Department of Human Services

9.11 Summary table of outcomes to date from Safeguarding Taskforce recommendations

Safeguarding Recommendations

Safeguarding Gap

Responses from:

  • The Department of Human Services
  • Report to the Commissioner of the NDIS   Quality and Safeguards Commission Alan Robertson SC 31 August 2020
  • Australian Government response to the   Tune Review
  • Graham Head- NDIS Commissioner letter   to the SA Safeguarding Taskforce
  • National Disability Insurance Scheme -   Participant Service Improvement Plan
  • Disability Advocate.

Recommendation 1

That the State Government communicate the matters raised in this report to the Commonwealth Government with special reference to Safeguarding Gaps 1 to 9, seeking a response on how these gaps must be addressed as soon as possible.

Safeguarding Gap 1

Potentially vulnerable participants are not routinely identified and assigned ongoing support coordination in their NDIS Plan.

Department of Human Service Response

The state government is working with the Australian government and all jurisdictions for Safeguarding gaps to be actioned, and the July Report of the Safeguarding Task Force was communicated immediately.

Robertson Report Recommendations

1. The Commission should act to identify earlier those people with disability who are vulnerable to harm or neglect. Every stage of decision-making, including corrective regulation, should be alive to factors indicating that a participant may be vulnerable to harm or neglect. (Although not within my terms of reference, the NDIA should also so act in the planning process and continually.) The Commission and the NDIA should have a freer and two-way flow of information for this purpose.

3. For each vulnerable NDIS participant, there should be a specific person with overall responsibility for that participant’s safety and wellbeing. That individual should be clearly identified by name and, ideally, introduced in person, to the vulnerable NDIS participant. (Although not within my terms of reference, that individual should be identified in a participant’s plan.)

Response to Tune Review

16. 1 The NDIS Rules are amended to

a) Set out the factors the NDIA will consider in funding support coordination in a participant’s plan

Supported

Support coordination may be funded as a reasonable and necessary support in a participant’s plan. The Government notes that while support coordination is not intended to be the principal method to support participants to navigate the market and implement their plan, for many it is seen as a fundamental support that maximises their confidence in navigating the market and exercising informed choice and control in the delivery of their supports.

National Disability Insurance Scheme - Participant Service Improvement Plan

Using your plan

We will be clearer about support coordination services, and what you should expect

Support for engaging with us

We will pro-actively check-in with you, especially if you may be in a vulnerable situation

We will improve our direct support for you if you have complex needs and require critical supports, or are otherwise potentially vulnerable

Liaison Officers, for Health and Justice especially, will help participants interact with the NDIS in each state and territory.

Safeguarding Gap 2

The support coordinator can be from the same agency that provides other core services for the individual, creating a conflict of interest.

Department of Human Service Response

The state government is working with the Australian government and all jurisdictions for Safeguarding gaps to be actioned, and the July Report of the Safeguarding Task Force was communicated immediately.

Response to Tune Review

16. 1 The NDIS Rules are amended to

b) Outline the circumstances in which it is not appropriate for the providers of support coordination to be the provider of any other funded supports in a participant’s plan, to protect participant’s from provider’s conflict of interest.

Supported by Australian Government

The Government supports reinforcing the active consideration of support coordination in the process of developing a participant’s plan and identifying reasonable and necessary supports. The Government also supports enabling participants to access their funded supports from a diverse range of service providers, if it is the participant’s choice to do so, and ensuring service delivery arrangements protect participants from conflicts of interest.

Safeguarding Gap 3

Participants are not routinely linked to community activities so they are often isolated.

Department of Human Service Response

The state government is working with the Australian government and all jurisdictions for Safeguarding gaps to be actioned, and the July Report of the Safeguarding Task Force was communicated immediately.

Safeguarding Gap 4

Participants are not identified as potentially vulnerable by the NDIA and prioritised by LAC when carrying out the community connection role

Department of Human Service Response

The state government is working with the Australian government and all jurisdictions for Safeguarding gaps to be actioned, and the July Report of the Safeguarding Task Force was communicated immediately.

Safeguarding Gap 5

NDIS plans do not routinely include strategies to minimise participant risk, for example, coordination of health care (including dental, sexual and mental health), technology to aid independence and safety, capacity building for asserting rights, and recognition of cultural matters.

Department of Human Service Response

The state government is working with the Australian government and all jurisdictions for Safeguarding gaps to be actioned, and the July Report of the Safeguarding Task Force was communicated immediately.

Safeguarding Gap 6

Participants and their families are unclear about how to raise matters of concern with the Commission and the Commission does not routinely undertake proactive inspections to vet the performance of service providers

Department of Human Service Response

The state government is working with the Australian government and all jurisdictions for Safeguarding gaps to be actioned, and the July Report of the Safeguarding Task Force was communicated immediately.

Robertson Report Recommendation

6. The statutory definition of “reportable incident” in s 73Z of the NDIS Act should be amended to make it clear that it includes a real or immediate threat of one of the listed types of harm. The word “complaints” in s 73X of the NDIS Act should be defined to remove any doubt that it includes concerns and observations in relation to the provision of supports or services by NDIS providers.

Letter from NDIS Commissioner

The Taskforce makes comments on page 22 of its interim report (reiterated by Dr Caudrey in the evidence he gave to the Hon Alan Robertson SC during public hearings for Mr. Robertson’s independent review on 21 July 2020) that suggest that the NDIS Commission does not take complaints other than from NDIS participants and their nominees.   This is not correct – anyone is able to make a complaint to the NDIS Commission about an NDIS provider, registered or unregistered. Indeed, the Rules specifically provide for complaints to be made by any person, and for them to be made anonymously if the complainant wishes.

Safeguarding Gap 7

The NDIS Quality and Safeguards Commission does not adequately consider the risk factors associated with the use of unregistered providers of personal support, particularly for potentially vulnerable participants.

Department of Human Service Response

The state government is working with the Australian government and all jurisdictions for Safeguarding gaps to be actioned, and the July Report of the Safeguarding Task Force was communicated immediately.

Letter from NDIS Commissioner

Noting that there will be ongoing interest in the issue of the regulation of this class of provider, the NDIS Commission will continue to consider the operation of this part of the market, including the effectiveness of our complaints mechanism for self-managing participants who are using unregistered providers.

Risk is dealt with in the model through the following features:

* the determination through the National Disability Insurance Agency (NDIA) planning process as to when a person is to be Agency-managed, plan-managed or are fully self-managing;

* active education by the NDIS Commission and the NDIA about the importance of self-managing participants making use of the NDIS Commission’s complaints function when things are not working for them; and

* the ability to take enforcement action against unregistered providers, including banning them from the NDIS market (banning orders have been made against unregistered providers already).

The operation of unregistered providers in the NDIS market is a feature of the NDIS Quality and Safeguarding Framework. It was considered in the detailed consultation that informed the final design of the Framework. It was considered during the debate on the NDIS Act. It is seen by many people with disability and others, including many advocates, as a key element of the principle of choice and control that underpins the NDIS.

Safeguarding Gap 8

The Commission does not explicitly require of all providers of personal support that there be at least two support workers for that individual (not necessarily at the same time) and that workers in participants’ homes have regular supervision.

Department of Human Service Response

The state government is working with the Australian government and all jurisdictions for Safeguarding gaps to be actioned, and the July Report of the Safeguarding Task Force was communicated immediately.

Robertson Report Recommendation

2. No vulnerable NDIS participant should have a sole carer providing services in the participant’s own home. The relevant statutory instruments and guidelines should be amended to provide expressly for this.

Safeguarding Gap 9

Regular health checks are not routinely made available to all vulnerable NDIS participants and their NDIS plan does not routinely include coordination of their health care.

Department of Human Service Response

The state government is working with the Australian government and all jurisdictions for Safeguarding gaps to be actioned, and the July Report of the Safeguarding Task Force was communicated immediately.

The State Government acknowledges that primary health is a Commonwealth Government responsibility and will work with them to ensure that regular health checks for vulnerable NDIS participants are considered.

Recommendation 2

That the State Government address the need for vulnerable NDIS participants to have regular health checks including communicating to the Commonwealth Department of Health.

Safeguarding Gap 9

Regular health checks are not routinely made available to all vulnerable NDIS participants and their NDIS plan does not routinely include coordination of their health care.

Department of Human Service Response

The State Government acknowledges that primary health is a Commonwealth Government responsibility and will work with them to ensure that regular health checks for vulnerable NDIS participants are considered.

Disability Advocate comment

Some non-government organisations are creating centres for disability health comprising a range of therapy, medical, dental services utilising NDIS and Medicare funding.

Recommendation 3

That the State Government extend the scope of the Adult Safeguarding Unit to include younger adults at risk of abuse prior to 2022, commencing with people with disabilities.

Safeguarding Gap 10

There is currently no State agency to report abuse and neglect of vulnerable adults under 65 years of age.

Department of Human Service Response

The State Government will bring forward the expansion of the Adult Safeguarding Unit so that its scope includes vulnerable adults living with a disability of any age from October 2020. The scope will expand again to include all vulnerable adults over the age of 18 from 1 October 2022 (as originally anticipated).

Recommendation 4

That DHS revisit the information sharing guidelines as they impact on screening of workers and, in particular, the availability of relevant information from the Commonwealth.

Safeguarding Gap 11

The DHS Screening Unit is not quickly and fully provided with relevant information by the Commission, the NDIA and some State agencies, compromising the availability of information on an individual worker that might affect their suitability to work with people with disabilities.

Department of Human Service Response

The Department of Human Services has developed and signed new information sharing guidelines with the NDIS Quality and Safeguarding Commission.

Robertson Report Recommendations

(10) The Commissioner should have statutory power to ban a person from working in the disability sector even where that person is no longer so employed or engaged.

(8) The Commissioner should have the same power in relation to NDIS service providers, that is, to include as subject to the power to ban those entities no longer providing those services.

Letter from NDIS Commissioner

Worker screening: The interim report focuses on a perceived safeguarding gap related to information sharing between the NDIS Commission and the SA Department of Human Services regarding worker screening.

As you are aware, from 1 February 2021 the new national NDIS worker screening arrangements come into force. Under these arrangements, state and territory screening units determine whether a worker is cleared or excluded based on the parameters agreed by all governments. Providers and self-managing participants will be able to associate with a prospective or existing employee in the database and will be alerted if something in their clearance status changes, including when the NDIS Commission bans a worker. Until those arrangements come into effect, transitional arrangements set out in the NDIS Rules (and determined for each state by that state) continue to apply.

Very detailed information sharing protocols are currently being finalised between the NDIS Commission and each state and territory to ensure the proper operation of this new safeguard.

Recommendation 5

That the State Government reaffirm the value of a community visitor scheme as an additional safeguard for potentially vulnerable participants and work with the Commonwealth to establish a complementary scheme.

Safeguarding Gap 12

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.

Department of Human Service Response

In South Australia, the Community Visitor Scheme continues to visit state run disability and mental health services and has been expanded to include visitation for all adults under state guardianship. The South Australian Government will continue to work with the Commonwealth regarding community visitors and the recommendation that the Commission considers its own visiting scheme.

Letter from NDIS Commissioner

Community Visitors: The NDIS Commission supports the work of community visitor schemes in each state or territory, where they exist. We regard community visitors as expert complainants and very valuable sources of information and insights. The Framework acknowledges the important role of community visitors.

The Commonwealth position remains that the quality and safeguarding arrangements set out in the NDIS Act are able to operate concurrently with those arrangements that were in place in SA before the NDIS Commission had jurisdiction. Indeed, the arrangements in the five other jurisdictions with such schemes operate concurrently with the NDIS Commission’s arrangements, as does a complementary worker registration scheme in one other jurisdiction.

Your interim report indicates that this matter will be the subject of further examination and analysis as part of finalising your report. I am not aware that this has been discussed with anyone from the NDIS Commission as yet.

Robertson Report Recommendations

(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.

(5) Because of the inherent limitations in record based systems in preventing harm or the risk of harm to vulnerable participants, the Commission should conduct occasional visits to assess the safety and wellbeing of selected individual NDIS participants, whether or not a complaint has been made or a “reportable incident” notified. The Commission should miss no opportunity for face-to-face assessment of vulnerable participants.

Recommendation 6

That State and Local Government agencies provide for better access and inclusion so that people with disabilities can fully participate in society.

Safeguarding Gap 13

State and local government agencies have not yet invested sufficiently in achieving the goals of the Disability Inclusion Act 2018.

Department of Human Service Response

The Department for Human Services is supporting all state authorities to develop and publish their Disability Access and Inclusion Plan by October 31 2020- and this will include State Government Initiatives.

Recommendation 7

That the State government invest in individual advocacy to assist individuals with accessing what they need from the NDIS and from the community.

Safeguarding Gap 14

The State has not invested in individual advocacy to assist people with disabilities to navigate the service system and the community.

Department of Human Service Response

The Government will fund a new, state-wide individual advocacy service to ensure vulnerable South Australians with disability can access and receive the supports they need.

Minister for Human Services Michelle Lensink said the new service will receive $400,000 a year for three years and will begin operating in December.

“The new service will not only provide South Australians living with disability and their families with support and address gaps in support, it also aims to help them build knowledge and confidence to advocate for themselves.

The new service operator will be selected through a competitive tender process, open soon.

Organisations tendering to provide the advocacy service will need to demonstrate:

* Experience in supporting vulnerable people with disability;

* Capability to provide a state-wide service and offer various methods of accessing the service; and

* Experience in providing legal advice to support appropriate representation (e.g. appearing before the Administrative Appeals Tribunal and South Australian Civil and Administrative Tribunal).

Response to the Tune Review

3. The Commonwealth provides additional funding to support people with disability to navigate the NDIS, with a review of demand to occur as part of the next review of the NDIS costs, currently scheduled for 2023.

Disability Ministers have also agreed to review national disability advocacy and decision-making supports, including a demand and gap analysis, to ensure funded advocacy organisations are effectively supporting and delivering outcomes for NDIS participants, as well as people with disability who are not eligible for the NDIS, who represent the vast majority of people with disability in Australia.

Page last updated : 14 Jul 2021

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