News

National Disability Services annual CEO’s meeting on 11 December 2023

Tracy Mackey, Commissioner, NDIS Quality and Safeguards Commission:

I’d like to begin by acknowledging the Traditional Owners of the land on which we meet, the Boon Wurrung and Woiwurrung (Wurundjeri) people of the Kulin Nation and pay my respect to their Elders, past and present. For the Kulin Nation, Melbourne has always been an important meeting place for events of social, educational, sporting and cultural significance.

We all work in a sector dedicated to upholding the rights of our fellow Australians living with disability. The introduction of the NDIS 10 years ago was undoubtedly an important step in creating the conditions for people with disability in Australia to live their best lives.   

Today I want to talk about some of the changes the Commission has been through in our relatively short history and to reflect, in particular, on the past year and how we have significantly scaled up our operations, matured our regulatory approach, and become a truly national organisation.

In light of the release of the much-anticipated NDIS Review report, I’ll also spend some time touching on a number of key recommendations that are particularly relevant to the Commission and to you as providers. Those include the recommendations relating to registration, a heightened emphasis on quality in the sector and the expansion of the Commission’s remit to include disability services more broadly, not just those funded through the NDIS.

As we heard from the Minister and through the media last week, there are some pivotal reforms ahead to ensure the Scheme is sustainable and effective. The Commission looks forward to playing its role in implementing the review. But I am reminded of a remark that Tim Ferguson made a couple of weeks ago while he was addressing one of our staff forums, 'not everything that is awesome is perfect as it involves humans'. He also said ‘Awesome takes time’ to grow, evolve and sharpen policy through learning by taking action. Let’s remind ourselves that what we’re doing here with the NDIS is world leading. An ambitious and game-changing initiative, which is admired by many other countries from around the world. As some of our own work with our international peers demonstrates Australia is, in a very real sense, leading the world in the disability sector.

The size of the NDIS now dwarfs both Medicare and defence and the economic impacts of our sector have a multiplier effect, commensurate with the infrastructure sector. The number of participants assisted by the scheme is now approaching close to 3 per cent of the Australian population.  While the public narrative can tend to focus on things when they go wrong:  instances of abuse, fraud or neglect by providers, there is much that has been made possible by the Scheme that should be acknowledged and celebrated. Through the NDIS, Australia has collectively decided to value and invest in the support and uplifting of people with a disability. The disability economy has taken centre stage.  When you start counting something it starts to matter. Previously unseen and unpaid caring work, mostly undertaken historically by families and women in particular, now has visibility and value. And upholding the rights of people with disability is at the heart of why most of us are in this sector. It’s at the heart of what the NDIS was designed to do.

As far as regulators go, we’re quite young. We were initially set up in NSW and South Australia in July 2018. We only became the national regulator of the NDIS in December 2020.

Effective regulation succeeds or fails based upon the extent to which prevailing laws, rules and norms are observed by the relevant actors. Sometimes non-compliance results from ignorance of the law. Sometimes compliance is driven by a fear of adverse consequences, whether financial or reputational. We should also not lose sight of the fact that, adherence to the regulatory standards, is the bare minimum or baseline expected of a provider – it does not necessarily signal that a quality service or support is being delivered.  An effective, responsive and risk-based regulator must recognise these different starting points and motivations in order to appropriately intervene and influence the market in a positive way where possible.

The day-to-day work of the NDIS Commission is far broader and varied than the name might suggest. Quality and safeguards are words that sound relatively straightforward but there is so much within them. When you start to unpack them you begin to understand the scope and the scale of what our job entails.  Everything from facilitating a resolution for a Participant who has been overcharged for a shower chair to responding to a serious incident in which a Participant has been physically assaulted. Conducting Own Motion Inquiries into how the market is operating, such as those conducted this year into supported accommodation, platform providers and intermediaries. Of course, we also manage thousands of registration applications and worker screening checks each year, along with receiving and actioning more than 1.5 million reportable incident notifications, as well as building sector capacity through our various grant programs and capability lifting initiatives including the Workforce capability framework, practice alerts, master classes and worker orientation modules.

To give you a sense of the scope and scale, I want to highlight a few key figures:

During the first year of operations (2018-19), the Commission received just under 1,500 complaints. In 2022-23, we received more than 16,000 complaints. This financial year, we are on track to receive more than 25,000 complaints.

Similarly, in our first year we received just over 1,600 notifications of unauthorised restrictive practices. By 2022-23, that had increased to just over 1.6 million URP notifications. The 2022/2023 Financial year saw 10 fold increase in compliance action (over 9700, 6500 of which were educational and the rest coercive) and 50% increase in banning orders.

All of this by an agency with less than 800 staff, regulating a sector in which there are now more than 610,000 Participants and over 150,000 different service providers.

As we approach the end of the year, I’d like to acknowledge the dedicated work of my colleagues in the Commission and share a few highlights from what has been a significant year of reform and consolidation for the organisation.

• During 2023 we completed three external facing reviews known as Own Motion Inquiries into Supported Accommodation, Platform Providers and Support Coordination and Plan Managers.
• The Commission conducted functional business improvement reviews to optimise our own operating practices and procedures.
• On 20 February this year we stood up our reorganised complaints function, resulting in the Commission finalising 91 per cent more complaints compared to the same 6 month period in 2022.
• In the Federal Budget we received a budget uplift of $146.2 million to grow our workforce from 528 in June 2023, to a workforce of more than 850 people this financial year.
• Collectively, we have consulted with more than 2,000 participants and their supporters to guide our work on developing practice standards, understanding what a meaningful life looks like and feels like to them and on how we can better support participants to uphold their human rights and their consumer rights. We want to regulate to ensure the market sustains both these things.
• Between May and September 2023, we partnered with NDS, to conduct Regulatory Burden workshops with more than 700 people from different providers, from which we created our insights report.
• Commission staff have played a critical role in the establishment of the Fraud Fusion and Price Taskforces which have been established to crack down on fraudulent providers and unfair pricing in the sector.
• Finally, as part of our significant shift to a truly national regulator, we have stood-up a suite of specialist teams to better support participants including:
• a Safeguarding Team who has undertaken almost 1500 individual safeguarding actions within 2 days of notification since 5 December 2022
• a National intake and triage teams who has received almost 20,000 complaints to date and more than 70,000 reportable incidents
• an in-house litigation team to expand our ability to seek civil penalties and injunctions
• an Indigenous and remote operations team to engage and regulate in a culturally sensitive way
• High intensity responses which addresses urgent risks to participant rights and critical sector issues
• Targeted campaigns which aims to avert potential risks to participants and address emerging sector issues. In 2023 there have been several place-based campaigns delivered, including in Bunbury, Launceston, Maningrida and Townsville
• a Serious Non-Compliance Team to focus on matters that involve systemic issues across multiple locations, providers or jurisdictions
• a Price help team to assist participants to navigate unfair practices with associated information guides.

All of these changes and initiatives are closely aligned with our Strategic Plan:

1. Rights of people with disability
2. Quality Providers and Workers
3. Thriving and diverse markets.

That takes me now to the NDIS Review itself, and several of the key reforms that will have a significant impact for the Commission and for the sector more broadly.

The Review made 26 recommendations with 139 supporting actions. Of these, 14 recommendations and 27 actions were directed to the NDIS Commission or otherwise concerned the work of the NDIS Commission. There are four main groups of recommendations -

1. Shift from the NDIS Quality and Safeguards Commission to the National Disability Supports Quality and Safeguards Commission
2. A new risk-proportionate regulatory model
3. Quality Improvement and Practice Standards
4. Restrictive Practices and improved supported decision-making

 

1. National Disability Supports Quality and Safeguards Commission

The Review recommends that Commission be given an expanded remit to become the National Disability Supports Quality and Safeguards Commission. While that change will not happen immediately, and will require legislative amendments, it is fair to assume that the scope and the size of the market we regulate will get larger.

The recommendation acknowledges the value of having a consistent approach to Quality and Safeguarding across the disability support ecosystem, to include responsibility for the regulation of all Australian Government funded disability supports.

The Review further recommends the development of a new Disability Supports Quality and Safeguarding Framework and improved access to safeguarding supports.

Pleasingly, the report recognises the significant scaling up involved in this changes in scope, also including a specific action that Government ensures the National Disability Supports Commission has the resources, powers and approach to be set up for success.

The Review also includes a specific action around improving data collection and information sharing arrangements, in recognition of the need for Commonwealth, State and Territory agencies to have more effective information sharing arrangements. 

 

2. A new risk-proportionate regulatory model 

Many of you in this room will have been calling for universal registration of the market and will likely be pleased to see the Review recommend the design and implementation of a graduated model for the whole provider market. 

This will happen as part of a staged approach and will involve extensive consultation with both Participants and their supporters, along with providers.

The benefits of the new model include regulatory visibility of the whole provider market; requirements that are more finely tuned to risk; and known gaps, excessive burdens and duplication in current requirements are addressed.

Accompanying the changes to registration requirements, the Review also recommends the expansion, improvement and harmonisation of worker screening processes for care and support workers, so that it is routine rather than optional for some providers.

There are huge opportunities to leverage the worker screening data base, not only as a critical safeguarding element but as a way for workers to demonstrate and highlight their skills and experience and compliance with other obligations such as WHS.

We are seeing more and more participants accessing the data base to obtain screenings for workers who they may be independently engaging.

 

3. Quality Improvement and Practice Standards 

The Review signals a clear intention to step up the emphasis on quality in the market, recommending the explicit establishment of a quality function led by a dedicated Deputy Commissioner for Quality.

There are also multiple actions around stepping up the use of Practice Standards as a quality lever, including:

• Strengthening of Early Childhood Practice Standards
• Strengthening psychosocial supports and introducing a new support-specific Practice Standard
• Strengthening the Specialist Disability Accommodation (SDA) Practice Standard to separate SDA and living support provider
• Introducing a new Practice Standard for 24/7 living supports (some of these supports are also referred to as SIL). 

The Review also includes an action around the measurement and publishing of metrics around registered provider performance. There will need to extensive work undertaken with Participants and providers around ‘what good looks like’ and how to rate it, so that the metrics are both meaningful and measurable.

Many providers have told us that they would welcome a mechanism to better understand how they can demonstrate the quality of their service to differentiate themselves in the market and benchmark themselves against best practice. Many of you are already doing this within your peak organisations.

Equally we have heard from participants that they want to know ‘what good looks like’ when they are selecting a provider.

 

4. Restrictive practices and improve supported decision-making

The fourth and final significant recommendation around restrictive practices shows a sense of urgency around the need to work with providers and behaviour support practitioners to reduce and ultimately eliminate the use of restrictive practices.

This is particularly welcomed by the Commission, which has redoubled its efforts in recent months to try and drive reductions in the use of restrictive practices, an area which has remained stubbornly resistant to change. Our recent compliance activities, including the issuing of penalty notices, will continue in earnest and is clearly aligned with the Review Panel’s desire to see improvements in this area.

The reforms announced last week will further empower the NDIS Commission to regulate responsively and based upon risk. As many of you here today will know, over the past year in particular, I have placed far greater emphasis on the Commission taking strong compliance and enforcement activity, particularly in relation to restrictive practices. While this will continue, I have been troubled by some of the public commentary which has sought to diminish or dismiss the role of education as a valid and effective regulatory tool.

The reality is, given the size of the NDIS, we can’t just enforce our way to a better sector. We have to empower participants to be well informed and confident consumers, who can exercise choice and control and demand quality services from their providers. We have to amplify and leverage off the examples of high quality providers, to show others in the sector what good looks like. We need to build the capability of support workers to deliver safe and quality supports to participants on a day-to-day basis. That’s why education and engagement will remain an important and enduring regulatory function, even while we continue to pursue more robust compliance action on the other side of our regulatory wheel (donut).

In closing, I want to underscore the joint responsibility we have in this room to reframe the public narrative on the disability sector.

The Disability Royal Commission and the NDIS Review have unsurprisingly put a spotlight on some of the terrible incidents and bad actors in the system, including some of the more horrendous abuses of human rights suffered by those in the disability community.

But there is so much good that takes place every minute of every day in the disability sector in Australia. The thousands of dedicated support workers who ensure that every day, hundreds of thousands of Australians are safely showered, dressed, fed, encouraged and supported to live their best lives.

The disability sector in Australia, while far from perfect, remains a global innovator in supporting people with disability to realise their personal aspirations. It is incumbent upon us all to shine a bright spotlight on the stories of kindness, the stories of dignity and respect and the stories of achievement. Our sector is not perfect and there will always be room for improvement but I applaud you all for choosing to sit at this particular table with me.

In many ways the NDIS represents a conscious policy-led choice by our country to enliven the human rights of our fellow Australians living with disability. That’s something to be genuinely proud of.