1.Participant experiences with us are positive
To gain insights into participants and complainants experience with the NDIS Commission, we conducted interviews with a range of stakeholders, including members of our Community Consultative Committees.
The feedback received was very positive regarding the accessibility, transparency, appropriateness of our communication, both with participant and complainant and the sector overall. Stakeholders praised the NDIS Commission’s focus on empowering participants, including through the Speak Up campaign. Interviewees commended the NDIS Commission’s attempts to communicate directly with participants.
The NDIS Commission also received valuable feedback regarding the use of a wider range of communication strategies to maximise effective communications with both participants and providers and to improve clarity among all stakeholders about the Commission’s scope and processes. In addition the interviewees gave suggestions for exploring and addressing factors which may inhibit participants, especially disadvantaged groups of participants, from approaching the Commission.
2. NDIS participants are increasingly confident to complain
People with disability have the right to complain about the services they receive. Most NDIS providers do their best to provide quality supports and services to people with disability, but issues can occur. The NDIS Commission can take complaints from anyone about NDIS providers, and NDIS participants may receive support from family, a friend or an independent advocate in making a complaint.
During 2019-20, 30% of complaints were made by NDIS participants on their own behalf, while 31% of complaints were made by family members or friends of NDIS participants, 18% by support workers or service providers, 17% by others (including guardians and advocates), and 4% by government bodies.
3. Our decisions have integrity
During 2019-20 none of the decisions made by the Commissioner or the Commissioner’s delegates were challenged in legal proceedings.
The National Disability Insurance Scheme Act 2013 (NDIS Act) provides that some types of decisions made by the Commissioner or the Commissioner’s delegates are ‘reviewable decisions’. Each person directly affected by a reviewable decision may request a review of the decision by an officer of the Commission and may then apply to the Administrative Appeals Tribunal for a review of the decision made by that officer. During 2019-20 there were requests for a review of four reviewable decisions made by delegates of the Commissioner. Three of these requests for internal review were completed within the 2019- 20 period. Two of those internal reviews resulted in variations to the original decision. None of these decisions made by the internal reviewers was the subject of an application to the tribunal.
During 2019-20, the Commonwealth Ombudsman’s Office notified the NDIS Commission of nine complaints about the NDIS Commission in relation to which the Ombudsman was conducting a preliminary inquiry (eight complaints) or an investigation (one complaint) under section 7A or 8 respectively of the Ombudsman Act 1976. The Ombudsman subsequently advised with respect to each preliminary inquiry that it would not progress the matter further to an investigation, and, with respect to the complaint which triggered an investigation, that it would not be investigated further.
Provisions of the NDIS Act help to promote the integrity of decision-making by the Commissioner or the Commissioner’s delegates. For example, the NDIS Act requires the Commissioner to have due regard to procedural fairness in performing the Commissioner’s functions and requires the Commissioner to use best endeavours to conduct compliance and enforcement activities in a risk responsive and proportionate manner. The Commission has also developed guidelines and policies that help to ensure the integrity of our decision- making, such as the published Compliance and Enforcement Policy and the Infringement Notice Policy. Further, the Commission has internal governance arrangements to support the making of decisions with integrity, including in particular a compliance and enforcement committee.
4. We are using the right regulator interventions to produce the right outcomes
The NDIS Commission uses a range of compliance tools to prevent and address breaches of the NDIS Act including education, and working closely with other complaints and regulatory bodies. The NDIS Act also provides the Commission with a range of compliance and enforcement powers, including banning orders, compliance notices and court-based outcome.
During 2019-20 the NDIS Commission commenced 365 compliance matters and 168 investigations of which 61 per cent commenced following information received from providers through reportable incidents. Actions taken during 2019-20 included reviewing and investigating potential breaches of the NDIS Code of Conduct and, conditions of registration, monitoring the compliance of providers and their workers and educating providers on how to comply with their obligations under the NDIS Act.
During 2019-20, the NDIS Commission issued 17 banning orders, revoked 3 registrations, suspended 4 registrations (noting that multiple suspensions sometimes applied to the same registration), issued 1 infringement notice, and issued 2 compliance notices.
In addition to the compliance and enforcement actions taken in 2019-20, the NDIS Commission had previously, during 2018-19, issued 6 banning orders, suspended 2 registrations (noting that multiple suspensions sometimes applied to the same registration) and issued one compliance notice.
During 2019-20, the NDIS Commission also issued 29 warning letters as a result of compliance and investigation activity and issued requests for information to providers, including 2,466 requests sent in May 2020 to providers registered to provide assistance with daily personal activities.
5. We effectively resolve complaints
The aim of the NDIS Commission is to help participants resolve complaints quickly and simply. To do this, the NDIS Commission reviews information provided and talks to appropriate parties about this information. A complaint may be resolved via a resolution process or conciliation, or may be dealt with through compliance action, including investigations. The NDIS Commission can also make the decision to end a complaint resolution process for a variety of reasons including:
- the complaint is better handled by another complaints body
- the information given was not given in good faith
- a person with disability involved in the complaint does not wish to continue
- the complaint is the subject of formal legal proceedings
- the complaint was withdrawn.
During 2019-20 the NDIS Commission received 4,469 in-scope complaints. Complaints received by the NDIS Commission in 2019-20 were open for a median of 43 days. 39% of complaints were open for up to 30 days, 60% up to 60 days, and 74% up to 90 days.
6. Increasing numbers of providers are resolving complaints directly with participants
The NDIS Commission can take complaints from anyone about:
- NDIS services or supports that were not provided in a safe and respectful way
- NDIS services and supports that were not delivered to an appropriate standard
- how an NDIS provider has managed a complaint about services or supports provided to an NDIS participant.
Participants are encouraged to raise concerns or complaints with their provider first, if they feel comfortable doing so. All registered NDIS providers must have a complaints management and resolution system in place.
As well as dealing with complaints, the NDIS Commission works to educate providers about delivering quality and safe supports, and effectively responding to complaints.
During 2019-20 the NDIS Commission received 295 complaints (6.6% of in scope complaints) about how an NDIS provider has managed a complaint about services or supports provided to an NDIS participant.
7. We are providing leadership in the practice of positive behaviour support and in the reduction and elimination of the use of restrictive practice
We provide extensive leadership and assistance in the field of behaviour support. Our behaviour support team responded to 15,610 external inquiries, with the most common enquiry themes being advice to providers about their obligations, assisting with provider understanding of restrictive practices and practitioner suitability, and enquiries relating to the NDIS Commission Portal. The behaviour support team also responded to 4,978 inquiries from within the Commission, providing advice and consultancy on behaviour support functions, clinical advice and data analytics.
The Commission received 302,690 reports by 492 providers of the use of unauthorised restrictive practices, with 4,327 persons subject to an unauthorised restrictive practice, where the practice was not authorised by the relevant state or territory authority, or where a behaviour support plan was not in place for the person. 96% of reports of unauthorised use of restrictive practice were related to chemical or environmental restraint, with each use of the restraint required to be reported. The volume of reports on the unauthorised use of restrictive practices increased month-on-month due to increased provider reporting compliance, and in particular the introduction of streamlined reporting mechanisms in October 2019.
The NDIS Commission oversees behaviour support practitioners and providers who develop behaviour support plans that include restrictive practices used in supporting NDIS participants. Only behaviour support practitioners found suitable by the NDIS Commission are able to develop behaviour support plans. Behaviour support plans are authorised by the relevant state or territory, but must be lodged with the NDIS Commission.
In 2019-20, 2,264 additional behaviour support practitioners were considered provisionally suitable across all participating states and territories.
The NDIS Commission reviews provider reports on the use of restrictive practices, reviews behaviour support plans and responds to the use of restrictive practices reported through the NDIS Commission’s reportable incident function. From 1 July 2019 to 30 June 2020, 6,003 behaviour support plans were lodged with the NDIS Commission.
During 2019-20 the behaviour support team completed an audit of 100 randomly selected behaviour support plans. This review gave insight into the extent to which they may require development.
8. We are registering providers to ensure market capacity to provide quality support, including through appropriate audits
1.1 and 1.2
Providers must be registered to deliver supports and services to participants whose plans are managed by the NDIA. Providers must also be registered to deliver certain support types to any participant: specialist disability accommodation, behaviour support, and implementation of regulated restrictive practices.
There were 17,253 registered NDIS providers as at 30 June 2020. The majority of these providers were transitioned providers previously registered with the NDIA who transferred to the NDIS Commission when it commenced in each state and territory.
On 1 July 2019, we transitioned 11,486 providers who were previously registered with the NDIA in QLD, the ACT, VIC, TAS and the NT. This was in addition to the 9,703 providers that transitioned from NSW and SA on 1 July 2018.
All providers that transition to the NDIS Commission must apply to renew their registration if they wish to continue to provide supports and services to NDIS participants. As at 30 June 2020, 1,657 applications to renew registration had been approved, and 11,117 providers had commenced the process to renew their registration, with some of these still in the very early stages of renewal.
Of the 17,253 registered providers as at 30 June 2020, 9,144 were ‘active providers’ meaning they had made a claim for NDIS payment in the last three months.
Registered NDIS providers are required to make a new application for registration prior to their registration renewal date, in order to maintaion their registration. As at 30 June 2020, 3,662 providers’ NDIS regiatration had expired. Of these 89% were inactive in the NDIS market.
During 2019-20, the NDIS Commission received 5,439 new provider applications. We also received 1,857 applications to vary registration.
The NDIS Commissioner approved an additional five certified audit bodies to operate within the NDIS bringing the total to 16 approved audit bodies. The NDIS Commission trained an additional 217 individual auditors bringing the total to 498 individual auditors trained.
During 2019-20, 5,803 audits were completed.
9. We are enabling and engaging the NDIS market to mature with diverse composition and increasing compliance
1.1 and 1.2
The 17,253 providers registered with the Commission (as at 30 June 2020) provide a wide range of supports and services to NDIS participants. These services and supports are categorised into registration groupings.
Five per cent of providers provide supports or services across multiple registration groups meaning they can deliver a range of supports to NDIS participants.
Specialised registration groups provide higher intensity supports to NDIS participants. There are 7,601 registrations across the five specialised service groups. Nearly one third of these NDIS providers are registered to deliver Early Intervention Supports for Early Childhood.
Registration Group and Number of Providers
Early Intervention Supports for Early Childhood 2,361
Specialised Support Coordination 1,643
High Intensity Daily Personal Activities 1,582
Specialised Behaviour Supports 1,295
Specialised Disability Accommodation 720
As at 30 June 2020, 9,474 or 55% of registered providers were organisations, and 7,779 or 45% were individuals.
During 2019-20 the NDIS Commission developed specific resources to target areas of provider governance or practice. This included:
- the development of the incident management compliance program in 2019-20, including provider resources, for implementation in 2020-21
- continued support for the online course Worker Orientation Module. This interactive online course explains the obligations of workers under the NDIS Code of Conduct from the perspective of NDIS participants and had been completed by over 245,000 people as of 30 June 2020
- publication of detailed guidance and quick reference guides for providers about their incident management system requirements, reportable incidents and the expectations of workers delivering services.
In addition, provider resources are being produced through grant programs administered by the NDIS Commission. The programs support providers to meet the new NDIS registration requirements and include a focus on small local NDIS providers and those operating in geographically challenging circumstances. Deliverables under these grants include training products, information sessions, webinars, tools and a range of other accessible resources. Free resources and tools released in 2019-20 as part of these grants included resources such as:
- workshop and webinar materials for behaviour support practitioners
- workshops on the NDIS Code of Conduct and recognising restrictive practices
- webinar materials for NDIS providers that support people with psychosocial disability
- practice resources with online forums, fact sheets, a helpdesk and a range of practical resources focusing on best practice
- verification resources and upcoming webinars for allied health professionals.
10. We are well regarded and are able to influence other system players
To research a response to this measure, we conducted interviews with a range of stakeholders, including members of our Community Consultative Committees, which provided insights into the influence of and overall regard for the NDIS Commission.
Overall interviewees reported that the Commission was well regarded, and they gave positive feedback regarding the credibility and approachability of key frontline managers and leaders in the Commission.
Interviewed stakeholders commended the timely and continuing response to COVID-19 from the Commission, where the NDIS Commission worked with others across government and the disability sector to include the disability perspective in pandemic response.
Interviewees also commended the Commissioner on his response to the death of Ms Ann-Marie Smith and the commissioning of the Robertson Review. Interviewees regarded this as best practice in terms of transparency and ethical handling of a significant system failure.
The NDIS Commission also received valuable suggestions for enhancing its engagement with a range of agencies and educational strategies to maximise its positive influence on the system outcomes.
11. Sound governance informs our operation and decisions
The NDIS Commission carries out governance in accordance with standard practices for non-corporate Commonwealth entities. The NDIS Commissioner is the Accountable Authority and sole statutory officer overseeing all Commission operations. The Commissioner delegates powers to Commission staff through instruments of delegation for various acts, and ensures correct use of those powers through a set of Accountable Authority Instructions and a variety of policies and procedures.
The Commission’s operations are monitored by an Audit Committee, and internal committees provide executive oversight; examples include the Executive Leadership Team, which is the Commission’s senior committee and focusses on strategic business decisions, and the Compliance and Enforcement Committee, which focusses on operational compliance and enforcement decisions.
12. We will establish office locations across Australia
The NDIS Commission commenced operations in Brisbane, Hobart, Darwin, Melbourne and Canberra at the start of the reporting period, which joined the existing operations in Adelaide and Penrith. During the reporting period, the Commission leased and fitted out a new office in Perth, which will commence operations when Western Australia transitions to regulation through the Commission. With the completion of the Perth office, the Commission will have completed establishing an office in all States and Territories across Australia.
13. We have strengthened the capacity and capability of the NDIS Commission
The NDIS Commission commenced operations in the ACT, TAS, QLD, VIC and the NT from 1 July 2019. During the reporting period, this involved completing recruitment and onboarding for these offices.
The NDIS Commission provided capability development programs including in-house delivery leadership workshops for Executive Level staff, implementation of a Learning Management System (Learnhub) to provide eLearning courses for all staff on a wide variety of subjects, and release of a safety portal to provide information and training links which boosted capability in relation to safety.
Capacity and capability was strengthened through refinements to the management team and reporting lines including the establishment of new positions, particularly a Chief Investigator and a Data Analytics Director.
14. We are developing our performance metrics, data analytics capacity and evaluation framework
In June 2020, the Commission completed comprehensive analysis and development of appropriate performance metrics. Initially, this fed into the performance metrics promulgated as part of the Commission’s 2020-21 Corporate Plan. Going forward, it will inform future Corporate Plans, as well as approaches and metrics for use in performance evaluation more generally.
The Commission has developed an integrated central data and analytics capability whose work spans data management and includes developing methods for the use of our data in enabling proactive safeguarding. The data and analytics group supports the Commission to report on, and progressively evaluate, short-term outputs and mid and longer-term outcomes. It is intended that findings from these reports will support the prioritisation of future research and will inform the Commission of emerging trends and issues.