Senate Community Affairs Legislation Committee, , 5:02:09 to 5:34:58
The NDIS Quality and Safeguards Commission discusses banning orders, provider compliance with the code of conduct, and complaints management.
Topics: Social services, Public safety
Speakers: Scott McNaughton, Louise Glanville, Hon Anne Ruston, Pauline Hanson, Tim Eaton, Dorinda Cox, Graeme Head AO, Hon Jenny McAllister, Natalie Wade, Speaker 28
the age care quality and safety commission publishes non-compliance decision logs identifying which quality standards a provider failed to meet. Why does the NDIS quality and safeguards commission generally not publish even highlevel breach categories for regulatory actions and what prevents it from adopting a similar approach?
Tim Eden, acting deputy commissioner. Senator, you'll be aware possibly from your briefing there that we um we publish a public facing register of the compliance action that we undertake which includes banning order details including the tenure of that banning order. So for how long it is. it clearly identifies the individual that it applies to. Uh and it stays on the register for the the life of the uh the life of the ban itself. So that has a very public facing impact in terms of whether person applies for employment in future etc. It it's permanently there and it's permanently available. So we think that's quite a a transparent way of going about um promoting the banning orders that we've made and making it clear that those individuals should not be working in the
You the age care do it. It's my understanding the age care put up the information of so why someone's been banned. Um so you're you're really not by putting up what they're responsible for. Why have they been banned as provider? So you don't put up that information at all. My understanding that why someone has been banned from being a service provider with the NDIS.
We put up information that we think is is prudent and useful in terms of the objective here is to remove the people from the sector and make sure that that the public knows that they're excluded from the sector. Um so providing you know additional details around uh the nature of the particular um uh breach that they committed we don't think is necessary. We provide it provided at a broad enough level to make it clear that those people should not be engaging in the sector. As I say it's very public
facing. Senator, what is important for um the public to understand is that a provider or worker is not permitted to operate in the NDIS and for people with disability most centrally to have that information available to them. There may be a variety of reasons as to why the commissioner would ban a worker or provider from the sector. That may be um very sensitive information and would not in our view be helpful for a person with a disability or a member of the public to make decisions and exercise their choice and control about services that they want to purchase under the NDA.
Well, you could put up whether they've been banned because of fraud or because of governance rules and regulations. You know, that just says that someone else is going to get a job. Okay. Case in point is how did Simon Johnson get banned from NDIS and then register as an age care home care provider from which he was banned also. So, if that information is up there, then the people say, "Okay, this man's been banned for this reason. Now, he's gone to age care and he's been banned there. So he's not a good provider in either these services. So why shouldn't the public know that?
>> We work very closely with other regulators across the care economy to ensure that workers and providers that are not fit to work with us are made known um to other regulators where that is prudent to be known.
>> But that's the same thing as I said before. This other woman was who was a migration agent and she ended up going working there and ripping off three nearly $300,000 as a provider. So where's the investigation in these people? If if people go and want to get a provider, they go to the site and see the names. Oh, I'll get them. But if you saw beside it, no, they've been banned because of fraud or because of lack of decent care, then you'd say, I'm not touching them with the barge pole. Why aren't you looking after the the the people out there who are desperate for good providers and not take on those who might be, you know, the worst ones they can actually have in their homes. >> So why isn't it why why are you protecting these people and not putting it up there? >> Well, they've been banned because of this reason. Why do we pro protect them and not look after the victims?
Senator, just to um perhaps reiterate in a slightly different way what Mr. Eaton has said, the fact that we are banning someone from being an NDIS um uh service provider and that is on the record that people can read it and see it. They only have to consider what's in the code of conduct, which most people know anyway, to understand that if we've taken that action, which is an incredibly serious action, but sadly often necessary, then the indication is that that person um uh is not suitable to be providing services um for the NDIS. It it's a it's a plain way of saying this is a risk and you know we've banned this person because they're a risk. We've made that assessment as the as the regulator. We've made that assessment and that's a really important piece of information that we put out publicly for the very reason you're describing. We don't do it lightly, but we absolutely do it when it needs to be done. Well, if
the unregistered providers, if they don't know, they don't get their staff a worker screening test check that which is many of them. And remember, who gives I'm asking you a question. Who gives the unregistered provider a code of conduct?
Well, all all providers have to comply with the code of conduct. But interestingly, and I was only just reading about this recently um amongst our own material um uh with unregistered providers, many of them still check to see um whether their workers that they're employing have actually, you know, they're part of that um worker screening process. So there's lots of different ways of it happening, but just because a provider is unregistered doesn't automatically mean anything for the capability of their workers. That is also part of those processes.
>> But you spoke about a code of conduct. So who gives a code of conduct?
>> Everybody has to comply with the code of conduct,
>> right? And how is it investigated? How is it investigated? Who follows up? Who
investigates it? Well, we well the way in which regulators work is that we often get lots of tip offs about um providers that aren't complying with the code of conduct. Sometime it'll be family members. Sometime it'll be people with disability themselves and as Mr. Eaton um explained slightly earlier today. Uh we look at all these complaints that come in risk proportionately. We we look at them in a way which identifiies the most egregious harms first and we move from there. And that's because we are riskbased and interested in addressing uh what are the most serious um and offensive um practices in supporting or not supporting people with disability in terms of good quality services that they can rely on and trust in. So, Senator,
the code of conduct is published um and then the legislation that establishes this organization, the regulator sets out what the penalties can be if a person breaches the code of conduct when they're supplying a service as part of the NDIS. And then as our government our government has then provided this organization with substantial extra resources so they can actually do the work because it's one thing to have an offense but it's another thing to have a group of people who are capable of enforcing it. Uh this organization the commission is on a journey to maturity. Uh my view is it was not properly resourced under the past government. We've added uh some hundreds of staff to the organization and as Miss Glanville uh and Mr. Eaton have started to explain they are revising the way that they do enforcement. Uh they will have much better data available to them and it will allow a much more targeted approach in going after the people who are doing the wrong thing and I want to see them doing that work. Uh last year I issued a statement of expectations to them. It's a key way a minister can communicate their expectations to an agency. And I made it very clear that protecting people's safety and prosecuting people who uh or taking compliance action against people who do the wrong thing should be an absolute priority for their organization.
>> And and just to um um give an examples of those um Mr. Eaton's reminding me of the number of matters we've taken to the federal court recently in the last few years where the awards that judges there there are four or five judges in that court now that that hear our matters um the awards that are being made against um uh providers who have behaved poorly or badly or egregiously um are very very significant. um they're in the millions and we see these um awards becoming larger and that is because we cannot tolerate um unsafe um or bad quality services being delivered to people with disability
>> and I don't want to stretch um the the the tolerance Senator Hanson but the ledge before the parliament increases the penalties that can be levied by um the agent by the commission or by a court in some instance up to 40 times, particularly where the safety of a person has been put at risk.
>> I can appreciate that it it gets to court and it's in the courts, but isn't that been reactive? What I'm saying is who actually gives the unregistered providers the code of conduct?
>> So the code of conduct is sits with the commission. So so in in order for them to be providers, they have to comply with the code of conduct. But but the other point, Senator, is that sorry,
>> how do they comply with it?
>> Well,
>> you say they have to comply.
>> They have that their their
>> So, it's a it's an article that they read. Is that complete? Is that right? It's an article.
>> No, it's a it's a it's a set of requirements that they have to adhere to. >> Um, and if they they don't adhere to them, there's many ways that regulators get information that that's occurring. That's what the job of the regulator is.
>> Such as you said, they have to comply with it. Just give me an idea, a sample of what
>> to treat people safely, to give people to treat people safely, to give people services that are good quality, to ensure that their workers are well trained, that they're the sorts of we can provide the code of conduct to you if that would be useful and we're very happy to talk to you about about that further. Just one one point on your comment about the the matters in the court. The reason why we take them to the court, often to the federal court, is not just for that provider to understand and for the court to make a determination about what they've done is right or wrong, but it's also to act as a deterrent. It's to act as a deterrent to other providers who may perhaps not have been um as good either, but have not been seen or no one's made a report about that. It's a way of saying if you do not do the things that the code of conduct requires, this is what we will do. Now, I say that knowing there are many terrific providers out there and I want to be very very clear on it. I know many of them and they're wonderful and they're absolutely, you know, terrific in what they do. But there are many out there too that think they can get away with the sorts of things that you're talking about, which I completely sympathize with. And so so this this taking it to a court makes it a deterrent. It's it points to you can be fined you know not only 2.2 million as one has recently been fined but also you can have be forced to pay the agency's fees for having to the commission's fees. Um the court can order you pay costs. All of these things are a signal to say don't do this bad work. Get out of this work if you're going to do it badly because this is what will happen to you. Because the stronger we become in the way the minister's been talking about, the more we become better at the work that we do, bearing in mind we're only 6 years old, the more we become sophisticated as a regulator, the more we work, as M. Wade has said, with other regulators, and we do that so much now, and we will be able to do that even more when our systems are improved from our data and um regulation transformation process. it it will it will actually deal with many of these issues which I think are being dealt with now but we will get better and better at it Senator and I think that's the key I think the key is we want people to see what they're allowed to do and what they are not allowed to do and we will not look past that and quite frankly you know when you sit in my role or indeed more the associate commissioner's role who is herself a person with a disability and you watch the number of people with disability that die from the services you receive >> it is chronic and we are serious and that is what we will do and we will take whatever steps we need to do to rid these practices um by poor providers um in the way that you're
>> well I'm pleased to hear it and so would a lot of Australians as well you know so people have died um because of >> people do people care and attention they actually get but you know the code of conduct my understanding is >> do you you act on something if a complaint comes in then you may act on it and go investigate that person or do You do you do audits on these people?
>> I I just I I'll invite Mr. Eden to provide some operational insight, but before I do, I think it's really important to frame this um in the context that information will come to the commission from a variety of sources. It will come from people with disability and their families first and foremost, but it also will become compulsory from providers when they're required to report incidents to us. But it will also come from the public senator. They will tell us when they see things in their local communities that are not happening and they're not happening well. and we as the regulator act enact uh where we can swiftly to ensure that those bad actors are removed from the NGIS market and that we uh ensure that there is quality and safety and services for registered providers. There is an order process and there are practice standards that offer guidance uh and require providers to deliver to a certain degree of quality. But I'll invite um Mr. Eden to talk you through uh the audit cycle that ensures a continuous improvement uh for providers who had uh registered.
>> Um before you get started Mr. Eaton I just want to signal Senator Hanson that I will need to share the call. So um if this is the last question in this blog
>> yeah and then I'll finish for the day.
>> Okay. Thank you.
>> Just one more just want to ask you
>> did you want to give Mr. Eaton the opportunity to give you some more context and then I'm happy for you to
Senator, in terms of monitoring what's happening with the code of practice, we receive, as I mentioned earlier, some 25 to 30,000 complaints every year, and we need to triage those complaints to work out which are the most egregious so that we can invest our investigation energies in those. When we receive those complaints, they are triaged. We act upon them. Even in the last quarter, we banned 75 individuals from the sector. Most of those are permanent bans. So they are removed entirely from the sector. Um we also do other things like for example as you've mentioned we place conditions on their registration. Um we audit them on an ongoing basis to make sure that the operation uh retains its integrity. Um, we also take some matters forward for civil penalty proceedings and as the commissioner has pointed out, we achieve fines in the order of over $2 million and uh recently one for $1.1 million. They are breaches of that code that we have received through tip offs if you like or complaints through a sophisticated complaints mechanism that involves triage. so that we're focusing on the most egregious things and we publicize that to try to get that general deterrence effect.
>> Last question. Just tell me how close can a provider be to a family member? Can a provider apply for an ABN to take on a job and do that for their family Is there stipulations? You can't be >> closely associated with with that
person. I think it's probably one for
the NDIA. >> It will be a question for the NDIA around what participants were able to spend their funds on.
>> Yeah, I'll ask Mr. H and perhaps Mr. Da
my understanding of the current arrangements uh under the NDIS legislation uh that they do allow for family members in certain circumstances to or be involved in the provision of supports that the act itself doesn't preclude that from happening. um uh and that there are circumstances particularly in very remote parts of Australia where families have
>> but you've got to ask for permission from the agency first.
uh the agency is usually aware of these circumstances but my understanding is that there's no hard uh preclusion of that from happening in the act. Mr. McNorton could talk to you about how that's managed on a day-to-day basis.
>> Yep.
>> Uh thank you, Senator. Scott McNorton, uh deputy CEO, chief executive officer of service delivery. So yes, we have um um some policies under the act and our own operation guidelines are called paying family members as carers. Um as Mr. Head said, we try and limit that to avoid the conflict of interest issues of course. Um but there are limited circumstances due to market challenges especially in remote communities where that could there could be but you have to ask for permission. What we tend to do in those circumstances then senator is try and work with the family maybe to go and get registered through a provider so as there's a quality or safeguarding overlay to that. Um but we do have some we we have safeguards and practices. So we're trying to over have oversight onto those arrangements if they do come up. So there are there are some cases where we do allow for it. We're very mindful of the conflict of interest and of course we want to make sure that the participant is getting quality care in all cases. So it might even be a short-term um arrangement that we allow for and over a course of 3 months or 6 months or 12 months we might build up for that family member to get some training or work through a service provider and to get registered through that process.
>> All right. Thank you chair. >> Thank you so much Senator Hanson. Senator Ruston,
>> thank you very much. Um I'm just keen to understand um what what triggers or what is the process when you select a particular individual um to do a a reassessment of their plan. I mean you gave me the um the triggers in terms um the children with developmental delays and autism and it's an age thing but disregarding the age aspects if was somebody was on the the scheme. What >> a reassessment?
>> Senator, while officials are coming to the table, I'm I'm sorry, I didn't quite understand the scope of the question. Are you asking about adults and children?
>> No, no. I I think we've got the answers. There are there certain time age limits that that that ages that you do. So, I'm talking about adults. So what triggers uh a reassessment of an adults plan by the NDIS as opposed to I mean I'm assuming that um people on the NDIS would often seek for a reassessment but when the NDIS chooses to reassess what is the what is the process. >> Thanks Senator. Um I think Mr. McNorton you can talk through that.
service delivery. >> Um there can be a number of triggers for a a plan reassessment. Mhm. >> Um, one of the more common triggers is when someone's scheduled plan is about to expire.
>> Yep.
>> So, this is a scheduled plan reassessment. >> Yep. >> Plans typically range from 12 months to 2 years or 3 years. >> Uh, at the conclusion of that period, we'll start working with the participant um to get ready for their upcoming plan review. >> Yep. >> Um, so look at reports or additional evidence so forth. >> So, that's what we call a scheduled plan Uh and then there could be circumstances where a participant or their nominee or one of their supporters lodges a request
>> Didn't want that one.
>> Okay. Uh so that could be an uncheduled plan reassessment um where um it could be because of a change of circumstance. So that's another type of plan reassessment.
>> Yeah. I'm sort of trying to understand the times when the NDIS would actually do that as opposed to the the person
themselves. >> Thanks and that's the third category is when the agency could initiate a plan reassessment,
>> an unscheduled
>> an unscheduled plan reassessment.
>> Okay. And and what is the the rationale behind that?
>> Uh the criteria could be that we have um information that we need to make a reassessment because there are some errors in the plan that's been built by the planner. uh we have new information or for argument sake we've got a quote that's come in from a plan we've previously just approved and we need to update that plan with new information. >> Um so there can be a range of factors that under the act through the CEO's delegation we can initiate our own plan.
>> So it's it's not just a a random you
know like every year there's got to be a
catalyst for it to actually correct. >> Okay. Thank you. Thank you. Um is there you know sort of like what what is the decision process once you've undertaken a a a reassessment for whatever the reason? Um what is the process in terms of you know reducing or cancelling a participant's plan? What is the process that you you go through with the participant in under those circumstances?
>> Uh so Senator we um we obviously reassess um tens of thousands of plans each quart.
>> Sure. I'm only worrying about that talking about the ones that you make a decision at reassessment that that you would either reduce or remove the plan.
>> So um in all cases we have to make um decisions based on the act the guidance reasonable reasonable and necessary support criteria and the evidence available to uh the the delegates to who are making those decisions. So we weigh up all the evidence available through uh what what we have about the the participant already plus any new information that's come in from treating professionals allowed health reports physiootherapy speech pathologist all the reason um you know the reasonable reports that will come in from the
>> the participant have to pay for those reports for the reassessment
>> it depends um sometimes we might fund for those in a plan we might have funding in a plan for additional behavior support plans where we're actually paying for those assessments to be done.
>> How often does the participant have to
pay? >> I don't know if I've got structured data on that, but let me take that on notice. I can give you information about how many how often we might provide funding in a plan um for participants through um getting uh different therapy reports or behavior practitioner reports. We we keep data on that and I'll I'll take that on note if I can't get it through this hearing, Senator.
>> Yes. Okay. Um so, what is the time period? Is there a minimum notice of period that's afforded to a participant that their plan is going to be reduced
>> Uh Senator, there is participant service guarantee across a range of metrics that we work on everything from access to first plans um to when a plan uh someone has lodged a change of circumstances for a plan. Uh and we will work to those. It's usually 28 days for us to make a decision about whether to accept it. and then we've got another period of time to build that plan.
>> No, I was more like if you were told like you'd had a reassessment and the decision had been made to reduce the plan or to remove the plan. What is the period of time that um before that actually occurs?
>> Senator, can I just clarify the question a little bit? Um we wouldn't be making a plan reassessment to remove the plan. That's not something that we do. uh that goes back to what's called an eligibility reassessment where we're doing a a assessment of someone's eligibility to the scheme. So we're not actually removing a plan. There's an eligibility reassessment process around scheme eligibility.
>> Yeah. Okay. So what um what qualifications are required of the NDIS staff um who would be in the position to reduce or override the recommendation of a clinician as an example. Um so what's what is the the minimum requirement in terms of um the skill level or the qualification of the person who is a staff member of NDIA to undertake that process.
>> So Senator across our entire frontline um service delivery group we have staff with a range of different who are at a range of different levels under the Australian public service um levels. Um, we have a range of staff with different allied health backgrounds and skill sets. We also have a team through our technical advice and practice improvement who provide a higher level of clinical advice and technical oversight in more complex circumstances. And then for some of our more complex our participants who need more complex supports uh and a and a high level of case management, we have a complex support needs pathway where those those delegates, those planners are at a higher APS um classification and generally have a lot more skills and qualifications in disability.
>> Sure. But we're talking about somebody who has the pad to override the recommendation of a specialist clinician. I'm just interested to understand if you were going to override the recommendation of a specialist clinician, what are the skill set of the person who is the one who is making that
>> Um, so Senator, as I said, our staff will have a range of different skill sets and backgrounds and we make those decisions in accordance with the act.
>> What about the qualifications as opposed to skill sets? Let's talk about qualification. Is there a minimum qualification that you require in order for a person working for the NDIA to override a specialist clinician?
Senator, we we have our staff are recruited on a range of different capability and competencies. We do have staff in our technical advice uh branch who have a range of clinical skills and we'll use those clinical skills if we need more complex technical advice to help with decision-m. Um but those decisions are made in accordance with the act and the instrument of delegation and the capabilities that staff have. We to get you we don't have a team of allied health professionals who just make certain planning decisions. They're our technical assurance team in a way who provide a higher level of technical advice and oversight for our entire
>> Right. Um can I just follow up on some response in the same area of questions that um I noticed that you've responded to from Senator Steele John who's unable to be here today um in which you provided some information about the um how many people had had um who' been reviewed had had their annualized value of their plans either increased decreased um etc. And I think that um or and you provided some notice and I think it's some question on notice NDIA SQ2500146. So just following on from that I'm just wondering um what is the total amount um of of these plans that you've got here. I think you said it was two people who had their plans reduced 2,000 uh 21,56 people you said in that answer to that question had a reduction in the annualized value of their plan. So this may be something you need to take on notice unless you've come very very prepared. What is the total dollar amount by which those 21,056 plans that were reduced were reduced by?
>> Yes, Senator I can give you that information. >> Yep. Cool. I'll give you the information to the 3 months to the 30th of September 2025.
>> Well, I'm just trying to understand it would be really good to be able to is that a different number to the 21,056.
>> Yeah, I'll give you the total number of plary assessments he did in that last quarter through our published quarterly report. >> Um so of that group so we um
>> So can you just give me the dates again? Sorry.
>> It's the quarterly report data to the 30th of September 2025. 30th September
and it's for a 3-month period.
>> Yes, that's correct. >> So, out of all the plan reassessments we did in that period, 69% of the reassessments increased in value. >> So, 69% increased in value. That was 36,791 plans increased.
>> 36,79 Yep.
>> 91
>> 91
>> 31% of the plans had a reduction in their plan value. Mhm. >> Uh the net number of um plans was 16,885. >> The annual Were you asking for the annualized amounts?
>> No. No. Well, I mean just as long as we can they're comparable. I just need to know what the value of the increase versus the value of the decrease was.
>> Uh so the annualized plan increase was 1.69 billion.
>> 1.69 billion. Yep. The annualized
decrease was 436 million.
>> Okay, thank you very much. Um, so in red, are you able to provide that data for 2425 financial year as a whole year?
>> Can I take that on notice, Senator, but we will have that for you.
>> I'm just checking how much more time you
need. Okay. Um, I've got quite a few more questions, but if on this particular issue, I've just got one lot of questions that Senator Cash has asked me to ask and then
>> if I can just go to Senator McKenzie for a 10-minute block, 15 minute block. >> Sure. No, I'm happy to proceed to >> Sure.
>> Yeah, I'm sure.
>> Just conscious you've been talking for half an hour.
>> I can't believe that.
>> Um, to give you a bit of a break. She's
>> No. If I just get the and then we can move on to a completely different topic and un and
>> no okay if you if you want to ask your question and then I will come to you Senator McKenzie coalition >> I like the way the coalition's finally working together um over there
>> I love you
>> Senator