The NDIS Act 2013 (Link) is landmark federal legislation
by Kate Washington a health lawyer and partner at Catherine Henry
Partners and state Labor candidate for Port Stephens
Newcastle Herald, November 2, 2014
Its guiding principles are to ensure people living with disability have choice, control and certainty that they will receive the care and support they need over their lifetime.
The NDIS represents a promising and positive future for people living with disability.
It is largely the state government’s responsibility to implement the NDIS. Unfortunately for NSW residents, the state government is determined to privatise the entire disability and homecare sectors in conjunction with the NDIS rollout.
In my opinion, this will place the NDIS in NSW at grave risk.
The state government first revealed its privatisation plans in a heads of agreement entered into by the Commonwealth and State governments in December 2012.
These plans were crystallised when the state government passed the NDIS Enabling Act in November 2013. This act allows for the privatisation of disability and homecare services and the transfer of public assets.
According to the Minister for Ageing and Disability Services, John Ajaka, the NDIS Enabling Act protects “the entitlements of workers and their conditions”. However, what it really does is remove workers’ fundamental right to choose whom they work for. The NDIS Enabling Act says that “a transfer of employment ... does not require the consent of the person transferred”.
This means that government employees who have spent their working lives caring for people with disabilities and the aged are being treated as commodities that can be traded at will.
In doing so, the state government is devaluing the important role played by staff in the sector, risking the loss of committed and experienced workers.
In August this year, another NDIS-related act was passed. The Disability Inclusion Act purpose seems positive, claiming to foster the participation and inclusion of people with disabilities in NSW.
But all acts need details and so the Disability Inclusion Regulation 2014 (DIR) was released in draft form and public comment was invited. The DIR represents the final piece of the worrying privatisation puzzle.
According to Mr Ajaka, the passing of the Disability Inclusion Act and the privatisation of homecare services is the “next phase” of the NDIS implementation in NSW. However, this suggests that privatisation of the sector was required in order to implement the NDIS, which is not the case.
Not all states are opting for full privatisation to implement the NDIS. The continuation of state-operated services ensures that:
■People with disabilities have true-choice.
■People with disabilities retain control by having options of different service providers.
■There are certainty of services into the future.
■There are quality controls and oversight of the sector.
■There is always a provider of last resort.
If the state government sells homecare services to one private operator, the opportunity for choice and control will be lost.
Uncertainty already reigns in the sector, with many families whose loved ones live with a disability suffering enormous anxiety.
Recently I met with a family whose son lives in a state-operated group home. They do not know who will be delivering services in the future, how and where they will be delivered and who will ultimately be responsible if things go wrong.
If given the choice, their preference would be for their son to continue receiving care from state-operated services, under an individualised NDIS funding package.
Privatisation of all services will remove their son’s preferred choice, which is inconsistent with the founding principles of the NDIS.
This is privatisation by stealth in a sector that can least afford the risk.
If privatisation is to occur, then we must ensure that there are robust and meaningful standards for service providers to comply with. Predictably, the service standards set out in the DIR are minimal generic statements that will have very little effect at law.
The NDIS represents a welcome departure from a position of dependence to individualised funding packages for people who are entitled to participate. However, not all people requiring support will be entitled to participate in the NDIS and not all people on the NDIS will be able to access the supports they need.
Under a NDIS, the state government cannot wash its hands of its responsibilities. It should continue to play its role as provider of last resort and continue to ensure that quality services and proper accountability are at the heart of disability service provision.
Regrettably, the state government does not appear to share this view.
LISA Comment: The original intent of the NDIS was, (a) reduce the service waiting lists and, (b) improve service level and quality.
With the majority of support services provided by government block funding, most service culture was/is a “charity hand out captive market”, with the consumer considered lucky to get anything. With this culture stronger in government managed services, where there is seen to be little need for customers or customer service.
The Productivity Commission considered there was little chance of changing this very entrenched culture. So they decided to give power to the embattled consumer by placing the ‘support service funding’ in the consumer’s pocket, rather than the service provider’s pocket. Thereby, in theory, changing the power base. The consumer now has the power to call the tune with their ISP funding.
NDS in Victoria, has been working very hard to ensure its not-for-profit service provider members are geared-up to provide good services with ISP funding.
In total contrast, it will be almost impossible for the entrenched public service culture of government managed services to see themselves in the marketplace with customers and a need for customer service.
Extra 1: Housing Crises for people with Disabilities – forcing abandonment and thereby reducing respite……Herald Sun, October 31, 2014
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