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Chapter 12 Section G: Receiving Quality Services, Complaints, Reviews and Appeals

Overview

The NDIS can bring major benefits for people living with mental health conditions who experience psychosocial disability, as well as their families and the broader community. However, it also presents some potential risks of harm to the participant in rare cases.

The Quality and Safeguarding Framework (the Framework) ensures that the NDIS system works effectively, that the rights of people with disability are protected and that NDIS does bring people benefits. Choice and control of services means that participants can make decisions about the level of risk they are prepared to take and have access to the resources and information they need to reach an informed view about the quality and suitability of providers.

There are a number of safeguards in place to make sure that people are not at risk of harm, abuse, neglect or exploitation. In the NDIS, this means that registered service providers must meet quality standards set by the NDIS Quality and Safeguards Commission. These standards promote the safety of people with disability, their families and carers, and their staff, in the provision of NDIS funded services.

The NDIS Quality and Safeguards Commission brings together quality and safeguards functions under a single agency for the first time, with a range of education and regulatory powers that apply across Australia. The aim is to improve consistency in regulation and registration for providers in different states and territories.

Quality and safeguarding arrangements ensure the rights of people with disability are respected and:

  • empowered to exercise choice and control in the support services they receive, while ensuring appropriate protections are in place;
  • the capacity of people with disability, their families, and their carers is built so that they can make informed decisions about NDIS providers;
  • that they are appropriately responded to in managing concerns and complaints; and
  • that they have access to a strong and viable market for disability supports and services.

The NSW Government remains responsible for safeguarding people living with disability in other circumstances, including in home or community settings and in services funded by or under the control of NSW Government.

The NSW Ombudsman has a role in overseeing the quality and safeguards of people living with disability. The NSW Ombudsman watches over most public sector and some private sector agencies in NSW. Their role is to make sure these agencies and their staff do their jobs properly and meet their responsibilities to the community.

Since 1 July 2018, the NDIS Quality and Safeguards Commission has heard complaints about registered and unregistered NDIS providers. Any person who wishes to make a complaint or raise concerns about an NDIS provider should contact the NDIS Quality and Safeguards Commission.

Where people contact the Ombudsman to make a complaint about an NDIS provider, the Ombudsman will provide the relevant contact details for the NDIS Commission.

Where appropriate, the NSW Ombudsman will offer assistance to a complainant to the NDIS Commission, such as through making a ‘warm referral’ (where they provide the key details to the Commission on the complainant’s behalf, with their consent).

Most NDIS providers aim to provide quality supports and services to people living with disability. However, problems and incidents of poor practice, abuse and harm can happen. People with disability have the right to complain about the services they receive, and complaints can play a vital role in strengthening and improving the quality of NDIS supports and services.

This section will provide information about:

  • The NDIS Quality and Safeguards Commission;
  • Service Standards and Guidelines;
  • How to make a complaint and provide feedback about the NDIS; and
  • NDIS Plan Reviews and Appeals.

12G.1: NDIS Quality and Safeguards Commission

The NDIS Quality and Safeguards Commission (NDIS Commission) is an independent agency which works to uphold the rights of people with disability. Participants can raise concerns or complaints about the safety and quality of NDIS services with the NDIS Commission.

The functions of the Commission are to:

  • respond to concerns, complaints and reportable incidents, including abuse and neglect;
  • promote the NDIS principles of choice and control, and work to empower participants to exercise their rights to access good quality services as informed, protected consumers, consistent with the UN Convention on the Rights of Persons with Disabilities;
  • require NDIS providers to uphold participants’ rights to be free from harm;
  • register and regulate NDIS providers and oversee the new NDIS Code of Conduct and Practice Standards;
  • provide guidance and best practice information to NDIS providers on how to comply with their registration responsibilities, including providing culturally responsive and appropriate disability supports;
  • monitor compliance against the NDIS Code of Conduct and Practice Standards, including undertaking investigations and taking enforcement action;
  • monitor the use of restrictive practices with the aim of reducing and eliminating such practices;
  • design and implement nationally consistent NDIS worker screening; and
  • education, capacity building and development for people with disability, NDIS providers and workers.

Participants in the NDIS who are self-managing their packages may be selecting services that are not registered by the NDIS. In such circumstances, they will be engaging with services and workers on the same basis as any other market contract and be subject to the risks of any commercial arrangement. To read more about this, click here.

To read more about the circumstances where a person self-manages their plan, click here.

The NDIS Commission has developed the NDIS Quality and Safeguarding Framework, which provides a nationally consistent approach while ensuring appropriate safeguards are in place. It also establishes expectations for providers and their staff to deliver high quality supports.

The aims of the NDIS Quality and Safeguarding Framework are to ensure that NDIS funded supports:

  • uphold the rights of people with disability, including their rights as consumers;
  • facilitate informed decision-making by people with disability;
  • effectively achieve person-centred outcomes for people with disability, i.e. reflecting a person’s preferences and expectations;
  • are safe and fit for purpose;
  • allow participants to live free from abuse, violence, neglect and exploitation; and
  • enable effective monitoring and responses to emerging issues as the NDIS develops.

The Framework includes:

  • advocacy services funded outside of the NDIS through government funded programs such as the National Disability Advocacy Program;
  • systems for detecting fraud and related issues associated with the responsibility for paying providers and verifying that supports have been delivered which remain the responsibility of the NDIA;
  • complaints about the NDIA, or NDIA-funded Local Area Coordinators, addressed through existing measures;
  • universal complaints and redress mechanisms (including Fair Trading, professional and industry bodies) which continue to be available to participants; and
  • anti-discrimination and human rights legislation overseen by the Disability Discrimination and Human Rights Commissioners, which provide additional avenues for raising a complaint.

Registered NDIS providers in NSW must comply with many policies and standards. The Framework sets out all the requirements they must comply with, including:

  • a national provider registration system;
  • NDIS Practice Standards;
  • an NDIS Code of Conduct, which also applies to unregistered providers;
  • a national worker screening system;
  • a new complaints management and resolution system;
  • new incident management requirements, including reportable incidents; and
  • additional safeguards for behaviour support and restrictive practices.

12G.1.1: Incident Management Requirements

The new incident management system described, under the NDIS Quality and Safeguarding Framework, requires that all incidents which result in harm, or have the potential to cause harm to a person with disability while they are receiving supports or services must be recorded. Incidents which must be notified to the NDIS include the death, serious injury, sexual misconduct, abuse or neglect of a person with disability, as well as the unauthorised use of restrictive practices.

These new arrangements do not replace existing obligations to report suspected crimes to the police and other relevant authorities.

12G.1.2: NDIS Restrictive Practices Authorisation

Restrictive practice means any practice or intervention that has the effect of restricting the rights or freedom of movement of a person with disability. Under the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 certain restrictive practices are subject to regulation. These practices include seclusion, chemical restraint, mechanical restraint, physical restraint and environmental restraint

With the establishment of the NDIS Safeguards and Quality Commission in NSW NDIS registered service providers who use restrictive practices in the context of a Behaviour Support Plan must have a Restrictive Practices Authorisation. Anyone can complain about the use of restrictive practices if they feel the service has not kept within the terms of their authorisation.

A Behaviour Support is about creating individualised strategies for people with disability that are responsive to the person’s needs, in a way that reduces the occurrence and impact of behaviours of concern and minimises the use of restrictive practices.

If you are a worker, the Restrictive Practices policy, guidelines, fact sheets, guidance, and a slide pack is available to walk you through the requirements. There are also application forms which can be accessed by following this link.

12G.2: Service standards and guidelines

Every participant is different and will make decisions about the services they wish to receive based on their particular priorities and preferences. In general most NDIS participants want providers that have:

  • expertise and experience in delivering their services;
  • support or products the participant needs or prefers;
  • capacity to meet their individual/specific circumstances, needs and aspirations;
  • value for money; and
  • ease of access (location and proximity to their home or workplace).

When service providers are qualified, have good processes in place and have relevant expertise, this leads to fewer risks, better outcomes and helps the person living with disability to engage socially and economically as much as possible.

Service providers can be registered or unregistered with the NDIS. To become registered, service providers must be assessed by an approved quality auditor. The auditor will check whether the provider meets the standards and requirements in the NDIS Practice Standards. The service provider must continue to comply with these standards to remain registered.

Workers who are employed by unregistered service providers can also apply for the NDIS Worker Screening Check if they are delivering or are planning to deliver NDIS supports and services.

Self-managing participants, unregistered NDIS providers and registered plan managers are strongly encouraged by the NDIS Quality and Safeguards Commission to use the NDIS worker screening process for workers they wish to engage with.

The NDIS (Provider Registration and Practice Standards) Rules 2018 outlines the standards relating to the rights of participants and the responsibilities of providers. It states that:

  • Each participant has the right to access supports that promote, uphold and respect their legal and human rights, including rights to freedom of expression, self-determination and decision-making.
  • Each participant is enabled to make informed choices, exercise control and maximise their independence in relation to the supports provided.
  • Each participant can access supports that respect their culture, diversity, values and beliefs.
  • Each participant can access supports that respect and protect their dignity and right to privacy.
  • Each participant is supported by the provider and can access supports free from violence, abuse, neglect, exploitation or discrimination

The NDIS (Provider Registration and Practice Standards) Rules 2018 additionally ensures that:

  • Each participant’s support is overseen by robust oversight and operational processes relevant to the size and scale of the provider and the range and complexity of the supports being delivered.
  • Risks to participants, workers and the provider are identified and managed.
  • Each participant benefits from a quality services that promote continuous improvement of support delivery.
  • Management of each participant’s information ensures that it is identifiable, accurately recorded, current and confidential; and each participant’s information is easily accessible to the participant and appropriately used by relevant workers.
  • Each participant has knowledge of and access to the provider’s complaints management and resolution system; and complaints are welcomed, acknowledged, respected and well managed.
  • Each participant is safeguarded by the provider’s incident management system, ensuring that incidents are acknowledged, responded to, well managed and learned from
  • Each participant’s support needs are met by workers who are competent and hold relevant qualifications and have the expertise and experience to provide person-centred support.
  • Each participant has access to timely and appropriate supports without interruption.

Registered providers must notify the NDIA if they are in breach of any Commonwealth, State or Territory law, including any Commonwealth, State or Territory disability service standards. Registered providers must also notify the NDIA if they become subject to any investigation for breach of a Commonwealth, State or Territory law and/or quality and safeguard arrangements.

When you pay for a product or service, as an NDIS participant you have rights to a good service under the Australian Consumer Law. If you aren’t happy with the service you are receiving, you can contact the Australian Consumer Complaints Commission (ACCC).

Under Australian Consumer Law, your service provider is legally required to do the following:

  • Treat you fairly – which means working with you in a moral and ethical way
  • Sell safe products – includes taking responsibility for the safety of the goods supplied and sold; testing to detect any unsafe products; immediately notifying the ACCC of any serious injuries or deaths caused by the use of products you supply; and recalling products you have supplied which present a safety risk

To read about your rights and guarantees as a consumer, click here.

NSW Fair Trading provides community education to consumers, service providers and the disability sector on awareness of consumer rights and protections including scam awareness, entering contracts, hiring services and how to complain.

If you are unhappy with a product or service that you bought you can call NSW Fair Trading on Tel: 13 32 20

A service agreement with your provider can also ensure that standards of care are met, that the specific responsibilities of people who are party to the agreement are clearly outlined, and how you or your provider may change or end the service agreement is described.

All supports must be delivered in accordance with the service agreement created with the participant, and the provider must ensure that the participant is regularly provided with, or has access to details of services delivered, and the amount charged for those services. Service agreements must be consistent with the NDIS’s pricing arrangements, guidelines and tax laws. Service agreements must also include a time frame for the notice of termination of services by the provider. The minimum allowable notice period for this purpose must be no less than fourteen (14) days to ensure there is adequate time for the participant, their nominee, or the NDIA to find an alternative provider to deliver the required service.

Participants are entitled to terminate a service agreement based on personal preferences or circumstances.

To read more about service agreements, click here.

Registered providers must comply with the NDIS Price Guide or any other NDIA pricing arrangements and guidelines that are in force. Registered providers must confirm their prices to participants before delivering the selected service. Participants can change their minds and do not have to continue to engage with the services of the registered provider after their prices have been declared. Registered providers can only make a payment request (issue an invoice) once the service or support has been delivered or provided.

No other charges are to be added to the cost of the support, including credit card surcharges, or any other additional fees including late or cancellation fees. These requirements apply to all registered providers regardless of whether funding for the support is managed by the participant, managed by a registered provider, or managed by the NDIA.

A registered provider must keep full and accurate accounts and financial records of the supports delivered to NDIS participants, along with records of service agreements, for a period of no less than 5 years. Record keeping must also comply with all relevant statutes, regulations, by-laws and requirements of any Commonwealth, State, Territory or Local Authority.

12G.3: How to make a complaint and provide feedback about the NDIS?

Everyone interacting with the NDIS has the right to provide feedback or make a complaint. You can provide feedback or submit a complaint in person at a local NDIA office, by calling the NDIA support line, in writing, or using the online form on the NDIA website.

The NDIA aims to acknowledge your complaint within a small number of business days after receiving the complaint, and have your complaint resolved within twenty-one (21) days of receiving the complaint in whatever format.

The NDIA will need to contact organisation providing the service you are complaining about and inform them of the details of the complaint and ask for their response to the issue. Communication will be an open process and you will be informed about all the stages of the complaint process, and responses until the complaint has been resolved.

If you are unsatisfied with the outcome of the complaint resolution, there is the option to ask for an NDIA supervisor or manager to review how the complaint was addressed and handled. If this result is still unsatisfactory, you can contact the Commonwealth Ombudsman regarding an issue with the NDIA.

If you are unhappy with NDIA’s actions you can call the Commonwealth Ombudsman on Tel: 1300 362 072

The Commonwealth Ombudsman is responsible for ensuring that that Australian Government organisations and some private sector organisations acts with integrity and treat people fairly.

If you have a complaint about a product or service, including those provided by an NDIS provider, you can lodge a complaint with NSW Fair Trading.

If you are not satisfied with the provider of my disability supports you may want to read more about the NSW Ombudsman, click here.

They can also be contacted on Tel: 1800 451 524

This manual provides more information regarding complaints mechanisms for mainstream mental health services; to read more click here.

12G.3.1: Making a Complaint with the NDIS Quality and Safeguards Commission

The NDIS Commission can take complaints about:

  • services or supports that were not delivered in a safe and respectful way;
  • services and supports that were not provided at a satisfactory standard; and
  • how an NDIS provider has responded to a complaint.

Once you have lodged your complaint, the NDIS Commission will acknowledge the application and arrange a time to discuss the concerns raised with a NDIS Commission complaints resolution officer. The officer may:

  • ask for additional information about the issue for clarity about the case; and
  • seek consent to speak to the NDIS participant to gain their perspective, if they working with someone making a complaint on behalf of a participant.

Sometimes a complaint may be referred to conciliation or investigation. A conciliation meeting helps people to understand the issues and reach agreement on how a complaint can be resolved. An investigation may be conducted if the issues raised in the complaint involve serious concerns or risks to people living with disability. If a complaint raises a serious compliance issue, the NDIS Commission has the power to take action.

12G.4: NDIS Plan Reviews

12G.4.1: Review of your NDIS plan

You will be contacted before your plan comes to an end to discuss a mandatory review of your plan. The review can be conducted face-to-face or over the phone, depending on which you would prefer.

If you would like to read a summary fact sheet about reviews, click here.

The review of your first NDIS plan will generally take place twelve (12) months after your plan commenced. However, they can be scheduled at any time. A review may be scheduled up to two (2) years apart depending on your personal circumstances and goals.

Reviewing your plan is an opportunity to check that the supports and services you are receiving are helping you to achieve your goals and measure your progress. At your review you will discuss:

  • what has worked well;
  • what you have achieved;
  • what goals or aspirations have not been achieved so far;
  • how your life has changed during the 12 months (if it has changed); and
  • whether you have some new personal goals that you wish to address.

Plan reviews will typically be conducted by an NDIA planner or with a Local Area Coordinator in your community.

To read more about reviewing your plan and goals, click here.

12G.4.2: Internal review of an NDIA decision

You can ask NDIA for an internal review of the following types of decisions if you are not happy with them:

  • you did not meet the access criteria;
  • a refusal to fund supports;
  • refusal to review your plan;
  • decisions about nominees; and/or
  • decisions about compensation.

You need to make a request within three (3) months of receiving the letter notifying you of the NDIA decision. Once you have submitted your request, the NDIA will decide to either uphold their original decision, overturn the decision, or change the decision. They will make the decision as soon as they have accessed everything necessary to review the decision.

To read more about an internal review, click here.

When requesting a review of your current NDIS funding, the NDIA will look at all your funded supports in the plan. This helps to make sure there are no gaps in the plan.

If you are not happy with the internal review, you can apply for a review by the Administrative Appeals Tribunal (AAT). This Tribunal is a separate organisation to the NDIA.

12G.4.3: External review of an NDIA decision

The Administrative Appeals Tribunal (AAT) conducts independent reviews of Commonwealth government decisions made under Commonwealth laws, for example, decisions made by Australian Government ministers, departments and agencies. The AAT can make legal decisions like a court but some of its processes are less formal than a court.

You can make an application to the AAT if you are not satisfied with a decision made by the NDIA in an internal review. The AAT cannot review a decision until after an internal review with the NDIA has been completed. You must make your application within twenty-eight (28) days of receiving the result of your internal review. In some circumstances, you can ask for a time extension.

The AAT website provides information about what kinds of decisions the AAT can review, how to apply, and how the review process works for decision related to the NDIS.

An AAT Contact Officer will contact you after receiving your application to discuss your complaint. In most cases, the AAT will then hold an informal meeting (called a ‘case conference’) with you to discuss ways to resolve your issue. If this meeting does not lead to a final outcome, the AAT will list the application for a conciliation, which is where the AAT will work with you and the NDIA to help in reaching an agreement about how the issue can be settled. Many matters are resolved through this process.

If the case is yet to be resolved in this setting, the AAT will conduct a hearing to make a final decision. If you feel uncomfortable attending a conciliation with the Agency and would like to quickly obtain a formal decision, you are able to ask for a fast-track hearing at the initial case conference.

If you would like support throughout the complaint and review process of NDIS decisions with the AAT, the Australian Government funds free services in every NDIS site to assist people. This is set up under NDIS Appeals, which allows people with disability access to a skilled disability advocate who acts as a support person. The appointed advocates are from the National Disability Advocacy Program and they can assist individuals with explaining the review process, the preparation of documents/evidence, offering advice and capacity building skills to help people better represent themselves, or attending the AAT meetings and hearing as a form of support.

For more information about the NDIS Appeals Supports and a list of the NDIS Appeals providers/disability advocacy agencies across Australia, follow this link.

The Intellectual Disability Rights Service (IDRS) can provide support to people with cognitive impairment to appeal decisions made by the National Disability Insurance Agency (NDIA) to be externally reviewed by the Administrative Appeals Tribunal (AAT).

They can be contacted by email: arc@idrs.org.au or by telephone at (02) 9265 6350.

Legal Aid NSW provides legal advice for clients with NDIS appeals in the AAT if you call (02) 9219 5790 between 9:00am – 5:00pm from Monday to Friday.

Legal Aid NSW also provides free representation in complex or new AAT matters, click here for more information. To find out whether you can have free legal representation in your case, call (02) 9219 5790 between 9:00am – 5:00pm from Monday to Friday.

Updated December 30, 2020