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Public hearing 20 - Preventing and responding to violence, abuse, neglect and exploitation in disability services (2 case studies), Virtual - Day 4

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CHAIR:   Good morning, everyone, and welcome to the fourth day of Public Hearing 20 of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People With Disability.  This hearing is dealing with the prevention and responses to violence, abuse, neglect and exploitation in disability services through two case studies.

We begin today's hearing with an acknowledgement of country.  We acknowledge the Gadigal people of the Eora Nation, the traditional custodians of the land upon which Commissioner McEwin and I are participating in this hearing.  We also acknowledge the Wurundjeri people of the Kulin Nation upon whose lands Commissioner Galbally is participating in this hearing.  We pay our respects to their Elders, past, present and emerging.  We also pay our respects to all First Nations people attending this hearing and those following the hearing on the livestream.

Yes, Mr Griffin.

MR GRIFFIN:   Chair, I call Anne Lorraine Congleton.


MR GRIFFIN:   Ms Congleton is the Deputy Secretary, North Division, Community Services Operations in the Victorian Department of Families, Fairness and Housing, otherwise known as the DFFH.  Until February this year, it was known as the Department of Health and Human Services, DHHS.

She has provided two statements for this public hearing, a statement dated 22 November 2021 and a supplementary statement dated 29 November 2021.  The first statement is identified STAT.0490.0001.0001.  It's in hearing bundle E, volume 1, tab 1.  The annexures to the statement are in that same volume at tabs 3 to 17.  The supplementary statement, identified as STAT.0490.0001.0001, is in hearing bundle E at tab 1A, and the annexures are in the second volume of bundle E at tabs 18 to 23.

Might the witness be sworn?

CHAIR:   Ms Congleton, thank you very much for coming to the Royal Commission to give evidence.  We are grateful for the statement you have provided.  I will now ask my associate to administer the affidavit.


CHAIR:   Just to explain where everybody is, Commissioner Galbally is joining this hearing from Melbourne, Commissioner McEwin is with me on my right in the Sydney hearing room and Mr Griffin, who will ask you some questions, is also in the  
Sydney hearing room.  I will now ask Mr Griffin to put some questions to you.


MR GRIFFIN:  Can I begin by asking whether we are pronouncing your surname correctly?

MS CONGLETON:   It is Congleton.

MR GRIFFIN:   Thank you very much.  I understand you wish to make a very minor amendment to your supplementary statement.  That statement, as I have indicated, appears at tab 1A of bundle E.  At paragraph 22 you state:

The Department's letter dated 23 August 2013, which was in response to the OPA notification referred to in paragraph 22 above .....

Am I correct in understanding you wish to amend "22" to "21"?

MS CONGLETON:   That is correct, Mr Griffin.

MR GRIFFIN:   With that amendment, do you tell the Commission that both your statement and your supplementary statement are true and correct to the best of your ability?

MS CONGLETON:   They are.

MR GRIFFIN:   You were requested, via the department, to provide information to the Royal Commission.  As I understand, your initial statement answers, in whole or in part, the 17 questions posed by the Royal Commission, and your supplementary statement adds more detail to questions 3, 4 and 7 of the initial request; is that correct?

MS CONGLETON:   That is correct.

MR GRIFFIN:   Can I take you to paragraph 9 of what I will call your primary statement, your first statement.  Do you have that in front of you?


MR GRIFFIN:   For the purposes of those following, I will read that paragraph:

In addition, the department considers that in order to provide the Commission with sufficient context to properly understand the response, it will likely be necessary for the department to review information that is detailed, complex and sensitive and raises questions of privacy and confidentiality, including in  
relation to third parties being residents and their families.

Can you briefly tell the Commission what were the issues of privacy and confidentiality referred to in that paragraph?

MS CONGLETON:   Thank you, Mr Griffin.  So, both statements make references to clients at that time and family members by name, and we disclose in that quite specific details about personal information and experiences.  So that was the critical point that I just wanted to really draw to the attention in making my submission.

MR GRIFFIN:   Thank you.  For completeness, can I ask is there any information that the department has withheld from the Royal Commission on the basis of privacy, confidentiality, commercial in confidence or any other reason?

MS CONGLETON:   No, Mr Griffin.  What we have disclosed is material that we have been able to locate that is pertinent to the questions that have been asked of us.

MR GRIFFIN:   Am I correct in assuming that in providing the response, it has involved the department searching through archives in order to try to locate material?

MS CONGLETON:   That is correct, Mr Griffin, which goes to the supplementary submission, where we had to locate files that were located in archives outside the metropolitan area.

MR GRIFFIN:   Were there any responses to any of the questions where it was believed that documentary material relating to those questions had been created but couldn't be located?

MS CONGLETON:   That is correct.  Unfortunately, there was some material, even with the extensive searches that went on during that period, that we were not able to locate.

MR GRIFFIN:   In those circumstances, you have indicated in your statement or supplementary statement when those occasions arose?

MS CONGLETON:   That's correct.

MR GRIFFIN:   Thank you.  Can I ask you about what is known in the Royal Commission as the Melbourne house.  That was a house which was constructed by the department?

MS CONGLETON:   That is correct, yes.

MR GRIFFIN:   As a five bedroom single storey home?

MS CONGLETON:   Correct.

RIFFIN:   Was it designed to support people with high needs in a disability sense?

MS CONGLETON:   Yes.  It was constructed as part of an initiative called the older carers' initiative, where funding came for additional houses and support, to support people who particularly were living at home or in interim accommodation, so that on an ongoing basis there was support and accommodation provided to those people who had been living with their older carers.

MR GRIFFIN:   Was it constructed in 2011 or prior to that?

MS CONGLETON:   From recollection, it was prior to that.  I think it might have been 2010, from memory.

MR GRIFFIN:   In 2011, was that house made available to Life Without Barriers to run a supported accommodation home?

MS CONGLETON:   Correct, Mr Griffin.  There was a procurement process that identified the support providers to be provided to what was then six houses across the north and west metro area of Melbourne, and Life Without Barriers was successful in supporting three of those.

MR GRIFFIN:   When you say they were successful, is that a form of a tender process by providers?

MS CONGLETON:   That is correct.

MR GRIFFIN:   Is it the case that the department, in its different iterations, has continued to own that home until today?

MS CONGLETON:   That is correct, it is departmental owned.

MR GRIFFIN:   Can you tell the Commission, broadly, on what basis Life Without Barriers was judged to be the successful tenderer for that home?

MS CONGLETON:   As was mentioned, there was a procurement process that occurred to initiate the support at the     well, six houses, as it then was, and that process would have been undertaken under departmental procurement policies at that time.  So it was advertised, agencies put in submissions and then they were assessed, and Life Without Barriers were recommended for three of those.

MR GRIFFIN:   In 2011, was Life Without Barriers running similar homes in Victoria?

MS CONGLETON:   From recollection, I can't recall.  I know that this     yes, I can't recall, sorry, Mr Griffin, if they were running anything else at that time.

MR GRIFFIN:   Is it the case that they were not a well known provider in the State  
of Victoria in 2011?

MS CONGLETON:   That is correct.  They were predominantly a New South Wales provider.

MR GRIFFIN:   What knowledge do you have of inquiries made of New South Wales or any other location where they operated as to their capacity to take on a home such as the Melbourne house?

MS CONGLETON:  I don't have that level of detail in my head, Mr Griffin, but if that's something that the Commission is seeking, I can certainly take that on notice to come back to you on.

MR GRIFFIN:   Can you indicate today where you believe that information would be located or identify a person or unit that we could approach for those purposes, if required?

MS CONGLETON:   I can certainly take that back.  As it was run through the north division, it would be in the north division's records.

MR GRIFFIN:   Can you briefly describe the fit out of the Melbourne house, given the fact it was commissioned and built by the department?

MS CONGLETON:   We, from time to time, build new properties for what was then called shared supported accommodation, and there would have been a process that was run through our capital works area to design and construct that house.  As I said, that was something that we would do from time to time.  Again, the construction process and the project management of that would have gone through our capital works areas, according to the policies that existed at that time, and also in terms of the design guidelines that applied to shared supported accommodation.

MR GRIFFIN:   Upon being selected, what agreements did the department have with Life Without Barriers?

MS CONGLETON:   So in terms of the delivery of services, it would have been through the service agreement and in, I think it was, 2006 the disability leasing model came into play, so there was a lease agreement and an operating agreement that was in line with the disability leasing model.  They were the predominant agreements that were in place.

MR GRIFFIN:   Do we find the initial lease for that property at tab 6 to your statement, as an annexure?

MS CONGLETON:   That would be the case, yes.

MR GRIFFIN:   For the purposes of the record, can I indicate the reference is VIC.0001.0714.0046.  Ms Congleton, when looking at that list, I notice that the rent  
clause indicates $12 per annum, exclusive of GST.  That's known as a peppercorn rent, isn't it?

MS CONGLETON:   That is correct, Mr Griffin.

MR GRIFFIN:   Was that standard at that time in relation to properties owned by the department where providers were coming in to provide the services and management?

MS CONGLETON:   Yes, that was quite frequent.

MR GRIFFIN:   How would a provider fund the operation of the house?  Given the fact they didn't have a real rent component, where did a provider like LWB get the funds to carry out the operation?

MS CONGLETON:   So what we would have called then recurrent funding for shared supported accommodation was provided by the department at that time, ahead of the NDIS coming in in 2016.  In terms of contribution to rent at that time, residents would have paid, I think, a board and lodging component at that time.

MR GRIFFIN:   Pausing there, one pool of money came from funding from the department?

MS CONGLETON:   Correct.

MR GRIFFIN:   And a second source of revenue was a percentage of what the residents received; is that correct?

MS CONGLETON:  Yes, yes.  I'm not sure of the particulars of Life Without Barriers, but that was broadly the case, yes.

CHAIR:   When you say that, you mean a percentage of their pension?

MR GRIFFIN:   Of their entitlements, yes.  Did the department have an ongoing role to assess how much revenue from those two streams a provider was receiving compared to the services they were providing?

MS CONGLETON:   I believe that there was some reporting, the details of which I can't bring to mind at the moment, but I know that there was information that would be sought through regular reporting about performance.

MR GRIFFIN:   Who could the Commission approach to get detail on the issue of the monitoring of the amount of revenue being received by the provider compared to the services they were providing?

MS CONGLETON:   Again, Mr Griffin, I'm happy to take that on notice and provide that to the Commission.

MR GRIFFIN:   When the NDIS came on the scene, the funding model changed, I take it?

MS CONGLETON:   That's correct.  So in 2016, as the NDIS rolled out across various parts of Victoria at different times, and for the Melbourne house that occurred in 2016, and that would have then replaced the funding that previously the department provided to funding from the NDIA.

MR GRIFFIN:   You mentioned, in addition to the leasing agreement, there was a services agreement; is that correct?

MS CONGLETON:   That's correct, the service agreement.

MR GRIFFIN:   What were the key points of the service agreement, in terms of what the department was responsible for and what LWB was responsible for?

MS CONGLETON:   The service agreement is an overarching contract, if you like, in terms of the delivery of services in accordance with legislation and policy that applied.  So attached to the service agreement was policies and procedures and it was incumbent on the agency to comply with those policies and procedures, and the role of the department was as a contract manager, to monitor the performance against a number of criteria and funding that would sit with that agency.

MR GRIFFIN:   What criteria did the department assess a provider's performance against?  If you don't know the particular criteria, can you indicate a guideline or a document which may give us that detail?

MS CONGLETON:   Yes.  At that time, going back, it was a document which I think was part of my statement.  I think it was the monitoring framework for health, housing and community service sector, which articulated the monitoring that would occur between the department and the organisation at that time.  That was later replaced in, I think, the mid 2000s with the funded organisation performance monitoring framework, which was also part of an addition to my statement.  Sorry, long titles.

MR GRIFFIN:   Who in the department was responsible for carrying out that monitoring?

MS CONGLETON:  At its heart was the operational areas, which     for example, in this situation, the north division as it then was, initially the north and west region which in 2012 became the north division.

MR GRIFFIN:   If the unit carrying out the monitoring was not satisfied that the provider was complying with their obligations, how would they record any dissatisfaction?

MS CONGLETON:   It would come through various forms, Mr Griffin.  It would come through regular conversations that would occur between staff of the north division, colloquially known as local engagement officers or LEOs, who later became APS members.  They were the ones who generally created the relationship with the local agency and monitored the organisation.

There was also a requirement for an organisation, the likes of Life Without Barriers, to be registered under the Disability Act and that registration now sits within our standards and regulation area.

MR GRIFFIN:   So the monitoring personnel, the LEOs, would have discussions with the providers.  Would they record in writing their concerns, the response from the provider, and a plan for rectification of the concern?

MS CONGLETON:   Yes.  Going back in time, what would've happened was there would be correspondence, as I think has been tendered as part of my evidence, where there have been issues that have been raised that were documented and discussions that were entered into.  There would always also be an annual     what's called a desktop review, that would look at the whole organisation.  And that has improved over time.

MR GRIFFIN:   When you say the whole organisation, do you mean the provider and all of their homes, or home specific?

MS CONGLETON:   It would look at aspects     some aspects of that were around management, governance, strategic planning, et cetera.  So it would look at the whole organisation.

MR GRIFFIN:   Do you have any knowledge relating to the first three or four years of Life Without Barriers running the Melbourne home as to concerns raised by people monitoring their service performance?

MS CONGLETON:   I have spoken to     there are some people who have been involved in parts of this over the course of the 10 plus years, Mr Griffin, and some of that     early on, obviously, as you have mentioned, they were a provider new on the scene, so discussions were about ensuring that     and this was part of the LEO's role, to ensure that agencies were aware of the policies and procedures that applied.  There is reference in my statement to particular issues that were taken up and those things were part of the recording.

MR GRIFFIN:   What were the nature of the issues which were identified as being of concern?


CHAIR:   Sorry, do you mean in the first few years?

MR GRIFFIN:   Yes, in the first five years.

CHAIR:   Just to clarify something, so I am clear about it, this monitoring role, as I understand it, continued until 30 June 2019; is that correct?

MS CONGLETON:   That is correct, yes, when the responsibility shifted to the NDIS Commission.

CHAIR:   That was the date of the in kind arrangements terminating?

MS CONGLETON:   Some of those in kind arrangements still exist in some other services, but for this, it was clear that on 1 July it transferred to the NDIS Commission.

CHAIR:   I just wanted to establish the timeline, thank you.

MS CONGLETON:   Thank you.

MR GRIFFIN:   You were going to mention the particular concerns identified, especially in the early years?

MS CONGLETON:   Yes, thank you, Mr Griffin.  So I think the piece     and, again, it is referenced in my statement     was very much around the concerns that came to us through Community Visitors.  We also have, as again I have referenced in my statement, references to incident reports that came to the department's attention that were lodged with the department, noting that in the early years, I think in 2011 and 2012, there weren't a great number of incident reports.

MR GRIFFIN:   How dependent were you upon Community Visitor reports to alert you to some of those concerns?

MS CONGLETON:   I think the Community Visitors have proved, through this and other situations, an important source of information that sits alongside other information that comes to us, whether it's     as I said, an important source here is the incident reports as well.

MR GRIFFIN:   Were the concerns confined to the Melbourne house or to each of the properties that had been taken on by LWB?

MS CONGLETON:   I couldn't speak in great specifics on that, Mr Griffin.  I do know that there were, in the correspondence I have tendered, reference to a couple of other houses.

MR GRIFFIN:   In engaging in this monitoring process, are you aware of any instances when the department, to use my term, tore up the agreement because of the poor performance of the provider?


MR GRIFFIN:   Was the department reluctant to take that sort of step, or was it the case that a threshold was never reached that would invoke that step?

MS CONGLETON:   If you look at the managing or the monitoring frameworks that existed in the 2005 document and other documents, where there is an issue that is identified, the first thing that we would do is to take up that issue and try and work with the agency to remediate that, and that is something that we do quite often.

MR GRIFFIN:   There are two components to that, Ms Congleton.  One is identifying the issue and trying to remediate it.  I suggest to you, the second component is why did it happen and will it recur.  Did the department, to your knowledge, spend time thinking about that wider issue of why these deficiencies were occurring and were they systemic?

MS CONGLETON:   I think on that point, Mr Griffin, I would have to say it is difficult for me to comment on that.  I can talk    

MR GRIFFIN:   Sorry.  Would you agree that an examination over a period of time of the Community Visitor reports in relation to the Melbourne house revealed a series of continuing systemic issues?

MS CONGLETON:   Yes, there were certainly continuing issues.

MR GRIFFIN:   Would you agree that at least some, if not all, of those issues came back to the quality of service provision by LWB?


MR GRIFFIN:   What did the department do, if anything, about identifying those issues and, to use my term, getting on the front foot about them?

MS CONGLETON:   I know throughout some of the material that has been attached to my submission there is references to improvements in incident reporting, drawing out the importance of engaging with families and alerting families when incidents occurred, and also in terms of providing support to that house around building capacity of the staff through the BIS team, the Behaviour Intervention Support Team, and making available other experts within the department to strengthen the capacity of the organisation to respond to the residents.

MR GRIFFIN:   Did you hear the evidence yesterday afternoon from the OPA panel?

MS CONGLETON:   I was only able to hear part of that, Mr Griffin.

MR GRIFFIN:   Part of that evidence, if I can summarise, was that Community Visitors over a long period of time had tremendous difficulty in getting access to  
documentation within the house, particularly documentation in relation to incidents and violence between residents.  Are you aware of that?

MS CONGLETON:   Yes, I am.

MR GRIFFIN:   You are also aware, aren't you, that the legislation in Victoria gives the Community Visitors an entitlement to access that information?


MR GRIFFIN:   That entitlement is not disputed by the department, is it?


MR GRIFFIN:   When the Community Visitor reports regularly reported being denied access, for one reason or another, did the department recognise that and, if so, what did the department do about it?

MS CONGLETON:   Mr Griffin, I would say that if there were issues that     I know that there were regular meetings with the Community Visitors.  I wasn't there at the time, so I can't say exactly what occurred.  I can talk about what would have occurred.

MR GRIFFIN:   Let me put a more general proposition to you, Ms Congleton.  At some point, human nature tells us that you have to bring out the big stick if people aren't doing what they are supposed to be doing.  It appears from the evidence that LWB was consistently, for different reasons, denying visitors access to relevant information.  Did the department, in light of that, gives serious consideration to bringing out the big stick and saying to LWB, "Comply or else"?

MS CONGLETON:   From what I have seen, the efforts went in to try and get improvement.  It is our responsibility as a department to take action and I look at what occurred and I would say we should have done better, Mr Griffin, in follow up action.

MR GRIFFIN:   In what particular ways, with the benefit of hindsight, should the department have done better?

MS CONGLETON:   Again, if I'm drawing on my experience in working with other issues, that would go to meetings with the CEO and talking through the issues, and what the expectations were.  The other thing that is available, particularly in our management framework now, is to do a performance review of an organisation.

MR GRIFFIN:   I will come back to that in a moment.  When you are speaking to the CEO, what was missing from your answer is what the consequences will be if you don't fix this; do you agree?

MS CONGLETON:   Yes.  We would always have conversations that would then go back to the service agreement and the expectations that sit within that and the provisions that sit in there that go to the action that could follow a performance review.

MR GRIFFIN:   What actions could follow a failure to comply with a service agreement in circumstances where the provider had been warned in explicit terms?  What were the options?

MS CONGLETON:   Again, I'm, sort of, very familiar with the service agreement as it is now, which is most likely very similar to what it was at that time.  There can be breaches issued of the service agreement, where an agency is notified of a breach and they again have a period of time, I think it's 30 days, to remediate that breach.  If they don't remediate that breach, there can be a termination of the agreement.  There are also other clauses that go to suspension of funding and services.

MR GRIFFIN:   The chance of an agreement being terminated seems to have been almost nonexistent; is that a fair comment or not?

MS CONGLETON:   I'm sorry, Mr Griffin, can you repeat that, please?

MR GRIFFIN:   It appears from the evidence that the chances of a service agreement being terminated     i.e. terminated by the department, not by mutual consent     seem to be almost nonexistent.  Is that a fair comment?

MS CONGLETON:   Across the board, as I said, there would be an escalation point of trying to work things through.  Again, I'm just speaking on my broader experience that when there are those conversations, we do see improvement and response.

MR GRIFFIN:   Can I move to another topic.  Are you familiar with the notion of the residential statement which is required to be provided under the Disability Act, section 57, in Victoria?


MR GRIFFIN:   That residential statement which must be provided to a resident should contain certain information, shouldn't it?


MR GRIFFIN:   Amongst that is the period to which the statement relates, the detail of the services to be provided, obviously the name and contact details of the service provider, the statement as to the amount of the residential charge and any conditions which apply to the provision of residential charges.  That's the general tenor of what is contained in that statement, isn't it?


MR GRIFFIN:   Did the department monitor compliance with that requirement under the Act, that providers provide residential statements to their residents, containing all this information required by the statute?

MS CONGLETON:   I know in the service agreement it does reference compliance with the Disability Act in its broad sense, Mr Griffin.

MR GRIFFIN:   But at any stage, did the department undertake a random audit to see whether that was being complied with on the ground?

MS CONGLETON:   I'm not aware of that.

MR GRIFFIN:   Do you accept that the department had a general obligation to monitor an issue such as the provision of the residential statements?


MR GRIFFIN:   As far as you are aware, did the department have any systematic approach to undertaking that monitoring?

MS CONGLETON:   Not in relation to a community service organisation for disability services, I can't recall.

MR GRIFFIN:   Was that the case right up until you ceased to have any responsibility for monitoring the Melbourne house with LWB?

MS CONGLETON:   I'm just thinking, in response to that question I just answered, Mr Griffin.  Again, I know that through the funded organisation, the second guidance piece that I spoke about, there were checklists and I would like to have the opportunity to go back and check to see whether that was something specifically mentioned there.

CHAIR:   May I ask a question about incident reports.  I take it from your statement, Ms Congleton, that as from 1 October 2018, you had responsibility for the relevant house?  That is, for the period from 1 October 2018 until 30 June 2019; is that right?

MS CONGLETON:   That is correct.

CHAIR:   I see from paragraph 59 of your statement that during the period 15 January 2018 to 1 July 2019, there were 12 incident reports, five of which were major and seven non major.  What can you tell us about the nature of those incident reports?

MS CONGLETON:   That goes to, Chair, the new system that came in at that time, the CIMS report.  Major incidents initially were required to come in to the department within a period of 24 hours, and they were generally issues with greater  
impact on people who were gaining services.  The non majors at that time were incidents or reports that came in, I think initially it was meant to come in at the end of the month, and the timelines changed then to come within, I think, three days for both major and non major.

CHAIR:   Sorry.  I wasn't thinking so much about the general principles, which are explained in your report, I was wanting to know about specific incident reports from Life Without Barriers.

MS CONGLETON:   Okay, sorry.  Apologies.

CHAIR:   That's all right.  I mustn't have made myself clear.

MS CONGLETON:   So in terms of the major incidents, I have looked at all of these 12 that came in over that period in preparation for this hearing.  Generally, the major incidents, there is also an investigation that goes on with those.  So I'm aware that there are incidents that have been highlighted in my statement here and go to impacts on residents that occurred through those, whether it be some of the allegations of staff to client sexual assault or whether it was around client to client assaults.  I can't recall them specifically one by one, though.  Apologies, Chair.

CHAIR:   That's all right.  But do I take it from your answer, in your capacity as the Deputy Secretary North Division from 1 October 2018, as a matter of course, a major incident report would not come to your attention?

MS CONGLETON:   They would be going to our area executive directors and the executive officers.

CHAIR:   Would you obtain or get a report from them as to what they did about major incidents occurring at a particular service provider's premises?

MS CONGLETON:   Yes.  From time to time, there would be things that would be drawn to my attention.

CHAIR:   But you can't tell us whether anything was drawn to your attention about this particular facility conducted by Life Without Barriers?

MS CONGLETON:   No, I can't, sorry, Chair.

CHAIR:   Thank you.

MR GRIFFIN:   Can I move on to some questions about SDA funding, which I understand applied from October 2017; is that right?

MS CONGLETON:   I know that there was     I think that was when it did kick in, you're correct, Mr Griffin.

MR GRIFFIN:   Can I ask you to turn to paragraph 23 of your first statement.  You say there that SDA funding claimed by the department:

..... supports the department's capital and ownership costs of its SDA portfolio and the reinvestment, improvement and modification of the SDA portfolio in keeping with SDA asset strategy.

I'm not a bureaucrat.  Can you assist me to unpack what that actually means?

MS CONGLETON:   Yes.  So the department owns quite a portfolio of houses and, in the past     there is a maintenance component that, in the past, was the responsibility in this case of Life Without Barriers.  But over the course of an asset's lifetime, there are major upgrades that may be required, and there might also be other essential items that need to be addressed.  So just in terms of the reinvestment of the assets and the upgrades, the SDA funding supports that as a whole portfolio.

MR GRIFFIN:   In lay terms, on the one hand, do we have the day to day maintenance and upkeep of the home and, on the other, we have what we might call the sinking fund, which is for major capital works and other things of that nature?

MS CONGLETON:   Yes, correct.

MR GRIFFIN:   In respect to the latter, one tries to make provision in anticipation that as facilities age, they will require significant capital upgrade?

MS CONGLETON:   Correct.

MR GRIFFIN:   Did Life Without Barriers, throughout the period they had the Melbourne house, have the obligation to meet the costs of the day to day maintenance and upgrades which occur in any facility?


MR GRIFFIN:   Was there ever a grey area between what their responsibility to maintain the house was and where the department's responsibility may have kicked in?

MS CONGLETON:  There may have been.  In the disability lease model, there is an operating framework that talks about conversations between the department and a provider about things that are unclear.

MR GRIFFIN:   Can I now ask you about the process of decision making in relation to the initial selection of the residents for the Melbourne house.  Am I correct that the department undertook the initial selection of residents?

MS CONGLETON:   That is correct.

MR GRIFFIN:   I assume in selecting those residents, the department made an assessment as to each resident's support needs?


MR GRIFFIN:   And made an assessment whether the residents would be likely to be compatible with each other?


MR GRIFFIN:   Were there any other significant factors that went into the selection process?

MS CONGLETON:   Yes, Mr Griffin.  I mentioned earlier that the creation of this house was through the older carers' initiative.  There was a request to factor in to the selection of people to go into those houses if there were people who were living in respite, if there were     the priority was for people to have a priority on the Disability Support Register.  Also, to recognise that because it was supporting people who were living with older carers, someone who might not have a priority but would be likely to very soon.  So they were other factors, as well as the geography of the houses that were constructed at that time.

MR GRIFFIN:   Did you also have a resource coordination and allocation guideline which assisted in that process?

MS CONGLETON:   That would have been referenced, yes.

MR GRIFFIN:   As a result of going through that process, recommendations would be made to an allocation panel; is that correct?

MS CONGLETON:   That is correct.  That's the general process, yes.

MR GRIFFIN:   We understand that process has since changed; is that correct?

MS CONGLETON:   That is correct, yes.

MR GRIFFIN:   What is the current process, as you understand it?

MS CONGLETON:   The current process is called something like "Offering residency in SDA", and that process is also being reviewed at the moment as well.  But if I can describe the current process, Mr Griffin, as you've asked, what occurs now is that vacancies in SDA are advertised and people can put in their interest to go into one of those houses, and then there is a profile that is created of that house, and then it is the SIL and the SDA providers who would then assess the candidates for that property.  There are other parts to that, Mr Griffin, but they are probably the predominant pieces.

MR GRIFFIN:   Thank you.  When the initial residents were selected, what information did the department have about each of those residents, Robert, Rebecca, Amanda, Marco and Stevie, and what evidence did you have about their support needs and behaviours?

MS CONGLETON:   I don't have     I haven't got access to those documents.  I can talk about what is likely to have been considered as part of that, Mr Griffin.

MR GRIFFIN:   Well, before you do that, is there some place we can go or some person we can speak to or some document we can identify, which will tell us what information about the support needs and behaviours you had for each of those residents individually when they were first selected?

MS CONGLETON:   I can certainly take that on notice, Mr Griffin.

MR GRIFFIN:   I didn't want to cut you off.  If you want to make some general comments, please feel free to do that.

MS CONGLETON:   So what I imagine would have been looked at at that time would have been their interests, their support needs.  There would also be, as I mentioned     the houses that were on offer at that point were located largely in outer metropolitan parts of Melbourne, so it would be about connections they had.  I think the disability support policy sets out some of those things that fit within that profile.  So, interests, support needs and other factors, which I think are probably better articulated in that document than me walking through them.

MR GRIFFIN:   Was it the case when LWB took over the Melbourne house, there was a limited capacity in the system for residents with very high support needs in terms of accommodation?

MS CONGLETON:   Yes.  At that time and through the next few years, I think there was roughly 1,200 people on what was then the Disability Support Register.  So there were a lot of people who were seeking accommodation and there was very limited accommodation available at that time, and prioritisation was given to people who had priority status.

MR GRIFFIN:   Once the initial residents commenced to live in the house, when a vacancy arose, you have a system, I understand, to try to fill that vacancy which is described as an internal reconfiguration?

MS CONGLETON:   It's not always through an internal reconfiguration, it may just be through     there's a vacancy in that house and so that goes through the process of a vacancy.  Where a reconfiguration comes through might be through a proposal to move someone from another house into that house.

MR GRIFFIN:   But, of course, to move someone into the house, someone must be leaving; correct?

MS CONGLETON:   Correct, yes.

MR GRIFFIN:   In that process, was that ultimately the decision of the department as to the selection of the person coming into the house?

MS CONGLETON:   I refer back to the Disability Support Register guidelines that were attached to my statement.  It does describe that in the case of a reconfiguration, that is more of a collaborative process between the disability support provider and the department.

MR GRIFFIN:   Is it fair to say the provider will put a proposal to the department, which will include one or more people who might be suitable to move in?

MS CONGLETON:   That's a reasonable summary, Mr Griffin.

MR GRIFFIN:   How persuasive is the recommendation from the provider, in the sense of do you carry out your own independent investigations about the background of the proposed new resident, or do you rely upon the information in the recommendation from the provider?

MS CONGLETON:   We would gather information, and I think that's certainly the role of the panel, is to gather information.  They would obviously be one source of information.  I'm just going on what the policy is here, Mr Griffin.

MR GRIFFIN:   Do you have any personal knowledge of the department ever rejecting an internal configuration request from a provider?

MS CONGLETON:   I don't have that knowledge, I'm sorry.

MR GRIFFIN:   To what extent did the department consider the compatibility of the proposed new resident with the existing residents?

MS CONGLETON:   Mr Griffin, this goes to your earlier question to me about what was the consideration of the department and what information we had available.  I declare in the statement I made that, unfortunately, we were unable to locate any of the documents that went to the assessment, so my apologies.

MR GRIFFIN:   Can I ask you about the decision making involved in moving Katie into the Melbourne house.  Are you familiar with Katie?


MR GRIFFIN:   There is a letter in this Commission from Paul, who is the foster father of one of the residents, to the department, dated 2 December 2013.  Could I have that letter identified as IND.0104.0007.0013, which is in hearing bundle B at tab 21, if that assists you.

MS CONGLETON:   Could you please make that larger on the screen?

MR GRIFFIN:   Do you have the hearing bundle?

MS CONGLETON:   Sorry, I can see it now.

MR GRIFFIN:   Have a look at that letter.  I want to ask you did the department respond to that?

MS CONGLETON:   Can I just check, Mr Griffin, I can't see the date of that.

MR GRIFFIN:   I understand it's 2 December 2013.

MS CONGLETON:   Yes, I can't recall.  I'd have to go back and have a look at my statement and the material to see whether that was responded to or not.

MR GRIFFIN:   At paragraph 74 of Ms Robbs' statement, which is before the Commission but she is yet to give evidence, it says that a service reconfiguration request form was submitted by LWB to the department on 27 January 2014, which is about two months after Paul's letter, and that outlined Katie's behaviours including, and I quote, "physical aggression".  Commissioners, that document is at hearing bundle D, tab 60, but I needn't go to it in any more detail.

My question is, when a provider says that a proposed new resident has a series of behaviours, including physical aggression, what did the department do, if anything, in response to being alerted to that fact?

MS CONGLETON:   Again, Mr Griffin, I can't talk about this case in particular, I apologise.  I don't have access to that information.  But again drawing on the guidelines, there is reference to, in terms of compatibility, if there are actions that can be taken to support people to reside together, depending on what various needs may be.  That's all I can offer in response to your question.

MR GRIFFIN:   Can we take it that the mention by the provider of physical aggression being a characteristic of a proposed resident would be a serious factor to consider?


MR GRIFFIN:   Ms Robbs, at paragraph 75 of her statement, also said in relation to the vacancy profile that was submitted to the department that some sections were left blank, including sections recording critical compatibility factors and rationale regarding compatibility.  Commissioners, that document is at hearing bundle D, tab 61.

My more general question to you is, a document such as a vacancy profile which had  
critical omissions, which were simply left blank, how would the department respond to that sort of document being sent to them?

MS CONGLETON:   I can only think that if there was information missing, there would be conversations that would attempt to fill those gaps.

MR GRIFFIN:   But it reflects poorly on the provider, doesn't it, that they would submit a document in that form?

MS CONGLETON:   That is hard for me to comment on, Mr Griffin.  I would say that if there is a form that has been requested, then there's an obligation on both the provider and the department to ensure there was good information there.

MR GRIFFIN:   Can I perhaps ask you a wrap up question in respect to Katie, and please tell me if you are not able to answer.  With the benefit of hindsight and all the information we now have, was it the correct decision to move Katie into the Melbourne house?

MS CONGLETON:   I think that's a hard one, in terms of I know across the board that there are people with quite significant complexities and support needs and so some people live together because of the support that's provided to them and enabling them to pursue their interests.  So that is hard for me to just, sort of, call out as a bold statement to say yes or no, I'm sorry.

MR GRIFFIN:   Did the department, in carrying out its investigations, consult with the existing residents and/or their families as to the proposal to move Katie into the house?

MS CONGLETON:   I don't have any evidence that occurred.

MR GRIFFIN:   Should that sort of consultation have occurred as part of that decision making process?

MS CONGLETON:   I would say yes.

MR GRIFFIN:   And why?

MS CONGLETON:   I think it goes to your questions earlier about how the process has changed.  It is the domain of people to be able to live where they choose and with who they choose.  That's certainly a learning we have had through this experience, that we really need to enable the voice of residents to tell us who they want to live with.

MR GRIFFIN:   Can you identify broadly the time when there was a shift from not consulting residents and family members to what you have indicated is the more contemporary approach?

MS CONGLETON:   I would say, going back in time, there was a very constrained resource system in Victoria, as there would have been in other States and Territories.  The NDIS has a strong tenet around choice and control.  Victoria had made a number of initiatives earlier to try and pursue that.  Certainly the NDIS and the funding from Commonwealth and State has enabled that.  And I think the other part here is for us as a department to value that.

MR GRIFFIN:   As you know, we have constraints on our time to take evidence and I am conscious of the time.  I will now hand over to the Chair to see if any of the Commissioners have particular questions.

CHAIR:   Commissioner Galbally, do you have any questions of Ms Congleton?  I think you are on mute.  We can't hear you.

COMMISSIONER GALBALLY:   Can you hear me now?

CHAIR:   Yes.



COMMISSIONER GALBALLY:   My only question is about your current process, just to clarify your answer to Mr Griffin then.  Your current process, is it to include residents and their families or advocates, because I am also interested in where residents don't have families, and what is the exact process, what is the exact way that is done?

MS CONGLETON:   Commissioner, there is consultation out at the moment around the updated document, the Offering Residency, and some things that have come through the consultation are around an enhanced dwelling profile that would enable residents and their families to contribute to a profile, to say what are characteristics of people who they want to join their house.

There are also changes that are being looked at to     because if there are multiple people who are being considered for a vacancy, at the moment it's pretty much the SIL and the SDA provider, but it's being looked at to engage people with a disability in that process.

There is one other which has just alluded me.  But, as I said, it is out for consultation at the moment and there are a lot of those ideas coming through, and certainly families and advocates are part of that, as well as residents.


CHAIR:   Commissioner McEwin?

COMMISSIONER McEWIN:   Thank you.  One question from me.  Ms Congleton, at paragraph 88 of your primary statement you talk about the broader issue of addressing family violence.  At bullet point 1 you say:

The department has trained its disability workforce to better recognise and respond to family violence.

How does the department measure that outcome?  How do you know that you are actually having an effect, that this training is having the desired effect?  How do you measure that?

MS CONGLETON:   That's a very good question, Commissioner, and I can't point to a set of specific outcomes.  I would imagine it would be around, certainly as a starting point, people to identify what family violence is, and referring people to services.  That's the response part of it, but it is also then what are the factors that will serve to minimise and prevent it.  So I'm sorry, I don't have any KPIs at hand.

COMMISSIONER McEWIN:   So you don't have any way or any system where you can measure over time that there is an improvement, not only in this kind of training but in training generally?

MS CONGLETON:   Yes.  And I know when we undertake training of our staff within the department, we would do check ins at future points through surveys about are people more comfortable in approaching people about family violence services.  So we certainly do that from time to time and then track, also, the percentage of staff who have had the training and refresher training.

COMMISSIONER McEWIN:   Thank you.  Thank you, Chair.

CHAIR:   Does the department or the Victorian government still own disability shared accommodation?

MS CONGLETON:   Yes, we do, Commissioner.

CHAIR:   How many units?

MS CONGLETON:   I think it's well into the hundreds.  I can certainly follow up and provide that figure to you on notice, Chair.

CHAIR:   Yes, thank you.  In that situation, given the NDIS's advent, what is the arrangement with the service provider, who I assume is the tenant under the lease arrangements that presumably continue?

MS CONGLETON:   Yes.  That will certainly transform through the NDIS and our role as the SDA, because in the past we would have had an arrangement, as you said,  
with the provider, so there will be agreements with each of the tenants and this will be brought under the Residential Tenancies Act, so there will be statements that are required from the SDA back to the residents around rules and responsibilities in the usual form of a tenancy agreement.

The other piece will be what's called a collaboration agreement between the SIL provider and the SDA provider.   Again, there are drafts out at the moment to consult on that collaboration agreement, so across all parties there is clarity and transparency about roles and responsibilities.

CHAIR:   But as we sit here today, what are the arrangements between the department and the service providers who run particular institutions that are still owned by the Victorian government?

MS CONGLETON:   At the moment, and again if I go to this house in particular, there is currently an understanding in place between the residents and the provider and the department.  At this point in time, the Disability Act and the residential statements are still the vehicle until we can get through, post COVID, the conversations to finalise these other arrangements.

CHAIR:   So the service provider, or tenant, is continuing to pay a peppercorn rent?

MS CONGLETON:   Yes, that's correct, and maintenance has now been assumed by the department for this property.

CHAIR:   Yes, thank you.  I will just ask whether any of the represented parties seek leave to ask Mr Congleton any questions.  Again, if there is silence, I will assume the answer is no.

There being silence, in that case, thank you very much, Ms Congleton, for coming to the Royal Commission to give your evidence and for the statements you have provided.  We appreciate your assistance, thank you very much.

MS CONGLETON:   Thank you, Chair.


CHAIR:   Mr Griffin, should we now take an adjournment?

MR GRIFFIN:   Yes.  Mr McNaughton will be the next witness.

CHAIR:   It is now 10 past 11.  We will adjourn until 11.25.

ADJOURNED     [11.10 AM]

RESUMED    [11.25 AM]

CHAIR:   Yes, Mr Fogarty.


MR FOGARTY:   The next witness is Scott McNaughton, General Manager National Delivery of the National Disability Insurance Agency.  Mr McNaughton provided one prior statement to the Royal Commission, and that was for Public hearing 13, "Preventing and responding to violence, abuse, neglect and exploitation in disability services (a Case Study)".  For reference, that's in hearing bundle F, tab 226.  He also appeared before the Royal Commission to give oral evidence in that Public hearing.

Mr McNaughton has provided a statement to this public hearing, dated 13 November 2021.  That can be found in hearing bundle F, tab 1, with annexures behind tabs 9 to 125.

You have provided that statement, Mr McNaughton, in response to a notice to give a statement.  You have also provided a corrigendum this morning, dated 10 December 2021    

CHAIR:   Sorry.  Before we proceed, Mr McNaughton, thank you for coming back to the Commission to give evidence.  If you would be good enough to follow the instructions of my associate, he will administer the affirmation to you, thank you.



MR FOGARTY:   Mr McNaughton, do you have a copy of your statement with you?

MR McNAUGHTON:   I do, thank you, Ms Fogarty.

MR FOGARTY:   I understand, as I mentioned a moment ago, a corrigendum has come this morning.  I hope to come to that in some of my questions to you.  The most substantive part of that is annexure E, NDIS plans and funding of supports and, as I understand it, supplements the funding figures of Robert, Natalie, Rebecca and Sophie that appear in your current annexures A to D; is that correct?

MR McNAUGHTON:   Yes, that's correct.

MR FOGARTY:   And I think there is an amendment and an inclusion of a document ID for an NDIS plan, as the only other correction?

MR McNAUGHTON:   That's correct.

MR FOGARTY:   Thank you.  So, noting the corrigendum, the contents of your statement are true and correct to the best of your knowledge and belief?

MR McNAUGHTON:   That's correct, counsel.

MR FOGARTY:   Could you tell the Royal Commission your full name?

MR McNAUGHTON:   Scott McNaughton.

MR FOGARTY:   You provided in your earlier statement, which I referred to a moment ago for Public Hearing 13, your professional background.  I won't traverse that, only to clarify that you have been in your role as General Manager National Delivery of the NDIA since 4 January 2020?

MR McNAUGHTON:   That's correct.

MR FOGARTY:   In short form, what does that role entail?

MR McNAUGHTON:   As the General Manager of our National Delivery network, I look after all our State and Territory offices, which is where the frontline planning is undertaken for NDIS participants.  I also look after our Complex Support Needs Pathway and our national access and review branch.

MR FOGARTY:   Who is it that you report to in your role?

MR McNAUGHTON:   I report to the Deputy CEO of Participant Experience and Delivery.

MR FOGARTY:   Before turning to your statement, I would like to ask you some questions about the objects and principles of the NDIS Act itself in sections 3 and 4, and how they may or may not shape the work the NDIA does.  Are you familiar with section 3, the objects of the Act?

MR McNAUGHTON:   Yes, counsel.

MR FOGARTY:   For the purposes of our audience, I will walk through those.  I am looking at (c), (d), (e), (f) and (g).  Do you agree some of the objects include supporting the independence and social and economic participation of people with disability?


MR FOGARTY:   These might sound very fundamental but, again, for the benefit of the public audience to understand what I understand are foundational blocks of the NDIA and the scheme itself.  Secondly.

provide reasonable and necessary supports, including early intervention supports for participants in the [NDIS].....


enable people with disability to exercise choice and control in pursuit of their goals and the planning and delivery of their supports;

Do you agree that sits in the objects?

MR McNAUGHTON:   Absolutely, yes.


facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability;

MR McNAUGHTON:   That's correct.

MR FOGARTY:   Then the last one, in (g):

promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community;


MR FOGARTY:   Do you say that those objects, the NDIA strives to meet, your agency strives to meet, in all of its functions?

MR McNAUGHTON:   Yes, that very clearly     all elements of the NDIS Act we are responsible for administering, counsel, and that is an important underpinning principle of the NDIS.

MR FOGARTY:   Moving very quickly to one part of section 4.  Section 4 is entitled "General principles guiding actions under this Act".  Section 4(6) reads:

People with disability have the same right as other members of Australian society to respect for their worth and dignity and to live free from abuse, neglect and exploitation.

Are you familiar with that subsection?


MR FOGARTY:   That is a guiding principle that also guides the NDIA's work?

MR McNAUGHTON:   Absolutely.  Again, it's in the Act and it guides what we do.

MR FOGARTY:   The last section, before I look into your statement, of the NDIS Act I would like to take you to is section 17A, entitled "Principles relating to the participation of people with disability".  You are familiar with that section?

MR McNAUGHTON:   Yes, counsel.

MR FOGARTY:   Again for the benefit of the audience, do you agree it sets out expressly the following:

People with disability are assumed, so far as is reasonable in the circumstances, to have capacity to determine their own best interests and make decisions that affect their own lives.


MR FOGARTY:   And also further in the section:

People with disability will be supported in their dealings and communications with the Agency so that their capacity to exercise choice and control is maximised.


MR FOGARTY:   This is very broad, but do you agree that facilitating an NDIS participant's choice and control in all aspects of their life are central to the scheme and the work the agency does?

MR McNAUGHTON:   It's certainly a very important underpinning pillar of the NDIS Act and the design of the NDIS overall.

MR FOGARTY:   I would like to show you two documents.  I realise you are remote, so I hope this isn't too clunky.  The first document is in hearing bundle G, tab 305, and the second document I would like you to have before you, if possible, is in the same hearing bundle G, tab 293.

CHAIR:   Can we not bring those up on the screen?

MR FOGARTY:   Perhaps if we start with tab 305.

CHAIR:   I think you will have to give a document reference.

MR FOGARTY:   I can give a document reference.

CHAIR:   No, it has miraculously turned up.

MR FOGARTY:   That is the one I would have given.  You can see that now, Mr McNaughton?

MR McNAUGHTON:   Yes, yes, I can.

MR FOGARTY:   Are you able to see the full document while you are sitting there or only what is on the screen?

MR McNAUGHTON:   Just what's on the screen.

MR FOGARTY:   Could I ask for the document to be turned to the third page, which ends in 3723 in the top right hand corner.  Do you see there, Mr McNaughton, it appears to be, do you agree, an email from the Regional Manager of Life Without Barriers?


MR FOGARTY:   It is dated 15 March 2018, to an officer of the NDIA, as I understand it?


MR FOGARTY:   And, as I understand it, a Senior Planner Service Delivery, that person?

MR McNAUGHTON:   Yes, correct.

MR FOGARTY:   If you look at the second paragraph of this email from LWB to the NDIA officer, do you see it reads, again for the benefit of the audience:

I was hoping to email you to ask for reconsideration of this group home .....

Do you agree they are referring to the Lismore house?

MR McNAUGHTON:   Yes, that's correct.

Being a 4 bed home with a therapy room as opposed to a 5 bed home.  I have been with LWB for approximately 8 months now and my previous experience is disability services and aged care, both of which contribute to my understanding of client needs and quality service delivery.  When I commenced  
as a Regional Manager, there were some improvement opportunities at the Lismore house that needed to be implemented to enhance the care that was being provided to the clients residing in the home.  One particular need that was identified was a space for the clients to utilise, as required, to better meet some of their individual needs, such as quiet time away from others to deescalate potential behaviours, floor exercises, in particular for Natalie and Tyler, and art therapy for all participants

Can I take you to the next paragraph, which is the second last:

Whilst I appreciate that in the past the home was being considered as a 5 bed home and that in principle it has been built with 5 possible bedrooms, in reality, 5 participants residing in the home significantly diminishes the capacity for LWB to provide quality and individualised care for our clients.

Do you see that?

MR McNAUGHTON:   Yes, I can.

MR FOGARTY:   Can I ask for the document to be turned back to the front page, ending in 3721.  Please tell me if you want to look at the earlier     there is an earlier email from that senior planner, but I would like to take you to the very top email, which is again from a planner, in this case, from the NDIA; do you agree?


MR FOGARTY:   Replying on 26 March to the LWB officer, which reads:

The below concerns/rationale have been taken into account, and the NDIS will not fund a 4 person model for this house.  Can you please resubmit the Quotes as a 5 person model as requested by [the senior planner] on 26th of February, as our project end date for finalising these SIL quotes is already past, and the plan approval dates were quite some time ago, leading to large under/or over payments from the benchmark amount being implemented.

Do you agree, on reading these emails, that it appears at least that the NDIA is refusing a request from LWB, the SIL provider, for the Lismore house to be a four resident group home?

MR McNAUGHTON:   With a therapy    

MR FOGARTY:   With a therapy room?

MR McNAUGHTON:   Yes, that's correct.

MR FOGARTY:   Can the other document be brought up for a moment, ending in 1365.  Mr McNaughton, do you see the heading of that two page document reads, "Ratio 
nale for additional therapist room" within the Lismore house?


MR FOGARTY:   If you look at the second page, in terms of who it appears to be authored by, it appears to be a clinician of Life Without Barriers?


MR FOGARTY:   The document is dated 15 February 2018?

MR McNAUGHTON:   I can see that, yes.

MR FOGARTY:   On that first page, if you look at the second in "Background"     there are some subheadings.  The first one is "Background".   Do you agree the second paragraph reads:

I have been asked to develop a short rationale by the Lifestyle Coordinator ..... and would like to propose that continuing to use the "spare room" as a therapist space will benefit all parties in the following ways .....

Then you see this clinician    

CHAIR:   I think we can assume that Mr McNaughton can read, rather than taking time to read through it.

MR FOGARTY:   Indeed.  I won't read through it.

CHAIR:   Do you have a question to Mr McNaughton about these emails?

MR FOGARTY:   I do.  If the house were funded, as it appears to be recommended or, indeed, requested by the NDIA, as a five person group home, would it mean the same level of staffing would be shared between five residents instead of four, in terms of supported independent living?

MR McNAUGHTON:   Counsel, it really depends.  I'm not familiar with the layout of the exact house because I haven't been there, to see if there are other spaces and lounge areas, and so forth, in the room.  But this comes down to how the house was registered as part of the SIL transition, as the in kind arrangements and also the SDA arrangements.  If it was registered as a five bedroom home, which it appears to be, that's the registration group that it has been funded for as part of those transition arrangements and, hence, why the agency at that point in time couldn't support one of those rooms being used as a therapy room or a shared space.  It was registered as a five bedroom SIL property as part of the transition arrangements and that's why we weren't able on that occasion to support the use of a therapy room and it to become a four person property.

MR FOGARTY:   Can I ask you, were you aware of that scenario prior to me asking you these questions, in respect of the Lismore house?

MR McNAUGHTON:   No, only insofar as the documentation that was before me as part of my preparation, but I wasn't aware of this house before the hearing.

MR FOGARTY:   Were you aware of LWB's request, this specific one?

MR McNAUGHTON:   Not before coming to the hearing, no.

MR FOGARTY:   When you talk about the transition and it being registered for five residents, could the NDIA have done anything about that at the time, or could LWB have made an application, a separate one, in respect of that at this time?

MR McNAUGHTON:   It would have been, counsel, quite a complex one because of the in kind transitional funding arrangements.  Once those in kind arrangements had ceased, it became a lot easier to move into a, sort of, fee for service or cash based model of how we put that individualised in a person's plan.  But given it was a transitional residence through the in kind arrangements, we were limited until such time as they were cashed out by the various State and Territory governments.

MR FOGARTY:   Does it appear then that LWB wasn't aware of that, when you look at these documents at least, in making that request?

MR McNAUGHTON:   I'm not aware, sorry, counsel, of LWB's understanding of the in kind transition.

MR FOGARTY:   If LWB came with a request like that now, could that be countenanced and approved by the NDIA?

MR McNAUGHTON:   Potentially.  What we would like to see is a lot more contemporary models of accommodation, moving away from the traditional group homes and SIL settings.  Absolutely, we would like to see different models emerging where people have a lot more choice and control over where they are living, rather than legacy systems.

MR FOGARTY:   Do you agree, looking again at the rationale, that the concept or the rationale of having a therapy room in this case appears to be one that was supported not only     well, it was supported by LWB and their clinician, and would appear to improve the quality of services to the residents at the time, based on that material?

MR McNAUGHTON:   This is the first time I've seen that report, but I think it also goes to     I mean, the report obviously does provide some good justification for that space.  What we have to determine at the NDIA is the individual's reasonable and necessary funding within their plan for supported independent living and the amount of care they need in those settings.  If they choose a provider that has those spaces  
and that they can work with in that model, then I think that's a good outcome.

MR FOGARTY:   The issue here was, as you understand, that these people essentially didn't choose and they were part of a transition     the transition was to the NDIA, and a request by the provider that this therapy room be included.  So it's slightly different, I think, to what you are suggesting, which is you look at the SIL funding for each of the persons and then you can determine what might be fundable, my word, in their residential setting?  Do you agree?

MR McNAUGHTON:   Yes, yes, that's certainly correct, counsel, and it does go to some of the challenges around transitioning and in kind arrangements with those SIL and SDA properties, you're right.

MR FOGARTY:   Do you know when in New South Wales the transition period concluded?

MR McNAUGHTON:   I am more familiar with Victoria but it's my understanding they were fully transitioned out of their SIL and SDA from July 2018.

MR FOGARTY:   I see.

MR McNAUGHTON:   But I'd have to double check that, counsel, if I could.  My understanding was their two year transition in New South Wales, they were able to move out of their in kind by the end of that paragraph.

MR FOGARTY:   That's a couple of months, subject to you clarifying from this date, 26 March 2018, in this document?


MR FOGARTY:   The other document.  Can I take you to your statement.  If you need a reference point, it's page 10, and it's in respect of questions around what the NDIA's response is to information that a participant may be, at least, expressing they are unsafe, or their advocate or family might be expressing they are unsafe or inadequately supported in their group home setting.

In paragraph 40, which is actually page 11, you state:

Where a participant identifies a goal to explore an alternate or appropriate home and living solution in their NDIS plan, the NDIA will support the participant to achieve this goal in line with the NDIS Act, including reasonable and necessary decision making as well as NDIS operational guidelines, pricing arrangements, as it applies to suitable home and living options.

Can I ask you to, I suppose, unpack and be more specific about what the NDIA can actually do in such a scenario where a participant identifies a goal to explore an alternate or appropriate home and living solution?  With respect, this is quite broad,  
but what actually could they do or can they do now?

MR McNAUGHTON:   I was going to ask that, just to clarify, counsel.  So current state, how it works now, not in the context of the 2016/2017 transition?

MR FOGARTY:   Yes, now.  If they were identifying, "I feel unsafe, I want alternative accommodation", how can the NDIA assist them and what do they need to do to get that assistance?

MR McNAUGHTON:   Counsel, it certainly has evolved quite a bit from the early days of transition.  We now have a home and living team, a national team for home and living.  Where a participant expresses a goal to explore alternate housing or to move housing from where they currently might reside, the participant is provided and the support network is provided with a home and living goals form and application.

They will talk about the sorts of living arrangements they are looking for, where they would like to live, whom they'd like to live with.  So it doesn't default to "I'm applying for SIL", Supported Independent Living, or it doesn't default to SDA.

There are a range of other much more contemporary options now for individualised living options, there's more ability for home modifications, there are some really innovative models now and much more contemporary models.

So the participant is encouraged to submit their home and living form, outline their goals and what they are trying to achieve and where they'd like it live.  It then comes into the agency, it comes into our home and living panel, which meets once a week, where we determine what is the right model for that person.

We may find --- if they're not already in Supported Independent Living, we may make them eligible for SIL and say, "You are eligible, we'll work with a support coordinator and your support coordinator will work with you to find the appropriate SIL property".  It may be the participant is after home modifications and care in their own home.  Some people will be supported through that process, and also through Specialist Disability Accommodation and the type of SDA the person may require.

We do have a large number of people, counsel, who are currently in existing or transitional group homes who are looking to explore alternate accommodation.  In fact, there's around 1,700 people, already participants who currently receive SIL and SDA, who have indicated they would like to move to an alternate property.

MR FOGARTY:  Sorry, Mr McNaughton, to cut in there, how does the NDIA know that?  Is that through the home and living form, or another way?

MR McNAUGHTON:   Yes, and their planning process, counsel.  So when we have regular planning conversations, it's one of the     a person's goal could be to explore alternate housing, to move in with their friends or other peers they may have.  And that would be a goal, to explore that, and we would fund support coordination at a  
higher level, which would help them to explore those alternatives that may be available where they choose to live.

MR FOGARTY:   Are you aware there is some evidence in respect of Rebecca and Natalie, and I think you respond to it in your statement, of at least requesting alternative accommodation?  And I think Sophie, too, at one point, although I think it then dropped out of her goals.  In their cases, it would seem it took a whole lot more     and, again, I know you are talking about present     than identifying it in their NDIS plan at that time as one of their goals.  It seemed, with respect, that that appeared on a couple of occasions and really, for them, nothing was changing at the ground level.  Do you accept that?

MR McNAUGHTON:   I think in the cases of Sophie, Natalie and Rebecca, that transition period took quite some time from the time of identifying their goals and then having the right support in relation to then finding the right SIL property that they were comfortable with, did take some time.

Probably some of that, too, counsel     when we first transitioned, there was 290 SIL providers nationally.  There are now over 1,080 SIL providers nationally.  So we have seen an exponential growth in the SIL market of different providers, and some are very small, modern, contemporary providers with only five or 10 participants.  That has taken some time for that market to grow and provide a different opportunity for people to explore and find a suitable SIL property, also.

MR FOGARTY:   I think, if my memory serves me correctly, it was 2019 in respect of Rebecca that there was a real push by her mother, in particular, for alternative accommodation down in the Melbourne area.  And in respect of Natalie, it was 2020 that she moved.  So when you say the numbers were low at transition, you are talking years prior, aren't you?

MR McNAUGHTON:   Yes, I am.  Sorry, counsel, I was.

MR FOGARTY:   I know you gave some evidence in the earlier public hearing in which you appeared in respect of crisis accommodation.  I suppose the hypothetical or the not so hypothetical with some of the residents is where the person not only, in a sense, is seeking alternative accommodation because they might not be getting the supports that are appropriate or necessary and reasonable for them where they are, but where they are subject to resident on resident violence or abuse.

Does that change     if that comes in in a home and living form, that information, or even in an NDIS plan today, does that change the response by the NDIA?  Are there crisis short term or medium term alternatives to get that person out of that accommodation where they are expressing concerns about being unsafe or at risk of further harm?

MR McNAUGHTON:   Yes, there is, counsel.  From an NDIS funding perspective, we do have a couple of different options we can provide in those circumstances.  One  
is short term accommodation where the person may need to take a break to have some space from their current residence, if they choose to.  The other is what we call medium term accommodation.  That's the funding we use more typically now, where a person needs to exit accommodation and they are eligible for SIL or SDA, but that property is not yet available, it's waiting to be completed, it's waiting for a vacancy to come up, or it might be waiting for a range of things.

There is now a market of medium term accommodation providers and we fund that within a participant's plan, so it becomes a bit of a transitional approach for their long term accommodation.  We often use that type of funding, too, as people might be exiting other settings such as a hospital discharge setting, or other things.  We are able to provide medium term accommodation if it's required.

MR FOGARTY:  Is short term then only for respite, my word, or a break, but then they return back to where they are currently residing; is that right?

MR McNAUGHTON:   Yes.  So that would be the participant's choice, if they need a break for a period of time but still want to go back to that home, while everyone has a bit of time out from the home.  That's certainly an option.  It's the dignity of risk and choice and control, as we mentioned at the start of the session.  We have to respect the participant's wishes and choice if they wish to remain in that property.

MR FOGARTY:   I realise it might be difficult to answer, but are you aware of any numbers currently of people who avail themselves as participants of short term accommodation?  Is that common or rare?

MR McNAUGHTON:   I don't have     that's one of the stats I haven't got off the top of my head, sorry, counsel.  But I can provide funding breakdowns of medium term and short term accommodation, if that would assist the Commission.

MR FOGARTY:   Can I again step back.  How would a participant or their family or their advocate or their support coordinator, achieve that person getting into medium term?  What do they have to do?

MR McNAUGHTON:   Again, that would be part of the home and living options.  Obviously through the support coordinator, they may have already identified that as part of the planning process.  They can request     if it's not already in the funds and they want to use that flexibly, they can ask us to review the plan, provide evidence that this is the model they need to do, in terms of a medium term accommodation approach, and we can work with the family, the participant, the support coordinator, to see if that funding needs to be put in the plan.

MR FOGARTY:   This might be something on notice, but how long would something like that take?  Could that be done in days, weeks, months?

MR McNAUGHTON:   Counsel, it largely depends on the urgency of the situation.  If there is an immediate crisis and risk to the participant's safety, those things happen  
very quickly now through our escalation procedures.  If there is a change of circumstances request, we would be doing those     we have to acknowledge those within 14 days and then make a decision whether or not to review the plan shortly after.

So those timings now have really truncated from when we were in transition, where we just didn't have that capacity to do so many reviews because we were so focused on participant intake.  There is now a national, as I said, home and living team.  They convene the panel each week to make those decisions as well in a much more expedited fashion.

MR FOGARTY:   It can happen on plan review as well?

MR McNAUGHTON:   It can do, as part of a scheduled plan review.  A person's goals might change, a person might wish to explore alternate housing.  Quite often people explore alternate housing and decide not to move, but we would still fund the support coordination to help that person with that choice.

MR FOGARTY:   There is also an option to do a requested plan review, correct?

MR McNAUGHTON:   Yes, that's correct.

MR FOGARTY:   Because some plans now are moving on to two years.  Three as well, or only two as the maximum at the moment?

MR McNAUGHTON:   No, you are absolutely right, counsel.  Some plans go as far out as three years now.  In fact, having longer plans has been in response to participant feedback, saying they want a lot more stability and they don't need to     not all participants, but a lot of participants don't need to come in for a fulsome plan review each year because they are in a lot more stable situations, they are much better informed consumers in the NDIS, and they have said to us, "Can I now have a longer plan for that certainty and stability?", and week on week now in the NDIA, about 50 per cent of all claims we approve are two or three year plans, which has been a really significant change.

MR FOGARTY:   That could mean there is no contact by a participant in a group home, for example, for three years with the NDIA?

MR McNAUGHTON:   No, they are two separate things, counsel.  A plan review is very different to contact.  So we now do a lot more checking     we call it participant check ins     with our participants along the way.

MR FOGARTY:   How regular are they, Mr McNaughton?

MR McNAUGHTON:   It totally depends on how often     on the risk and vulnerability of the participant.  Some participants we might check in with quite regularly, because there's quite a bit going on in their life, and others who are  
self managing and getting on with their plans don't need too many check ins at all.

There are also other funded supports through the NDIS, like the support coordinator, who would be doing, for some participants, weekly engagements with them, if not intraweekly depending on the level of funding.  So it's really depending on the individual circumstances.

MR FOGARTY:   Is the ultimate decision about participant check in and timing up to the NDIA in an assessment of what it sees in front of it?  Is that how it is determined?

MR McNAUGHTON:  It's that, also with the conversations with the participant, the support coordinator and their nominee around any of those other factors, too.

MR FOGARTY:   How confident are you that participants, families     I will start with them     are aware of the options you are talking about, in terms of moving from a residence?  Are you confident that the participants understand, for instance, the home and living form, that they could file that and seek a move?

MR McNAUGHTON:   This forms the basis of every plan review conversation that one of our staff or our local area coordinators would be having with a participant, when we re discuss the participant's goals.  And one of the goals there, obviously, could be significant life transition goals.  When you have ageing parent carers, people who are in Supported Independent Living already or people who may be exploring SDA, it becomes a foundational conversation for all our client reviews.

MR FOGARTY:   Again, timing of plan reviews, are they annual if your plan is annual and three yearly if you are three yearly?

MR McNAUGHTON:   Yes, two, three years.  Some plans are six month plans, too.  But generally we started off in the NDIS as having all plans at 12 months.  Some plans are shorter than that because of various circumstances, and some plans are longer than that because that the participant is now in quite a stable environment and they have requested a longer plan.

MR FOGARTY:   In terms of the NDIA and what it does to get the message out or build capacity around these alternatives now to move out of a form of accommodation that a participant may be finding to be unsafe, what does the NDIA do or is it currently doing in respect of educating those people about those options?

MR McNAUGHTON:   I guess, counsel, at a macro level, the NDIA does a whole range of external communications about various supports, services and activities the NDIA is doing.  Earlier this year, for example, we released, with input from our independent advisory council, a discussion paper for the sector called "Living an ordinary life at home", to try and get buy in and input and feedback on where we may wish     where we think a more contemporary model for disability housing and accommodation and choice of control is in the country moving forward.  It's a great  

I think, also, the work that we are doing in all of our products, making them in Easy English, making them easy to understand, the recent guide we published around what we fund, our website, our social media communications.  I mean, trying to saturate that information at the right level at the right time is really important.  As well as making sure that our planners in the ISCs are well trained to have those conversations and those discussions that we have.

MR FOGARTY:   What training, currently, or resources     well, what training is there currently that you are aware of in respect of, as you say, SCs, support coordinators to understand     and I'm being specific     how they might support someone to transition out of unsafe accommodation?

MR McNAUGHTON:   The NDIA itself doesn't do specific training for support coordinators.  We provide a lot of materials and resources for support coordinators.  There are other intermediary peaks and organisations that provide resources for support coordination, also.  But we certainly provide a lot of information around support coordination and also what participants should expect from their support coordinator.  But we don't actually deliver frontline training for support coordinators.

MR FOGARTY:   So it relies on them to self educate, based on the resources they can find on your website, in particular?

MR McNAUGHTON:   Yes, and certainly, counsel, early days in the rollout there was a lot of town hall meetings and information sessions and NDIS expos and various things like that, that were done to help provide some education and awareness around the NDIS.  We still have provider engagement teams and community and mainstream engagement teams around our network.  We have regional community connectors that we fund, who provide information in language into remote communities.  So there's a myriad of avenues by which we continue to try and get information out, from high level social media down to really grassroots strategies into remote communities.

MR FOGARTY:   The last thing in respect of transitioning, a participant still needs to be reassessed, wouldn't they?  If they are going from one SDA to another, their SDA requires reassessment, as does their SIL; is that right?

MR McNAUGHTON:   Yes, that's correct.  A lot of NDIS participants who transition from State and Territory systems, and when they are in a SIL property or a legacy SDA, they are automatically eligible or entitled for SDA but it was at what they called a basic or legacy rate.  Then if the participant wished to move to a new SDA, we had to do another assessment to make sure we are getting the right level of funding for them.  They were eligible, we just had to work out what the funding was in the new model.

MR FOGARTY:   Can that take some months still, in 2021?

MR McNAUGHTON:   Well, it doesn't take that long if we have all the available information, counsel.  It's about getting the right functional assessments and the right information.  Once we have that information, the time to make the assessment isn't that long.

MR FOGARTY:   So it relies on the right information coming into the NDIA from the participant and, in most cases, probably a support coordinator?

MR McNAUGHTON:   The support coordinator but also usually it's through an allied health therapist specialist, who would provide the functional assessment.  It's really important because that determines the type of setting and the type of adjustments to the accommodation a person may need because of their functional capacity.

MR FOGARTY:   If a person or their nominee provides documents or information that is insufficient, the NDIA would correspond and note that it was insufficient; is that usually the process, and that's why it might take longer, because they haven't provided the right documents?

MR McNAUGHTON:   It should be, counsel.  Best practice would say that we would be asking clearly for what was required and if we haven't received it, then we would go back and ask for that to be confirmed or clarified.

MR FOGARTY:   In your experience, and again this is currently, do you accept there are varying degrees of skill and knowledge currently amongst support coordinators?  Are you able to gauge that from the NDIA?

MR McNAUGHTON:   We hear that, counsel.  There are a lot of fantastic support coordinators out there doing some wonderful things, of course there are, it's like a bell curve of any market.  So I think that's a general observation that there may be some new providers out there who don't have as much experience and depth in the NDIS and there will be some who have been in the system for several years now, so I think that's a fair observation.

MR FOGARTY:   Just to be clear, I think a moment ago, in terms of the resources provided to support coordinators, that's not a function or a part of the NDIA, in terms of training, other than providing the resources for them to    

MR McNAUGHTON:   That's correct.  We don't do direct training for the support coordinators, no.

MR FOGARTY:   In respect of the NDIS plans that are sent to participants currently     and I know you provided some as annexures to your statement and were asked about them in respect of four participants.  Would you accept that the content of those plans is pretty light on detail?

MR McNAUGHTON:  I accept that the early provision of the plans     we had a lot of feedback, to be quite frank, that they were a little bit hard to understand and to decipher, confusing for participants at times.  We did a lot of work to create a much better Easy English version of the plan, so that a participant could see what supports they had, what were flexible, what were fixed and how they could use those.  So that has evolved, certainly, from the start of transition to what a plan looks like today, from what it did at the start.  Absolutely, counsel.

MR FOGARTY:   But do you accept that if, say, a parent, for example, wants to scrutinise and understand how the approved funding was arrived at from the material or involvement they had at the planning stage with the planner, it's very, very difficult for them to divine the approved funding just on that document, how the NDIA came to those conclusions in respect of funding?

MR McNAUGHTON:   Do you mean clarity on the reasonable and necessary decision making we have done to get to that funded amount?

MR FOGARTY:  Indeed.  I suppose what I'm asking is, there is no detail about the reasoning process from the application and the material that has gone in, to the end result in that plan document; do you agree?

MR McNAUGHTON:   Yes.  The plan document sets out the funding for each of those support items under the budget categories of core capacity building and capital, and then has a few line items underneath that, which provide a level of information around what each of those activities is for.

We have actually had quite a bit of feedback from participants that they are liking more flexibility within their plans and have less line items.  So that's feedback we are certainly taking on board and thinking about increasing flexibility into the future, too.

MR FOGARTY:   I understand you would be aware in respect of Catherine, who is Rebecca's mother, and her AAT appeal, which is around funding, which I think was funding in respect of a plan for Rebecca for pre 2017, but then I think the final result was in late 2019 or early 2020, by which time she had, in fact, transitioned and left the Melbourne house.

Also, Paul, the father of Robert, had some complaints he made to the NDIA early on, and I accept they were early on, in respect of the funding that showed in the plan they had received.  For people like that, who want to understand better how the NDIA has got to the end result, how would they do that?  Do they have to file a formal internal review?  Can they speak to an NDIA planner?  What allows them to see more behind the scenes of the reasoning?

MR McNAUGHTON:   Ideally, counsel, what we could expect is that our local area coordinator or the planner is talking and explaining the plan, explaining how the plan was developed and explaining how the participant can use those supports flexibly to  
get on and engage with their providers.  So it should be a good conversation piece to understand what supports and how those supports were built within the plan.

Obviously the inputs are the various information we receive through the application and through the plan reviews, behaviour support plans, any functional assessment updates, requests for assisted technology from occupational therapists, they are the sorts of inputs we would be using to construct the plan.

MR FOGARTY:   But that material and that information is not provided, as such, or seen by the nominee or the participant; is that the case?

MR McNAUGHTON:   In terms of all of those reports, they don't form the basis of     they don't form the narrative of what goes back to the planner as part of the plan, because that would be quite a long document.  But all of those reports, because they are about the participant, the participant should be very much aware of what's going into those reports, whether that's from an allied health professional, whether that's a behaviour support plan, any other functional assessments, the plan nominee and the participant should absolutely be aware of that documentation.

CHAIR:   Mr Fogarty, it might be helpful, if you are talking about what you suggest might be a lack of detailed information in the plan, to bring up an example of what you are talking about.

MR FOGARTY:   The example I was going to bring was one I referred to earlier, the complaints by Catherine and Paul quite early on.  It was in respect of their children's first plans and it was around transport.  In respect of Paul, the transport was such in the first plan that    

CHAIR:   What dates are we talking about?

MR FOGARTY:   We are talking October 2016.

CHAIR:   Are you referring to a continuing situation with more recent plans?

MR FOGARTY:   Well, no.  I was going to then ask the question whether that situation has improved or would have improved.  The same was in respect of Catherine and her daughter Rebecca, as I understand, in the first NDIS plan, that the transport that was approved was insufficient to continue day program services for those two participants with whom they'd had day service programs for quite some time.  Are you aware of those complaints?

MR McNAUGHTON:   Yes, I am, counsel.

MR FOGARTY:   In respect of that, at least in the case of Paul, he gave some evidence yesterday of how surprised and distraught, I think his words were, he was about that funding decision in terms of transport.

If that were to happen today, are you saying he could now, rather than launch a request for a review, which I think is what happened or, indeed, in the case of Catherine, I suppose challenge that decision, seek an internal review and then take it to the AAT, that you could consult with the NDIS planner to get more understanding around how you have reached that decision?

MR McNAUGHTON:   Yes, yes, absolutely.  Paul's circumstances back in October 2016, I see through the information that we had done a plan review in November, a month later.  Clearly, there were some challenges with the funding that initially we didn't get right.  We absolutely wanted Robert to continue, he wanted to continue to do his day program and that was resolved in the plan review done a month later.

Similarly, today, there has been a change and I think it's an important point, counsel, just to talk about the growth and the transition of the NDIA.  We actually made a significant change to our price guide in 2020 that now allows providers to claim for that piece of the travel.  At that time they couldn't because there was a periodic transport payment, and there still is, so we have made some adjustments along the way as well to the scheme overall, the scheme architecture.  The new price guide allows for that now to be resolved for unclaimed     to assist them to attend their community participation or day program, or whatever that might be.

MR FOGARTY:   Could I take you to your corrigendum, annexures A to D     well, it refers back, doesn't it, and supplements annexures A to D, where we are looking at the core funding and the SIL funding of four of the participants.


MR FOGARTY:   The corrigendum is hearing bundle F, tab 1A.  Hopefully we won't get too confounded by the numerical gymnastics.  Do you have a copy of that with you, Mr McNaughton?  Annexure E, really, I want to focus on, which is the second page of the corrigendum.  As I said, it is hearing bundle F, tab 1A.

Page 2.  I might just ask to take you to Natalie.  On the face of the numbers in annexures A to D, and I will cut to the chase, it would appear, when one looks at the first plans of the participants and then the most recent or more recent, there appears to be quite a number of fold increase in the funding.  But I think, in fairness to you, this annexure might assist.  The initial figures in those plans or what was in those plans, and you referred to in annexures A to D, didn't contain all of the funding.

It might assist if you can explain     and let's take Natalie and this page we have up now     what you say was the funding she received in 2017 and then the funding that I note still runs for her until March 2022.  If we look at the top table on that page, can you explain or can you say what funds she received for that period, which I note is pretty close to 12 months, plan 1.  What was the funding she received in that whole year?

MR McNAUGHTON:   Yes.  Thanks, counsel.  We wanted to provide this document  
to really outline some of the challenges early days with how we represented in kind funding and in kind supports in a participant's plan.  So Natalie is a really good example here.

The plan that Natalie received, in the sense of the amount of what I will call cash in a plan or NDIS cash in a plan for Natalie, really was around $68,000 for her for that annual plan.  That's because all of her SIL support, her Supported Independent Living, and her specialist disability accommodation supports were in kind.  So that means that those supports weren't provided as funding in Natalie's plan, they were provided as a quote required, which was essentially a placeholder in our system that said:  You will still access these supports, we won't actually fund you through your individual NDIS plan, the State Government of Victoria or New South Wales is continuing to fund the said service provider for those supports.

MR FOGARTY:   I see.

MR McNAUGHTON:   In Victoria there was a bit of a longer tail to the cashing out of all those SIL and SDA and, in fact, some of them are still going.  Once those plans and once those services are all cashed out     and what I mean by cashed out is when the in kind funding stopped and we have started funding it as cash into an NDIS plan for that individual, you can see the values of plans have really started to increase.

They have started to use the NDIA price guide, which picks up all the Fair Work Commission price increases and changes, and they appear now as very much funding in the individual plan, in Natalie's perspective here, which also then allows Natalie much better choice and control if she wants to move that funding to an alternate provider or an alternate setting.

There was a lot of transitional confusion and challenges around the in kind approach, both from providers as well as participants and nominees.  There were agreements between the Commonwealth and the respective State and Territory governments, as part of the funding mechanisms, and we had to recognise or reflect them in a plan; hence, why some of the plan values, to the participant, look quite low compared to the current state.

Notwithstanding Natalie's case, there has been a whole range of other increases of supports around capacity building in other activities and support (inaudible).  The actual Supported Independent Living and the SDA components are a lot greater now because they are in the cash based model in the plan.

MR FOGARTY:   Looking at this document, the top table says "Plan" and the total on the far right is $68,893.70.  That is what appeared in her plan; is that right?

MR McNAUGHTON:   That's correct.  So that's what would have been    

MR FOGARTY:   When one looks in it.

MR FOGARTY:   Yes.  Sent in the mail to her, it would have had that as the amount.

MR FOGARTY:   But it didn't have the SIL funding?

MR McNAUGHTON:   That's correct, it just had a placeholder, saying "SIL quote required".  That's the standard benchmark.

MR FOGARTY:   With SIL, is that the figure below, $203,000 odd?

MR McNAUGHTON:   Yes, that's with the SIL included, and the CRM     sorry for the acronyms     is our customer relationship management ICT system.  That's what that means.

MR FOGARTY:   Just so I understand, the plan utilisation, that figure of $334,000, what does that represent?

MR McNAUGHTON:   That's the amount that was actually drawn down after we've done the reconciliation of the in kind funding offset.

MR FOGARTY:   Moving to the table below    

CHAIR:   Sorry.  That figure exceeds the two figures of $68,000 plus $203,000.

MR McNAUGHTON:   Yes, that's correct, Chair.  That's essentially an accounting or reconciliation figure, because we have put in what we called a benchmark figure for the provision of the SIL and when the actual figure comes back from the respective State Governments and the Commonwealth, it would be offset.  That's how much we put in there as the actual utilisation for it.

CHAIR:   The SIL, in fact, went up from the amount nominally allocated of $203,000 to a higher figure, which seems to be another $60,000 or so.

MR FOGARTY:   Yes.  I think, Chair and Mr McNaughton, that is the $272,000 figure, is that right, next to plan utilisation?

MR McNAUGHTON:   Yes, that's correct.  So, Chair, that's exactly right.  We put in a quote at a benchmark and once the actual quote had come in and been accepted as part of that amount, that's what the figure was.

CHAIR:   Thank you.

MR FOGARTY:   You can see underneath 2021 that the figure, as you say, as a participant is, I think, nine fold over the amount that was shown five years prior.  But then, as you say, it has built in SIL and, do you say SDA?

MR McNAUGHTON:   SDA also, yes.

MR FOGARTY:   Then, essentially, has the funding for supports     what has it gone up between those five years for Natalie?  Is it only $40,000?  Certainly from the NDIA's perspective.

CHAIR:   Sorry, if you are talking about figures, can you help us by how you get to $40,000?  Not that I'm querying your mathematical skills, I would just like to be enlightened.

MR FOGARTY:   I am looking at the bottom right of both totals, the plan utilisation total figure.

MR McNAUGHTON:   Remember     sorry, counsel     plan utilisation is in flight plan.  That plan is still going.  We would expect that wouldn't be one hundred per cent utilised yet.  I think the two important figures on this page, if I can, counsel, are where Natalie's utilisation ended up at $343,000 at the end of that first plan period, to her current plan, we expect and we have funded around $531,000, so it's just shy of a $200,000 increase.

CHAIR:   The figure of $383,000 is year to date, in effect?

MR McNAUGHTON:   Yes, exactly, Chair, that's right.

MR FOGARTY:   So you accept, and I will ask you reasons why and I suspect you might say there are a myriad of reasons, but certainly Natalie's case, and I won't walk through the other three participants, do you accept their funding was increased, I think maybe one or two is close to two fold or a little bit less overall?  What reasons do you say that would be for, if you can?

MR McNAUGHTON:   Probably a few reasons.  There are a myriad of reasons, you're right, counsel.  One is, obviously, the price guide goes up for each year in line with fair work for the workers, and there was a 15.4 per cent increase I think last year, around that     I think it was the transitional payment.  Anyway, that is all in the price guide.  They go up year on year with various increases.

The other thing, in Natalie's plan there has been increases in planning based on     in recent (inaudible) supports around capacity building.  There has been increases around supports for a behaviour support plan and any other changes in line with her goals or changes of living arrangements.  So it has certainly evolved, in terms of not only the Supported Independent Living and SDA, but in some of those other support categories also.

MR FOGARTY:   Is it fair to say, in summary     and this isn't meant as a criticism     participants and those supporting them and the funder are getting a more accurate picture of what reasonable necessary supports they really need now?

MR McNAUGHTON:   I think in a case like this, especially for those participants who had in kind in their plans, there's a lot more clarity now.

MR FOGARTY:   Can I take you to the topic     still on the topic of SIL funding, can I ask you what, if any, scrutiny or oversight there is by the NDIA of how SIL providers use SIL funds for the participants?  Again, the context, of course, is a group home setting.  Is there oversight by the NDIA on how that is used or at least the quantum of that is used year to year, on the basis of a plan?

MR McNAUGHTON:   Well, the two parts to that are that in terms of the quality of services delivered, as the Commission is well aware, it is now the remit of Quality and Safeguards, and if there is any suggestion that the funds are being used inappropriately that we are providing, that is also an issue for the Quality and Safeguards or, potentially, our scheme integrity or fraud team.  Unfortunately, we do have a number of cases being investigated in that space, too.

Our role primarily, of course, is to ensure the funding is right through the new roster of care.  Having a roster of care that is visible and transparent provides the clarity to the participant and their family, so they know what level of support they can expect to be receiving.  If they're not, then that is an issue they can either raise with us and we would refer that to the Commission and the Commission would do their investigation through their regulatory powers.

MR FOGARTY:   It's the case, isn't it, you have a complaint handling mechanism and, indeed, Paul and Catherine availed themselves of that?


MR FOGARTY:   Also, you can refer those on where it's the domain, really, of the Quality and Safeguards Commission?

MR McNAUGHTON:   Yes, that's correct.

MR FOGARTY:   The term is "Supported Independent Living".  Is the idea that the support that, in this case, the resident gets ought to be building their capacity to be more independent?


MR FOGARTY:   Or as independent as possible?

MR McNAUGHTON:   Yes, absolutely.  Supported independent living includes     one of the bases of that is to help people build their capacity, in a number of ways.  That's part of the funding that is covered as part of the SIL in a person's plan.

MR FOGARTY:   Putting to one side, I suppose, fraud and out and out what might be obvious misuse of SIL funding, is there any scrutiny by the NDIA, or tell me if it's something that would need to go to the Quality and Safeguards Commission, around  
whether the funding is being used to build the participant's capacity for independence, whether it is actually being used for the intent for which, as I took you to, what SIL is about?

Or would that rely on a family member or participant saying, for instance     I will give you an example     "My SIL provider gets money.  I want to be better at cooking and going shopping and accessing the community because my goal is to essentially live by myself and I think I can get this, but I need that support".  Is there any scrutiny around     "And", I'm saying, "my SIL provider is not doing that.  They're", in a sense, my words, "dumbing me down or keeping me where I am".

Can the NDIA scrutinise that or is that something an individual would need to raise either with the NDIA and/or the Commission?

MR McNAUGHTON:   We would certainly encourage two things:  one would be that     it's not compulsory, but we certainly encourage in the SIL setting that there would be a service agreement between the provider and the participant, which would outline, in your example, some of those very activities you would like to build your capacity in and the activities you would like to do.  Everyone is then very clear on that.

If that's not being delivered then that is a conversation that the participant, the nominee and the support coordinator should be having, initially, with that provider and the workers and the management of that provider.  If they are not able to resolve that locally and through the provider's own channels, then there would be an opportunity to either escalate it back to the safeguards commission or vote with your feet, so to speak, if you want to take your funding and find an alternate, as we do see people do more and more as well.

But, really, that is the mechanism.  Escalate     have good clarity about what should be delivered, everyone's clear on that, escalate through the channels, through the provider and, if required, through the Commission.  That would be our response.

MR FOGARTY:   I may have missed this in the earlier part of your answer, but are service agreements mandatory in a SIL context?

MR McNAUGHTON:   No, counsel, they are only mandatory under the SDA rules.

MR FOGARTY:   The SDA rules, right.

MR McNAUGHTON:   It's only if the property is an SDA or you've got SDA that you are required to have a service agreement.  We encourage them and we provide some guidance around them, but they are really up to the provider and the participant and the nominee as to whether or not they choose to have one.

MR FOGARTY:   I would like to take you to a topic that was raised in the notice to give a statement and which you have given some evidence about.  It is in respect of  
the NDIA funding of supports for positive relationships and expression of sexuality, pages 24 to 27 of your statement.  It is really in the context, as you probably understand, of Sophie and also Katie's experience, Katie down in Melbourne.


MR FOGARTY:   Paragraph 90 at page 24 of your statement, is it fair to say that the broad position of the agency is encapsulated here, and for the benefit of the audience:

The NDIA acknowledges the importance of and can and does fund reasonable and necessary supports that assist a person to express their sexuality and develop relationships with others for the purpose of procreation, pleasure or intimacy.

Further along:

It is the NDIA's position that these supports are fundamental to every person regardless of disability and are critical to overall physical, emotional, social health and wellbeing.

Is that a fair summary of the NDIA's position?

MR McNAUGHTON:   Yes, it is, counsel.

MR FOGARTY:   I think you refer to these, but the types of supports could include, I will say, that could be funded, are education and counselling supports; is that correct?


MR FOGARTY:   Supports to assist with positioning, so quite practical kinds of supports?


MR FOGARTY:   And transport as well    


MR FOGARTY:       to and from.  And also sex therapy?

MR McNAUGHTON:   That's correct.

MR FOGARTY:   Can I ask you, how now would a participant go about applying for funding from the NDIA for supports around positive relationships and expression of sexuality?  And can I just be clear because, from Katie's experience, it is more around the non intimate, if you like, friendship supports, whereas Sophie expressed  
more around the intimate sexual expression.  How would a Sophie or a Katie currently seek that sort of funding from the NDIA?

MR McNAUGHTON:   So we actually provide     a significant number of participants receive funding.  We call it capacity building for relationships in their plan, under their capacity building support category.  Quite often it's the result     the level of funding is determined by a Positive Behaviour Support Plan, which would be done by the clinical specialist.  They would work with the participant to identify what would be required and what they are seeking as part of their Positive Behaviour Support Plan.

Quite often the funding is not     it's about maintaining safe, trusted supported relationships with a range of people.  Whether they are intimate or not, that's up to the participant, of course.

Those sorts of     the therapies, as you heard from I think it was Jodi and Liz earlier in the week, there are some really good therapists out there, doing some great work with people around how to build and maintain support trust relationships in social settings and others.  So it's actually quite a common funding area that we provide, capacity building for relationships.  The level is often determined by what is required or what is recommended in the Positive Behaviour Support Plan.

MR FOGARTY:   So that would be a key document for someone trying to work out the logistics for that?


MR FOGARTY:   That capacity building for relationships, how long has that specifically been in place?

MR McNAUGHTON:   It was in place from transition.  It has evolved and we have got a bit better at it and got better information from various     when we get more accurate and better Positive Behaviour Support Plans, that level of funding gets a bit more sophisticated because we have the evidence base to, sort of, justify it.

MR FOGARTY:   Again, I think like an earlier question I put to you, do you agree that it requires the clinician, the support coordinator, the participant, being aware of the material that needs to be submitted in their plan review or in their plan application for that type of funding?  It really relies on what they know and what they think they need to put to the NDIA to receive that funding?

MR McNAUGHTON:   That is part of the input.  The other part of the input is the role that our planners and LACs have to talk about that as part of the conversations, and of the allied health experts and professionals to provide behaviour support plans.  There's a range of inputs to do that but, yes, having that awareness of all the parties is important as part of the planning process.

MR FOGARTY:   The NDIS planners and local area coordinators, to your knowledge, are they briefed or guided to be raising this as a key topic with individuals?

MR McNAUGHTON:   It's certainly part of the training, part of the assessment and the questioning that we use as part of a plan.  People that have more complex behaviours or circumstances are supported in our Complex Support Needs Pathway, where our planners have a higher level of skill and background in dealing with people with more complex support needs.  So they are very attuned to those sorts of inputs that we require as well.

MR FOGARTY:   Just to be clear, in terms of     I think I have asked you this before in respect of SIL funding, but is there any scrutiny that the NDIA does     let's say someone gets some funding in respect of relationship building.  Is there any scrutiny at the end of the plan period as to, one, whether that has been used up and, secondly, how it has been used?  I think you say the "how" might be a matter for the Quality and Safeguards Commission?

MR McNAUGHTON:  Yes.  One of the levers, counsel, is that we would request a report from the support coordinator to talk about how those supports have been used, what were the outcomes, what was the result of that.  So it would be part of a review of     a report done by the support coordinator, which would feed into the planning review cycle.  So we'd use that information.

MR FOGARTY:   All right.

CHAIR:   I understand that there may not be specific requirements for registration if somebody wants to set up a practice as a counsellor on intimacy or sexual relationships.  Does the NDIA have any qualification requirements for people who set themselves up to provide such services?  Obviously some people will be extremely well qualified, but others may not be.

MR McNAUGHTON:   Yes, Chair, that's a good point.  Providers can operate     you can either be a registered provider or an unregistered provider.  If the person is self managing their plan, they can use providers that aren't registered with the NDIA, or the NDIS Commission now, I stand corrected.  If you are a plan managed by the agency, you can also use providers that aren't registered, but they have to use our price guide for supports.

So you could, you are absolutely right, set up a provider business, a therapy business, that is not an NDIS registered business.  It is up to the choice and control of that participant whether they use that provider or not, of course.

If there are some supports     we can create a support that is what we call, without getting too technical, a stated support in a plan.  That means that support has to be used by a registered service provider because of the level of risk attached with that.  Quite often we will do that where we need some specific, maybe, behaviour support  
plan and we want it done by a registered behaviour support clinician.  We will state that item in the plan, so it is done by a registered provider.

CHAIR:   Thank you.

MR FOGARTY:   Mr McNaughton, can I take you to the topic of SDA, Specialist Disability Accommodation.  I referred earlier and you are aware of Rebecca's move, I think it was in November 2019, from one SDA to another.

On page 21, just one question I have, paragraph 75 of your statement.  It's a broad statement:

SDA has a range of housing designed for people with extreme functional impairment or very high support needs.

That is the wording in the legislation, the rules, correct?

MR McNAUGHTON:   Yes, that's correct.

MR FOGARTY:   The next line:

SDA usually involves a shared home format with a small number of participants and is designed to enable better and safer delivery of supports.

You use there     and I know you say "usually involves", but you refer to "safer delivery of supports".  What is the basis upon which you use that word?

MR McNAUGHTON:   Counsel, there are a number of different types of SDA properties, we call them design categories.  They range from basic or legacy to improved livability, fully accessible, high physical support and the top category is called robust.

The robust design category is for participants who may need, as the name suggests, quite a robust build because of safety concerns for them, their support worker or their visitors.  So the materials are very durable materials.  Quite a lot of design consideration goes into making sure that property is safe for everyone inside that property.  That's why we have a robust category.

Then if you look at a design category which might be fully accessible or high physical support, it would usually mean the roof is strong enough to hold a ceiling hoist, if needed, the doors are all wide enough, or there are no step downs, a whole range of accessibility measures for the safety of the participant.

MR FOGARTY:   So safer in a practical way, you mean, in a design way?  Rounded edges    

MR McNAUGHTON:   Absolutely.

MR FOGARTY:       safe rooms, et cetera, in the robust, and then you have design, essentially for wheelchairs and people who need assistance in and out of, perhaps, bed in the classification down?

MR McNAUGHTON:   Yes.  It could be a person might have a vision impairment, so they might have larger light fittings, all the really important modern technical features of homes that are required for fully accessible for a person with a vision impairment as well.  So there is a range, depending on the physical layout of the home and the functional impairment of the participant.

MR FOGARTY:   I focused on that only because of the word "safer".  It might be, certainly from the case studies of the four residents we have had, that the idea, for them at least, that the group home setting was safer might be something they strongly dispute.

I think you have been given notice that I would ask you some questions about the Summer Foundation report, as I call it, just to get an idea of trends.  You may well, of course, understand the NDIA has its own stats on the market and the SDA, because you have stewardship of that market.


MR FOGARTY:   So this is the Specialist Disability Accommodation Supply in Australia, November 2021 report, hearing bundle F, tab 219.  Do you have a copy of that with you?

MR McNAUGHTON:   Yes, I do.

MR FOGARTY:   You are familiar with it?


MR FOGARTY:   The context, as you would appreciate, is really in respect of the pipeline for future SDA builds.  You have given some evidence around options that are available and how the market may have changed, certainly from the timing perspectives of some of the case study residents.

But, really, as those case study residents have shown, in their experience, the four to five person model would appear not to have been appropriate for them, and at least in the case of Stevie, who you might have heard a little bit of evidence about, Mr McNaughton, and Rebecca and Natalie, their transition now to, as I understand, one or two person settings, the evidence appears to be that they are much more settled, safer and happier, certainly in the case of Catherine talking about Rebecca, and Jennifer about Natalie.

I will take you to some specific parts, because it's a fairly lengthy document.  It is a  
report that the Housing Hub and the Summer Foundation put together.  Is it an annual or biannual report, are you aware?

MR McNAUGHTON:   I'm not sure how often the Summer Foundation publish it, sorry, counsel.

MR FOGARTY:   Do you understand that the data or the commentary is collected from SDA providers and developers?


MR FOGARTY:   Can I ask you to turn to page 7 of that document.  It is in the executive summary.  I want to, essentially, put to you some of the summary and some comments that some of the providers appear to contribute, and see whether you accept them or whether your own data and what is coming through the agency can assist the Royal Commission to understand the perspective better.

CHAIR:   Just before we come to that, on page 8, we see that 75 SDA providers responded to the survey.  How many SDA providers are there all together?

MR McNAUGHTON:   There are a lot more than that, Chair, so it is a limited sample, you're right.

MR FOGARTY:  Hence why I would like you to comment and provide, if you don't agree with what's being put, a better indication.  I think I understand Commissioner Galbally is particularly interested in understanding what the pipeline is and what other options there might be metropolitan wise and rural wise in terms of other types of SDA support.

The second paragraph on page 7 says, halfway through:

Despite commencing in 2016 .....

Do you see that?



..... SDA funding is currently only being paid to 53% of the 30,000 NDIS participants expected to be eligible for SDA.  The 14,000 remaining people who are expected to be eligible for SDA funding are likely to be living in government housing, hostels, residential aged care, or with family.

Firstly, do you agree with those figures as an approximation of where things are up to at the moment?

MR McNAUGHTON:  Yes.  Well, all of the original estimates of the scheme talk about 6 per cent, or around 28,000 participants being eligible for SDA at full scheme, and we just have at the moment just over     around, I think it's 13,000/14,000 participants who are now approved for SDA.

MR FOGARTY:  In terms of the transition, is it really bricks and mortar as the main reason why?  Is that the reason why it will take time to transition the remainder, or at least have options for the remainder?

MR McNAUGHTON:  We have seen a really, really strong growth in the SDA market, and I think this report goes to that, a real mix of non government organisations and for profit organisations entering the market.  So it is a bit of a matching up of that supply and demand.  It's important for us to make sure we are making eligibility decisions in a timely manner.  That's one part of that, and then for us to be able to signal to the market how many people     how many participants are SDA eligible, where they are looking at living, the type of accommodation they are looking at living in.  We are publishing a lot better granular data now through our quarterly reports, and in the market itself, making sure that they are able to respond to that.  We tend to of a lot more properties being built in the more urban metro settings than into the sort of certainly regional and remote, for obvious reasons.  We are also seeing some really innovative construction happening, you know, in highrise apartment buildings in the city with designated units and apartments being high physical or fully accessible, for argument's sake.  There are some really good models starting to emerge as well.

MR FOGARTY:  At the end of that paragraph I've just taken you to it says:

Urgent work by the NDIA is required to activate demand by increasing the number of NDIS participants with SDA in their plans to the expected goal of .....

I know you give a different figure, here they say 30,000 people.  Do you accept that, or is it a work in progress?

MR McNAUGHTON:  It is a work from progress, absolutely, something we are and have been doing, I mentioned earlier in my testimony, around home and living panels.  Home and living     as I said, they convene intraweek, the panels, making 300 or 400 decisions a week around SDA eligibility and trying to get     it does come down to obviously assessing reasonable and necessary, making sure we have got all the right evidence to support that, and then being able to make those decisions in a timely manner, so we can get that funding into, firstly, the participant's plan, so they know they are SDA eligible, but also to signal to the market there is this increase in demand.

MR FOGARTY:  It you could turn over the page, and I accept what the Chair has said in respect of there only being 75 providers who have responded to what, as I understand, was a survey.  Halfway down you will see some bullet points under the  
heading of "Key Findings".  The paragraph starts:

In addition to providing data .....

Then the next sentence says:

Providers were also asked to rate their level of confidence in the SDA market with 40.3% indicating that they are very or slightly unconfident.

Then it reads:

Reasons for this lack of confidence were sought in the survey, revealing key themes:
* Issues with SDA funding approvals for potential tenants.
* Problems with activation of demand and supply
* Financial concerns.
* Frequent changes and a lack of direction from the NDIA.

Do you have any comment to make in respect of     I accept it's a summary     those points?

MR McNAUGHTON:  I can talk about and pass judgment on the comments of the providers who are part of the sample, but, you know, there has been a whole range of reform work over the past few years in the SDA.  We had an SDA reference group supporting us with this.  We did some changes to the SDA rules to try and simplify that.  We published an SDA design guideline to make it clearer for potential investors and developers about what would constitute an SDA property build in each of those, and an update on the SDA price guide.  We have been coming along the journey, trying to make some really good, clear reforms as well, to try and make the policy clear to provide that clarity to the sector so we can encourage that investment into the SDA build.  So it continues to work, it's not something we have been sitting on our hands doing, it's something we have been actively out there trying to improve engagement with the sector and make some good, clear changes to support the development of the SDA market.

MR FOGARTY:  Those were the questions.  I note the time.  I wonder whether Commissioner Galbally or other Commissioners, including yourself, Chair, have any questions prior to the break, particularly in respect of this report, or the pipeline of SDA, which I haven't yet taken Mr McNaughton to.  Now might be the time to ask those questions, Chair.

CHAIR:   Commissioner Galbally, do you have a question?


COMMISSIONER GALBALLY:  The SDA pipeline, to get an indication of the configuration, whether we are moving to the one bedroom, two bedroom or how many are doing four, or even five bedrooms still?  Many?

MR McNAUGHTON:  Commissioner Galbally, thank you.  If I can get a bit more detail of that in the break, if you like?  I don't have the data in front of me.  I can take that on during the break and try and come back to you afterwards, if that would suit?

CHAIR:   I think that suits.


CHAIR:   Commissioner McEwin, do you have anything on this particular issue?

COMMISSIONER McEWIN:   Yes, I just want to understand better, the survey, Mr McNaughton, 75 SDA providers responded and you said there were a lot more.  I'm just trying to understand what do you mean by a lot more?  Can you give a precise number or help me understand what percentage of providers would have responded to this, in the context of how many there actually are in Australia?

MR McNAUGHTON:  Thank you, Commissioner.  I know we have around 6,000 registered dwellings.  I'm not sure how many providers that is.  I'll come back to you after the break on that as well, if that's okay.

CHAIR:   Appendix B lists the providers who participated in the survey.  It says there were 78, which doesn't precisely match 75, so three seem to have    

MR FOGARTY:  Chair, if I might assist, page 10, "Introduction", the bottom paragraph says:

As of June 2021 .....

This may assist Commissioner McEwin:

..... there were 346 SDA providers who had been active and 264 who had been active in the last quarter .....

That may be for confirmation over the break, Mr McNaughton.

CHAIR:   As a matter of interest, Life Without Barriers was a participant, Sunnyfield was a participant, Eurella, which has figured in an earlier hearing, was not a participant, and Araluen was not a participant.

On that same page, page 10, in the second paragraph there's an estimate of 30,000 who will be receiving SDA payments in another four years.  It says that the market has the potential to stimulate between $5 billion to $10 billion in private sector investment.  When it says "private sector investment", what does that mean?  Isn't it  
public money that's going into this?

MR McNAUGHTON:  I'm not sure where exactly the figure comes from, but essentially what that means is that we are     the public moneys, what we are doing through the NDIS, is providing the funding for the SDA bricks and mortar.  It is who we are providing that funding too, Chair.  So this would be when you extrapolate that out over 30,000 people, the average SDA funding we are putting in a plan each year on year into out years    

CHAIR:   No, I'm just wondering about the expression "private sector investment".  Doesn't the money come for the bricks and mortar from public sources?

MR McNAUGHTON:  Yes     well, we fund the SDA component for the bricks and mortars and then obviously if there is investment from the public, or private     sorry, the not for profit sector, the SDA component in the plan is what can be contributed to helping their investment.  To offset their investment, we are funding the SDA through the plans, as an annual rate, over the life of that property.

MR FOGARTY:  So what you are saying is a developer comes along, they pay to build     they pay for the cost of building the site with a view to having two, three, four, five SDA participants over the course of a period of time and the public then comes in, the NDIA, and pays SDA contributions over those years; is that how it works?

MR McNAUGHTON:  Yes.  So we are paying     exactly, counsel.  We are paying SDA contributions with the plan year on year into those out years    

CHAIR:   So it is, in effect, a guaranteed income stream that provides the source of the finance for the bricks and mortar, the capital expenditure?

MR McNAUGHTON:  Which helps stimulate the supply, that's correct, Chair.

CHAIR:   All right.  Thank you.  It is now 1 o'clock.  We will adjourn until 2pm, thank you.


RESUMED    [2.00PM]


MR FOGARTY:   I might briefly return to some evidence you gave earlier on the topic of expression of sexuality and development of relationships, some follow up  
questions on that and some you may need to take on notice.

You said, correct me if I'm wrong, planners and LACs would or should be discussing support needs around, I think it's called capacity building/relationships during planning meetings?  Am I right about that?


MR FOGARTY:   The specific questions arising from that are these:  what, if any, training are planners and LACs given on that topic presently within the NDIA?  Is there a specific module or the like that you are aware of?

MR McNAUGHTON:   I think I'd best take that on notice, in terms of the module that would cover that specifically, if that's okay?

MR FOGARTY:   All right.  Perhaps also on notice, if you could assist the Royal Commission in terms of whether it is a compulsory module?  It may well be something that is so.  Then also as at the date you are able to provide that data, how many, as a percentage, of the planners and LACs have done that module.  It may be you say it is compulsory as their induction and they all do it.  Thank you.


MR FOGARTY:   Further on this topic, again it's on the provision of data, so it may be something you need to come back with:  can the NDIA provide data on the number of current NDIS participants who receive that funding for reasonable and necessary supports that assist them with respect to relationships in capacity building?  Is that something that can be provided?

MR McNAUGHTON:   It will be at the capacity building relationship level, not below that, because how they choose to engage the type of therapist, we won't have that level of detail in the plan.

MR FOGARTY:   It won't be as detailed as to be able to tell you whether it's a relationship that is intimate or non intimate?


MR FOGARTY:   It's higher level.

MR McNAUGHTON:   That's correct.

MR FOGARTY:   Those are my questions on that topic.  I don't know whether the Commissioners have any additional questions on that topic before I proceed to the last couple of topics.

CHAIR:   I think proceed and if there are any questions the Commissioners wish to  
ask, we will do that at the end.

MR FOGARTY:   Thank you, Chair.  Mr McNaughton, I have a question or two that arise from Mr Doley's statement.  I don't think you need to see a copy of it but if you do, please let me know.  For the benefit of those who want to look at it, it's hearing bundle C, tab 1 and it's at paragraph 18, page 4.

It's around the SDA categorisation of the Lismore house.  It's historic but just to understand, one, the categorisation there with the particular residents, and you did give some evidence earlier around robust and improved liveability.  As I understand it from Mr Doley's statement, the Lismore house was registered as improved liveability on 1 July 2018.  Does that accord with your understanding?

MR McNAUGHTON:   Yes.  As per the statement, that's my understanding as well.  I haven't checked that in our business system, but that's my understanding through that statement.

MR FOGARTY:   At the time, Sophie, Naomi, Natalie and Tyler were the residents.  Are you familiar with their disabilities or their functionality, for want of a better phrase?  That's not the right phrase. 

MR McNAUGHTON:   Insofar as I have read the statements, but not    

MR FOGARTY:   The statements from their parent or parents?


MR FOGARTY:   My question is around whether they, in your view, would be persons categorised in the very high support needs or extreme functional impairment needs, under those definitions, and I talked about those earlier, of the SDA?  Do you have a view on that?

MR McNAUGHTON:   My sense is that improved livability is probably the right categorisation.  When you look at the higher level ones around fully accessible and high physical, it's usually where a person requires quite a lot of physical changes to the actual accommodation because of wheelchair or accessibility or ceiling hoists or transfers, and so forth.  It doesn't appear that those participants had those requirements.

Robust would be where there are usually quite a number of behaviours of concern for the participant; self harm, harm of others and various other sorts of behaviours.  We need to be sure the property is safe for all; not only the participant, of course, but for the workers.

It would depend on doing a bit of an analysis of their behaviour support plans, to see if any of those were in the robust category.  It's unlikely, too, that we would have three or four or five people in a robust build, because of the level of design features  
of security, of safety that goes into a property like that.

MR FOGARTY:   Is that mandatory?  A policy or a guideline?

MR McNAUGHTON:   No, it's just a guideline, based on the individual circumstances and the safety requirements and the assessments.

MR FOGARTY:   In respect of Sophie and Naomi, at least, are you aware that there were behaviours of concern that manifested from time to time in violence with resident on resident and, indeed, alleged or, at least in some cases, proven participant with staff member violence?

MR McNAUGHTON:   Yes.  I've seen that, counsel, in the documents, yes.

MR FOGARTY:   In respect of Natalie, I understand she is a wheelchair user and did require some fairly significant physical assistance with personal care needs, et cetera?


MR FOGARTY:   But improved liveability is, in a sense, below or a person/participant who is able to access things more readily than the other categories, correct, of high physical support, even fully accessible?  Do you agree?  It's almost at the bottom of the rung, isn't it, in terms of SDA?

MR McNAUGHTON:   In terms of the level of support and infrastructure that goes into that build, it's not to the same level as some of the other higher categories, that's correct.

MR FOGARTY:   But you are satisfied, on what you know, that that was at that time appropriate for those four people?

MR McNAUGHTON:   Only based on the information, as I said.  Obviously, I haven't personally viewed the house.  I don't know if the house was fully accessible as well already.  The other thing, the house may have been built fully accessible already for the width of doors, benches, showers, bathrooms, those sorts of things.  I don't know the detail of the house, sorry.

MR FOGARTY:   Does design category affect SDA funding and/or SIL funding at all?

MR McNAUGHTON:   Two separate things.  The design category impacts on the level of SDA funding, absolutely, and then the amount of support or care the persons need is in the SIL component.

MR FOGARTY:   But would the SDA design have any direct impact on SIL funding?

MR McNAUGHTON:   Counsel, that's a good point because where we see really modern builds, especially in the fully accessible, with much better technology, you can actually get to a point where you need less care or support workers because your house is a lot more ergonomically and accessibly designed, yes.

MR FOGARTY:   I would like to take you to     and not spend too long, if that's okay?  For the benefit, obviously, of the Royal Commission but also the audience, it's some material you have been asked about in terms of the home and living consultation.


MR FOGARTY:   A copy of that consultation is at hearing bundle F, tab 218.  In the last 24 hours, you have provided the summary report that has arisen from that.  That has been published in the last couple of days or in December, at any rate?

MR McNAUGHTON:   Yes, only quite recently because the closing date of the submissions was mid September, so    

MR FOGARTY:   September?


MR FOGARTY:   For reference, that is in hearing bundle F, tab 219B.   Just three questions on that, and the other consultation I will ask you about in a moment.  What prompted this consultation, in short, in terms of    

MR McNAUGHTON:   I think in terms of a number of     the agency, our board, our independent advisory committee, providing     starting to think about where does the scheme need to take home and living, and what's the feedback we are getting from participants and supports, and the sector around how we create more contemporary home and living options for people with disability.

So we designed a paper with input from our own internal participant reference group, from our staff, there was sector engagement, and our independent advisory committee, to help flesh out the paper, a really good discussion paper, about where we think it would be good to head over time, and need to get submissions from participants, the public, the sector around their thoughts on it.  We need to, obviously, distill or (inaudible) that now, and do some more codesign and engagement in the new year around what it means for our future policy and operations around that.

MR FOGARTY:   Can you say what intended outcomes and deliverables there actually are for the project?  Has that yet been determined or are you still looking at the summary report and the material that has come in from public submissions?

MR McNAUGHTON:   Yes.  I mean, we are still working our way through all of that on a preliminary summary, and we need to then go back and do some more detailed codesign on each of those.  Ultimately, we think this will start to shape our policy, practice and guidance around home and living, including how participants can have more choice and control and options around home and living into the future through more contemporary models, I think is where we really want to head.

MR FOGARTY:   On page 11, again really for the benefit of those who may not have read the material, you identify some issues.  I will read them out.  These are issues identified in you going to the cohort, going to your staff, et cetera, and feedback:

1.  Group homes often don't represent an ordinary life;
2.  Planning meetings focus on support categories instead of your needs;
3.  Changes in day to day life need a quicker response;
4.  Not enough support options or appropriate housing;
5.  Lack of community capital and capacity building supports in plans;
6.  Home is seen as a workplace first and home second;
7.  An opportunity for greater NDIA market stewardship;
8.  Conflicts of interest prevent your choice.

Are they the key issues that have been identified and are they the sorts of things you are hoping the home and living strategy will tackle and improve?

MR McNAUGHTON:   Yes.  I mean, we are being quite open and transparent about the issues that we are identifying, and we are seeking input obviously through the discussion paper on each of those topics, for sure.

MR FOGARTY:   Just on that last topic of "Conflicts of interest prevent your choice", I will drill down to one detail.  On page 12 there is a footnote.  Footnote 2 provides that there is some 31 December 2020 data demonstrating the prevalence of SIL, SDA and support coordination from the same provider.

I know you have given some evidence in the earlier public hearing on this topic of conflict, but just to get an understanding of the numbers, it says there are 2,388 participants who receive SIL and SDA supports from the same provider, 5,604 participants receiving SIL and support coordination from the same provider, and 1,120 participants receiving SDA and support coordination from the same provider.

It's the case, isn't it, that there are now what is called independent support coordinators in the NDIA system; is that right?

MR McNAUGHTON:   Yes, meaning they don't provide any other services, they just provide support coordination, yes.

MR FOGARTY:   Must a person request that or is it prompted by the NDIA, or how does that happen, that you would get someone, or I would get something from a  
participant who is independent in that sense?

MR McNAUGHTON:  Well, there were a number of ways in which you     if you are going to have a support coordinator or would like to change support coordination, there is a whole range of provider finder tools out there.  We published them on our website as well, where participants can choose their support coordinator and they can do their own research and see if this support has the same registration as a SIL or SDA, but there are a number of     and then there are links to their own websites and things where people can actually exercise that choice.  We promote that through the NDIS provider finder website, as well as people can search through general internet searches for support coordination and find the lists.

MR FOGARTY:  Do you think it would improve the NDIA if it was mandatory that support coordinators were independent of SIL and SDA providers?

MR McNAUGHTON:  Our view is very strongly we like to see the separation between the two, and a lot of participants, especially in the early transition from the State and Territory systems, were just all receiving everything from the same provider and we have seen that in some of the examples in this hearing, cCunsel.  And you've seen some of those gravitate and move to different support coordinators over time to create an independence and that's what we really want to see.  Having a hard and fast blanket rule makes it a bit difficult, Counsel, especially in some of those more regional remote areas where we just don't have the really good market for all of those supports yet.  So having a blanket rule would be quite challenging in some locations.  But certainly our preference is that there is a separation between the two.

MR FOGARTY:  The second last topic I want to take you to, and I refer to it as the consultation around the support for decision making   


MR FOGARTY:  Again, there's a consultation paper that is in hearing bundle F, tab 217, and I think as well you provided a summary report that's also just been published, is that right, in December?

MR McNAUGHTON:  Yes, that's correct, Counsel.

MR FOGARTY:  I won't take you in detail, that's behind hearing bundle F, tab 219A.  Similar to the home and living consultation, is it similar concerns that have prompted this consultation or feedback or observations four or five years on now in the NDIA that's prompted this?

MR McNAUGHTON:  Counsel, I think it is all of the above of what you just mentioned.  We have been in the scheme now for quite a few years, we have got feedback from participants, from our independent advisory council, the board, the sector, our own participant reference group.  Trying to make sure we find the balance  
really well of the things such as choice of control, the dignity of risk, people involved, being involved in all the active decisions, and then making sure people have the right supports around them if they do need support in making those decisions and who are they, whether they are related to their NDIS plan or supports or other things in their lives, and what are the legal informal relationships that people may need to support them with.

So I think this discussion paper goes to those topics and seeks feedback and views on it.  It's a complex area, a challenging area, and we want to make sure that we are finding the right balance around all of those things to make sure people are getting the right supports, to be involved in their decisions or to make the decision themselves.

MR FOGARTY:  Is a good example of this, you've said you read the statements of the resident Sophie     Sophie's situation, that balance between the dignity of risk and her choice and control in respect of that.  You would agree that that example is front and square what this paper is exploring?

MR McNAUGHTON:  I think that's a very powerful example, Counsel, yes.

MR FOGARTY:  The last thing I wanted to ask you about, Mr McNaughton, before I hand to the Commissioners, is just a comment made by Catherine in her statement.  That's at hearing bundle B, tab 2, Catherine's statement.  It's paragraph 66 on page 15.  I'll read it to you, it's quite short:

I was hopeful when the NDIS was rolled out that it would really assist Rebecca in getting all of the supports and services she needed, but without me constantly advocating for her and obtaining legal help to write letters and seek reviews, I do not think she would have had all the funding she required.  Even with that considerable work it was a long and difficult process.

You've given some evidence about the transition and I guess the logistical difficulties at the time.  Do you accept that for some people, indeed Catherine, I understand you've read her statement, that it was just that at the early days, a long and difficult process to get the right supports for, in this case, Rebecca?

MR McNAUGHTON:  Counsel, we have been quite open and transparent about the transition challenges.  We didn't get it right for every participant, we noted that.  It was a difficult and challenging period initially.  I think we have all learned a lot from the journey.  As you know, we have almost 500,000 participants in the scheme now, and 270,000 people in the country getting supports for the first time in their lives, so it has been a really significant task rolling this scheme out.  We want to learn and improve and continue to make things more flexible and easy for participants to engage in their support.  I think that's been part of our learning journey, for sure.

MR FOGARTY:  Can I ask you this:  do you think it remains more difficult to secure  
all necessary and reasonable supports by way of NDIS funding for a person who doesn't have a family member or disability advocate?  Do you accept that?

MR McNAUGHTON:  It would often depend if there are other supports in that person's life, counsel.  They might have a nominee, they might have a public guardian, they may have some other people that support them with that.  Where the person doesn't, there are provisions for us to appoint a nominee or to seek appointment of a guardianship to make sure that the person has some decision making support to help them with their decisions.  It's a really important part of the scheme.

MR FOGARTY:  Lastly, could I suggest to you that it would be more difficult for a person, even with an advocate, where they don't have a skilled and knowledgeable support coordinator, would you agree it's more difficult to get the right supports, or I will use the wording, all necessary and reasonable supports?

MR McNAUGHTON:  I think my response to that would be, you know, having a good support coordinator engaged in your plan and your planning is a really important aspect of the scheme.  For those people that need a support coordinator, and not everyone does, of course, but for those that do, having a good support coordinator to help you not only to talk about your plan, but more importantly help you connect with your supports.  That is just as important.

MR FOGARTY:  Those are my questions.  Thank you, Chair.

CHAIR:   Thank you.  Commissioner McEwin, do you have any questions?


CHAIR:  Commissioner Galbally, do you have any question of Mr McNaughton?


COMMISSIONER GALBALLY:   Just back to the relationship and sexuality, I thought you said, Mr McNaughton, that the behaviour support plan often picked up the issue of sexuality, and I was puzzled by that.  Why would it go there and not in capacity for building relationships?

MR McNAUGHTON:  Thanks, Commissioner.  Sorry if I wasn't clear.  They are both under the capacity for building support so we would fund     often it's the actual report itself done by the clinician around the person's prevailing behaviours and then as part of the recommendations and the strategy it would be what are the types of supports and therapies we would need to fund in the capacity building for a relationship as a result of that report that the clinician has done.

COMMISSIONER GALBALLY:  I still feel a bit puzzled by that, but I won't pursue it.  On the issue of a resident in their current SIL home wanting to change SIL provider, or to move somewhere else, first are all, would they get a support coordinator to help them scope that?  Would that be automatic, that as soon as they express that, they would get one?

MR McNAUGHTON:  Yes, Commissioner.  As soon as they have talked about one of their goals is to move, the primary way we would support that is to fund the high level of support coordination to help with that.

COMMISSIONER GALBALLY:   If the support coordinator is provided by the SIL provider, where these people are worth, you now, quite a lot of money, isn't that a really significant conflict of interest?  Acknowledging your point about rural and regional and remote Australia, but thinking about urban, do you have plans to transition that so that they have to be completely separate, not even Chinese screens?

MR McNAUGHTON:  Yes, I absolutely agree.  You can see the level of conflict that would arise where a SIL provider     is the support coordinator trying to find another SIL property, so we very, very strongly encourage people to choose independent support coordinators to help with that, because that would then create that separation, as you said, Commissioner, to find the most appropriate SIL property.

MR FOGARTY:  My final question is do you have plans or have you started to train the LACs and planners in support for decision making, so that, you know, there is some chance that people are able to move into choice and control?

MR McNAUGHTON:  It becomes     it's part of the base training, Commissioner, but it is certainly something that we think needs to be improved, and expanded, as part of the implementation of the findings coming out of the discussion paper we release, so it's a really important point and something we'll need to pick up as part of the next steps of that.


CHAIR:   I will just inquire whether any of the legal representatives wish to ask Mr McNaughton any questions or seek leave to do so?

In the absence of any response, I assume the answer is no, in which case thank you very much, Mr McNaughton, for coming back to the Royal Commission to give evidence, and for your statement and evidence today.  We appreciate your assistance.  Thank you very much.

MR McNAUGHTON:  Thank you, Chair, thanks everyone.


CHAIR:   Does that conclude our business for the day?

MR FOGARTY:  It does, Chair.

CHAIR:  We are going to resume at 10am on Monday next week, which is Monday, 13 December.  We will resume at 10am on Monday, thank you.