11.33 The NDIS supports people with a ‘permanent and significant disability’. Although a person must be under the age of 65 years at the time they seek to become a participant in the NDIS, if a person is already in the NDIS when they turn 65, they may elect to remain in the NDIS or enter the aged care framework.
11.34 Participants can access individualised plans for the delivery of ‘reasonable and necessary supports to participate in economic and social life. The National Disability Insurance Agency (NDIA) works with a participant to develop a plan. It considers the extent to which families, carers and informal networks may reasonably be expected to assist. However, risks to the participant’s well-being, and the impact on a participant’s level of independence will be taken into account in evaluating whether informal carers may reasonably be relied upon.
11.35 Some stakeholders expressed preliminary concerns about the potential for abuse and substandard care under the NDIS. However, others noted that at this early stage of the rollout of the NDIS, they have had limited experience with the scheme. Legal Aid NSW and the Law Council of Australia noted that ‘it is not aware of any elder abuse being experienced by participants in the NDIS’.
11.36 In December 2016, a comprehensive quality and safeguarding framework was introduced. It includes safeguards targeted at individuals participating in the NDIS (participants), the NDIS workforce, and NDIS providers, and incorporates preventative and corrective mechanisms.
11.37 Key safeguards for participants include:
conducting a formal risk assessment during the plan development process, that will be used to identify those ‘who may be most at risk of abuse, violence, neglect and exploitation’;
calibrating the level of support provided to the person’s personal circumstances. A participant who is identified as vulnerable to exploitation or abuse will have access to a ‘support coordinator’ to help implement a ‘participant plan’;
ongoing monitoring and evaluation, including through regular plan review; and
Commonwealth funded individual and systemic advocacy services.
11.38 These are supported by a number of systemic safeguards, including:
a risk-based nationally consistent screening of NDIS workers, reliant on a variety of sources of information, including police checks and evidence of workplace misconduct that ‘comes to light through complaints and serious incident reporting’;
limits on the use of restrictive practices, including prohibitions on certain practices, the establishment of requirements that must be met before a restrictive practice can be used, and the introduction of a NDIS Senior Practitioner with the power, among other things, to review ‘serious incident reports involving the unplanned or unapproved use of a restrictive practice’;
a requirement for all providers and workers to comply with an NDIS code of conduct;
a requirement for providers delivering higher-risk supports, or supporting participants at heightened risk to undergo quality assurance certification. Certification will involve audits against practice standards, and usually will be conducted every three years. Providers with a history of serious non-compliance may be audited more frequently. An auditor will be required to notify the NDIS registrar of ‘major non-compliance’ issues;
the establishment of an NDIS registrar with responsibility to monitor compliance with the NDIS code of conduct and provider quality and competency standards; and
the establishment of a NDIS Complaints Commissioner whose main focus ‘will be on complaints suggesting that an individual worker or provider has breached the NDIS code of conduct’. People are also able to raise broader issues about service quality, abuse and neglect with the Commissioner. This allows the Commissioner ‘to identify emerging issues in the NDIS market and make recommendations to government’.
11.39 The ALRC considers that it is too early to determine whether the scheme is an avenue for elder abuse, or test whether there are effective safeguards against elder abuse in place.
National Disability Insurance Scheme Act 2013 (Cth) s 24.
Ibid s 22(1)(a).
Ibid s 29(1)(b). As people can expect to live longer ‘disability-free’, and the proportion of people with disability who are older increases, the number of people eligible to remain in the NDIS is likely to drop. According to the Australian Institute of Health and Welfare, ‘men aged 65 in 2012 could expect to live 8.7 additional years disability-free’ and a further 6.7 years ‘without severe or profound core activity limitation’. Women in the same age cohort ‘could expect 9.5 additional years disability-free’ and a further 6.7 years ‘without severe or profound core activity limitation’: Australian Institute of Health and Welfare, ‘Aboriginal and Torres Strait Islander People with Disability: Wellbeing, Participation and Support’ (May 2011) 237. People with a disability who are over 65 years of age are increasing as a proportion of all people with a disability. In 1981, 10% of all Australians with disability were aged under 15 years and 31% were 65 years or older; in 2009, 7% of the population with disability were aged 0–14 years and 39% were 65 years or over: Australian Institute of Health and Welfare, Australia’s Welfare 2011, Cat No AUS 412 (2011) 12
National Disability Insurance Scheme Act 2013 2013 (Cth) s 8(c).
Ibid s 34(1)(e).
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) rule 3.4(b)(i).
Office of the Public Guardian (Qld), Submission 173; NSW Ombudsman, Submission 160; Office of the Public Advocate (Vic), Submission 95; Law Council of Australia, Submission 61; Legal Aid NSW, Submission 137.
Office of the Public Guardian (Qld), Submission 173; Seniors Rights Victoria, Submission 171; Public Trustee of Queensland, Submission 98; Office of the Public Advocate (Vic), Submission 95; Federation of Ethnic Communities’ Councils of Australia, Submission 89; Law Council of Australia, Submission 61.
Legal Aid NSW, Submission 137.
Department of Social Services (Cth), NDIS Quality and Safeguarding Framework (2016) 13–14. These are underpinned by initiatives to strengthen the capabilities of individuals, the workforce and providers: Ibid.
Department of Social Services (Cth), NDIS Quality and Safeguarding Framework (2016) 31.
Ibid 30. A support coordinator works ‘intensively with participants to shortlist and investigate suitable providers, choose preferred providers, create an agreement with the providers, and to move to a different provider if required’: Ibid 32.
Department of Social Services (Cth), NDIS Quality and Safeguarding Framework (2016) 32–33.