Effective quality and safeguarding institutions and architecture across the full disability ecosystem

Quality and safeguarding in disability supports is not pursued in a strategic, coordinated or consistent way

The NDIS is a large and complex system, with over 610,000 participants served by over 16,000 registered providers, over 154,000 unregistered providers, and over 325,000 workers.²⁸⁹ A range of individuals and organisations have roles and responsibilities to support a quality, safe experience of supports for participants.

Many of the challenges experienced in quality and safeguarding suggest the system is not coordinated, or consistent. We have found that regulation is not being approached in the strategic, coordinated and consistent way that people with disability deserve, and that a scheme as large as the NDIS - as well as the wider disability support ecosystem - warrants. There is also confusion about who is responsible for what, and a lack of information sharing to support the system to deliver good outcomes.

Roles and responsibilities for quality and safeguarding are fragmented and unclear. The 2016 NDIS Quality and Safeguarding Framework (the Framework) set a vision for the activities of different groups with quality and safeguarding roles and responsibilities and how they would be coordinated. This included the roles of formal regulators such as the NDIS Quality and Safeguards Commission (NDIS Commission), and the availability of supports for participants to self-advocate and develop their natural safeguards. This has not eventuated in the way the Framework envisaged it would, with a lack of clarity about who is responsible for ensuring participants are supported and safe and how these different players should work together. Participants and supporters have told us they find navigating the quality and safeguarding system to be unintuitive and confusing.²⁹¹

The Framework also takes too narrow a view, focusing on quality and safeguarding for NDIS supports but not the broader ecosystem of supports for people with disability - which has resulted in quality and safeguarding in the NDIS being considered in isolation. Given the Review is recommending a major investment in foundational supports, relying on a narrow Framework and NDIS Commission - focused just on the NDIS - will be even less appropriate in the future.

Current information sharing arrangements do not facilitate a joined-up view of risk and safeguarding for participants - with different parts of the system holding different information about participants and therefore each only having a partial view. As a result, the regulatory system is not as effective as it should be, and those who should intervene to prevent harm are not able to identify issues and trigger responses. A lack of information sharing also leads to inefficiencies in the regulatory system - for example, resulting in duplicative requirements for providers to report on the use of restrictive practices to both the NDIS Commission and the relevant state or territory authority. We have also found the right balance is not being struck between protecting the personal information of people with disability and sharing sufficient information to underpin effective safeguarding.

There is a lack of consistency and coordination in quality and safeguarding efforts both within the NDIS, and between the scheme and other supports outside the scheme. Not all NDIS supports and services are regulated in the same way or by the same regulator. For example, both the National Disability Insurance Agency and the NDIS Commission set rules for providers and workers. Not all NDIS providers are regulated by the NDIS Commission either. For example, NDIS Commission regulation does not apply to directly commissioned supports like Local Area Coordinators, despite having direct relationships with people with disability.²⁹³

Beyond the NDIS, there are separate and overlapping regulatory frameworks for other disability, care and support services. Differing regulation makes it difficult to consistently understand what standards of quality and safety to expect, how services and supports compare, what rights consumers have, and how to make a complaint or access support when issues arise.²⁹⁴ This leads to significant confusion, frustration, and ultimately poor outcomes for participants, families and carers.

Differing regulation also presents challenges for the many providers and workers who operate in multiple care and support programs. Providers and workers have told us it can be difficult and time-consuming to understand and reconcile the regulatory requirements associated with different service systems.

The NDIS Commission was not resourced sufficiently for its scope

While it has delivered a range of achievements to date, we believe there are opportunities to improve the NDIS Commission’s capability and effectiveness. The NDIS Commission is still a new regulator, developing in its maturity and capability. The transition period to national regulatory arrangements only recently concluded in July 2023. Since it was established, the NDIS Commission has made progress in a range of areas. This includes the development of the NDIS Code of Conduct, the implementation of a registration scheme for providers, and nationally consistent worker screening.²⁹⁶ It has also exercised its Own Motion Inquiry powers to investigate issues including supported accommodation, platform providers, and support coordination and plan management.²⁹⁷

However, the scale of the NDIS Commission’s task is far larger than was envisaged when it was established. There are more participants and providers (including unregistered providers) than were originally anticipated. The NDIS Commission has consistently been under-resourced relative to its roles and responsibilities.

The NDIS Commission has also been constrained by inadequate information and communications technologies investment. This has undermined efforts to build better data capability to inform its work. It has also resulted in missed opportunities to reduce burden on providers through improved user experience of NDIS Commission portals and processes and timelier decision-making.

The NDIS Commission has also not sufficiently embedded a best practice approach to regulation.

The NDIS Commission is seen as not sufficiently accessible or responsive. This has negatively affected public trust and confidence. Many participants and the broader community, including some providers, are not aware of the NDIS Commission or its role in the system. Those that are aware have told us many times that the complaints processes are not accessible, and they do not receive adequate or a timely responses when they raise issues.³⁰⁰ Both government and non-government organisations, including representative and advocacy organisations, have described experiences suggesting lack of collaborative engagement by the NDIS Commission.

We have also heard from many people who believe the NDIS Commission “lacks teeth” to respond to concerns about provider conduct, and does not do enough when faced with inappropriate or illegal conduct.³⁰¹The Disability Royal Commission made similar observations about the need for the NDIS Commission to transition towards more active monitoring and enforcement.³⁰²