updating its website and encourages the Commission to take the evidence set out in this chapter into account implementing those updates. The committee also considers that the Commission should more broadly review the information that it collects and publishes about compliance activity to assist in its educative and capacity building roles. The committee is strongly of the view that increasing the visibility and transparency of compliance and enforcement activities is important for accountability purposes and to build confidence in the Commission's work.
4.100
The committee recommends that the Commission review its approach to publishing information on compliance activities to ensure that:
information on compliance activities is easily accessible to providers, as well as participants and their families and advocates; and
sufficient detail regarding breaches and compliance activity is provided to allow providers and participants to understand the nature of relevant breaches in order to improve provider practice and build confidence in the Commission's compliance activities.
The need for a more proactive approach to monitoring and enforcement
4.101
Among views provided by submitters and witnesses over the course of the inquiry, there is clear consensus that the Commission should take a more proactive approach to its compliance and enforcement activities. The Commission also has compliance and enforcement powers available to it to carry out proactive monitoring and enforcement activities, including monitoring and investigation powers as set out in the Regulatory Powers (Standard Provisions) Act 2014. While recognising the efforts taken in the four years since establishment to build the Commission's compliance and enforcement capacity, the committee is of the view that the significant risks faced by people with disabilities mean that it is inappropriate for the Commission to be a merely reactive body.
4.102
In particular, the committee is of the view that the Commission should consider measures to ensure it has regular, face-to-face contact with vulnerable participants. This may be achieved through conducting occasional visits, as recommended by several submitters to the inquiry and in the Robertson report. Community visitors can also assist the Commission by conducting face-to-face assessments of vulnerable participants and referring concerns to the appropriate authority. This is discussed further below.
4.103
The Commission should also be adequately funded to carry out and support proactive monitoring and enforcement.
Community visitor schemes
4.104
It is clear to the committee that Community Visitor Schemes (CVS) play an important role in the NDIS safeguarding system. These visitors are able to act as 'eyes and ears' of a system that currently relies heavily on responding to complaints, incident reports and audits to ensure safety and quality of supports. The NDIS is responsible for caring for and supporting people with disability who may be some the most vulnerable people in our society. Many NDIS participants may also experience severe barriers in speaking up, making a complaint or advocating for themselves. In this context, the role community visitors can play in the NDIS safeguarding system is particularly important.
4.105
The committee considers that a national CVS overseen by the Commission is the best way to achieve this. However, there are compelling arguments both for a CVS being established as a national scheme overseen by the Commission, and for the NDIS safeguarding system to better support existing state- and territory-based CVS's. A national scheme would provide the benefit of nationally consistent arrangements with clear scope to monitor for matters that are within the Commission's jurisdiction, and coverage of participants in all states and territories. Arguments for retaining state-based schemes to oversee NDIS services include that state-based schemes are able to look at the range of services that a person with disability might receive and can therefore give a more holistic picture of a person's experiences.
4.106
Regardless of whether the Commission has its own scheme, or if it continues and strengthens arrangements with state-based schemes, there will need to be different agreements with states and territories regarding areas of interface in the provision of support to people with disabilities. Likewise, the committee heard strong arguments for legislative recognition for community visitor schemes in the NDIS Act, whether this is to recognise the role of existing schemes, or by creation of a new national scheme.
4.107
The committee is particularly concerned that there are still two jurisdictions that do not operate community visitor schemes to oversee the provision of services to people with disability. It is unclear if there is any planning on the part of the Western Australian or Tasmanian governments to introduce such schemes. In the absence of full coverage of state- and territory-based schemes, the committee considers that it may be appropriate for the Commonwealth to establish a community visitor scheme to support the Commission to proactively monitor the provision of NDIS services to people with disability who are at increased risk of experiencing violence, abuse or neglect in all states and territories. Such a scheme could supplement state- and territory-based schemes where these exist.
4.108
The committee recommends that the NDIS Quality and Safeguards Commission review its compliance and enforcement model to determine how to incorporate increased proactive approaches, in particular, regular, face-to-face contact with vulnerable participants and visits to service providers sites. The review should expressly consider:
the current use of the Commission's monitoring and investigation powers under the Regulatory Powers (Standard Provisions Act) 2014; and
the role of Community Visitor Schemes in assisting the Commission to carry out its functions.
4.109
The committee recommends that the Australian Government revisit its 2018 review into community visitor schemes and explore amendments to the National Disability Insurance Scheme Act 2013 to establish a national community visitor scheme to be overseen by the NDIS Quality and Safeguards Commission.
4.110
Unless and until the National Disability Insurance Scheme Act 2013 is amended to establish a national community visitor scheme, the committee recommends that:
the Australian Government consider expanding the functions of the NDIS Quality and Safeguards Commission to include coordination and support for state and territory-based Community Visitor Schemes to report on matters affecting NDIS participants; and
the Australian Government through the Disability Reform Council, ensure that federal, state and territory governments work together to ensure that each jurisdiction has a community visitor scheme that can report to the NDIS Quality and Safeguards Commission on risks to NDIS participants.
4.111
During this inquiry, the committee also heard that current arrangements between the Commission and some state and territory bodies with responsibility for Community Visitors Schemes needed improvement, particularly in relation to the types of incidents that might be reported, authority to enter premises, and two way information sharing. Recognising that the establishment of a national CVS or amendments to legislation to recognise state and territory schemes may take some time, the committee considers that, in the interim, these current arrangements warrant review.
4.112
The committee recommends that the NDIS Quality and Safeguards Commission urgently review agreements with state and territory bodies responsible for Community Visitor Schemes to ensure there are clear protocols in place regarding:
the scope and authority to oversee the provision of NDIS services; and
two-way data and information sharing between Community Visitors and the Commission.