New NDIS Quality and Safeguards Commission

This was the first session at the Advocacy Sector Conversations forum held at the Queen Victoria Women’s Centre on 27 November 2018.


Overview

The NDIS Quality and Safeguarding Framework has considered the UN Convention of the Rights of People with Disabilities and provides an avenue of accountability for upholding these rights. From 1 July 2019 the recently formed NDIS Quality and Safeguarding Commission will assume the responsibilities currently undertaken by the Office of the Disability Services Commissioner.  Miranda Bruyniks, NDIS Quality and Safeguarding Framework Complaints Commissioner, introduces the NDIS Quality and Safeguarding Commission and provides an overview to the transition of powers.

 

 

Links to resources referenced in this presentation:

 

Transcript & Audio

 

MELISSA HALE, DARU COORDINATOR:
Welcome everybody.   My name is Melissa Hale and I’m the coordinator of the Disability Advocacy Resource Unit, it’s good to see you all today.  Before we start, our forum today is being held on the traditional land of the Kulin Nation and I wish to acknowledge them as traditional owners.  I would also like to pay my respect to their elders past present and emerging and the elders from other communities who may be here today.

I would also like to welcome those of us who have joined us online.  Feel free to text message the number on the screen if you have any questions for any of our speakers today.

A few housekeeping things the women toilets and accessible toilets are at the front of the room to my right and the male toilets to my left, there is also another toilet on the ground floor.  Lunch is at 12.00 to 1.00 o’clock and afternoon tea at 2.00 to 2.30 pm.  When we have question time we will go around with the microphone.  It’s really important to say your questions on the microphone so the people on the live stream can hear you as well.

Also, due to the recently completed election, there will be no update from the Office of Disability at this time but they will be back at the February forum.

An exciting announcement last night they announced the opening of the IOC Readiness Grant Round.  There is $19 million in the pot and it’s a national round not a Victorian based round.  The objective as we know so far is to enable the delivery of individual capacity building activities for people with a disability such as peer support and build the organisational capacity of disabled people and families organisations across Australia to deliver these activities.  From my understanding, it’s very much based on user led organisations.

We’re still looking through the criteria and eligibility and we’ve got Maeve Kennedy at VCOSS on the case.  She will draw up a one pager and we will send it out to all of you just to prepare you for this because the closing date for applications is on the 21st of December so we all have three weeks, which is wonderful.  It sounds like a really good opportunity so keep your eyes open for that.

Lastly, today is also Accessibility Day.  Accessibility Day is an Australian Government initiative that allows employers to connect with job seekers with a disability who are current and active disability employment services participants looking for work to see their potential in the workplace.  As part of our support for this, we have the amazing Natalie Corrigan here with us today to shadow me and learn about the works of DARU.  Natalie will be MC for the rest of the day so please make her welcome.

NATALIE CORRIGAN:
My name is Natalie Corrigan.  It is a pleasure to be here today.  You may recognise me from a wonderful campaign that DARU first did about three years ago.  They did a human rights video, which featured people with disabilities representing disability rights.  I have been involved in the disability rights movement in a variety of ways since University but I have lived with a disability my whole life.

It is only in the last five to six years I’ve really seen the momentum gained traction and really seen it take off.  I’ve done a capacity thing in terms of working in the entertainment area but I also work with children who have disabilities and as someone who has a disability herself I think it’s really important to have people with disabilities advocating for the next generation.  With that, I am going to introduce our first speaker.

First, I would like to introduce Miranda Bruyniks the NDIS Quality and Safeguarding Framework Complaints Commissioner.  The roll out of the NDIS has created a huge backlog of work for the Disability Advocacy Sector with people with disability needing support to navigate review and appeal their plans.

The NDIS Quality and Safeguarding Framework has considered the UN Convention of the Rights of People with Disabilities and provides an avenue of accountability for upholding these rights.  Miranda will introduce the NDIS Quality and Safeguarding Commission and how it works to help you with your clients.  Thank you Miranda.

MIRANDA BRUYNIKS, NDIS QUALITY AND SAFEGUARDING FRAMEWORK COMPLAINTS COMMISSIONER:
Thank you Natalie, it’s a privilege to be here.  I would like to start by also acknowledging the traditional owners of the land that we’re meeting on today, the people of the Kulin Nation and pay my respects to their elders past present and future and any elders from among any other communities that might also be here today.

Today it’s my privilege to be speaking to a group of people who share with us the value of ensuring that people have the right to speak up when they’re receiving their disability services.  The NDIS is a new movement in terms of people having capacity to direct their own funding and receive an individualised funding model across Australia and the NDIS Commission is a part of what is called the National Disability Scheme.

The Commission is separate to the National Disability Insurance Agency.  The agency is responsible for funding and plans and the Commission is responsible for oversight of the providers who are funded under those plans.

It’s really important to understand that in this scheme, the Commission has not been established to oversee the NDIA and we’ll talk about what the Commission does but from the perspective of what people in Australia really asked for when the Department of Social Services did their consultation across Australia, and what they wanted to have in a safeguarding body.

I’ll start by talking about who we are and a little bit of an overview of our functions before we go into some, more detail.

We started on the 1st of July this year in New South Wales and South Australia and from the 1st of July next year, we will have an office here in Victoria.  We are the National Disability Insurance Scheme Quality and Safeguards Insurance Commission and it’s a very long name.  Off course, we have to shorten that name to the NDIS Commission so I’m going to refer to it as the NDIS Commission going forward.

When the Department of Social Services went out to people to consult on what was needed for quality and safeguards for people who were receiving services under the National Disability Scheme, they met with a number of advocacy groups.   And I know people here made submissions and I want to thank you for that and your part in contributing to what’s here today.

People talked about wanting a framework where the Commission could support providers to better improve their quality of supports so quality of service became a focus.  They wanted to make sure things were done the same way across Australia so if you’re receiving a service in a far and remote community that you might also get the same protections in your services as someone who is living in a major city.

People asked that there be rules that providers need to have and the commission does have rules for providers to follow in terms of providing quality supports.  People across Australia wanted a scheme where workers could be screened so that if there were any workers who were not suitable to be working in the industry that there was a system for identifying them and ensuring that they weren’t reemployed in the sector.

The other roles of the Commission that were very broadly talked about was making sure the Commission had a mandatory reporting process for abuse.  I don’t need to talk to anyone here about the number of enquiries and reviews that have been had here in Victoria and across Australia over the last five years that indicate that there has been abuse of people with disability by the very people who have been paid to give them support.  This is unacceptable and one of the things that people have requested in the quality and safeguards framework is that there be mandatory reporting of abuse and neglect.  I’m going to talk a little bit about that today.

The other thing is that when you look across all those cases there’s one common theme and I’m sure that you understand that because of your role as an advocate that common theme is that people weren’t heard.  If I spoke up about my service or the concerns, I had I wasn’t heard and that was a regular theme in some of those abuse reports.

There weren’t systems in place and things didn’t happen when the little things were raised then people felt afraid, afraid to raise some of the significant issues that might happen and then they also felt that they couldn’t raise them because there was no confidence that if they raised their concerns that they would be heard.

You can see how negativity in the complaints process can cause people not to make a complaint.  It’s really important that we all work together to be able to encourage people to be able to speak up and have their voice heard.  We do that in a couple of ways at the Commission but this once again comes from the Quality and Safeguards Framework where everybody who contributed to the development of that framework said we want providers in the sector to be accountable, to have a complaints process where people are heard.

We do have that process and the scheme is new but these are some of the rules that we now have for providers:  We will expect providers to keep NDIS participants safe and feeling safe means that providers and support workers are listening to you, they’re respectful, it feels right and you have some choice and control over how your services are delivered.  Quality is about receiving good services and safeguards are a way of keeping people safe when they’re receiving services.

Now we will talk about what the Commission actually has because the Commission was designed out of that quality and Safeguarding Framework, which was a discussion Australia wide, and consultation and there was agreement on that Quality and Safeguards Framework and the way that the Commission would work between the Commonwealth Government and every single State and Territory.  That’s pretty big to get everybody in Australia to agree I’m sure.

The Quality and Safeguards Commission or NDIS Commission will improve the quality of services, that’s our objective.  We’ll expect providers to keep participants safe and we will work with participants, families and carers who feel unsafe and unhappy with their services.

A little further on I’m going to talk about the fact that we do also work with advocates but it’s important to understand that advocates are a very important part of the process for people to have a capacity to speak up, and advocates had a huge influence on the final piece of legislation that went through in terms of the establishment of the Commission.

Under the Act we’ve got Advocacy and under the NDIS Act of 2013 Advocacy has been stated and this was a piece of work under the legislation that was done in collaboration with advocates that advocacy is independent of the National Disability Insurance Agency or providers.  We had a little discussion about who is really an advocate where you need to be independent of those.  Independent advocacy assists in people exercising choice and control but is acting under the direction of the person with a disability or reflecting their expressed wishes and desires.

It’s really important to understand whether you’re advocating for a family member or a person with a disability because sometimes those two aren’t always aligned but it’s important if you’re working with a person with a disability that you have a way of communicating with them and understanding their expressed wishes.  It’s also free of conflict of interest.

Who are the participants in the scheme?  Participants are the people in the scheme who are receiving funded NDIS services.  All participants have the right to be given good quality services and to be safe.  As a participant through the National Disability Insurance Scheme, there’s an expectation that you will have choice and control to reach your own goals and making the decisions about the supports you need.

The providers are anyone who provides you a service under the National Disability Insurance Scheme.  This is broader perhaps than you’ve experienced in terms of other disability sectors where under State Governments there was a disability sector arrangement and the providers that were within the remit of being able to report provide good quality services and had service agreements, were predominately disability service providers.  However, under the NDIS it’s all providers that are funded under that NDIS plan and unregistered providers as well.

If we talk about the providers first, the Quality and Safeguards Commission will use a new system for registering NDIS providers.  We’ll work with providers to find better ways to help participants and that may be support in the home or the community, it might be helping getting the person the right types of services under their plan.  But remember the Commission doesn’t have oversight over the NDIA and the planning process so that is a separate complaints mechanism.

Any complaints about the National Disability Insurance Agency go directly to the agency as you know or through to the Commonwealth Ombudsman if you’ve already taken your complaint to the agency.  Also if the concern is related around funding the appeals process.

I understand and in terms of the introduction to this session there was a lot of talk of navigating through that process but this is where advocates are really strong in terms of representing people who may need support at times to navigate their way through the scheme because you’ll have the processes, which are about planning and funding that go through the NDIA and then there will be the delivery of services under that plan.

The Commission has expectations of service providers when they deliver services to people who are funded under the NDIS.  That’s the realm in which we work.  We’re going to use a new system to register providers that’s a bit of change in terms of the way the sector works.  One of the ways that we require changes is that we have a code of conduct and a set of practice standards.

Practice standards are rules that explain what good quality and safe standards are.  If you haven’t had a look at our practice standards, they’re available on our website and I would encourage you to look at them.  You will find them in the provider section under the application process on the website and you will be able to read through what our expectations of a provider are.

It means if a provider is deciding to provide a certain type of service there’s a number of registration groups and they decide well we’re delivering these types of services those registration groups apply to us, then they will be going through a renewal process every three years where they also need to be audited against those quality standards.  The quality standards do include then thinking about the experience of people who are receiving their services.

There’s a code of conduct, which guides providers on how to work with people, and it basically indicates that there are respectful working relationships with people who are receiving these services.  Those respectful relationships are backed up by the code in that if anyone has concerns about a registered provider or an unregistered provider under the NDIS you can actually make a complaint to the Commission.

The Commission has powers of enforcement which we will talk about soon but one of those is if there’s a breach of the code of conduct and it’s considered that that breach is serious enough the Commission actually has powers to ban a worker and also take enforcement action against a registered provider.

One of the things that we also require of providers is that they must report to us if there’s any abuse or neglect in terms of the delivery of their services.  If people use restrictive practices like holding you down or locking you in a room, they must report to us so that we can work with them to change that practice and look at how it occurred.

It’s not acceptable for providers to use restrictive practices and we’ll talk a little bit about the process for unauthorised restrictive practice as we go through this presentation.

The process we have for reporting is called Reportable Incidents.  Reportable Incidents are any death, serious injury, abuse and neglect, this is all for NDIS participants, unlawful sexual or physical contact with or assault of an NDIS participant.  Sexual misconduct against or in the presence of an NDIS participant including grooming of an NDIS participant for sexual activity. Unauthorised use of restrictive practices in relation to a NDIS participant.

Reporting the incident to the Commission does not replace notifying any appropriate authority such as police or child protection services in your particular jurisdiction.  Those matters must be reported to the Commission and they’re a bit broader than what other jurisdictions have had previously.

Our experience to date for instance is that each State and Territory had some different parts of the regulatory framework in terms of being able to safeguard the rights of people with a disability receiving services but none of the States and Territories had all of these functions together.  The Commission is the first time we have these functions together.

Those functions are around the registration of providers, the requirement of providers to report, report abuse and neglect, have a complaints management system, report unauthorised restrictive practices and have ways of managing and supporting people who need behaviour support.  Also has an education function and compliance and enforceable actions.

We talked about being able to speak up.  Speaking up is important because it can make services and supports better.  Speaking up is important, I don’t need to tell you why, you are our champions of helping people to speak up.  We know speaking up can be an opportunity for providers to improve their service.

One of the things that the rules, the NDIS rules require of providers is that they must have an accessible complaints system so that people can make their complaints directly to the provider without retribution and there must be a process in place for resolving those complaints.

Sometimes those things may not work even though the Commission might require it so everyone whose receiving an NDIS funded support has the right to make a complaint to the NDIS Commission.  It’s okay to complain.  We’ve put that in there because it’s okay to complain in Victoria too right now.   The Disability Services Commissioner has that campaign running and has had for many years.  From 1st July next year, it will be the NDIS Commission that takes complaints about NDIS funded services.

We hope that people can speak to their provider first but if not they can contact us.  We have an 1800 number, which you will see at the end of the presentation.  We also have a complaint contact form on our website.  That complaint contact form is about helping people to let us know what’s the best form of communication, do you want to be communicated via email, are you needing an interpreter for Auslan or maybe you speak a different language.

Perhaps you need some help with communication assistance and therefore you might need someone to meet with you face to face.  The contact form on the website allows someone to let us know that they want to make contact about a complaint so we can support that process.

The other thing we do in our complaints process is we will also identify for any person with a disability that is making a complaint or is subject to any concerns around the service provider, is that we will check in with them to make sure that they have someone that they trust and make sure that they know they can choose an advocate in their local area if they haven’t got someone with them.

That’s pretty important in terms of people feeling like they have someone to speak to.  Although my team is very friendly and supportive Government organisations can be scary for anyone.  What we want to do is work together to make sure people have the opportunity to speak up.

We will take that complaint and the team first looks at can we get this resolved really quickly, we call that our Early Resolution Process.  That’s about having a look at what the issues are, discussing it with the provider if we think that there is some opportunities for quick wins there.  We might require the provider simply to take action or we might require them to have some conversations to follow the matter up if we’re confident that they’re actually working well with the person who has raised the complaint and with you.  Most complaints are managed in that early process.

For those that are perhaps more complex because of a number of factors involved in that complaint we may take that process through what’s called Conciliation.  It’s really just a big meeting and the resolution officer or the person who works with the complaint will actually work with the person who has brought the complaint and the person with the disability to the best of their capacity about what do you want to achieve out of this complaint and how can we work with you to achieve it and meet with them first then also meet with the provider about what they’re going to be doing about resolving the complaint.  Then the conciliation meeting comes together after that.

There may be cases and there often are where it’s not suitable to have a meeting about the issues because for us at the Commission it raises with us concerns about whether the provider is actually meeting those quality standards that we talked about before.  If they’re delivering the service are they meeting those standards and should we be looking at other issues.

One of the things that’s different about the Commission that’s quite different from a complaints body is that we actually have a compliance and investigation function which means that even if its issues around education or right up to some of the very strong enforcement powers the Commission has which is around enforceable undertakings, going to court for injunctions, civil penalties because there are a  number of civil penalties for providers who don’t adhere to the rules or even right up to banning workers or services, then the Commission can take a proportionate approach in terms of the issues that are identified.

That’s a new piece of work in terms of the Commission coming into play.  We’re already looking at a number of matters.  We’re looking at how we can better support people with a disability who are receiving the supports and providers to make sure that that quality of service exists.

The first thing in that process though in terms of the complaints process is making sure that people feel safe to speak up.  I think a lot of you can give us feedback at the Commission if you think that that’s not the case.

Now we will talk about restrictive practices.  Our behaviour support team is led by Doctor Jeffrey Chan.  Some of you here in Victoria will remember Doctor Chan and the behaviour support team is responsible for providing clinical leadership in behaviour support and promoting the reduction and elimination of restrictive practice.

The goal of behaviour support in the NDIS is to improve the quality of life for people with a disability and reduce the use of those practices.  A behaviour support practitioner must develop a comprehensive behaviour support plan that promotes the dignity and quality of life for a participant and works to eliminating those practices.

In terms of the NDIS Commission and the work being done, the senior practitioner is leading the Australian wide work around how the States and Territories will work together with the Commission in looking at reducing those practices.  There is a piece of work underway, which the Department of Social Services is leading around making sure that States and Territories, and the Commission have an agreed way of working.

The authorisation of a restrictive practice still happens at a State or Territory level but it must be in accordance with the National approach, which is still developing and will be on going into the future.

This is a big piece of work and we want to make sure that the rights of people are upheld so it will take some time in terms of working across the disability sector in every State and Territory to ensure that all of those processes are in place.

In terms of the practices, they’re always a last resort and they’re a way to quickly stop someone from hurting themselves or others if there has been no other way to do that.  In the end, the Commission is seeking for providers to use better ways to help people.  Once that occurs it initiates that process for making sure the objective and the goal is to reduce the use of that practice and support the person in their behaviours so they don’t need those sorts of practices again.  That may take not much time with some individuals but it may take quite some time with others.

Some people ask what is a restrictive practice.  Well the regulation of restrictive practices includes these areas with the NDIS Commission and that is seclusion, which is putting a person in a place by themselves where they can’t get out for a while and that is a limitation of someone’s human rights.  Chemical restraint, having medication to help with a person’s feelings or behaviour.  Mechanical restraint, using something to stop someone hurting themselves like a helmet.  Physical restraint, using part of a person’s body usually their hands to try and stop another person from being hurt or environmental restraint, using a barrier like a locked door or a cupboard to prevent someone eating or ingesting something that might be harmful to them.

These practices are not recognised as the best way to be able to work with a person who needs support and the positive behaviour support plans are ways in which we can work to eliminate the use of those practices.

All restrictive practices must be in a behaviour support plan.  They can only be used to keep the person and others safe and only when nothing else works not to be used for too long and they must also be authorised under the arrangements of the State or Territory that you’re in.  Off course, the objective must be in the end that those practises are taken away and the person is over time taught new skills.

This covers a number of areas that the Commission works in.  We’ll also be working on a workers screening system whereby there will be a national database.  At the moment once again this is a piece of work that’s being led by the Department of Social Services with all States and Territories and it’s looking at how States and Territories will be screening workers in the disability sector and then the Commission has a role in terms of maintaining a national database to support that screening system.  That process is one that’s on going and we will start to see some progress in that after 1st of July next year.

So who are we working with:  We’re working with participants, providers, workers, Government and the community but in working with participants we’re also working with advocates.  Our commitment is to protect the rights of people with a disability through this new system and help other people to know and understand what the rights of people who are receiving services are.

Our objective is that its good quality services that contribute to choice and control.  Keeping safe is not enough we all want to be safe that’s the bare minimum.  It’s actually about getting good quality services so that we can meet those goals and objectives that have been set under the NDIS plans in terms of actually living our lives to the best that we can.

The Commission has just started as I said in New South Wales and South Australia.  We will be rolling out in Victoria from the 1st of July next year also everywhere else except Western Australia.  Western Australia is the 1st of July 2020.  We’ll soon see a national system.

Four months in, what’s happening:  Four months in, we’re receiving in New South Wales and South Australia many complaints about providers and we’re working very closely with the people who have been funded to receive the services and their advocates and others to resolve those complaints.  We’re also receiving the incidents that I’ve talked about, the reportable incidents that has a four-month experience already in New South Wales and South Australia and that’s also a bit of a change to the systems.  It will take us three years to roll out right across Australia because Western Australia comes on board in 2020.

One of the things we will need through that process is regular feedback and check in to see how it’s travelling and how it’s going because the Commission has been set up under the quality and safeguards framework.  We have a mandate to roll that out and then we obviously need to test how that goes and check in with the people who are using the services around how well that’s working for them as well.

How would you find us:  We’ve got information on our website as I referred to.  That’s the website there and you can also contact us on our 1800 number.  I do add we’re not effective in Victoria until the 1st of July so the existing safeguards apply.  If you for instance bring a complaint to us before the 1st of July we will direct, you to the Disability Services Commissioner in Victoria.

It’s important to understand the Commission doesn’t have any jurisdiction in Victoria until the 1st of July.  The existing safeguards apply and you would continue to use those until then.

I believe we have some time for questions.

MELISSA HALE:
We have some time for questions so if you want to raise your hand and say where you’re from before asking your question for the benefit of the people on livestream.  For the people on livestream if you have any questions please send a text message to the number.  Any questions?

SIMON ANDERSON, DEAF VICTORIA:
Thank you so much I might stand up so the other audience members can see me.  My name is Simon Anderson I’m from Deaf Victoria.  I’m working as an advocacy officer.  Thank you so much for a wonderful presentation and the information you have provided.  I do have a range of questions for you.

First and foremost, I would like to talk about if there is only one provider of a service in a particular area the problems that this can cause when an incident has occurred or there is a complaint about that particular provider.  Myself as a deaf individual a lot of organisations who provide Auslan there aren’t a lot of organisations who provide Auslan interpreters.  In terms of there being the market, the market doesn’t necessarily exist.  I guess that’s one of my first questions is about what occurs when there is only one provider in that type of situation?

My second question for you is I’ve heard of an incident for one of my clients who has not received any services because of their location.  I guess they are left out there alone without receiving the necessary supports that they require in terms of quality safeguards that they don’t necessarily exist when you’re not receiving a service to begin with.  That is something else to consider.

My third point for you, I beg your pardon for going on for so long.  My third point is you talk about choice and control.  The NDIS talk about choice and control and they advocate that it will provide greater services.  I guess the registration process for providers is something that needs to be considered.  For my own experience of that, it took so long in sorry, bear with me just one moment.

Looking into the registration process and how in depth that is, is quite complicated but my point however is that a lot of people with a disability want to be active within the community and providing services which is absolutely fantastic but there are so many barriers in actually registering as a provider that the auditing process and all of these extra requirements are somehow a barrier to people with a disability being able to become a service provider themselves.

I guess there needs to be some kind of checklist that would enable this kind of process to be able to be a little bit smoother for individuals who want to become service providers.  Those are my three questions so on service providers how to do it and sorry you’ve understood the three points, thank you.

MIRANDA BRUYNIKS:
Thank you Simon, I appreciate you running through those particular issues in terms of what you’re observing across the sector.  I might handle number one, your first question about one provider and then because it also links to what happens when there’s no services.  There are two aspects to that first question which is the one around working with a provider that you’re unhappy with and secondly not having anywhere else to go which is also similar to not having any services at all.

The Commission in its early days is establishing information and intelligence.  One of the roles that we share with the National Disability Insurance Agency is market oversight and still collecting information about where there would be very few services or what we call thin markets where people can’t access the services they need.  One of the parts of a new scheme where suddenly there’s money for services where there wasn’t money before means that there needs to be a growth in the market but it needs to be in the right places so that your friend and others can actually find a service.  That’s the sort of information we’re interested in understanding as we roll out.

When we come to Victoria, we would be interested in understanding that too.  Are you from Victoria – thank you.  We would be interested in finding that too.

In terms of that first question where you have nowhere else to go it’s really really important that the provider is listening and actually demonstrating to you that they can hear you and they’re making improvements to their services.

One of the things that we also present to providers and we say to them the best information you can have about your own service is a complaint then you know where to invest your efforts and improve your services, it actually makes it better for people who use the service.

There’s a lot of providers worried about not being chosen as a service provider because it’s actually people with disability that have the right to use their funds and choose their providers.  That’s a bit of a shift and this means there is an interest in what works.  They can spend lots of money on consultants or they could simply have a good management system, which is what we require them to do so they can listen to concerns.

My suggestion is even under the existing safeguards if you’ve got a provider that isn’t listening to you that you take that to the Independent Complaints Body.  In Victoria until the 30th of June this year it’s the Disability Services Commissioner.  From the 1st of July 2019 it will be the Commission.

In terms of the registration process, I want to thank you for that feedback.  We are off course implementing a registration process and rules that were decided by that quality and safeguards framework and that Act, the legislation and the rules that were put in place and agreed by every single State and Territory Government with the Commonwealth.

Everybody said they wanted providers to be held accountable against quality standards and they wanted them to be assessed against them which is why the standards and audit process exists.

We do want to make sure that the process is accessible.  I welcome you to leave your details with Melissa.  I would be interested to have your contact details because one of the things we’ve done out of one of the past forums we had with advocacy groups is we actually put in place some Auslan pieces in terms of participant information but this is really important in terms of registration as well.  I would be very happy.

Have worked with Deaf Australia already in this space but would love to hear from you about your experience and the sorts of tools that might have made it helpful.

BERNADETTE CHEESMAN:
Thank you. Bernadette Cheesman, I have an acquired brain injury so I’m just here.  There’s one crucial thing that goes to the complete heart of every single person working in this system because everything is online.  There is research and this is done with PhD students as well as ordinary people that you read completely differently online to what you do on paper.

There’s weird answers coming back to questions.  If something seems to be skipped, it’s because people are reading online.  It’s a completely different process to reading on paper and everybody has to be aware of that so they take their brains out and prune them to what’s actually being written.  It’s a systemic thing if that makes sense.

MIRANDA BRUYNIKS:
Absolutely agreed thank you.  The Commission in terms of being established has only been established in New South Wales and South Australia from the 1st of July.  To get us established we needed to do lots of work and get lots of information out so that providers understood their obligation and the systems and processes were in place.

We are in fact working at looking at a number of channels because we agree online particularly for people who are receiving services isn’t always the best way.

BERNADETTE CHEESMAN:
Don’t forget there’s quite a few folks me included who really can’t read online properly and we’re just part of the brain folk where that brain function just isn’t there anymore.  That’s not just me its others.

MIRANDA BRUYNIKS:
Yes, we do acknowledge that.  We’ve been doing some work with Council for Intellectual Disability in New South Wales around the development of some of our resources.  We do have some easy English and easy read tools that have been up on the website for people to gain but once again up on the website.

We have a reliance on advocates and others to be able to print some of these tools so they can distribute them.

BERNADETTE CHEESMAN:
It’s everyone from PhD students down to the ordinary person who reads online differently.  So it’s the advocates as well as everybody else.

MIRANDA BRUYNIKS:
Yes.  Very happy to take that feedback on board and take on board also suggestions on how you think that information is best given.  At the moment we have a strategy and engagement function where people have just started working for the Commission and they are looking at some of the tools and approaches that we can use to get information out.

We’d be very interested in what you think is really effective because we like to make sure that people have access to our information.  We put a lot of time and effort into trying to get information out so we want to make sure that it actually lands.

VANESSA SAUNDERS, COMMUNICATION RIGHTS AUSTRALIA:
Hello, I’m Vanessa Saunders from Communication Rights Australia.  I do have a question that you noted before that the Commission doesn’t deal with the planning process or funding and that any complaints need to go through the Disability Services Commissioner or Agencies.

I have a number of cases at the moment which we have exhausted many of those avenues.  One case in particular where the client, the participant has had his funding for six months, he is wheelchair bound, and he is cerebral palsy.  There has been two major areas with his plan and the most recent barrier is now everyone is locked out of his plan he can’t even access his funding.

My question is based on scenarios like that, would the Commission, would we be able to take that type of complaint to the Commission?

MIRANDA BRUYNIKS:
So that type of complaint where you’ve already made a complaint to the NDIA you can make to the Commonwealth Ombudsman.

VANESSA SAUNDERS:
That’s the thing my client’s mother has taken it to the Commonwealth Ombudsman and has been pretty much no action so this participant is really in dire straits.  It’s getting to the point where they might have to take it to the media.

MIRANDA BRUYNIKS:
One of the things the Commission does it will help people find the right agencies.  In that particular case it would be the Commonwealth Ombudsman.  I’m just I suppose wanting to understand whether they’re aware of the complaint, whether it’s got through to them.

We’ve generally found the Commonwealth Ombudsman to be quite receptive and quite helpful.  They did a report last year on some of these issues.  I understand they’ve been working with the National Disability Insurance Agency around some of those things.  I can only encourage you to go back there to the Commonwealth Ombudsman to make sure they understand how serious this is and how this support is needed probably more quickly than others.  Those are the sorts of things to be able to raise with them.

I might just clarify because I don’t want anyone to leave here confused.  Complaints about the NDIA, the planning process, whether things are funded or not they go in first case to the Agency.  Then if it’s about the funding it’s the appeals process.

If it’s about the actual Agency themselves and not responding to you or having unreasonable delays, then the Commonwealth Ombudsman has actively been working in that space and they are the body to go to because they actually have jurisdiction over the NDIA.

They also have jurisdiction over us as an NDIS Commission because we’re a Government body.  The NDIS Commission has jurisdiction over providers that are funded by the NDIA.

MELANIE, LEADERSHIP PLUS:
Excuse me Miranda, its Melanie here from Leadership Plus.  I just wanted to let you know there’s been a concerted effort with the advocates in Victoria in relation to the NDIS Appeals Process and Network that we have here to pursue complaints with the Ombudsman in relation to issues around delays with internal appeals.

What we’re now being told by the Ombudsman and we’ve heard this from two clients is that the Ombudsman is no longer pursuing those matters in relation to internal appeals.  Most people here would have done a review of a reviewable decision and there are extreme delays in the NDIA addressing that review process, often it takes months.

Most agencies will provide a reasonable amount of time two months and then lodge a complaint asking for an outcome from that review of a reviewable decision implication.  Often the NDIA hasn’t been addressing the reviewable decision in compliance with that process.

The Ombudsman has been inundated with those further complaints where the advocates have been systematically lodging those complaints.  Across Victoria across agencies that’s been what’s happening.  The Ombudsman we’ve been told at least with two people now they can’t do anything in relation to that matter however, they can if you’ve lodged a complaint which you would’ve had to with the NDIA around getting a response to your review of a reviewable decision, they pursue the length of time in addressing the complaint, the complaint with the NDIA.

That’s the experience that we’re having as an agency.  Has anyone else experienced that?  Okay.

MIRANDA BRUYNIKS:
Thanks for clarifying.

RUTH:
Hi, my name is Ruth I’m actually a mum of a young man, young adult so I’m his advocate.  I apologise I was late coming in so if my question is something you’ve addressed I apologise for that.

I guess my questions or my comments were sort of a little bit around what some people have already brought up.  As an oversight body and I’ve dealt with some oversight bodies in my time, I find they’re a little bit of a toothless tiger.

My question to you is are you actually going to have decent powers to address issues and I’ve actually submitted already a complaint against the agency with an oversight body, the inundated, again it wasn’t the Ombudsman.  I rang the Ombudsman and they really didn’t want to deal with me because they’re so inundated.

It’s becoming a bit of a problem.  If you are an oversight body, please have the powers to do something because my experience with a lot of them they’re either inundated and really can’t deal with it or they don’t have the powers to be able to deal with it so I think what’s the point of you basically as a consumer of the system.

The other thing I wanted to raise when you’re actually wanting feedback is when we as consumers overlap with other bodies as in health or education there seems to be huge confusion out there amongst service providers on almost in terms of what they can charge particularly this capacity building area.  There’s so much confusion people are being told the wrong thing.  Two different people for the same service have been told different things.  There is huge huge confusion out there.

I don’t necessarily take everything what people say and I go in and investigate.  A lot of consumers can’t.  You’re dealing with a cohort that simply can’t do it.  It’s a real problem.  Is that the sort of thing you say and again I don’t believe you take complaints against the Agency but if the Ombudsman isn’t going to do it then who the hell is going to address these issues because they really are quite massive.

MIRANDA BRUYNIKS:
I’ll take your question about the powers first if that’s all right.  Once again people here in this room contributed to a quality and safeguarding framework and what you have said is exactly what people said, we want a Commission that has powers.

The NDIS Commission has a broad range of powers that it will use on a proportionate basis in terms of some of the issues in the sector when they’re identified.  That will range from requiring the provider to undertake education with staff at a very low level in terms of some of those issues, which are well really you ought to have done that better to things like enforceable undertakings where the provider is having to make a commitment against those services that they’re delivering.

Then it goes further into court injunctions where we might take action against a provider if they’ve breached the code of conduct or they’re not meeting their quality standards so there is a breach of the act.  Then off course the high-level activities around civil penalties where we can go to the court and get for instance penalties put against a provider.

These are what we call levers because often time’s issues are not so substantial that you would terminate a provider because you may find one person is having a terrible experience but sixteen others are having a really good experience.  Terminating providers is not always the answer because you’re going to make an awful lot of people unhappy if they’re actually already happy with the service.  What you do want to address is if there is any failings or difficulties with the providers.

This proportionate response that the Commission has is quite useful and it’s different to what might have existed before where regulatory bodies can look into a matter.  An Ombudsman can look into a matter, make recommendations for change, which are pretty powerful recommendations, but the Commission actually has stronger powers.

The Commission can actually take action against a provider in terms of those particular items or what we call at the very top of our regulatory permit where the service is determined the service is not suitable to deliver services then that will be at the very top.  The registrar might make a decision on that basis or where workers are banned because of breaches of the code of conduct.  We do have those powers yes.

In terms of the overlap with other body’s one of the areas that we are finding in New South Wales and South Australia is the number of calls we need to divert to the appropriate body because they’re not actually for the Commission.  We work with people to navigate their way to the Health Services Complaints Commission, Education or whichever State or Territory body it is.

That takes us a little while and we enter each jurisdiction to actually understand what the State and Territory Government arrangements are because some of those arrangements fall under the State and some fall under the Commonwealth.

Depending on what your particular concerns are we would do our best to navigate and help you work through where to take those issues.  We are established by Government; we can’t go outside our jurisdiction.

MELISSA HALE:
We do have time for one last question.

KAREN DIMOCK, ASSOCIATION FOR CHILDREN WITH A DISABILITY:
Hi, I’m Karen Dimock from the Association for Children with a Disability.  My question goes back to your last comment there about how you will interface with the children and younger persons Commission here in Victoria and their reportable conduct scheme.

MIRANDA BRUYNIKS:
Once again the Department of Social Services lead the work of engagement and discussions with each State and Territory prior to the Commission arriving so that work is underway.  For example, before we went into New South Wales and South Australia the Commission had opportunity to meet with the State and Territory regulatory bodies or Government agencies that were involved with disability or might have interactions like Children’s Commissioners and actually establish what working arrangements can be in place.

What would be of interest to you is the fact that the Commission has under the Act information disclosure powers.  We can or I can for instance, as part of the complaint process or reportable incident process, where we think the health or wellbeing of a child or someone is at risk, we can disclose information to the jurisdictional child protection commissioner or agency to ensure those matters have been followed up or handed to the right agency.

This is a really good point that you raise and probably reflects on our last question.  You need the issue to go to the right body that has the right powers to deal with it.  How terrible if an issue about a child or someone else didn’t get to the right body.  Our focus is very much making sure that the issue is identified and is reported to the appropriate body.

We remind providers that they have obligations under State and Territory laws and their reporting to the Commission does not negate those obligations.  We remind them regularly and if we get information that shows that they might be a bit confused we redirect it immediately.

MELISSA HALE:
Okay, thank you everybody we’re running a little bit over time.  A massive change in reporting coming up in July so I encourage you all to put your feedback into the Commission so we can all work together.

Thank you very much Miranda and we will break now for lunch and come back at 1:00 o’clock.  Thank you.

Author:
DARU

Date published:
Tue 27th Nov, 2018