National Disability Insurance Scheme
This chapter examines various challenges and opportunities presented by
the rollout of the National Disability Insurance Scheme (NDIS), to reduce
violence, abuse and neglect of people with disability.
Witnesses generally welcomed changes to the disability sector arising
from implementation of the NDIS.
Many saw the scheme as an opportunity to identify long-standing concerns and
implement nationally consistent standards and practices that better support the
human rights of people with disability—such as the right to be free from
exploitation, violence and abuse (Article 16 of the Convention on the Rights of
Persons with Disabilities).
In addition to recognising the opportunities afforded by the NDIS, witnesses
observed that some elements of the scheme do not assist with the elimination of
violence, abuse and neglect in residential and institutional disability
Chapter 9 discusses some of the key issues including:
self‑directed disability support;
unit pricing; and
the Australian Council of Governments' Disability Reform Council
consultation paper on a quality and safeguarding framework.
The NDIS was launched in July 2013 and will be rolled out nationally
over a three-year period (2016–2019), except in Western Australia which has not
yet signed up to the scheme.
The NDIS will replace existing disability service systems with a uniform
framework, for those people with disability who qualify as participants (an estimated
People with disability who wish to participate in the NDIS must first
meet certain access requirements. During the trial period (July 2013–June
2016), the requirements relate to residency within a trial site, age and
status as an Australian resident, and entail a disability or early
After the scheme has been rolled out within a jurisdiction, all people with
disability within that state or territory will be covered by the NDIS, subject
to similar criteria.
People with disability who do not qualify as participants in the NDIS
will continue to receive supports and services from existing Commonwealth,
state and territory‑based disability service systems and intersecting
systems (such as the aged care system).
No coverage for non-participants
and no coverage in some areas
In this context, the committee received evidence expressing concern with
the current focus on the NDIS to the exclusion of non-scheme participants,
whose supports might be adversely affected by the roll out. Ms Therese
Sands, Co‑Chief Executive Officer of People with Disability Australia and
Australian Cross Disability Alliance (Disability Alliance) member, said:
We have...been very concerned about jurisdictions such as New
South Wales that have wanted to hand over all of their funding to the
Commonwealth. We have been raising issues around what that means for people who
have not got an NDIS package and what their plan is for the rest of the
across-government service provision...we are very aware that we need to be
progressing them to come to some agreement or commitment—a recommitment and a
refocus on the NDS [National Disability Strategy] and...some kind of mechanism
that will drive that. Otherwise, there will be significant issues for people
who will completely fall through the gaps. They may have already been falling
through the gaps in the broken service system we had before, but we will now
see people falling through different kinds of gaps because there is no
disability support mechanism for them...This is an opportunity to change that[.]
The First Peoples Disability Network Australia spoke about the situation
of people with disability in regional and remote Australia, suggesting that the
NDIS approach is too narrow when a broader approach—such as through the National
Disability Strategy (NDS)—is warranted:
From an Aboriginal perspective, this is a really critical
issue. We talk about the need for a whole-of-community response to disability,
particularly in regional and remote Australia. There is a real risk that it is
going to be framed as an NDIS-only response. You could well have a situation
where the National Disability Insurance Agency may work quite well with
Aboriginal people, but the National Disability Insurance Scheme will not create
accessible footpaths in Wadeye or create an accessible environment where
someone can travel 500 metres down the road in their wheelchair to get into the
general store. Unless we have a process where everyone gets an opportunity to
say what is needed in the community, it is not going to work...It does not
necessarily mean that it has to be a service system response either...If you look
at the way disability is responded to in developing countries where there is no
government mechanism, there are ways in which people come together and support
people with disability perfectly well...We think we have an opportunity here to
make a really substantial difference in Aboriginal Australia...there is a very
real risk that all the eggs are in the NDIS basket, as everyone keeps saying,
and that is why we have to revisit or reinvigorate the National Disability
Witnesses—such as Ms Christina Ryan, General Manager of Advocacy for
Inclusion—highlighted that, even for scheme participants, the NDIS does not address
all the needs of people with disability. Ms Ryan identified housing as a critical
and specific example:
The NDIS gives us a significant opportunity to change [segregated
and institutional environments], but, as we know, it is actually specifically
prevented from providing housing solutions for people. So, the one glimmer of
hope for people with disabilities in this country today—the NDIS—is actually
not the solution...People are still being forced to cohabit with people who are
being violent towards them. People are still being forced to live in
arrangements that they are telling us they really do not want to be in or that
they are frightened of. We have to change this.
The committee acknowledges that the NDIS is an evolving program, which
provides a timely opportunity to address long-standing issues in the disability
sector for people participating in the scheme. The committee is concerned
however, that the NDIS does not address the critical area of accommodation,
which is the setting in which violence, abuse and neglect is most likely to
occur. The committee considers that this matter requires further attention.
Self-directed disability support
In August 2011, the Productivity Commission published its report titled Disability
Care and Support.
The report recommended the creation of the NDIS and the incorporation of self‑directed
disability support as a core feature of the scheme. The Australian Government
accepted this recommendation and in March 2013 the National Disability
Insurance Scheme Act 2013 (NDIS Act) was enacted.
Preparation for self-directed
The United Nations Committee on the Rights of Persons with Disabilities
commended the introduction of a national scheme for self-directed disability
However, advocacy bodies questioned whether people with disability have been
adequately prepared to assume the role provided for in the NDIS.
The Chief Executive Officer of the National Disability Insurance Agency
(NDIA), Mr David Bowen, told the committee that the NDIS strikes 'a reasonably
good balance in making sure that supportive voices are heard but that the plan
reflects the desires of the person and not what someone else thinks is best for
We recognise that there are people with extremely profound
disabilities who, as a result of that, have limited communication and for whom
the type and duration of their engagement requires a highly specialised
approach to planning. So in some cases we have outsourced that or purchased it
in as an additional resource...The majority of people in our scheme with
intellectual disability can, with appropriate support, express their own wishes
and desires, and I am strongly opposed to having, under the guise of supported
decision making, in effect substituted decision making coming back into play.
So the training for our planners is very much around—to the extent that it is
possible, and in most cases it is—it being the voice of the person and their
goals and aspirations that come through in the plan. We spend a lot of time
with our own staff in training on this.
Advocacy for Inclusion expressed the view that people with disability
have not been adequately prepared to take charge of their plans but this is an
important precursor to being able to articulate a need for a safer and more
caring living environment:
We need people to be prepared for their planning. This has
been just left by the wayside. All the resources have gone into preparing
service providers—because the poor, delicate things need a lot of help to get
ready—but people with disabilities have not been getting much of that. They
need to be got ready as well. They need to be given an opportunity to outline
how they would run their lives if they had an opportunity to do so—removing the
controls, removing the barriers that they have to getting out there.
People need to be given the opportunity to say, 'I'm not comfortable with
X person or with the way this person is looking after me'.
Ms Ryan specifically noted that, in the Australian Capital Territory
trial site, the NDIA has facilitated the opportunity for a person with
disability to meet with a planner without a guardian, support worker or family
We know from working with people individually over the years
through individual advocacy that they often say stuff to us that they would
never say in another space if the person was present. It is a bit like
teenagers talking when their parents are there. You are not going to say all
these things. You need to be able to say something. You want to test drive
it. Often it is because the person does not want to upset the people that care
about them. They do not want to say, 'All of this hard work you've gone to to
get me into this house that I hate living in; I would rather do something else.
I do not want to be saying that. It's upsetting.' So they do not say it. But
the reality is that they are forced into an environment they do not like. The planning
process for the NDIS has to create that opportunity...They are doing that quite
well locally; they need to do it better.
Victoria's Public Advocate, Ms Colleen Pearce, highlighted as a main
concern the particular situation of people with cognitive impairment:
...the people most marginalised through the NDIS process are
people with an intellectual disability and associated communication impairment,
living in an institution or group home setting, who do not have family support
or independent advocacy. They may have little capacity to become more confident
and skilled consumers in the NDIS market-driven philosophy.
Ms Pearce argued that such people will never become empowered consumers.
Dr Louise Roufeil from the Australian Psychological Society agreed that the
NDIS does not satisfactorily address that issue as:
It is beyond the capacity of the average planners to be
making those sorts of judgements about capacity. If it was someone in a court
of law, the degree of assessment that would occur to make those decisions would
be considerable, but we do not do the same for people with a disability.
Professor Richard Bruggemann, the Disability Senior Practitioner in
South Australia (appearing in a private capacity), added that participants are
likely to require more than one session with a planner in order to produce their
What about the guy who has never made a decision in his life?
This is not going to take one session; it might take 10 sessions over six
months, and some teasing out of the things that he really likes doing. If we do
not do that, in my view, he is being abused, systemically, by us not taking the
time to find out what is important to him.
I think that in Australia we have a great opportunity, with
the NDS and the NDIS, to do things much better. In the past, we have had our
rhetoric about what we say is important and what we even think is going to
happen, but when you drill down you often find that the lives of many people
with disabilities are empty and boring, and they are dependent on other people.
And we can do much better than that.
Another witness—Mr Robbi Williams from JFA Purple Orange—commented that
it will take time for participants to become comfortable with self-advocacy.
For that reason, and because of ingrained attitudes in the disability sector, the
NDIS will not eliminate or reduce the risk of violence, abuse and neglect in
institutional and residential settings:
It will not. There are a couple of reasons why it will not.
First of all, it is going to take a while for people living with a disability
and their families to move into the potency of having choice and control,
because we have spent the last 1,000 years training people not to have that and
they are not going to just get that overnight. We have seen it in other jurisdictions.
It takes time for the momentum to build for people to take hold of the
opportunities that they will have, having genuine jurisdiction over the
supports that they can have in their lives.
The other reason is that there are plenty of forces keen on
maintaining the status quo. It is quite unsettling the paradigm shift that is
required. If you are used to running services in a particular way and you have
to retool those services to genuinely respond to the imperatives of people
having choice and control to people having valued participation in community
life and the economy, that is a fundamental change to the way services should
ply their business, and I think it is really scary for the vast majority of
Professor Bruggemann also cautioned against vested interests and argued
that, rather than enabling independence and participation, there is a 'propensity
in the NDIS for dependency making':
Consider the man who has just got his $50,000-a-year package
to help him do things. Instead of going to an organisation that has a
background in working with people with disabilities, was probably developed by
families 30 years ago and has had an ethos of doing this, one of the new
providers, who is in this business because there is a way of making money—'$26
billion; I've got to have a bit of that'—sees this guy. There are two options
for the way in which he might be supported. The first way is that you actually
give him some support to learn new skills so that he can do his own cooking,
that he can do these things, and he has got some system in place so that he
does not have to have somebody stay in the house overnight. He has a phone;
he knows how to use it. The next time he does his plan, it is going to
cost $15,000 a year to support him because he is now more independent. Would you
say: 'Heavens above, that's $35,000 of income we're going to lose. Why don't we
just keep doing what we've always done: keep him dependent'? I think there are
some things we have to look at within the NDIS.
It is concerning that evidence suggests that in the implementation of
the NDIS, the primary focus to date appears to have been on preparing
providers, rather than the people the scheme is intended to benefit. This does
not appear to be consistent with the central feature of NDIS–self‑directed
Based on the evidence presented, the committee considers that more
effort and resources need to be invested in supporting participants—in both the
short and long term—particularly those participants with intellectual
impairment who might require additional support.
Providing NDIS participants—and more broadly, all people with
disability—with the knowledge, skills and confidence to identify and articulate
goals and needs enables those people to recognise and safeguard against violence,
abuse or neglect in their living environment (also see chapter 7).
Chapter 8 discussed evidence presented to the committee of existing
disability workforce issues that can cause or exacerbate the risk of violence,
abuse and neglect of people with disability. Another issue featured in the
evidence was how unit pricing affects quality and safeguards provided by people
who work in the sector. Providers and unions contended that the unit pricing
calculated and set by the NDIA will not ensure the provision of quality service
and mitigate against the risk of violence, abuse and neglect in residential and
Unit pricing arrangements
The NDIS Act states that a funded support must represent 'value for
money in that the costs of the support are reasonable, relative to both the
benefits achieved and the cost of alternative support'.
According to the NDIA, the prices for supports have been structured to reflect
this statutory requirement and:
...reflect prices in comparable schemes in trial site areas and
work jointly undertaken by NDS and NDIA to establish an efficient price for
personal care and community access.
Interaction of unit pricing arrangements
with disability workforce issues
Although the NDIA has recently reviewed unit pricing arrangements for
the NDIS, witnesses indicated that there is still significant discord between
remuneration in the disability care sector and the quality and safeguards that
should be incorporated into the scheme.
Mr Lloyd Williams from the Health Services Union and the Health and
Community Services Union (Victorian Branch) stated that there is a critical
link between quality and safety, which is not—but should be—factored into the
...the full marketised fundamentals of the NDIS system are
wrong...funding around quality, funding around safeguards, and funding for
service providers around delivering ongoing professional development for their
staff should be built into the pricing. These things all cost money. Quality
costs money. Paying disability support workers decent wages and conditions so
that working in disability is a career of choice—and not just flooded by people
who want to move through the system—is important. Currently the funding is
solely based on the absolute minimum employment standards. So there is no
capacity for career structures that advance people. Everything is set at the
lowest common denominator.
At the Melbourne hearing, UnitingCare lifeAssist illustrated the
disparity in unit pricing under the NDIS and mental health services. Ms Helen
Killmier, Executive Manager, Disability Solutions, contended that the critical
issue of funding needs to be resolved based on what is the appropriate level of
care for people with disability:
do not have enough dollars to do what they need to do. If you look at a basic
unit of cost under the pricing schedule for the NDIS and at a basic unit of
cost under the mental health re-commissioned services, it is not quite double,
but it is close to double. So your basic unit of cost to work with someone with
a disability is almost half that required to work with someone who has a mental
health issue. Having spoken a lot to people in the mental health environment,
and me being in the disability environment, the sorts of interventions
required, the sorts of skills of practitioners required, are not vastly
different in [mental health]. There are some obvious differences, but there is
a huge salary discrepancy. Really, we are asking disability support workers,
who are amongst the lowest paid people in our society, to care for people who
can have some of the most chronic and the most complex behaviour support needs.
The Tasmanian Branch of the Health and Community Services Union called on
the NDIA to review the adequacy of unit pricing, to ensure that it provides a
guaranteed and ongoing supply of high-quality, trained and skilled disability
Across the country, the United Voice WA emphasised that 'retaining good quality
workers is key to exposing and overcoming abuse and neglect in the sector' and 'it
is essential that the paid workforce be acknowledged as a vital part of the
Another provider —Northcott—echoed these concerns and acknowledged that
the future provision of quality training and support for staff is uncertain in
the context of unit pricing. Its representative, Ms Hilary Smith, said:
I expect the current picture may not be what the eventual
picture is going to be for the affordability or otherwise of training. Our
position would be that, if we were looking at something that stays pretty much
static from now, then, yes, training is going to be increasingly difficult to
provide as services become increasingly flexible as funding for those services
becomes increasingly fragmented.
In response to these concerns, the NDIA informed the committee that,
while most people tend to focus on the base unit price, this does not
reflect the large variety of prices paid under the NDIS for disability
People tend to look at the dominant one, which is the per
hour cost for personal care on Monday to Friday, and they extrapolate from
that. We pay different rates for therapists, for example, compared to day care
workers. We will pay additional loadings where higher levels of skill are
required...As to whether that is at a level that will attract workers into the
industry, we base that on the current award rates that operate for the majority
of the sector. And the area where the efficiency and price can be gained is not
by cutting the salary of frontline staff but by the organisations becoming more
efficient in terms of labour utilisation, reducing the span of control, cutting
out some of the unnecessary multiple layers of supervisors and managers in the
industry and chopping their corporate overheads. There is certainly not
any focus on trying to reduce the remuneration of workers. We accept the award
rates as being a reasonable starting point.
In August 2013, the then Australian Government announced that it would
establish 'a forum of disability sector and workforce experts to help ensure
the disability workforce is ready for the full implementation of DisabilityCare
Australia [now the NDIS] by 2019'. The Hon Jenny Macklin MP, then Minister for
Disability Reform stated:
The Forum will identify the training and skill requirements
of the disability workforce under DisabilityCare and provide advice on
recruiting and retaining workers, as well as how to meet the needs of specific
groups and communities.
Although established, the Disability Workforce National Consultative Forum
had not met by January 2014, when the Government described the proposal as
Economic realities are an important consideration in the creation of a
sustainable NDIS. However, providers and unions have raised concerns that the current
pricing does not appear to allow for, or ensure, the quality and safeguards
that would result from a well-paid and well‑trained disability care workforce.
This should be investigated.
The committee agrees that workforce issues are integral to combatting
violence, abuse and neglect in disability care settings. The committee
does not think it possible to improve disability care and support without
addressing these issues, which are long-standing and likely to be exacerbated
with the predicted expansion of the workforce under the NDIS.
The committee considers that the valuable work of the Productivity
Commission (reported in Disability Care and Support) would be
complemented by a review of the challenges facing the disability care workforce
and the formulation of options to ensure the provision of a high quality disability
care workforce now and into the future.
Consultation paper on a quality and safeguarding framework
In February 2015, the Disability Reform Council released a consultation
paper describing the options that have been developed for the NDIS quality and
The consultation paper canvassed a range of key issues—such as provider
registration, complaints handling systems, employment screening, self-managed
plans and restrictive practices.
During the consultation period (which finished in April 2015), the
Department of Social Services (DSS) received over 200 submissions, held public
forums in capital cities and regional centres, and facilitated targeted
workshops with hard‑to‑reach groups (for example, Aboriginal
and Torres Strait Islander peoples with disability). DSS is currently focussed on
the preparation of a Regulation Impact Statement for Council of Australian
Governments' consideration in late 2015 or early 2016.
In the inquiry, the three-year transition period to the NDIS (2016–2019)
was noted. The architecture for this transition is high-level bilateral
agreements with each jurisdiction (New South Wales and Victoria now being in
place), followed by detailed implementation plans.
DSS officers noted that the implementation arrangements will encompass the
issue of roles and responsibilities, which will require some time to negotiate
Some things might actually be a single national function;
other things might be federated and nationally consistent. But, in terms of the
overall framework, it will encompass a range of things that actually go to what
will remain in almost any scenario—state functions, such as guardianship
responsibilities, justice responsibilities. To talk about 'absolutely uniform'...would
not be realistic. It is probably a shading along a continuum.
Benefits of a national safeguarding
The Victorian Parliament's Family and Community Development Committee
and the Victorian Ombudsman have recently inquired into disability-related
Both of those inquiries noted that the national roll-out of the NDIS presents
an opportunity to consider safeguarding mechanisms that protect the rights and
dignity of people with disability. For example, the Family and Community
Development Committee reported:
It is a chance to look beyond the boundaries of what is
currently in place in various states and territories and to consider what would
be the most effective and appropriate quality and safeguarding system for
service providers in Australia operating in the context of the NDIS.
It also provides an opportunity to learn from the strengths
and weaknesses of existing systems, while considering an entirely new framework
with relevant functions and adequate powers.
In submissions and evidence, the committee heard that there is
considerable support for national consistency in high quality and strong safeguards
for all people with disability at risk of violence, abuse and neglect.
The committee also heard various concerns—for example, regarding the delay in
implementation of a new quality and safeguards framework and that framework's
ability to effect change.
A representative from the Australian Psychological Society gave evidence
that, in the trial sites, the risk of violence, abuse and neglect is increasing
as providers attempt to manage behavioural issues without high-level behaviour
management support (due to the closure of state-based disability services):
...our feedback from our members at the trial sites raises
enormous concerns that what is happening at the moment is potentially going to
make things worse in terms of the possibility for violence and abuse towards
people with a disability...the delay in implementing some sort of quality
framework that is sufficient is of concern. The quality framework that was
released offered a number of options, from a very low level to a very high
level. I would hope that the higher level that we supported is able to be
funded...but it would obviously require significant investment to put that in
place. Certainly the stories we are hearing from members, particularly in the
Newcastle site, would suggest that the quicker that happens the better.
Several submitters spoke about the various frameworks and mechanisms
that already exist to safeguard people with disability from violence, abuse and
neglect. Yet, it was argued, these complex and inter-related arrangements are
not effective for all people with disability.
Ms Carolyn Frohmader, Executive Director of Women with Disabilities
Australia and member of the Disability Alliance, raised the issue of 'policy
siloing', where policy and national frameworks are related but not connected:
...we talked in our submission about the National Disability
Strategy. Then over here we have the National Plan to Reduce Violence against
Women and their Children. Then we have the National Framework for Protecting
Australia's Children. The National Disability Strategy is not connected to the
national violence plan. The national violence plan is only focused on intimate
partner violence, and does not include institutional settings. The way the
National Disability Strategy addresses violence against people with
disabilities is to say 'make sure we implement the national plan to prevent
violence against women'...We have a national child protection framework that is
actually about child protection. So we have this policy siloing where, yes, we
know these things but this one is not connected to this one is not connected to
this one. And it is just incredibly problematic.
In addition, Ms Frohmader told the committee that People with
Disabilities Australia has been 'very vocal about our concerns of a national
scheme bringing in eight or nine schemes into one', particularly where the one
scheme does not cover all people with disabilities:
There are so many people who are not going to be eligible—who
will not be covered. So we argued: why can't we have a national statutory
protection with the NDIS safeguards framework as a component of it? Why do we
have to have one for that, one for that and one for that? The idea that somehow
the quality safeguards framework is going to address this issue of violence
against people with disability across all forms of institutional and
residential settings is a nonsense. It just will not happen. Right from the early
days we were arguing that it needed to be much broader than that. If you
are going to bring nine schemes into one national scheme, why not think about
that a bit more logically so that anybody with a disability—regardless of their
setting and regardless of whether they are an NDIS recipient, and most of them
will not be—can have the same protections.
Advocacy for Inclusion also commented on existing mechanisms that target
violence and abuse. However, Ms Ryan indicated that the inability of people
with disability in institutional and residential settings to access these
systems should be rectified without the need for separate disability structures
At what point can we start to recognise that people with
disability should have the right to use the same mechanisms that everybody else
is using? That is actually quite rare in this country. It does not happen...the
domestic violence legislation, for example, in every state and territory except
New South Wales does not cover these living circumstances, so you cannot
actually stick your hand up and say, 'I've got violence happening in my home
that needs to be responded to.' There is no way that you can access the
services that are appropriate to getting outcomes through that. We struggle
enormously with that barrier. There are some real solutions that we could find.
In fact, in New South Wales, where these households are recognised under the
domestic violence legislation, they are able to change some of those outcomes.
It also has raised enormous awareness around the fact that this is violence,
naming it. People do not see that it is a form of violence. They do not get
that it is abuse. The course that we are currently developing for women to be
safe, to recognise violence, to understand it and be able to access paths out
of it has been put together by a reference group of self-advocates of women
with disabilities. They get violence, but the term 'abuse' was so vague and so
opaque that it was really hard to understand what it meant.
Another provider—UnitingCare West—told the committee that a quality and
safeguarding system is often good for formal service providers but does not
take into account the fact that there are also informal service providers:
The disability system is predicated on having an interface of
informal providers and formal providers...[F]or vulnerable people with
disabilities in particular, we need to make sure that the whole system, not
just the formal provider system, is built around safe principles and safe
The committee notes the evidence of the Australian Psychological Society
regarding increasing levels of violence, abuse and neglect, as provider
supports are withdrawn in the transition to the NDIS. This is highly concerning
and the committee urges all jurisdictions to take all necessary steps to
immediately identify and manage any such incidences.
The committee is also extremely concerned that, nationwide, domestic
violence legislation (with one exception) does not recognise the circumstances
of people with disability living in residential and institutional settings. The
committee considers that this situation should be rectified without delay.
The committee heard that there is support for a national protective
framework for all people with disability at risk of violence, abuse and neglect
regardless of their living arrangements. The committee heard also that current
safeguarding frameworks (see chapters five and eight) can be inaccessible,
making it difficult for people with disability to obtain redress, particularly
without assistance from family, friends and independent advocates. This should
not be the case.
People with disability are valued members of our community and are
entitled to access any and all protections provided for the benefit of the
wider Australian community.
Consistent with this view, the committee considers that a single
overarching safeguarding framework, working in collaboration with existing
Commonwealth, state and territory based systems, would be extremely beneficial.
Such a framework should apply nationally to all people with disability and
provide identifiable, accessible, consistent and strong mechanisms for
eliminating violence, abuse and neglect in residential and institutional
Complaints handling within the NDIS
quality and safeguarding framework
As indicated earlier in this chapter, there are five key elements
proposed for the NDIS quality and safeguarding framework.
Some of these elements were discussed throughout the inquiry but not in
connection with the NDIS or the proposed framework. This section of the report focuses
on the key element of the framework on which advocates and people with
disability commented—that is, complaints handling systems.
Outline of the complaints handling
The Consultation Paper: Proposal for a National Disability Insurance
Scheme Quality and Safeguarding Framework stated that an effective and
nationally consistent complaints mechanism could be a key
safeguard under the NDIS. That paper presented the following three options
Option 1: Self‑regulation—providers would develop and
operate their own complaints management and feedback systems;
Option 2: Internal and external complaints handling
requirements—NDIS registration conditions would prescribe a set of minimum
standards for provider level complaints handling, with an independent
complaints review process (possibly an industry-initiated complaints body,
professional board or contracted third party); and
Option 3: Independent statutory complaints function—NDIS
registration conditions would require providers to demonstrate effective
internal complaints handling processes, with a formal external complaints body
(either a complaints office within the NDIA or a separate complaints body).
Need for an independent body with enforcement
The concept of an independent body with investigative and oversight
functions resonated strongly with advocacy bodies and people with disability.
As one witness explained, 'you cannot expect the abusers to police
The Disability Alliance captured the common argument that existing
complaints mechanisms across the board are ad hoc and largely ineffective in
investigating, responding to, and preventing violence against people with
disability across a range of settings, and reform would have to be applied to
both the emerging NDIS sector, as well as existing disability service sectors:
Australia urgently requires an independent statutory national
protection authority with specific purpose legislation to address and respond
to all forms of violence against people with disability, regardless of the
setting in which it occurs and regardless of who perpetrates it.
Ms Kim Chandler, the Acting Public Advocate for Queensland, gave
evidence that, in that jurisdiction, the Office of the Public Guardian is
'probably the closest equivalent' to an independent body with investigative and
oversight functions. However, it does not cover all people living in disability
residential services, who must have recourse to the relevant body
(for example, the Health Ombudsman for complaints regarding physical
At the moment it is very disparate and it is difficult for
anyone to work out where to go or for anyone to take particular responsibility
for that issue... one independent body with ombudsman-type powers would be very
The New South Wales Council for Intellectual Disability indicated one
feature that it would particularly like to see is an independent complaints
body and a person with lived experience involved in the process:
Independence is vital and that it is well resourced and has a
good culture around disability. We know that if agencies get merged with other
agencies sometimes the culture changes and they become much more legalistic and
do not understand perhaps the lived experience of people as well. In New South
Wales the guardianship tribunal has a community member who must have experience
In its evidence, DSS informed the committee that respondents to the
consultation paper had similarly supported an independent complaints mechanism with
There was general support for a higher level of regulation
across a number of areas, including complaints. People wanted a complaints
system that is independent of providers—providers should have their own
complaints arrangements but there should be one sitting beyond that. The
general feeling also was that it should sit outside the agency and should have a
range of powers to be able to follow up complaints.
The committee agrees with the Disability Alliance that existing
complaints mechanisms are ad hoc and largely ineffective (also see chapters three,
five and six). The NDIS quality and safeguarding framework proposes some
options to address these issues, by creating an effective and nationally
consistent complaints mechanism for scheme participants.
Evidence to the inquiry, and the Disability Reform Council,
overwhelmingly supported the establishment of an independent body with enforceable
investigative and oversight functions. The committee suggests that it would be
imprudent to create one such system for NDIS participants and another for
non-participants, which would unnecessarily complicate complaints handling
mechanisms. The committee therefore considers that the functions of an
independent complaints body should include investigation of complaints made by
participants in the NDIS. The committee also notes the need for such a
complaints body to be established in consultation with people with lived
experience of violence, abuse and neglect.
Advocacy, quality and safeguarding
in the NDIS
As noted in chapter 7, one strong theme to emerge from the evidence was
the critical role of independent advocacy in the quality and safeguarding
framework for people with disability. The committee heard from a range of
people and organisations that the need for such advocacy will increase with the
roll out of the NDIS and that this need has not been identified and considered
in the consultation paper.
In its response to that consultation, the Disability Alliance stated
that advocacy agencies are not equipped to meet the increasing demand arising
from the introduction of the NDIS (especially in rural, regional and remote
areas, for Aboriginal and Torres Strait Islander peoples with disability, and
people with disability from culturally and linguistically diverse and non‑English
speaking backgrounds). The Disability Alliance elaborated on the role that
advocates now perform:
NDIS participants seek assistance to find information about
the NDIS; to understand the opportunities and challenges of the new
system; develop their plans; receive decision making supports; liaise with the
NDIA, and existing and potential service providers; choose between services and
supports; manage their plan; employ support workers; and navigate complaint
handling processes. Independent advocates play a key role in assisting with
these issues, but to do so requires the acquisition of new and constantly
changing knowledge and expertise in myriad areas, on top of providing advocacy
support to people with disability who are not eligible for the NDIS or whose
advocacy requirements are outside of the parameters of the NDIS' remit.
Evidence from the Intellectual Disability Rights Service illustrated one
person's activities as an advocate for scheme participants, in the process
highlighting why resource constraints inhibit the ability of advocacy
organisations to help all the people who contact them for assistance:
One of [the] coordinators of our Criminal Justice Support
Network who is based in the Hunter region, Ken Clift, has been assisting some
of the Criminal Justice Support Network clients with their transition into the
NDIS. He has assisted them from the point at which they are having their
eligibility for the scheme determined. He has been assisting them with
preparation for meetings with planners, so going through all the preplanning
materials that are sent to people as they are about to enter the NDIS. He has
attended planning meetings with the client. And, before that, he has assisted
clients to think about how they might want their life to be under the NDIS. His
existing knowledge and familiarity with the client and their circumstances have
really been of benefit in that exercise because it can be very hard for some
clients with intellectual disability, who may think in very concrete terms, to
develop abstract ideas initially about what they would really like in their
life or to think in practical terms about what sorts of supports they really
need. He assists in helping clients to think about that and then to be able to
express their needs in a planning meeting and then in working through with the
client after a package is settled—working out what service providers might be
appropriate for the client, assisting a client perhaps with interviewing
service providers and finally, basically, getting the package and the way it is
going to work sorted out. Mr Clift's estimate is that that process takes about
21 hours of advocate time, which would be spread perhaps over weeks or months,
depending on the particular client situation and what has to be worked through.
There is then the whole separate issue of monitoring how a package is working
for a client, how their service supports are working for them, after a system
is set up.
The Commonwealth Ombudsman holds the view that 'it would be preferable
to ensure that people with disability have access to advocacy as and when they
need it'. Further:
...people with disability are likely to need particular support
in engaging with the NDIS. This is especially the case given it is a new scheme
trialled in limited sites and the fact that—in order to gain the most benefit—people
with disability are encouraged to think more about how the disability supports
they wish to receive relate to their goals, rather than simply what they 'need'.
The New South Wales Council for Intellectual Disability informed the
committee that, where available, advocacy has resulted in better plans and
packages for scheme participants.
In contrast, the Commonwealth Ombudsman observed:
...others entering the scheme without the benefit of advocacy
may not receive the most beneficial plan. This may be simply because they do
not fully appreciate the range of choices that are available to them including
the opportunity to think about goals (rather than only needs), or feel
unable to clearly articulate the types and amounts of supports they should be
entitled to access.
There are a number of avenues through which Government is
seeking to inform current and prospective NDIS participants about their options
for support. However, we suggest that advocacy must form a central and
significant part of that information and support framework...a strong advocacy
programme, which amongst other things, assists people with complaints and
provides feedback on systemic issues, should form part of the quality and
safeguarding framework for the national roll out of the NDIS.
The committee also heard concerns regarding a suggestion that there will
be no need for independent advocacy once the NDIS is rolled out. At public
hearings, witnesses rejected the view that the NDIS will be a panacea for all
matters affecting people with disability.
Ms Kelly Vincent MLA contended that there is a need for ongoing
grassroots level advocacy for people with disability, as the NDIS will have no
involvement in many of the day-to-day challenges experienced by people with
...the NDIS was never meant to do things like make transport
accessible, make the education accessible, improve access to footpaths and
businesses and so on...there will be significant need for ongoing grassroots
level advocacy about those basic day-to-day things...I would hate to see it
continue to be a situation where we wait for people to start saying well,
actually the NDIS is not going to help me with access to public transport,
education, whatever it may be and then all of a sudden we say, 'Oh, of course
we failed to give advocacy around that.' I think there will be significant need
in order to properly meet the real needs of people with disability to have that
ongoing grassroots level advocacy.
The Villamanta Disability Rights Legal Service Inc. agreed:
There seem to be some thoughts among some circles that once
the National Disability Insurance Scheme is up and running we will not need any
independent disability advocacy, because all the problems will be solved. Well,
let me tell you, I think about a quarter of the issues that Villamanta
Disability Rights Legal Service works on are to do with things the National
Disability Insurance Scheme might address and solve eventually, and the other
three-quarters will continue to be major problems for people with a disability
indefinitely into the future, and there will still be a big need for independent
In addition, the Public Advocate Queensland and Development Disability
WA emphasised the need to support people with disability to navigate and
interact with the disability service system, including through the capacity
building provided by independent advocacy organisations.
Ms Taryn Harvey, Chief Executive Officer of Development Disability WA,
emphasised the need to prioritise and empower individuals and their families:
We never talk first about what we can do for people on the
ground to help them raise the issues that concern them...let us actually invest
in the kinds of mechanisms that will help people navigate the complaints
process and support people's communication. They are the things that are
standing in the way. When things do happen, families need to have somewhere
clear that they can go to so that every time they are having that conversation
with someone in the system, they feel supported...You can put whatever new
standards and procedures in place, but the fundamental issue about people not
feeling like they can take that challenge on is not going to change until we
start investing in supporting people.
Ms Chandler from the Office of the Public Advocate Queensland said:
Given that the vast majority of people who are participants
in the NDIS at present—I think around 89 per cent—have some sort of
intellectual or cognitive disability, this means that, according [to] the
Convention on the Rights of Persons with Disabilities, reasonable
accommodations need to be made to ensure they have appropriate communication,
personal and decision-making supports not only to exercise choice and control
but to express their dissatisfaction. Without...strong oversight and support and
advocacy, quality standards for services, while they are important, really will
not be sufficient...such an approach should be complemented by a strong social
inclusion agenda for people with disability, a more just system that is more
responsive to people with disability, and a zero tolerance approach to abuse,
neglect and exploitation.
Concluding committee view
Independent advocacy is critical to promoting quality and safeguards for
all people with disability (see chapter seven). The committee is extremely
concerned however that NDIS participants—about 460,000 people with disability—may
not be adequately prepared for their role in the scheme and may not have access
to support from advocates. Advocacy support could assist in the identification
of circumstances of violence, abuse and neglect, and result in individualised
plans that reduce the risk or incidence of such assaults.
While not every person with disability will choose to access independent
advocacy, the committee concurs with the Commonwealth Ombudsman that the option
must be readily available. The NDIS quality and safeguarding framework does not
appear to address these concerns with bare mention of independent advocacy and
no acknowledgement of advocates' role in quality and safeguarding processes. The committee
considers that the quality and safeguarding framework should be explicitly
linked to the National Disability Advocacy Framework, as discussed in chapter seven,
in recognition of advocacy's important role in reducing violence against, and abuse
and neglect of, people with disability.
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