Public hearing 32 - Service providers revisited - Day 3
Video transcript
CHAIR: Good morning, everybody. Welcome to the third day of this, the 32nd Public hearing of the Royal Commission, revisiting service providers. We commence with an Acknowledgement of Country. We acknowledge the Jagera people and the Turrbal people as the Traditional Custodians of Meanjin, Brisbane, the land on which we are gathered for this hearing and pay our respects to their Elders past, present and emerging. We also acknowledge First Nations people who are participating in this hearing, including those who are following the hearing either in person or via the livestream.
Ms Eastman, if it's all right with you, I propose to put Mr Duggan, who I understand is here, a certain proposition at least one proposition arising out of the evidence yesterday and the report that was referred to in some detail on Sunnyfield. Mr Duggan, where are there you are.
MR DUGGAN: Yes, Chair.
CHAIR: As you will appreciate, the findings in the Commissioners' Report on Public hearing 13 have a significance for Sunnyfield going well beyond the violence and abuse experienced by Melissa, Carl and Chen and the entirely inappropriate treatment accorded to Eliza and other family members. That is recounted in the report and, of course, I don't underestimate the significance of that. I appreciate that according to the evidence given by Mr Hyland, a written apology has been made to the residents and families, and that the chair of Sunnyfield has met with the families to apologise. That appears from page 186 of the transcript. I also appreciate that Mr Hyland yesterday gave evidence, perhaps in general terms on occasions, of changes in practices and procedures that are designed to address at least some of the issues that were identified in the Commissioners' Report.
I also want to make it clear that I have no intention of traversing the particular issues relating to the experiences of the residents or any engagements that are ongoing, such as the mediation. I also don't want to repeat the findings that Ms Eastman very carefully took Mr Hyland through yesterday. But taken together, they do seem, at least prima facie, to demonstrate the following: Sunnyfield preferred its own interests to those of residents, including its desire to preserve its own reputation; it did not have sufficiently thorough processes to check the suitability or work records of staff that it engaged; it did not have appropriately robust systems to supervise staff and to prevent a toxic culture developing at the particular house that was the subject of evidence; Sunnyfield's responses to complaints were defensive and hostile, leading to Ms Cuddihy's grossly inappropriate labelling of Eliza as "querulant"; the composition of the board, specifically the absence of persons with lived experience of disability, significantly impeded the board's ability to discharge its responsibilities effectively; clients were insufficiently involved in the decision making process.
It's also perhaps not insignificant that the report found that the former CEO gave the impression that she was reluctant to accept that Sunnyfield bore significant responsibility for the abuse that occurred. That appears at paragraph 32. Commissioners also did not accept Ms Cuddihy's evidence on certain significant matters. That appears at paragraph 37. In the evidence given by Mr Hyland yesterday, in response to a question from Ms Eastman at page 187 of the transcript, Mr Hyland said that:
The one improvement that I think is going to make the most difference is what I would call an inclusive governance model, which means the voice of our clients are included at every level of the organisation, from the board through to senior management, through to middle management and the front line.
In response to a question from me on the same page, when I asked, "What view did you form on the basis of the Commissioners' Report about the organisation?", Mr Hyland said:
My view was that the organisation really needed to work on understanding the voice of its client. It needed to work on its culture, and it needed to work on its communication.
Then he said:
I will stop there.
Taking all these things together, it rather suggests an organisation that lacked effective leadership and failed to develop a culture responsive to its responsibility to support its clients and protect them from violence, abuse, neglect and exploitation. Although Mr Hyland has given evidence of some changes of procedures and policies, what seems to me to be striking, subject to anything you wish to say in due course about it, is nobody seems to have been held accountable. The former CEO, Ms Cuddihy resigned, but that was for the purpose of taking up a position as the Chief Executive Officer of New South Wales Trustee and Guardian in August 2022. The board in a public announcement on 14 June expressed appreciation for all her contributions and wished her well.
There's no evidence that Ms Cuddihy was ever reprimanded or disciplined by the board for her part in what seemed to have been institutional failures. No senior staff, as far as I'm aware from the evidence, have been dismissed or reprimanded for the role they may have played in the institutional failings. The board, as Mr Hyland said yesterday, has issued no public statement or statement to staff regretting the failures of the past and acknowledging responsibility. The board remains largely unchanged. 10 months after having elapsed since the report, there has only been two changes and the board has not rectified a glaring defect identified in the report, namely, no person with disability on the board and the chair retains her position.
The question I want to put to you and I'm not asking for a response right now, but within a very short time in writing is there any reason why the final report of this Royal Commission should not find that the board of Sunnyfield has neither accepted nor appropriately attributed responsibility to the institutional deficiencies and failings that led to the experiences that the residents and families recounted in the Commissioners' Report on the Public hearing? That's what I want to put to you. Obviously you should have an opportunity to respond. As I say, I don't expect you to respond now, but within a short period probably within the space of a week or so I would invite you to make any written response you wish on behalf of Sunnyfield to what I've just put to you.
MR DUGGAN: Certainly, Chair. I would like to avail myself of that opportunity to put something in writing, and you've raised some issues of some complexity that I think would more appropriately be dealt with on proper instruction and in a document. Perhaps in seven days we could achieve that.
CHAIR: Yes. Thank you very much. That's what I anticipated, and that's perfectly reasonable. Thank you.
MR DUGGAN: Please the Commission.
CHAIR: Yes, Ms Eastman. I'm sorry to have taken up that time, but that is something I wanted to put.
MS EASTMAN: Thank you, Chair. Good morning, Commissioners, and good morning to everybody following the proceedings. Commissioners will see that we have three witnesses forming a panel, and they join us this morning to continue the inquiry in relation to service providers and workforce issues. Commissioners, yesterday we examined the practices of some service providers with respect to recruitment, initial onboarding and some of the features of their organisation with respect to their employees. We didn't touch in detail yesterday on the issues of training, supervision, retention and overall management of the workplace, and those are the issues that I want to examine with the three members of the panel this morning.
Mr Hyland, you have returned. Thank you. Ms Cattach, thank you very much for joining us. I will introduce you in a moment. And, Ms Toohey, thank you for joining us. Commissioners, you will see Ms Toohey has returned to the Royal Commission. She is the CEO of Afford. And Commissioners have completed their hearing report in relation to Afford, but it's yet to be published on the Royal Commission's website. I'm going to ask Ms Toohey some questions arising from the findings of the Royal Commission to the extent that the rest of us and I think Ms Toohey has a copy of the report I will refer to Counsel Assisting's submissions and Afford's response to those submissions, and those documents are available on the Royal Commission's website. So can I start
CHAIR: Just before you commence, thank you very much to each of, you, in two cases, I think, for returning. Mr Hyland's rather swift return from yesterday. Thank you for your contributions which you have made, and no doubt will make during the course of the morning. I will ask now Ms Eastman to ask you some questions.
MS EASTMAN: All right. So, Ms Cattach, can I start with you. And I think all the witnesses have given their respective oaths and affirmations.
CHAIR: I'm sorry.
<TAMARA CATTACH, CALLED
<ANDREW HYLAND, CALLED
<JOANNE TOOHEY, CALLED
<EXAMINATION BY MS EASTMAN SC
MS EASTMAN: So you are the CEO of an organisation called the Araluen Centre?
MS CATTACH: Correct.
MS EASTMAN: That's an organisation that's incorporated as a company limited by guarantee. Is that right?
MS CATTACH: Correct.
MS EASTMAN: Is it also a charity?
MS CATTACH: Yes.
MS EASTMAN: And how long have you held the CEO's position?
MS CATTACH: Since 2019.
MS EASTMAN: And how long have you worked in the disability sector before taking on that role?
MS CATTACH: I've been in the sector for around 30 years. I've been at Araluen for 27 years.
MS EASTMAN: Right. And in terms of Araluen, it initially began in the 1960s by a group of parents who started a playgroup for their children in a garage. Is that right?
MS CATTACH: Correct.
MS EASTMAN: And the parents believed that there was there should be better options for their children with disability, and that led to the formation of Araluen.
MS CATTACH: Correct.
MS EASTMAN: I want to ask you a little bit about Araluen. You have responded to a notice from the Royal Commission, and are we right in understanding that Araluen supports 322 people with disability?
MS CATTACH: Correct.
MS EASTMAN: And what are the nature of the services provided to the 326 of people?
MS CATTACH: So we do have one SDA property. We provide Supported Independent Living, day supports and support coordination.
MS EASTMAN: And in terms of the workers to support people with disability, there are 221 workers, of which 194 provide direct support.
MS CATTACH: Correct.
MS EASTMAN: And based on the information provided to the Royal Commission, the majority of the employees who provide direct support are employed on a part time basis, about 113. Is that right?
MS CATTACH: Yes, that's correct.
MS EASTMAN: We asked you about some information in relation to the number of employees who are people living with disability, and your records indicate that you don't record that information in your system.
MS CATTACH: No.
MS EASTMAN: And that you don't ask employees to disclose disability. Is that right?
MS CATTACH: No, we do not. Correct.
MS EASTMAN: In terms of other aspects of the workforce, we asked you what the proportion of employees who come from culturally and linguistically diverse backgrounds, and you said there are 56.
MS CATTACH: Identified.
MS EASTMAN: So again, you don't ask people, but you've made
MS CATTACH: No. Correct.
MS EASTMAN: Worked it out either because of visa status or something else. How do you -
MS CATTACH: Some people have identified that in their recruitment phase.
MS EASTMAN: All right. Now, in terms of the terms and conditions of employment, the award applies, but Araluen also has an enterprise bargaining agreement that was approved by the Fair Work Commission in June last year.
MS CATTACH: Correct.
MS EASTMAN: And with respect to the minimum qualifications required of support workers so those in direct support do you require the workers to have a Certificate III?
MS CATTACH: No, we do not.
MS EASTMAN: Are there any particular qualifications that you require of workers?
MS CATTACH: No.
MS EASTMAN: Right. Mr Hyland, can I turn to you. We covered some of this yesterday, but I want to move from focusing on the response to the findings from Public hearing 13 into some of the present arrangements at Sunnyfield. So as at November last year, you have or Sunnyfield has 1,958 disability service users, so people with disability. And in terms of the range of services provided, has there been any change in the nature of the services provided to people with disability?
MR HYLAND: No.
MS EASTMAN: It continues to include accommodation and the operation of an ADE, an enterprise Australian Disability Enterprise.
MR HYLAND: Correct.
MS EASTMAN: In terms of workers, at Public hearing 13 we asked whether or not you counted the people who work for the ADE as employees, and my recollection is that Ms Cuddihy said they were counted as clients rather than as employees of Sunnyfield. And I think there might be a change in the way you describe that in response, but it has a bearing for something I want to ask you in a moment. What you've told us in the response is that there are 1,771 workers, of which the direct support workers constitute 1,590, being close to 90 per cent of the workforce. Is that right?
MR HYLAND: Correct.
MS EASTMAN: We have asked you about the number of employees who identify as employees with disability, and you've said it's 10.4 per cent. So hence my question: does that 10.4 per cent include people with disability who are employees working in the ADE or is it exclusive of that cohort and it's focusing on the workers who work directly in direct support?
MR HYLAND: No, it includes the ADE.
MS EASTMAN: It includes the ADE. Are you you may not be able to tell us. If you exclude the ADE employees, then for the employees who work as support workers in direct support, do you know how many employees have disability?
MR HYLAND: No, I do not.
MS EASTMAN: Do you keep any record of that?
MR HYLAND: No, we do not.
MS EASTMAN: Right. And when so when we are looking at that total number of workers of 1,771, that includes the employees who work in the ADE.
MR HYLAND: Correct.
MS EASTMAN: We asked you about whether you collect any information that identify employees from culturally and linguistically diverse backgrounds, and you said that there is no information.
MR HYLAND: We don't collect that information.
MS EASTMAN: Why not?
MR HYLAND: I don't know. I haven't inquired into that practice, but it is something I will look into.
MS EASTMAN: Right. And Sunnyfield has an EBA that appears to have expired in 2015. What are the current arrangements in terms of whether the award applies or whether that EBA is continuing?
MR HYLAND: The EBA still applies.
MS EASTMAN: So has there been any steps taken to renew the arrangements or update the EBA since 2015?
MR HYLAND: Not to my knowledge.
MS EASTMAN: And Sunnyfield's preference for qualifications of direct support workers is that they have a Certificate III?
MR HYLAND: That's correct.
MS EASTMAN: But only 11 per cent of the direct support workers have a Certificate III.
MR HYLAND: It's preferred. It's not a mandatory requirement.
MS EASTMAN: When we look at the breakdown of workers in the categories casual, part time and full time, the majority of workers are in the casual and part time category. Is that right?
MR HYLAND: That's correct.
MS EASTMAN: Ms Toohey, can I come to you. So thank you for returning to the Royal Commission. I assume you remain the CEO of Afford?
MS TOOHEY: I do.
MS EASTMAN: And I want to ask you shortly some questions arising from the Public hearing 23. But before I do so, I just need to make sure we've got the numbers in.
MS TOOHEY: Okay.
MS EASTMAN: So as at June 2022, Afford provides services to 6,550 people with disability.
MS TOOHEY: That's right.
MS EASTMAN: And in terms of the nature of those services, has it continued to be predominantly day programs?
MS TOOHEY: Day programs.
MS EASTMAN: Respite service?
MS TOOHEY: Yes. Allied health, SIL. Yes. ADEs.
MS EASTMAN: Any other changes to the
MS TOOHEY: No. Not at this stage, no.
MS EASTMAN: And the workers, as a workforce, as a whole, was 2,151. And of that, 1,559 are in the direct support service area.
MS TOOHEY: That's right. That's right.
MS EASTMAN: You also cannot say whether there are employees who work as in direct support being employees with disability. Is that right?
MS TOOHEY: No, that's right.
MS EASTMAN: Why is that?
MS TOOHEY: The organisation has never collected that information before. It currently doesn't have a HR management system.
MS EASTMAN: Now, what's not uncommon for this Royal Commission is that there will be a report, or something released almost, like, on the day we have a hearing about something. So yesterday I don't know if any of you are aware of this, that the University of Sydney published some research in relation to disability services needing to employ more people with lived experience of disability. And the research done by Damian Mellifont, Jennifer Smith Merry and Kim Bulkeley do an analysis of the extent to which people with disability are employed in the sector and, in particular, in disability service providers. Are any of you aware of that report?
MS TOOHEY: No.
MR HYLAND: I haven't seen that, no.
MS EASTMAN: Have any of your organisations had an active plan to recruit people with disability into roles in direct support care -as in - providing services to people with disability?
MR HYLAND: It's not a policy.
MS EASTMAN: It is?
MR HYLAND: It is not a policy.
MS EASTMAN: It is not.
MR HYLAND: It is not a policy, no.
MS CATTACH: We don't have an active plan, but we are certainly open to people with a disability applying.
MS EASTMAN: Ms Toohey?
MS TOOHEY: No, the same with us. We have only just launched our inclusion and diversity policy, and the further work from that is happening over the next, sort of, 12 months.
MS EASTMAN: Well, putting Araluen to the side, do I assume that Sunnyfield and Afford also have reporting obligations to the Women's Gender Equity Agency?
MS TOOHEY: Yes. Yes.
MS EASTMAN: And you have to report on the number of women you employ?
MS TOOHEY: Yes.
MS EASTMAN: You don't have to report anywhere on the number of employees with disability. Is that right?
MS TOOHEY: Not that I'm aware of, no. I can check
MS EASTMAN: You don't
MS TOOHEY: I will have to check that. I will have to check that.
MS EASTMAN: Given the reporting arrangements you have with GEA, has there been any consideration in your organisations to take that model to look at the patterns and trends in employing people with disability within your organisation?
MR HYLAND: Yes, we would we are currently implementing a new a new set of systems, and as part of that process we will be collecting them to collect as much demographic information as possible.
MS EASTMAN: Ms Toohey?
MS TOOHEY: Exactly the same. We are currently in the process of developing the business requirements for a new HR management system. So issues in relation to
MS EASTMAN: Can I just ask you to slow down a little bit just for the interpreter. I know I'm going very quickly today.
MS TOOHEY: No, that's okay.
MS EASTMAN: If you could slow down, please, I will do the same.
MS TOOHEY: Yes. No, that's fine. No, we're exactly the same as Andrew. Those areas will be covered off in our new HR management system. We are aware that there is deficiencies there at present.
MS EASTMAN: When you advertise positions that might be available, do you specifically invite people with disability to apply?
MS CATTACH: No.
MS EASTMAN: Why not?
MS CATTACH: We just have an open recruitment for anyone who is willing to apply. We don't specify those details.
MS EASTMAN: All of you are in the business of providing services to people with disability. Would it not make both commercial sense to have people with disability as employees as part of the business to give that perspective of lived experience?
MR HYLAND: Absolutely.
MS TOOHEY: Yes.
MR HYLAND: Yes.
MS EASTMAN: What would you each need to do to make a change to actively target in your recruitment people with disability?
MR HYLAND: Well, it is pretty simple. We just need to make a policy change and just do it.
MS EASTMAN: What policy change would you need to make?
MR HYLAND: We would just need to make a policy change that would specify that inclusivity of all types, not just disability, is part of our recruitment process.
MS EASTMAN: Ms Toohey?
MS TOOHEY: Yes. I mean, we've done it in our head office environment, because we have replaced about 80 per cent of our employees in our head office environment over the last 15 months. So the instructions given to the external recruiters was to also be open to employment for people with disability, and we currently have around 10 employees that have joined us over the last 12 months in our head office environment. So, again, it's just about changing the practice for our direct support workers. And in the last 12 months, the organisation has also embraced our supported employees as part of our employed workforce as well.
MS EASTMAN: All right. So I'm just going to ask you these questions based on employing people with disability, not people with disability to whom you provide services.
MS TOOHEY: Yes. Yes.
MS EASTMAN: If you assume that there is probably one area of discrimination law where you can positively discriminate or favour, it's the area of disability. So our discrimination laws do not make it unlawful to treat a person without disability less favourably than a person with disability. So take that as a given.
MS TOOHEY: Yes.
MS EASTMAN: There's no you're not aware of any legal restraints on you actively targeting people with disability in employment, are you?
MS TOOHEY: No.
MS EASTMAN: In terms of then employing a person with disability, do each of your organisations have policies in relation to reasonable adjustments that may be provided to an employee with disability? Mr Hyland, do you have a reasonable adjustment policy?
MR HYLAND: What do you mean by "reasonable adjustments"?
MS EASTMAN: Well, you would be aware, would you not, that for an employee with a disability, if they require an adjustment to enable them to do the work in their workplace, that a failure to provide a reasonable adjustment may give rise to unlawful discrimination.
MR HYLAND: I understand. I don't believe it's a policy, but it should be.
MS EASTMAN: So there's no reasonable adjustment policy at Sunnyfield?
MR HYLAND: I would have to take that on notice. I'm not -
MS EASTMAN: And Araluen, you have a
MS CATTACH: We don't have a policy, but we ask every person that comes through our recruitment process what they would require to make sure that they complete their job. That's standard for every employee.
MS EASTMAN: Ms Toohey?
MS TOOHEY: Yes, we do. Yes, we do.
MS EASTMAN: All of you, I assume two organisations have already been in the Royal Commission. But have you followed the other work of the Royal Commission, for example, the work the Royal Commission has done in the employment of people with disability?
MS TOOHEY: Yes.
MS EASTMAN: So you followed the outcomes of Public hearing 9 and Public hearing 19?
MS TOOHEY: Yes.
MS EASTMAN: Okay. Other than a reasonable adjustment policy, are there any other particular policies or practices within your organisation to support employees with disability? Mr Hyland?
MR HYLAND: I would have to take that on notice. I haven't inquired on that question.
MS EASTMAN: So, Ms Cattach?
MS CATTACH: Yes, other than our inclusivity policy, that's standard.
MS EASTMAN: Ms Toohey?
MS TOOHEY: No, it would be around the reasonable adjustments policy, both in the workplace and also in someone's home if they had working from home options as well.
MS EASTMAN: Well, let me ask you this question. Do all of you in your recruitment practices have position descriptions that set out inherent requirements of the particular positions?
MR HYLAND: Yes.
MS CATTACH: Yes.
MS EASTMAN: And in terms of imposing an obligation on an employee to be able to meet the inherent requirements of the job, how do you deal with the situation where a person comes to the organisation with an existing disability or acquires a disability during the course of the work? How do you navigate inherent requirements and supporting a person with disability? Do you have a policy about that? Does Sunnyfield have an inherent requirement?
MR HYLAND: There's no policy on that.
MS EASTMAN: Araluen?
MS CATTACH: No.
MS TOOHEY: So it's part of the procedure for the inherent requirements. So the person would be assessed by both their direct line manager plus also the WHS business partner who would also assess the workplace with the worker to make sure that we are putting in place the appropriate reasonable adjustments - the same process that's recently occurred because of the employees that we have engaged over the last 12 months in our head office environment, for example. That included the provision of car parking, what the office environment looked like, the equipment we had to provide for him to work at home. And that's taken like I said, that's completed in conjunction with the line manager and the WHS team and the HR team as well.
MS EASTMAN: And is there a requirement for employees to have to undergo medical or health assessments, either before employment or at any time during employment?
MS TOOHEY: No.
MS EASTMAN: No?
MS TOOHEY: No.
MS EASTMAN: You do?
MS TOOHEY: For our direct support workers, yes. Yes, they have to undergo a medical assessment.
MS EASTMAN: Why is that? Why do they have to undergo a medical assessment?
MS TOOHEY: It's a functional assessment to make sure that they are able to complete the inherent requirements of the role.
MS EASTMAN: If you do that, how in the absence of a reasonable adjustment policy, are you not going to have difficulties?
MS TOOHEY: We have a reasonable adjustments policy, so
MS EASTMAN: So how does that work with measuring inherent ability to do the inherent requirements?
MS TOOHEY: Well, it is also making sure that our employees are also safe in the work that they are doing as well, because we still have an obligation as an employer to make sure that our environment is safe. So, you know, if we are assessing someone for a particular type of role that has a lot of manual handling, for example, we have to make sure that the person is able to complete that or that we are able to put in mechanisms to make sure they've got the appropriate support or help with other team members to make sure that they can complete the tasks required.
MS EASTMAN: All right. So, Ms Toohey, I want to now - before asking some questions about training in the organisation - to just come to some of the matters that arose when Afford participated in Public hearing 23. You're aware of the Commissioners' findings. One of the issues raised was that from at least 2026 '16 to '20, lifestyle assistants and senior lifestyle assistants did not always have access to up to date and accurate information about the individual support needs of each of the participants at the Mount Druitt day program. They did not have paid administrative time to sufficiently familiarise themselves with what information there was about the participants, or to complete necessary paperwork, and did not receive induction or training focused on the specific support needs of each participant. So in Afford's response to that submission, that Afford said that it accepted that from at least 2016 to 2020 those matters that Counsel Assisting had been raised you accepted that that was the case.
MS TOOHEY: Yes.
MS EASTMAN: The other was and this is paragraph it's finding 19 but it's paragraph 279 of the Counsel Assisting's submissions - that until at least June 2021, the processes and procedures for preventing and responding to incidents that presented risks of harm to participants and staff were deficient in the following respects:
Afford's policies and procedures for identifying and responding to abuse and neglect and for reporting incidents were not always followed by the staff at the Mount Druitt program.
And then I'm just going to paraphrase: that the staff could not always implement effective behaviour support strategies and this is the one that I want to focus on that training and information provided to staff about individual support needs of day program participants was inadequate, and this increased the risks for participants. So I've just read part of those findings. And, again, Afford accepted the Counsel Assisting's submissions, and that reflects the findings of the Commissioners. So you're aware of that?
MS TOOHEY: Yes, I am.
MS EASTMAN: So would you accept that when we focus on the importance of training, that the training must necessarily support the organisation's obligation to prevent violence, abuse, neglect and exploitation?
MS TOOHEY: Yes.
MS EASTMAN: And that that training has to be effectively put in place at the outset of the employment relationship?
MS TOOHEY: Yes.
MS EASTMAN: But necessarily needs to be ongoing throughout the life of a person's employment?
MS TOOHEY: Yes.
MS EASTMAN: And that simply employing in training a particular individual outside the context of the work in which they are engaged may have limitations as to the effectiveness of the training. Would you agree with those propositions?
MS TOOHEY: I would agree with those, yes.
MS EASTMAN: Right. I do know that you've got a new learning and development strategy.
MS TOOHEY: That's right.
MS EASTMAN: And that commenced in September 2022. And that's supported by a new learning and development policy and a new learning and development matrix that's going to be launched in March.
MS TOOHEY: In March. That's right.
MS EASTMAN: In a few weeks' time. Is that right?
MS TOOHEY: That's right, yes.
MS EASTMAN: Can you tell us how the strategy, the policy and the matrix will incorporate training that's focused on individual support needs of the participants or supporting the right participants? Is that something that you can comment on? And then I want to come to the rest of the panel and ask you about your training approaches.
MS TOOHEY: So the learning and development strategy and the learning and development matrix need to be seen in conjunction with also the onboarding program of work that's also going on at the moment, because both of those things go hand in hand, particularly for new employees. With our learning and development strategy, one of the things that we did with that because the organisation had a policy of not requiring a Certificate III, for example -
MS EASTMAN: Can I just ask you to slow down, please.
MS TOOHEY: for our support workers. That policy changed about 12 months ago, so we now require a Certificate III. The learning and development strategy in one of the things that it incorporates, it incorporates modules that are currently part of the Certificate III. So the staff who are participating in that who currently work with us who obtain those modules can then get prior learning recognition, and that's one way of them being able to attain the Cert III that we now require. The learning and module strategy has also been developed -
MS EASTMAN: Slow down, please.
MS TOOHEY: Sorry. Has also been developed in close consultation with our both our safeguarding team, which is new in the organisation, and our quality and practice leadership team as well. One of the other things that we have also done, which is part of our onboarding framework, is that we actually have clients who are involved through videos and podcasts for our onboarding program so that staff are aware of the importance around particular things that are of importance to our clients as part of the onboarding and the learning and development program. That's been a really positive initiative, and they get paid for their time for participating and completing those as well.
The onboarding program consists of a variety of both the core modules that are required in the matrix and the strategy, which happens when they first begin employment prior to commencing any direct client work. So that's the basic requirements like manual handling, going through our, you know, human rights policies, preventing and responding to abuse and neglect, our risk management, those sorts of things. And then the other part of the onboarding program is also that direct relationship to the clients that they are going to be supporting. So what the person's care and support needs
MS EASTMAN: Forgive me for interrupting. So if the Commissioners want to know more about the employee onboarding, you have provided to the Commissioners a copy of the new employee onboarding workplace buddy guideline and some policy documents around onboarding. So you have provided those to the Commission?
MS TOOHEY: We have. But there's actually a brand new onboarding framework that's about to be launched across the organisation which will supersede those documents.
MS EASTMAN: All right. So can I ask, for Araluen, in terms of initial training, is there any specific NDIS training that meets NDIS requirements that employees have to undertake?
MS CATTACH: Yes, they have to undertake the NDIS Worker Orientation Module before they commence any shifts.
MS EASTMAN: And after that, is there any specific requirements that Araluen asks of new employees in relation to training?
MS CATTACH: Yes, we have a three hour orientation session that employees have to attend before they complete a shift. And there's other some other requirements around manual handling and safe practices in hygiene.
MS EASTMAN: And at Sunnyfield, in terms of new employees, is there mandatory training that has to be completed to meet NDIS requirements?
MR HYLAND: Yes. So the NDIS Worker Orientation must be completed before orientation, then there is a one day orientation into Sunnyfield and then there's a series of online training, which is probably about eight to 12 hours of online training that has to be completed within the next couple of weeks.
MS EASTMAN: I think in Sunnyfield's response to the Royal Commission at pages and 8 and 9, there is a very sort of long list of training and different modules, and I might ask you about some of them in a moment. For each of your organisations, who is for developing the training resources and conducting the training arrangements in the organisation? At Araluen?
MS CATTACH: Yes, we have a learning and development manager that sits underneath our People and Culture team.
MS EASTMAN: And at Afford?
MS TOOHEY: We have got a Learning and Development team as well.
MR HYLAND: Same.
MS EASTMAN: All right. And when you say, "Learning and Development team", is it one person or is it a vast enterprise of people?
MS TOOHEY: It's a mix. So we have a director of learning and development. We have four learning and development business partners that sit underneath her, who are geographically spread across the organisation, so they are not just based in head office. Plus we also have partnerships with RTOs as well.
MS EASTMAN: Okay. And I will ask about those in a moment. At Sunnyfield?
MR HYLAND: I'm not sure exactly, but it is a team of two or three people.
MS EASTMAN: And Araluen?
MS CATTACH: Just one person. Yes.
MS EASTMAN: Just one. All right. In terms of the training that you require employees to undergo, is that training is that training and the nature of the training all being developed in house, or do you go external to other resources like NDIS or NDS or other resources? So, Ms Toohey
MS TOOHEY: Yes. A blend. A blend.
MS EASTMAN: you said you have got a blend.
MS TOOHEY: Yes, a blend a blend for us. So
MS EASTMAN: Can you explain?
MS TOOHEY: So we will we have an approach, I suppose, of not duplicating effort when it's not required, and NDS have some great resources, for example, on their website which we will use from time to time. I think part of the issue for Afford is that part of the change that we have been trying to implement is also significant cultural change in the organisation. So there is room for Afford feel to a lot of the training that we are providing in learning and development approaches that we are providing at the moment. So yes. And the RTOs that we are partnered with are new relationships.
MS EASTMAN: So RTOs, registered training organisations?
MS TOOHEY: Registered training organisations, yes.
MS EASTMAN: Just so we can follow that in the transcript.
MS TOOHEY: Yes. Yes.
MS EASTMAN: At Araluen?
MS CATTACH: Apart from our orientation session, we use external providers for our training.
MS EASTMAN: And who or what are the external providers?
MS CATTACH: Dependent on what the training is, we you know, if it's first aid, we will use St John's. Yes, we generally go to we have used RTOs before. We also have a partnership with our local TAFE as well that we sometimes go to for specific training, dependent on what the training is.
MS EASTMAN: Is Araluen a member of NDS?
MS CATTACH: Yes. Correct.
MS EASTMAN: And do you use those resources?
MS CATTACH: Yes, we do.
MS EASTMAN: And at Sunnyfield?
MR HYLAND: Yes, the NDS have some excellent training resources which we repurpose, deliver, plus a mix of specialised training depending on what the topic is.
MS EASTMAN: So in terms of that initial induction, is it the case that the new employees will have to complete different parts of the training at various times as they are working?
MS CATTACH: Yes.
MS EASTMAN: So it's not like you send them off for two or three weeks before they start to undergo training and then start?
MS CATTACH: No.
MS EASTMAN: So is a lot of the training for the newer employees on the job training? Is that part of the training?
MS CATTACH: It is part of it, yes.
MS EASTMAN: And what would that involve at Araluen?
MS CATTACH: We do have buddy systems. We also have mentoring with managers and practice leaders on the line, and that's also inclusive of team meetings where they can learn things. And we also have e learning that we send out to people that they can do while are they are on the job.
MS EASTMAN: So has any of the content for any of the training that's delivered within your organisations been prepared by a disability organisation or that you know are prepared by a person with disability?
MR HYLAND: We use the Centre for Intellectual Disability for some of our material.
MS EASTMAN: All of it?
MR HYLAND: Not for all of it, no.
MS EASTMAN: So what would be the training resources that CID has assisted on?
MR HYLAND: I would have to check the details here.
MS EASTMAN: But you have used CID for some training?
MR HYLAND: Yes. Yes.
MS EASTMAN: But not for everything?
MR HYLAND: Not for everything, no.
MS EASTMAN: At Araluen?
MS CATTACH: Not that I'm aware of, no.
MS EASTMAN: At Afford?
MS TOOHEY: No, only that we have had clients involved in some of the development of some of the modules.
MS EASTMAN: Are we right in understanding that in terms of the nature of the training, that all of you use a mixture of face to face training, on the job training and the use of online through completing modules online training?
MS TOOHEY: Yes.
MS EASTMAN: Is that right? In terms of the delivery of any training, of either of the three areas, how many of the courses are delivered by people with disability?
MS CATTACH: None that I'm aware of.
MS EASTMAN: Why not?
MS CATTACH: It's a great question.
MS EASTMAN: I would like an answer. Sunnyfield?
MS CATTACH: We just haven't found any facilitators that have been able to do that.
MS EASTMAN: Yes. Sunnyfield?
MR HYLAND: No, but we should be.
MS EASTMAN: Afford?
MS TOOHEY: No, I can't I actually can't answer that, actually. I'm not sure. Yes.
MS EASTMAN: You have followed the work of the Royal Commission. Did you follow the work of the Royal Commission when it looks specifically at training to build capability and capacity in the health service area? I don't know if any of you followed that public hearing or read the Commissioners' Reports. Some are shaking your head, and some are looking like, "Maybe I have, but I'm not really sure and I'm not going to say yes in case she asks me a question about it.” But are you familiar with let me put it to you this way: is when the Royal Commission conducted a hearing looking at the accessibility of mainstream health services for people with cognitive disability, what cried out in the evidence was the lack of training across health generally, so allied health and also in a hospital setting, that gave rise to attitudes, diagnostic overshadowing and a range of very poor health outcomes for people with disability.
The Royal Commission conducted a short inquiry looking at the way in which training operated in the health sector to better address the risks of violence, abuse, neglect and exploitation of people with disability when receiving health services. One of the issues that came out is who should have responsibility for the training. Should it be the accrediting agencies that qualify a person? Should it be at a university level if people acquired university qualifications to practice? Or should it be at local at the local health area? And so there's material coming out of that report that says one of the key issues is the involvement of people with disability in co designing and developing training material
MS TOOHEY: Yes.
MS EASTMAN: in delivering training and in being actively involved in evaluating and assessing training. I think the Royal Commission heard evidence from the mother of a young man with disability who took her son to the Toowoomba Hospital, to the new interns, and said, "Let me teach you about disability.”
MS TOOHEY: Yes.
MS EASTMAN: So we have seen the health sector respond to this. For your organisations and I know you don't speak for all disability organisations do you not agree that unless your training is co designed and co delivered by people with disability, that you will necessarily have a gap in the quality of your training about its relevance to the services that you operate? Do you accept that?
MS TOOHEY: Yes, I do accept that.
MR HYLAND: I agree.
MS CATTACH: Absolutely.
MS EASTMAN: So what would need to happen to revise all of the work that you've done on your training and resources to ensure that it reflects a co design model with people with disability and there are opportunities for people with disability to be involved in the delivery? Mr Hyland, you have referred to CID, which I know does that work. But what would it take and how long would it take to change what you do?
MR HYLAND: How long would it take is a I think I think we can start now. It's simply a matter of employing people with a disability or engaging our existing clients in feedback or review of the material. So we have access to those people right now. We can provide them supports so we can employ them. We can talk to them as part of our client engagement. How long would it take to change the system? That's a different question. I think it would take a lot longer to get systems changed in this regard.
MS EASTMAN: Well, what sort of timeframe are you contemplating to make that type of change?
MR HYLAND: I think I think the issue of funding will come up and how we are going to fund this. Like everything that we do, there's a requirement to fund these operations and that will become a constraint.
MS EASTMAN: Well, is it a better way to look at it not so much as a constraint but an investment?
MR HYLAND: Well, it should be an investment, yes.
MS EASTMAN: But you can't really sort of estimate, sitting in the witness box today, how long that might take?
MR HYLAND: Well, if I speak on behalf of Sunnyfield, I could I could probably have a system like that up and running, you know, within 12 months, you know, with the proper investment. It wouldn't be all the way there, but we would certainly have a good solid start.
MS EASTMAN: And, Ms Toohey, I know a lot of work you have told us has been done in terms of the matrix and the strategy. And when we have reviewed all of that material, that seemed to be a gap for us, that reviewing it we kept looking and saying, "Where are the people with disability in the co design, in the authorship, in the form and nature of delivery and in any type of involvement?” It was directed about people with disability but not involving people with disability at all those stages. So is that an oversight in the new strategy and matrix?
MS TOOHEY: Yes, look, it probably is an oversight. I would say that to have that additional value add would not take much for our organisation to actually put in place, given that we have already started work on a range of different co design activities anyway and that we are starting to bring our clients much more into the voice of the organisation, if you like. So, look, I don't think that that would take much for us to actually have a bit of a shift and a change.
MS EASTMAN: I think talking about bringing the voice into the organisation, I think, Mr Hyland, that was your evidence yesterday about a more inclusive model.
MR HYLAND: Yes.
MS EASTMAN: This is probably, to use the phrase, low hanging fruit, is it not?
MR HYLAND: Yes, it is.
MS EASTMAN: It is a very easy thing to do to start to build inclusive models.
MR HYLAND: Yes.
MS EASTMAN: Should this be a priority for service providers in thinking about training, that it be very much part of co design and, to the extent possible, led by people with disability?
MS TOOHEY: Yes. Yes.
MS EASTMAN: Can I ask you now about and it's a point, Mr Hyland, you have just raised about how training either the general, the specific or the mandatory training is funded, and funding seems to be raised as an issue, that training not only at the initial point of induction but on an ongoing basis is a cost to operating the business. Do you have in your organisations an approach to the way in which the training is funded or is it just part of the broader sort of operations? In Sunnyfield?
MR HYLAND: It's part of the broader operations. It's an expectation that we fully train people. Trying to attribute that to the Support Worker Cost Model is difficult. I would suggest that there is sufficient funding to do the mandatory training and the orientation, but there's not really adequate funding to invest, to do the proper investment, continuous improvement. But we do it anyway.
MS EASTMAN: What about Araluen?
MS CATTACH: Yes, I think the funding model makes it really difficult for organisations to be flexible about how they do training. Training is incorporated into the broader operational costs in the funding model, which means organisations really have to prioritise training. At Araluen, we spoke to our managers and frontline practice leaders around what should be mandatory. They gave us their advice on what they felt was mandatory for all workers to complete, and we created a budget around that. So it does sit outside the recommendations of the funding model, but that's something that we have decided is necessary.
MS EASTMAN: And at Afford, what's the approach that you take?
MS TOOHEY: The approach that we take, which I think in fairness has been an approach of the organisation for a number of years, is that, for me, learning and development is actually an investment by the organisation. So I appreciate the constraints that that funding model may well provide at times, but ultimately this is just one of those areas of internal investment as an organisation. So I actually like to set targets around, you know, when you look at the percentage of your revenue, for example, that you might want to spend, how you apply your award and recognition program so that you are encouraging, you know, particular awards and scholarships, how you structure your enterprise agreements so your classification structure can support, you know, the development of those things as well. So it's not the funding mechanism is just one tool to support that.
MS EASTMAN: So just looking at the Afford's and if you need a copy of this, let me know learning and development strategy September 2022 to June 2024, one area that you identify in that strategy it is paragraph 3.1, and there's a series of dot points is:
To provide legislative compliance and professional learning and development opportunities.
And in that, one of the action items is:
To map potential career pathways and pipelines to promote traineeship and qualification pathways and to develop internal learning and development employees to deliver in house training and programs with nominated services streams.
So this is part of their exercise. As I said, we went through hopeful that we would see people with disability in there. But those items were raised. Are we right in understanding that part of that strategy is that the training is not just to, at a functional level, be able to do your job, but your training strategy is also to build career pathways?
MS TOOHEY: Yes. That's right.
MS EASTMAN: And to have a mode of training that supports retention in the organisation?
MS TOOHEY: Yes. Yes, that's right.
MS EASTMAN: Now, I know this is early days for this policy, but have you started any of what's described as the mapping?
MS TOOHEY: Yes. So that's occurred. And there's been some changes already, for example, in our employees who work in our ADEs. So we have already commenced Certificate I and Certificate II training in, for example, process working, some of those sorts things, to give our employees in our ADEs further career opportunities as well, give them choice about where they would like to work and what their career should look like. And there will be further mapping around that as we move towards the development of our own enterprise agreement as well. Because like I said, the classification structure for me, in an enterprise agreement, is one of the key tools that I like to see in place, which is about career progression and career pathways.
MS EASTMAN: All right. We have heard from surface providers and read the statistics that some services have very high turnover and struggle to recruit new staff but, more importantly, retain existing staff. What are the challenges in an organisation that has a high turnover of staff, a high level of casual and part time staff, in ensuring that the training is reaching the casuals and the part times but is also not being lost by the high turnover or the difficulties of retaining those workers? So I put that inelegantly. Is it the case the higher the levels of casuals, the more training that has to be done so the cost return is not good, but you are not doing training in a way that's seeking to retain the casuals and also part time? Is there an issue around that?
MS TOOHEY: Certainly for Afford, there was an issue around that, particularly given the high number of casuals that we had in place when I first started in the organisation. We converted around 280 casuals to permanent employment over the last 12 months. We had a change in policy. So the organisation would bring everyone in as a casual when they first came into the organisation. It's hard to have people connect to your organisation if that's the basis by which you bring them in. So I would agree with that. I think the larger your casual workforce, you have this constant cycle of investment that you are having to make. So I think that you know, I think that is an issue more generally.
MS EASTMAN: Do you end up with a a mismatch in having very, you know, elaborate training modules? And I might ask Mr Hyland this. So page 8 and 9 of your response is lots of different modules on all sorts of different things. Is that training wasted on casuals who might be with the organisation for maybe 12 months, 18 months and then off to somewhere else?
MR HYLAND: Well, it is wasted in some ways it's not because they may stay in the sector, so that's a positive thing.
So portability, that's good. But if I was to use an example, if I had a casual vacancy and I had to replace that worker four times that year, so it was high turnover in that service, that's four times the cost of training, four times the cost of recruitment. And I've got low loyalty or commitment to the service, and I've got continuity of support problems for the client. So it's a big issue.
MS EASTMAN: So is there a way of building in to the sector a portability scheme so that wherever you did the training if you have done your training at Afford, but you have also got the opportunity to work at Araluen and Sunnyfield that your Afford training can be carried through and recognised as training at another organisation? Is there merit in looking at portability of training? Recognition of training?
MS TOOHEY: My the thing I like about our own developed modules organisational modules is what actually gets intertwined in those modules is our values, our code of conduct, the way we do things at Afford, if you like. So I think that's an important element, particularly when someone first comes into an organisation, when you really want them to connect with your organisation. So there's a cultural element of that for me. So I'm not a big fan of portability.
MS EASTMAN: Araluen, Sunnyfield? Do you have a view on this?
MR HYLAND: I probably disagree with my colleague, if that's okay.
MS TOOHEY: That's okay.
MS CATTACH: Yes. We would support it.
MR HYLAND: Portability, I think, is really important. There is a portion of training that is going to be bespoke to the particular organisation, which is to do with values. But I find there is an incredible waste across the sector. We have it was talked about earlier where employees work across different services. Well, they are getting trained for two days at Sunnyfield and two days at Afford, two days at Araluen. That is six days of doing the same thing. It doesn't make sense to me. They should be trained once. Continuous training is very important. But to go through that mandatory thing time and time again seems like a huge waste of resources.
MS EASTMAN: Do you want to say anything in response to that?
MS TOOHEY: Yes, I do. Look, first aid, fire safety, black and white, doesn't matter what environment you're in. Even training like manual handling, though, for example, if you look at manual handling training, it's very bespoke to the environment that you are working in, to the clients that you're supporting. So for me, you know, if you talk basic core sort of elements like first aid or, you know, fire safety, that's fine. But the others other elements of the training actually go to the particular people that you are supporting as well, and that could be very different in organisations.
MS EASTMAN: That was one of the findings and issues that arose from the Public hearing that Afford was involved in, is that there is the generic training, but one of the core issues was the training about the particular person for whom you are supporting and support around the workers knowing what they needed to do and how they needed to do that. And I assume some of that might involve restrictive practices.
MS TOOHEY: Yes.
MS EASTMAN: That might be quite specific for an individual.
MS TOOHEY: Yes.
MS EASTMAN: So this is a question I come back to Araluen and Sunnyfield, is there is the general training that might have portability. But if, for example, one of your workers says, "Well, I was down the road at Afford and I've done my manual handling training or I've done restrictive practices 101," would you just accept that as part of a portability scheme or would you say, "There's a Sunnyfield or an Araluen way we like to practice in restrictive practices or manual handling"?
MR HYLAND: No, I think yes. Well, I would agree with what Jo said in that regard. There is certain things that are bespoke. There are certain things that are generic.
MS EASTMAN: And from Araluen's perspective because you have got a much smaller workforce as well.
MS CATTACH: We are we are a lot smaller. Look, I think a portable scheme would be really good for that foundational training that could set the scene around human rights, things like that. But I agree that the individualised training really sits with the organisation. I think the culture is something, I believe, that sits separate to training. I think that's something that's embedded in the organisation, and I don't believe it's something you can learn from training. That's something I think an organisation should be taking on board throughout the whole organisation regardless of training.
MS EASTMAN: Well, on that point, I don't know if you were present or you followed the panel of the advocates who spoke to the Royal Commission earlier in the week, and I asked them about their skills, qualification and training to become advocates. And there is some training that they needed to do, but they said the soft skills are very important in building the relationship. Do you think that those same issues arise for support workers in terms of the soft skills? And how do you train for that?
MS CATTACH: Yes, I would agree.
MS EASTMAN: How do you do the training on the soft skills?
MS CATTACH: I think the soft skills are on the job, and it's around mentoring and buddy shifts. In our group or day services, it's a lot easier because often the staff are working alongside someone, so you can buddy someone who is fairly new to the organisation with an experienced staff member.
MS EASTMAN: Can I just how do you do that if you have got a very heavy bent towards casuals or part timers? So does the buddy system work that if you have got a high turnover, that person who is the buddy might be another casual who started six weeks before? Is that how it's going to work?
MS CATTACH: No, it is generally someone that has passed their probation their six month probation period. And we try and align people with different buddies, so they are learning different skills and seeing different ways.
MS EASTMAN: Okay. So my last question on training before I ask you about some staffing arrangements is, for each of you, what do you think is the most important or valuable training that your support workers receive to be able to do their jobs effectively? Ms Toohey?
MS TOOHEY: For me, it would be it would be training around human rights, communication, some of the soft skill stuff which actually goes to the how they work, you know, how people work and how people interact with someone with a disability. That, for me, is the most important element of any training. Yes.
MS EASTMAN: From Araluen's perspective?
MS CATTACH: Yes, I would say, look, it would be around choice and decision making and assisting people to do that.
MS EASTMAN: And from Sunnyfield?
MR HYLAND: Human rights. If you understand fundamental human rights for people with a disability, then that gives you the avenue to do the right thing most of the time, all of the time.
MS EASTMAN: All right.
CHAIR: Ms Eastman, just before you move on to another topic, Ms Toohey, Ms Eastman has drawn your attention to the Counsel Assisting's submissions. And there were findings, as you will know, in the report, of which you have a copy to correspond to the issues that Ms Eastman has raised. Are you able to say whether and, if so what, Afford has done in response to those specific issues that were identified as deficiencies?
MS TOOHEY: In relation to which findings?
CHAIR: Training, the ones that from 2016 to 2020, lifestyle assistants and senior lifestyle assistants didn't have access to up to date information about individual support needs, didn't receive induction or training focused on the specific support needs of each participant or on the rights of people with disability. And findings about, at least until June 2021, the processes and procedures for preventing and responding to incidents that presented risks of harm were deficient in a number of respects that Ms Eastman, I think, identified.
MS TOOHEY: So in relation
CHAIR: The question is, did Afford has Afford taken any steps specifically in response to those matters?
MS TOOHEY: Yes. So in relation to the staff having access to up to date client information, all staff have access to all client information on our client management system. So there is absolutely no reason at all why any staff member shouldn't have access to that information now. In relation to the findings that were around incident management and our response to those particular incidents so we have, as you know, put in place a new team in the organisation, which has been in place for the last 12 months, which is our Experience, Practice and Safeguarding team. That team has in conjunction with the rest of the organisation, including the board and the senior leadership of the organisation, we have put in place brand new incident management policies and procedures.
That also includes critical incident investigations, critical incident investigation training, the appointment of external investigators that are qualified to do investigations in relation to abuse, for example, which I think we touched on in the first in the first hearing. The incident management policies and procedures, that has been put in place right across the organisation. There was an extensive training program that has been put in place. Those incidents and reportable incidents are now monitored by that central team for the quality and the response of the work that's happening. And what we are also finding is that the organisation now is using that internal central team, particularly around practice leadership, safeguarding and behaviour support. They are using that team for advice a lot now, which is great because that's what we wanted to happen with that with that team.
CHAIR: The training changes that you have referred to this morning in response to questions from Ms Eastman, were they are they changes that were in force or in had been commenced at least prior to the hearing Public hearing 23?
MS TOOHEY: They had they had they had started. We realised that we had to cease the red alert system. That was a flag when I first came into the organisation, that the red alert incident management system that they had in place had to go. And to do that, we had to put in place a new incident management system.
CHAIR: I'm talking more about training here.
MS TOOHEY: The training happened post the hearing. Yes.
CHAIR: Post the hearing.
MS TOOHEY: Post the hearing, yes. Yes.
CHAIR: And was it prompted by anything at the hearing?
MS TOOHEY: Yes. It was in relation to our handling, particularly in relation to our critical incidents. So how the organisation actually responds at the time of notification of an incident, how it supports both our employees, our clients, our families. You know, as was highlighted in the last hearing, the organisation's response to the incident itself was a significant failing for the organisation. So that that all of that process is now stepped out very clearly in terms of how we manage those things, how we support people, how we communicate. And the critical incident investigation component, for me, was probably the most critical thing that came out of the hearing in relation to incident management.
CHAIR: Thank you very much. Yes, Ms Eastman.
MS EASTMAN: I want to turn to the issue of staffing arrangements, resourcing of staff, rostering and supervision. So, Ms Toohey, at the Public hearing 23, you said this:
So, you know, we completely accept that the current work administration workload of our frontline staff is disproportionate and has to cease. Staff not having time to do administration work. A new chief operations officer has already identified that as an issue. Where we are expecting staff to have administration activities as part of their role, we have got to ensure that they actually have the right amount of time to do it. I do not expect staff to take work home after hours. It's unacceptable for our frontline staff to be taking work home because we don't allocate the time that they need in their day to complete what we are asking them to do in their role.
And that arose in response to some evidence that the witness Dianne gave in saying that:
As team leaders, our jobs are meant to lead a team. That's what the job is, but we are stuck behind computer screens. We aren't able to catch our staff. We weren't able to look at them you know, we weren't able to see, you know, the pattern of behaviour with our participants when matched with certain staff, and they were left vulnerable and open because of that.
So you recall that evidence?
CHAIR: Ms Eastman, would you mind giving the transcript reference?
MS EASTMAN: I will have to the transcript reference for Dianne's evidence is the transcript from 16 May 2022 at page 173.
CHAIR: Yes.
MS EASTMAN: I haven't got the line number. And I will have to turn up the
CHAIR: That's all right. In due course. Yes. Thank you.
MS EASTMAN: But it linked, then, to a finding that:
Between 2018 and 2021, team leaders at the Mount Druitt day program were required to discharge significant and sometimes overwhelming administrative, financial and managerial responsibilities.
And I think that Afford accepted that not all team leaders were sufficiently trained and skilled to discharge these responsibilities. So coming to the way in which, in Afford's case, the operation of a day program is concerned, is that you've got the frontline workers who may provide that direct support to a person with disability, but you may also have the staff who coordinate the day program who are there to supervise and administer. Reflecting on striking a balance between being the eyes on providing a safe workplace and meeting these administrative requirements which seem to have become overwhelming but also involved financial and managerial responsibilities, what changes have been made in the organisation to address, obviously, the staffing arrangements and/or rostering to allow a situation like that to occur?
MS TOOHEY: Yes. So there's a couple of different things that have occurred. So as the Commission is aware, the significant restructuring of our head office environment. What that has meant is that we have put in place additional resources that look at the centralisation of planning activities, as an example, that were previously developed right across the organisation. So the way the organisation had worked previously is that, you know, the probably at least 90 per cent of the administration work was undertaken at each of the sites and services. So what we are progressively doing is pulling in those administrative tasks that we can actually do centrally and take that burden off the team leaders. That's being done in a very staggered and considered way because the organisation at the same time is that we are also doing considerable investment in our basic IT infrastructure and systems and then looking to replace or put in place systems that we actually currently don't have. So we are sort of bringing that in progressively as that work continues.
In relation to rostering, the operations team have had a project activity going on for the last few months where we are actually looking at the rostering practices right across the organisation. That goes to some of the other issues that were also raised in the last hearing around whether people were getting the appropriate one on one support, two on one support, three on one support, and whether or not, in fact, we are allowing sufficient time for that administration activity to occur.
MS EASTMAN: Do you think that you are allowing sufficient time?
MS TOOHEY: I think it's I think there is still work to do. There's still work to do. But as I said, we are stymied a little bit by the systems that we currently have in place as well. We are working as fast as we can.
MS EASTMAN: So at Araluen, do you have challenges in relation to support workers or team leaders or supervisors having to balance the frontline care support work and then also the administration, the record keeping work? Is that an issue that arises in
MS CATTACH: Yes, absolutely. We hear regularly
MS EASTMAN: And how do you deal with that?
MS CATTACH: We hear regularly from our practice leaders and managers that they spend a lot of time behind the desk. We actually have
MS EASTMAN: Can I ask you to slow down a bit?
MS CATTACH: Sorry. Sure. We actually have four managers across our day services, and they have full administration time to allow them to complete a lot of those data tasks. And we have practice leaders on the floor at the sites that allow them to do some of that supervision and also help out with some of the administration. We have just incorporated a roster clerk to assist with some of the rostering, either in our SIL houses and our day services. And we do have a data team that sits behind and helps out with billing and and making that data work.
MS EASTMAN: And, Mr Hyland, at Sunnyfield, when the Royal Commission heard evidence at Public hearing 13, rostering arrangements and the role of supervisors in the house was a significant issue, that the power of the supervisor to be able to roster the support workers seemed to have some implication as to whether or not the support workers felt that they could raise concerns or raise complaints in the fear that they might not receive particular shifts. So I just want to ask you about that. Yesterday we touched on any response to the findings in relation to the management of SP1 and SP2, and I asked you what changes had occurred. I think your evidence yesterday was you visited the house and there has been the change in terms of the visibility of the regional managers. But in terms of at a very local level, is that tension between completing the work that you need to do, meeting your administration duties, record keeping, and then the supervisor rostering is that tension does that still exist?
MR HYLAND: It's a challenge for the sector, and I can draw on my experience from the sector, not just at Sunnyfield, but it's definitely there's always a tension point there. And you know, there is always a tension point between the frontline supervision, administration, roster.
MS EASTMAN: So what do you do? Because that tension may have a flow on effect, may it not, to the safety in the house, the quality of the services, but also the very issues that we have been talking about, about retention of staff?
MR HYLAND: Yes. So I will go back to the point I believe I made yesterday about capability. I think it's really important to have the right capability in the house. Role clarification is really important to getting that right and assessing the roles and making sure the roles are to use a technical term, are sized correctly. And when they are sized correctly, then they are paid for correctly. And that's the that's probably the best way to get the best outcome.
MS EASTMAN: Is there a funding issue in terms of the way support workers are rostered that puts a heavier emphasis on the frontline support for the clients with disability unless on giving time to do the administrative paperwork and record keeping? Is that a does that come from a funding issue or does it come from another is there another reason?
MR HYLAND: Well, funding is part of it. When I talk about capability, getting the right capability usually costs more. So that will that will use more funding, if you like. Yes.
MS EASTMAN: And at Araluen, is funding an issue in terms of the rostering arrangements and factoring in sufficient time for support workers to do their administration or record keeping responsibilities?
MS CATTACH: Sure. It's a component of it. Historically, in our day services in particular, administration time was allocated to our staff. So specifically for our full time and our permanent staff, they still have some of that administration time, which is a flow over. We can't change their contract. NDIS has just initiated a non face to face component of billing that we will be introducing this year, which will be favourable to assisting support workers to complete that.
MS EASTMAN: Have you all read the NDIS Commissioner's Own Motion Inquiry Into Aspects of Supported Accommodation, January 2023?
MR HYLAND: Yes.
MS EASTMAN: I think you are all nodding, for the transcript. So the report at page 90 reflects some research and the literature review that Professor Christine Bigby did, and she identifies that:
There is growing evidence that paperwork is a growing burden on frontline staff and managers that detracts from providing good direct support.
And Professor Bigby suggested that:
The NDIS Commission should review the volume and type of paperwork that is required from group home staff, frontline managers and organisations, and in particular consider alternative strategies for collecting evidence about the quality of practice.
And then there's a long discussion about some general practices around record keeping at the at local sites, so within the group home, and then record keeping in terms of the centralised system. Some of the problems she identified was the use of paper based records and forms; frequent changes to record keeping requirements and forms; unclear, confusing and duplication in the requirements; insufficient clarity; different record keeping practices across different sites, even operated by the same provider; and often the physical layout of the home might prevent staff being able to maintain and do their record keeping while interacting with participants.
The NDIS Commissioner said that it:
...will work with NDIS providers to identify and provide guidance and education about best practice in record keeping.
So can I give you the opportunity of getting in first. What needs to be done, Ms Toohey, in relation to record keeping in light of these findings from the NDIS Commissioner?
MS TOOHEY: I think in relation to the duplication of information that's required, absolutely I think there's a streamlining that can certainly occur. I think some of it also goes to the requirements that individual organisations put in place. When you are working in a heavy heavily regulated environment, then often you will put in place more extensive documentation than possibly is required because you put a risk lens over it, and you will be more risk averse in that sort of environment. So, you know, I think that's also an issue, but it's also about the systems that organisations invest in as well to try and streamline as much of that as possible so that, in fact, staff are not having to have multiple entries and duplications of information, you know, when you've got systems that are much more streamlined and electronic, for example.
MS EASTMAN: So at Araluen, as a smaller provider, is there either an efficiency in the way you do record keeping or is it a burden? And what would be your suggestion in response to best practice around record keeping?
MS CATTACH: We have just spent the last two years implementing systems across the organisation to move away from paper based, because we found that was inefficient use of people's time. I would say the same as Jo. I think there needs to be some consistency around reporting. Even though we have implemented systems, every time a change or regulation is made, we then have to go back to systems and providers to make sure that change is implemented and retrain our staff around that new requirement. So I think there needs there is some efficiencies that need to be made from the Commission around streamlining and making sure there is even different requirements across Supported Independent Living to day services and making sure that they are very similar. We try to get our staff to work across all of our services, and sometimes they can be in a day service one day, in a supported living environment the next day, and there is different requirements. So keeping up with that for our support workers is very challenging.
MS EASTMAN: And for Sunnyfield?
MR HYLAND: I think more broadly in the sector there's a low investment in technology. I've seen that in most practices over the years, and that's compounded by the NDIS funding model which really doesn't allow for proper investment. There's a lack of capability and understanding about how to implement that those types of solutions, and they are expensive. To do it properly, they are very expensive. So we need to make that investment.
MS EASTMAN: So another part of the work that Professor Bigby has done is to review and suggest best practice frameworks, but she also refers to a concept called active support, and that's set out in chapter 5 from page 77 of the Report. Have you looked at active support, which is relevant to the way in which the support worker's time is organised, and that includes the record keeping requirements? Have you looked at that active support model? Anyone?
MR HYLAND: Yes. So we practice active support, and we have invested resources in guiding that practice throughout the organisation.
MS EASTMAN: And does the record keeping requirement fit with that model of active support?
MR HYLAND: I can't I don't really know what happens in terms of keeping records in relation to active support.
MS EASTMAN: And Araluen?
MS CATTACH: Yes. Look, not officially, we don't do it. However, I think particularly in our day services, where there's an allocation for admin that's overhanging, I think it allows for that. In our Supported Independent Living, we actively give people the time to complete handovers and, yes, do that active support.
MS EASTMAN: And Ms Toohey, at Afford?
MS TOOHEY: We are currently implementing elements of that at the moment.
MS EASTMAN: Alright. In the time available, Ms Toohey, I just want to turn to another finding of the Royal Commission, and this concerns the retention and casualisation of the workforce. So in the period 2014 to 2021, there was considerable turnover of staff and team leaders at the Mount Druitt day program, and the continual turnover of team leaders had an adverse impact on the delivery of consistent high quality services to program participants, communication with participants and families, and the resolution of concerns and complaints between families.
We understand that I think this submission was made by Counsel Assisting at paragraph 217. And in Afford's submissions in response at paragraph 67, you indicated that you accepted that, for the relevant period, there was considerable turnover of staff and accepted that it did have the impact as suggested. So can I ask you, what has Afford done in the intervening period to address that turnover? I think your turnover is something in the order of 30 per cent. Is that right?
MS TOOHEY: That's right.
MS EASTMAN: Sorry, 33 per cent.
MS TOOHEY: 33 per cent for the last 12 months.
MS EASTMAN: And I know you say in the response that that reflects the industry. But I think from the information we have got, it's actually higher than perhaps others in the sector.
MS TOOHEY: Yes. Yes.
MS EASTMAN: So what's what's happening if a third if you are losing a third of the workforce on an annual basis?
MS TOOHEY: Yes. So I just ask the Commission to probably recognise the significant cultural change that we have been implementing in the organisation in the last 18 months. So we have seen considerable turnover in both team leader roles across the organisation as a result of that, as well as some other roles. Part of that part of that turnover rate as well for the last 15 months, when we did the review of the casual workforce and we transferred those 280 employees from casual to permanent part time, that was also about terminating those casuals who, in fact, hadn't worked for the organisation for quite a long time. So that also impacts that 33 per cent turnover rate.
MS EASTMAN: How do you ultimately turn this around and have a workforce which has got greater stability?
MS TOOHEY: It's a variety look, it's a variety of different it's a variety of different things. It's you know, I mean, it's not just the overarching value proposition you have as an organisation to make people want to stay with you. You know, the organisation has been through a lot of change and ceased a lot of things that our employees actually felt were quite important to them. You know, some of that performance bonus activity and some of those things that you heard in the last Commission. The thing for me with this is a few different areas. We have always paid above award. So the organisation has always paid above award. But pay is not the only thing that makes someone stick with an organisation. It is about our organisational purpose, that people believe in the work that we are doing as an organisation, they connect to us, they respect what the organisation is trying to do. The importance of the person that they actually report to, so their line manager, and how engaged they are with the organisation.
You know, we talk a lot, I think and we have over the last couple of days about career progression for people, but I think what we undervalue sometimes is that relationship that our support workers actually have, and our team leaders have with the people that they report to. That's an incredibly important relationship. So we have been through significant turnover over the last 12 months. I think the administrative burden I think the role of the team leader in the organisation was confusing. You know, people came in expecting that it was a career step up into a line manager sort of position, and they came in with really doing a full time administration role, essentially. So I think we will continue to see some turnover in our team leader roles until we are at a place where we have got the right systems in place and the right balance between what we are expecting to happen locally and what we support and do in our corporate environment.
MS EASTMAN: Before your time, one strategy used within Afford was to create incentives and rewards for employees, no doubt intended to be some measure of valuing employees but also to retain employees. And the Commission the Royal Commission said the commercial approach adopted by Afford included in financial incentives and rewards to Afford's staff was inappropriate for a not for profit organisation because they were unsuited to the purpose of providing safe and high quality services to people with disability, and then dealt with some aspects of how the what was a program called Paces worked. Now, are we right to understand that the Pace Bonus Incentive Scheme no longer exists?
MS TOOHEY: That's right.
MS EASTMAN: It no longer aligns with the values of Afford, and it has been abolished.
MS TOOHEY: It has.
MS EASTMAN: Now, reflecting on that experience, if service providers felt that providing bonuses and financial incentives to retain staff was the key to their problem, what would you say to them?
MS TOOHEY: I would say that that's only one element of what actually keeps your people in place in your organisation.
MS EASTMAN: Does do you have a view that
MS TOOHEY: Reward and recognition is very important for our staff.
MS EASTMAN: But financial reward and recognition.
So commercialised care.
MS TOOHEY: I think financial reward and recognition as it relates to particular things. So for example, in place of what the organisation had, we put in place a new reward and recognition policy. What that has is things like length of service awards that have a financial bonus attached to it, if you like. You know, things like team events. We have put quite strict restrictions in place around how they have to happen and how much we contribute, but those things are still important for our people. So, you know, I think that the financial bonus element I think what the organisation missed when they put that in place is how staff actually see that, as an organisation, you appreciate and value what they do every day. It's not just about the money that they get. But that's not to say that things like pay, terms and conditions, flexibility in the workplace, those sorts of things how can we make workplace flexibility fit a large part of our workforce flexibility is very hard and difficult to achieve. They are the things as well that, you know, our staff value.
MS EASTMAN: Commissioners, I will just leave my questions there. The Commissioners may have some questions. Ms Toohey will be with us for another two panels. So there are other aspects of the findings that I will need to take to you in context when we move to the topics on governance. So thank you all for joining us. Chair.
CHAIR: Thank you. Commissioner McEwin.
COMMISSIONER McEWIN: Thank you. Thank you all for your evidence. Ms Cattach, in response to Ms Eastman's question about whether disabled people were providing training, you responded to say you can't find anyone to facilitate or provide that training. So my question is to you is you are based in Melbourne. What attempts, if any, have you done to reach out to the many disability advocacy organisations and disability representative organisations that do provide disability led training? What attempts have you made?
MS CATTACH: Yes, no. So I didn't say we can't find we haven't found any yet. We have certainly we do a large scope of where that training may come from, and we haven't found any yet. But I think that is something absolutely that we can do better at.
COMMISSIONER McEWIN: So but what you are saying is you haven't made any attempt to reach out to those organisations?
MS CATTACH: No. Not specifically, no. We do a general scope of training within that particular area that we are looking at to see providers that will provide that training. But no, we have not reached out to anyone specifically to do that.
COMMISSIONER McEWIN: Okay. So to be clear, you haven't made any attempts in that regard. Thank you.
MS CATTACH: No worries.
CHAIR: Yes. Thank you. Commissioner Bennett.
COMMISSIONER BENNETT: I just want to briefly return to the exchange between all of you and Ms Eastman on about it was about mandatory training and should there be compulsory nationally developed units on some issues, and there was a different set of responses. But some of them were, you know, we want to do it our way and put our flavour on it. But surely you would concede that there are some issues that have emerged through the Royal Commission that everybody that works in this sector should have the same training and same understanding, for example, what capacity building for a person with disability is; the human rights of a person with disability; the choice and control of a person with disability; the incident reporting obligations; the right for the person with disability, family or carer to make a complaint, and to know how to make a complaint; whistleblower protections for your own staff. Should they not just be national standards in which everybody manages front workers - everyone undertakes and understands that that is what is and I'm sure that list that is not a closed list, rather than having an Afford way or a Sunnyfield way of interpreting those some are funded obligations, and some are legal obligations.
MS CATTACH: I would agree.
MR HYLAND: I would strongly agree with that, and there needs to be an accreditation, as was discussed in yesterday's panel, a career pathway, and this will be part of the foundation. I absolutely think there should be a national standard. There should be a body to accredit that, and it should be part of your licence to operate.
MS TOOHEY: Yes, I mean, I think that there can be core modules developed, a bit like we have done with the Cert III modules, for example, where we have taken the core module which is a requirement to attain the Cert III, and you embed that within your own learning and development framework. There will always be other elements, though, that we would also want to bring into that. So it's not for me, it is not about there not being a nationally recognised core module. But even in relation to complaints would be a classic where there would be other elements that we would bring in that are about how we do things at Afford, you know, how families connect with us as an organisation. So I have no issue at all with there being common core modules. You know, as a sector, we have worked with that in the various, you know, different certificate courses, for example, that many of our staff do.
COMMISSIONER BENNETT: But everybody in the organisation, CEO downwards, would understand those things.
MS TOOHEY: Yes. Yes.
MS CATTACH: I would include the Board and Directors in that too.
MS TOOHEY: Yes. Yes, exactly. Yes.
COMMISSIONER BENNETT: A licence. Thank you.
CHAIR: Yes. Thank you very much for your evidence, and we look forward to the return of Ms Toohey. How long should we adjourn for?
MS EASTMAN: I will just give you the transcript reference that you asked for.
CHAIR: Thank you.
MS EASTMAN: So for Ms Toohey's evidence, it's 19 May 2022. It's page 418, commencing at line 48, through to page 419 to line 6. If Ms Toohey would like the extract of the transcript, let us know and I can arrange that.
CHAIR: Thank you.
MS EASTMAN: Could we
CHAIR: Shall we adjourn for 15 minutes?
MS EASTMAN: For 15 minutes, please.
CHAIR: Yes. All right. Well, it's nearly 20 to 12 Brisbane time. We will resume at 11.55.
MS EASTMAN: Thank you.
<THE WITNESSES TAMARA CATTACH AND ANDREW HYLAND WITHDREW
<ADJOURNED 11:38 AM
<RESUMED 12:00 PM
CHAIR: Ms Eastman, I have been reminded that I omitted to ask for appearances.
MS EASTMAN: Yes. I was going to say, Chair, I think there are a number of appearances to be made.
CHAIR: Yes. I will take the appearances now for anybody who has not previously announced their appearance. So perhaps we will start with Afford. I'm not sure you actually yes. Go ahead.
MR LLOYD: May it please the Commission, Lloyd. I appear with my learned friend Ms Liu for Afford. And I should confirm we were here at the earlier session.
CHAIR: Thank you. I understand there is an appearance for Coastal Residential Services.
MR HARCOURT: That's correct, sir. Harcourt for Coastal, and then later on I will also be appearing for National Disability Services, Ms Leigh.
CHAIR: Thank you very much.
MR HARCOURT: Thank you.
CHAIR: And I think there is an appearance for The Disability Trust.
MR DUGGAN: Yes. If it please the Commission, Duggan. I appear for The Disability Trust in relation to this part of the hearing.
CHAIR: Very well. Thank you. Is there any other appearance to be announced that has not previously been announced? In that case, thank you. Yes, Ms Eastman.
MS EASTMAN: Thank you. Commissioners, we will continue with the panel approach, and we are now turning our attention to the issues around governance, which are issues that have arisen in the course of the Royal Commission's inquiry in relation to service providers. Ms Toohey continues to assist us as part of this panel, but she's joined by Dee Anne Kapene is that the right tell me if I'm not right on that.
CHAIR: I'm sorry, could I have that name again because it's different from -
MS KAPENE: Kapene. Kapene.
MS EASTMAN: Okay. Thank you.
CHAIR: Thank you very much.
MS EASTMAN: And Ms Carol Berry.
CHAIR: Thank you to each of you for coming to the Royal Commission to give evidence as part of a panel. Thank you, Ms Toohey, for continuing, but you haven't finished yet. You will be back in the afternoon. We look forward to your contributions to the work of the Commission. Ms Eastman, have the panel been affirmed or sworn, as the case may be?
<CAROL BERRY, CALLED
<DEE-ANNE KAPENE, CALLED
MS EASTMAN: Yes, they have.
CHAIR: In that case, I will ask Ms Eastman now to ask you some questions.
<EXAMINATION BY MS EASTMAN SC
MS EASTMAN: So, Ms Kapene, thank you for joining us. And you are probably asking why you are here. You are a service in Northern Tasmania that supports 20 people with intellectual disability.
MS KAPENE: That's correct.
MS EASTMAN: And your business, known as Coastal Residential Services Inc, is an incorporated association.
MS KAPENE: Yes, that's right.
MS EASTMAN: And it operates on a not for profit basis?
MS KAPENE: Yes, that's correct.
MS EASTMAN: And it's been operating since 1992.
MS KAPENE: Yes.
MS EASTMAN: And, essentially, you provide a range of services to your clients in the northern part of Tasmania around Burnie. Is that right?
MS KAPENE: North west Tasmania.
MS EASTMAN: So covers sort of Burnie -
MS KAPENE: Burnie and Penguin, Ulverstone.
MS EASTMAN: So anyone who knows the beautiful north west coast of Tasmania would sort of follow your work through to Stanley. Would that be about right?
MS KAPENE: Absolutely.
MS EASTMAN: Okay. Thank you. So in terms of the organisation, you employ 42 direct support workers. Is that right?
MS KAPENE: That's correct.
MS EASTMAN: And four office based management?
MS KAPENE: Yes, four including myself.
MS EASTMAN: And you have an enterprise agreement?
MS KAPENE: Yes, we do.
MS EASTMAN: And the enterprise agreement applies to all of the staff, including the management staff, or is it only applicable to support workers?
MS KAPENE: It covers all staff except for myself.
MS EASTMAN: Right. Now, Ms Berry, can I turn to you. You're the CEO of Disability Trust. You have had extensive experience in the disability sector. You have also worked as an advocate in both the non government and government sectors. How long have you held the role of CEO of The Disability Trust?
MS BERRY: Four weeks.
MS EASTMAN: So you are sort of fresh off the blocks here.
MS BERRY: I am.
MS EASTMAN: All right. So I am aware that you are very new. If there are matters that you are not sure about, please let me know. And we welcome your involvement. Now, for The Disability Trust, your organisation supports close to 5,000 so it's about nine people shy of 5,000 people with disability in New South Wales, ACT, Victoria and Queensland. And in the information you have provided to the Royal Commission, it seems like a fairly significant proportion of the people to whom you provide services include young people under the age of 18. There is 642 young people to whom you provide services.
We know that The Disability Trust was established in 1974 with a focus on supporting children with disability and their families in the Illawarra area and then, over the time, there has been a number of merges to create what is now a relatively large organisation, The Disability Trust. So can I ask you just to tell the Royal Commission a little about the nature of the services that you provide, but particularly the services directed to children and young people?
MS BERRY: Certainly. So we provide a wide array of services, predominantly NDIS funded services. In relation to children and their families, we provide some therapy supports. We also provide other services, such as vacation care services, after school care services. We do provide also, in a limited way, some accommodation supports for people under the age of 18, both in relation to ongoing accommodation supports and respite supports.
MS EASTMAN: Is there any particular issues that arise for your organisation in providing support for children and young people, particularly in the context of respite services?
MS BERRY: We have a very strong focus on risk management in relation to preventing abuse and neglect. So there is some important safeguards that we would have in place to protect children in particular in that space. But as a general rule, there would not be particular differences, I suppose. We would be as rigorous in relation to our support of children as we would be in relation to the support of adults.
MS EASTMAN: In terms of the support for children and young people with disability, are there any particular qualifications or requirements that you provide of support workers who work closely with children?
MS BERRY: Yes, we do provide some additional training for those staff members, but we do not require particular qualifications for our direct support workers. However, it depends on the level of speciality, and we would have some therapists, for example, and behaviour support practitioners who might provide supports which have particular qualifications attached to those roles.
MS EASTMAN: All right. So if you have followed the work of the Royal Commission, and particularly the hearings concerning service providers, one of the issues which has arisen is the management structures within organisations and also the role of boards where a disability service provider has a board and has perhaps obligations under the corporations laws and other associated laws. Ms Toohey, the question of corporate governance was an issue raised at Public hearing 23, and the Royal Commission made some findings, as you're aware, in relation to the way in which the board oversaw and the extent to which it had responsibility for some of the matters that went perhaps not as planned.
MS TOOHEY: Yes.
MS EASTMAN: So one of the findings and, Commissioners, this is finding 21 is that:
At least from 2015 to 2021, the composition of Afford's board and executive management was not such as to promote the provision of safe, high quality disability services in a rights informed manner.
And there's a range of elements to that finding which, if I can paraphrase, included members of the board had no direct or indirect lived experience of disability and few had experience or expertise in the provision of disability services; that the board directors were not offered sufficient training by Afford about the rights of people with disability and service provision; and many directors had served on Afford's board for very long periods, during which the environment of disability service provision in Australia had changed fundamentally; and until October 2021, Afford did not have a dedicated team or executive manager focused on ensuring safety and quality of services provided to clients and on preventing and responding to violence against and abuse, neglect or exploitation of clients.
Now, in response to the submission that was made to that effect, Afford said in its submissions at paragraph 88 to 97 that some of these matters it had addressed. But I don't think, reading the whole of the submission in context, that the particular items that the Commissioners identified, which reflected Counsel Assisting's submissions, had been addressed. So, Ms Toohey, can I just check my understanding on what Afford's in effect position is in relation to that finding. Afford did say at paragraph 108 to 110 of the submissions that:
Afford accepts that no member of Afford's board has had lived experience of disability, and Afford is actively recruiting a board member with disability. Afford accepted that many of the directors are long serving members of the board and that the absence of fixed terms of appointment has meant that the board has not had the renewal it requires. The board also accepted that training for board members in respect of disability service provision could be improved.
And I think there is a reference to some of the training for board members. And then there was also a further response that:
Prior to the introduction of the business improvement plan, that client safety and the quality of services were managed by team leaders, district managers and Afford's human resources team.
So piecing that together, I think there has been a response to some of those matters but not globally. Have you had the opportunity to reflect on what was put in Counsel Assisting's submissions, which is paragraph 314, and what you now know in the Commissioners' finding, being finding number 21, and what would you like to tell the Royal Commission about any response to that finding?
MS TOOHEY: So there has been quite significant change in relation to some of those areas in the organisation. So following the hearing and taking into account -
MS EASTMAN: Can I ask you to slow down a bit.
MS TOOHEY: Yes. Sorry.
MS EASTMAN: Can I also say that you may be aware that there is some jackhammering in the background, and the combination of me speaking quickly and the panel members is creating a little difficulty. So if I can ask you to slow down, please.
MS TOOHEY: That's fine. No problem.
CHAIR: Jackhammering is a novel interruption to our proceedings but adds to a very rich and varied list. So we will have to cope as best we can.
MS EASTMAN: So Ms Toohey.
MS TOOHEY: So following the appearance last year at the Royal Commission, the organisation underwent a review of its corporate governance framework and constitution, taking into consideration the findings that came out of the hearing that we participated in. So in particular, in relation to the requirements of indirect or direct lived experience of board directors. The other element was around the tenure of board directors. That's also been changed. So whereas before we had no set tenure requirements, we now have three by three-year tenure requirements that are now sitting in the Constitution.
The board charter has also been reviewed. That's actually going to the board next week for final sign off and endorsement. We have, in fact, recruited two additional board directors, one of whom has a disability, the other one who has an indirect experience of a sibling with disability. There are also another two new directors that are coming on to the board sometime in the next two to three months, and one of those directors actually has a disability as well. So I think, you know, that's been quite considerable improvement in relation to the board.
We have, of course, established the Experience and Practice and Safeguarding team, which is a completely independent team. The person who leads that is a member of the executive team and reports directly to me and has no relationship to our service delivery so that there is clear independence. The other thing that has also occurred is that there has been considerable improvement in reporting across all of our both our board reporting and also the reporting that goes to what is now our audit and risk committee as well.
MS EASTMAN: All right. Can I turn to the next finding, finding 22, and this is the issue:
From around 2015 to at least March 2021, the Afford board and executive management pursued a strategy of significant organisational growth, and the manner in which this strategy was pursued contributed to an organisational culture that focused on growth and financial matters at the expense of safety and quality of client services and inhibited staff from raising concerns or providing feedback about how Afford was operating.
Now, I think your response is that Afford accepts that prior to 2021 it was focused on the growth of its services, but you made a qualification saying that Mr Allen, who gave evidence at the hearing, said that the object of growth was not strictly for profit but to expand services to benefit the clients and so sought that qualification, I think, to the submission. It appears the Royal Commissioners did not accept that qualification. And Afford also accepted that under the former CEO, there was a document called The Afford Way, and that set the tone for the culture at Afford and accepted that the former CEO's focus was on growth which was measured by financial growth. So those concessions were made.
In terms of the finding, what's occurred in terms of a focus around organisational growth? May I assume there is still, obviously, a focus on financial sustainability and financially sound practices? But the sense of organisational growth as a key objective of Afford, does that remain the case?
MS TOOHEY: Not at this stage, no. So I stopped all growth when I started with the organisation.
MS EASTMAN: When you say
MS TOOHEY: We have still got considerable rebuilding to do. We are still doing considerable work in the organisation to put in place the systems and the management supports that we need to be able to support an organisation that's going to continue to grow.
MS EASTMAN: When you say, "not at this stage", I assume that that's very deliberate and you are not ruling out that there may be an opportunity for growth in the future.
MS TOOHEY: Yes. So the organisation is just about to embark on the development of its new organisational strategy, which will we hope to have finished by the end of this year. That may well incorporate some growth. But we are currently doing a process at the moment where we are actually evaluating every service and site that we have across the organisation. So yes, I mean, I cannot rule out that there won't be further growth, but the growth won't occur under my watch until I'm comfortable and confident that the organisation can sustain that growth.
MS EASTMAN: All right. The next finding and just bear with me because this is all relevant to what we need to talk about around corporate governance is that:
At least from 2019, there were clear signs of dysfunction within Afford, conflict between its senior managers and indicators that its CEO was running the organisation in a manner inappropriate for an organisation dedicated to the provision of disability services.
Now, that reflects a submission made by Counsel Assisting at paragraph 399:
Afford did not accept that this finding was open directly but accepted the substance of it, and Afford accepts that the former CEO was not appropriate that his conduct and manner was not appropriate to an organisation such as Afford.
And:
Afford also accepted that there was a conflict between its senior managers. To identify properly the relevant issues, the board conducted a series of investigations.
So you're aware that the Royal Commission has made a finding that accepts Counsel Assisting's submissions and not the qualifications raised in the submissions in reply. Is there anything you would like to say in relation to the Royal Commission's finding?
MS TOOHEY: Look, no, other than the organisation agrees with those findings. I agree with those findings. There were signs and signals that there was dysfunction occurring in the organisation.
MS EASTMAN: Do you accept on reflection that where the dysfunction arises at a CEO level but then trickles down the organisation, that this is a key responsibility for boards?
MS TOOHEY: Yes. Yes, I do.
MS EASTMAN: Finding 26 is that:
The board of Afford, faced with the signs of dysfunction within Afford's senior management and the organisation as a whole, failed to effectively discharge its governance obligations so as to ensure the safety and quality of services provided by Afford and to safeguard against the risks of violence against and abuse or neglect or exploitation of people with its clients.
Sorry, I'm not quite sure of the wording of that. When that submission was made by Counsel Assisting at paragraph 400, Afford's response was not to address the substance. But at paragraph 133 onwards, Afford set out the changes that had been made in the organisation since the hearing. I don't know if you were present in the room this morning when the Chair asked some questions of Mr Duggan appearing for Sunnyfield, but it seems this finding 26 raises the same sort of issue as the extent to which that acceptance of responsibility is important. And it has there been any action taken within Afford to accept responsibility within the failings of the board? Can you comment on that?
MS TOOHEY: I think the board has accepted the responsibility for its failings. Following the Royal Commission, we unpacked what had come out of the hearing with the board. We had a couple of workshops between the executive team and the board to unpack it and look at the things that needed to be addressed. I think the board and the organisation more generally in the way we have communicated with families, our clients, our staff, we have always been open and transparent about accepting the findings of the Royal Commission and accepting the responsibility of the failings of the organisation. And that occurred in or the client and family meetings that we participated in towards the back half of last year where we went around the entire organisation, and board directors actually came to those sessions as well and, in front of families, admitted to the failings that had occurred by the board.
MS EASTMAN: Chair, I'm about to move to some more general questions for the whole of the panel picking up on the important issues on corporate governance reflecting the findings made. I don't know if you had any questions you wanted to ask of Ms Toohey before I do.
CHAIR: Just to follow up, Ms Toohey, the composition of the board, I think you indicated that there are two new members, one of whom has lived experience with disability. Have any members of the board left since the hearing took place?
MS TOOHEY: We have had one of the directors who had been on the board for some time who stepped down at the annual general meeting in November last year.
CHAIR: Right. You were about to say something?
COMMISSIONER BENNETT: Can I just ask a question about the lived experience. Has that director ever accessed a disability support service? Have they what is their experience as a lived experience of disability one in which they have had an interaction with service providers and systems that are there to support people with disability?
MS TOOHEY: So they were actually the CEO of an organisation a previous CEO of an organisation. So they have been in leadership roles. The other director, who has an indirect experience of disability through her sister, she's the guardian for her sister. She has she also has considerable contact, obviously, with the service system as well.
COMMISSIONER BENNETT: But the person that was the former CEO, they themselves have never been on the receiving end of the receipt of disability services and supports?
MS TOOHEY: It would be in relation to their hearing difficulties, but I don't know I can't answer that in terms of the specifics of what that would be.
CHAIR: Ms Toohey, the effect of the findings of the Commission in the report, which reflect, for the most part, Afford's acceptance of the submissions of Counsel Assisting in Counsel Assisting's submissions, those findings indicate that, over a considerable period of time, this was a dysfunctional organisation. There's no getting away from deeply dysfunctional. How is the board given that the changes have been only by adding two people and one long serving member has resigned, how has the board manifested its acceptance of the responsibility and its accountability for a deeply dysfunctional organisation over a long period? Now, if you feel inhibition about answering that because you're not on the board, I can understand that. But it's a proposition that I may wish to put to Afford's representative.
MS TOOHEY: That's probably the more appropriate thing to do. Yes.
CHAIR: Thank you. Yes, Ms Eastman.
MS EASTMAN: So I want to ask Coastal and Disability Trust about your corporate governance arrangements as well. So for Coastal, you are a very small organisation. You do have a board, and you have provided to the Royal Commission some information about board members. But you have said that you have challenges recruiting people to join the board. What are those challenges and why do they exist?
MS KAPENE: So I think those challenges on the surface are because we are in a small regional environment. It is there's a number of non profits I don't know the exact number around community service organisations. And in some ways, we are all chasing the same talent to serve on our boards. It is a it's an ongoing challenge, and we want people with the right skill sets and to have the right level of contribution to a board rather than just make up a number.
MS EASTMAN: So in terms of getting the right talent and the right people, does that include actively recruiting board members who have lived experience of disability?
MS KAPENE: We currently don't have anyone with that has direct experience living with a disability. It is certainly on the board's agenda to do that. I think it's important that we do that. In saying so, the people that are currently on the board of management and one of the advantages of being in a smaller organisation and smaller region, that they do have that direct contact in their paid roles, for example, outside of the board, to be able to speak to people who live with disabilities, to have a close relationship in terms of being in contact with our participants.
MS EASTMAN: So in Tasmania, there is some very strong advocacy organisations around disability, and the Royal Commission has met and heard evidence from a number of people with who live with intellectual disability who live in the northern part of Tasmania. To what extent has Coastal reached out to some of the advocacy groups, like Speak Up or I think Mary Mallett may be still here, from DANA in its work in Tasmania. Have you reached out to the advocacy groups to see if they have some suggestions of people with disability who might be keen to serve on a board?
MS KAPENE: We haven't reached out. We do have a good working relationship with both of the key advocacy organisations in Tasmania, Speak Out and Advocacy Tas. Certainly I did hear that in the hearing this morning, and I think that is certainly an opportunity that we should follow up on, to actually have to at least ask for that support and assistance in terms of having involvement. But I do say that we have a good relationship with the organisations.
MS EASTMAN: So for Disability Trust, you are quite a large entity now. And does The Disability Trust have any directors with lived experience on the board?
MS BERRY: Yes, we do. We have one director with lived experience on our board.
MS EASTMAN: One out of
MS BERRY: Nine or eight at the moment. We do have a vacancy. We do have one person with lived experience. We also have three other board members who are parents and carers of people with disability.
MS EASTMAN: In terms of each of your organisations, do you accept that both the value to your organisations but also public confidence in the organisations that you operate would be enhanced by increasing the number of people with disability in leadership roles on the board? Do you all accept that?
MS BERRY: Yes.
MS EASTMAN: And to the extent that often it is said we don't know who people with disability are who may serve on the board, do you accept that that might be a hollow excuse, given that the relevant ABS statistics tell us that there are over four million people with disability who live in Australia? Do you accept that?
MS BERRY: Yes.
MS EASTMAN: Have any of you had any involvement in the recent initiatives of the Australian Institute of Company Directors which has set up a scholarship to promote and support leaders with disability to acquire the skills if they have an interest in taking on leadership roles, including as company directors? Are you all aware of that program?
MS BERRY: Yes. And we have been actively looking into that to create an opportunity for somebody to be able to participate.
MS EASTMAN: Probably for Coastal, I accept that probably seems a little distant. But are you aware that there is a program run by the Institute of Company Directors with the scholarship scheme?
MS KAPENE: I'm not. But as a member, I will be.
MS EASTMAN: And the Royal Commission has heard from an organisation that Christina Ryan operates called the Disability Leadership Institute. Have any of your organisations reached out to the institute to make inquiries as to people who may be keen to serve on boards who live with disability? Is that a resource that you've used? Anyone?
MS BERRY: No, we have not.
MS EASTMAN: Ms Toohey, you are writing down the name.
MS TOOHEY: No, not no. I am writing madly writing down. No, we haven't. But, in fact, one of the new directors who is starting in three months is actually one of the recipients of the scholarship from the AICD program. So we are her first board appointment.
MS EASTMAN: Okay. In terms of skills for the board and I think you've just mentioned that that's an issue for Coastal is has the practice in the organisations been to very much sort of focus on what might be traditional skills of directors and there's a sort of perhaps a default to the accountants, the lawyers and those who have got corporate experience?
MS KAPENE: I think traditionally that has been our approach. It's, you know, looking at it as a litigious environment that we have sought those as the first port of call. But I do think that and it's not that it's been too hard to look for somebody with a disability, and I think we need to find a way to make it work and to have somebody with a multitude of skill sets, as you said.
CHAIR: Why is it a litigious environment?
MS KAPENE: I think there has been a perception that boards of management have been it's it's been an environment like that. And I think that's where we need to make that shift away from having
CHAIR: You mean the boards of corporations generally -
MS KAPENE: Yes.
CHAIR: have found themselves sometimes to be the subject of legal action?
MS KAPENE: Yes.
CHAIR: Okay.
MS EASTMAN: In terms of Disability Trust, you have provided in response to a notice a document described as a skills matrix. And accepting there is some confidential information in there and I don't want to identify any particular individual on the board, the skills matrix addresses the following areas: skills of your directors in lived experience and carer voice; the disability sector; leadership values and ethics; corporate competencies; and risk management. Can you tell us, how did this risk how the skills matrix developed and the focus on these particular areas?
MS BERRY: Yes. So this skills matrix was developed by our governance committee, which is one of the committees of our board. We do have lived experience and the carer voice and the disability sector experience at the top of that skills matrix because we do prioritise that. But otherwise, you know, it's important that we have a balance of people on our board. The Disability Trust has always prioritised having a person at least one person with lived experience on our board. And, likewise, we also value the voice of parents and carers. Our organisation was built by people with disability and their families, and so we strongly value that perspective.
MS EASTMAN: In terms of Afford I know I have asked you some questions, Ms Toohey, about this. But has there been an exercise done by Afford to look at a skills matrix in terms of the current board composition? And as you've said, it may be fixed terms for directors and whether that would have a bearing on identifying what skills are required.
MS TOOHEY: Yes. So the board actually underwent a formal board evaluation process at the end of 2022. That was actually run by the AICD. Part of the work that's come out of that is not just the work around the evaluation outcomes but also the development of a comprehensive board skills matrix. So that responsibility is sitting with the People and Culture Committee, yes, and it's on the organisational corrective actions register as well.
MS EASTMAN: Right. So related to skills, often there's an assumption that if you've got the sort of usual profile of a director, then tick to the skills and not much training. And accepting that sometimes that the directors are there in a voluntary capacity and sometimes they may be remunerated, to what extent do you all think that training for directors who serve on boards that provide disability services is a core element of ensuring the board is going to work effectively? You are all nodding. Okay. So what sort of training for Coastal do your directors need and what training do you do?
MS KAPENE: Certainly. Well, in terms of our directors, the induction processes, it is human rights is an obvious and it is a standing agenda item at all meetings. I think sometimes that human rights is taken for granted, that everybody understands that. So I think that's why it's important that we actually open that for discussion at all our meetings. Worker Orientation Module training, so NDIS compulsory modules, I ask all our board members to do, because I think it's important for them to have an understanding of the environment in which the our staff work, but also the environment in which our participants live and work.
MS EASTMAN: For Disability Trust?
MS BERRY: So we provide a comprehensive induction for our directors, which does include visits to the services that we provide. We also provided some specific human rights training for our board last year, which was quite a comprehensive overview and really looked at the delivery of disability services within the context of an international human rights framework.
MS EASTMAN: How what was the nature of that training? How was that done and what did it cover?
MS BERRY: So it covered a number of topics from governance down to, really, all of those requirements under the NDIS Practice Framework. So it was delivered by an external organisation. It was called Right On Board, delivered by an organisation called Purpose For Work or Purpose At Work. And it was a it was compulsory training, and it covered a number of sessions. It went over a period of time and was a comprehensive overview of the human rights approach to the delivery of services.
MS EASTMAN: Did that training cause any of the board directors to change the way in which they thought about and I'm not asking you to be in their minds, but the way in which they approached discharging their duties?
MS BERRY: We have had a strong focus on the Royal Commission. We have had an ongoing specific committee which has been looking at the ongoing findings and topics of interest for the Royal Commission. And I think that that training, as well as our ongoing focus on the Royal Commission, certainly has impressed upon the minds of our directors the importance of a human rights approach to our work.
MS EASTMAN: In the current skills matrix, there's topics that would lend themselves to understanding a human rights approach. But it's not there in black and white, is it, that there is a requirement that the directors have particular skills or training in human rights? Is that right?
MS BERRY: Yes, I think that's right. I mean, the fact that we do prioritise at the top of that skills matrix a knowledge and understanding and appreciation of lived experience and carer voice and the disability sector I think we certainly do signal to our board that that's a priority for us. And we do provide that training on an ongoing basis for our directors as well.
MS EASTMAN: And do each of your organisations have a board charter or some published document that's available to the community on your website setting out what the functions of the board are in the form of a charter or a constitution? So Ms Berry?
MS BERRY: We do have a governance charter. It's quite a lengthy document. That is not available on our website. However, we do have a statement of principle, which is on our website, that we take a human rights approach to our work.
MS EASTMAN: And does Afford have a charter?
MS TOOHEY: We have a draft charter that's going to the board meeting next week for the final sign off, but it will be on the website after it's approved.
MS EASTMAN: And can you give me a sneak preview as to the extent to which human rights is a key feature of the charter or not?
MS TOOHEY: I'm more than happy to provide you with a copy of it.
MS EASTMAN: Thank you. Now, for Coastal, a small organisation, you have said human rights is an important issue for your organisation. So how do human rights come into the skills of the directors, not just being interested in human rights? How do you link the members of your board who are lawyers or accountants how do you make them understand the human rights approach?
MS KAPENE: I think that's an interesting question, and it's probably not a traditional approach with a board. But providing our board members with specific examples at meetings around examples around quality and safeguarding. I think examples around where we are achieving well with participants, examples where there is challenges with participants is a way of, I guess, in terms of informing them and giving them those real life examples around when we have wins with participants in terms of them going above and beyond what they are achieving but also those challenges, that for whatever reason, whether it's a human rights, you know, discrimination, anything like that, that we can actually bring those things to light. And I think it's really important to have those practical examples for our board to understand that it does happen.
MS EASTMAN: Do all of your organisations have a strategic plan or take the approach that a strategic plan that sets some targets in terms of achievement in the delivery of services but also the way in which the organisations operate will work to over a three, four-year period? So all nodding?
MS KAPENE: Yes.
MS EASTMAN: Does that strategic plan have a specific goal in terms of achieving particular human rights outcomes and, if so, what indicators does it use to measure human rights? Ms Berry, you are nodding.
MS BERRY: Yes.
MS EASTMAN: The others are looking a bit not so sure.
MS BERRY: So we there is a number of strategic pillars within our strategic priorities which are relevant in relation to human rights. The first one is delivering exceptional services. So all of our services we deliver within a human rights framework. Likewise, we have a pillar around building on good governance, which, as I mentioned before, we have a human rights approach which guides us in our work. And finally, we also have a strategic pillar around a powerful voice for change. Our organisational mission is to create an inclusive world. And so we are focused on how we can continue to advocate for the rights of people with disability more broadly in our communities.
MS EASTMAN: For Afford, there's lots of strategies and work that's been done. Is there a corporate strategic plan?
MS TOOHEY: No, we have just commenced our process for our corporate strategy.
MS EASTMAN: Okay. Now, for the boards, are we right in understanding that the composition of the boards for each of your organisations is different, but there is a function either in the board or through a board committee to deal with audit issues, risk issues, remuneration issues and then a broader sort of safety risk issues? Is that generally how you organise the board or committees?
MS BERRY: Yes.
MS TOOHEY: Yes.
MS KAPENE: Yes, covering those areas. Yes.
MS EASTMAN: Do the board committees have access to external advisers? Is that the approach that you use, or you assume that the existing directors will have sufficient skills to discharge audit risk, human resources, whatever the relevant board responsibilities would be?
MS KAPENE: So from our perspective, we don't have subcommittees. We are quite a small organisation, and there just aren't the numbers to be able to have subcommittees. I think being a small organisation, I think there is a need for us to look outside those. And so for our board members to obtain advice from outside, and I think that is one of the things we were we have been discussing moving forward around how we formalise that process potentially in the form of advisory boards and other ways of bringing in people, because it is a struggle to have people commit to a board for an extended period of time.
MS EASTMAN: And what are the in general terms, the systems of reporting up to the board and ensuring that the board receives the information that it needs so that it can be fully appraised of the operations? Do you have any particular policies or is it a matter of practice as to what goes to the board and when? And accepting Coastal probably is a very small organisation, so you may not need to have very elaborate communication arrangements.
MS KAPENE: No. And I don't want to use it yes. I don't want to use it as an excuse that we are small that we don't have those systems and processes in place. It is a traditional format of a CEO report with paying particular attention to those items of quality and safeguarding that is and financial reporting and HR reporting.
MS EASTMAN: In larger organisations this may be relevant for Disability Trust and Afford I think the old fashioned notion that the CEO was the repository of all and everything went through the CEO and that the board was really dependent on the extent to which the CEO discharged his or her reporting obligations and told the board what they needed to know is something that's been highlighted in more modern corporate governance research as slightly precarious because it very much put as a lot of responsibility on the CEO, that it builds risk into organisations.
MS TOOHEY: Yes.
MS EASTMAN: So this is the issue for Afford, and I will come to finding 27 in a moment. But before I do, with The Disability Trust, you've just taken on this role as the CEO, and I think you have taken over from a person who was in the role for quite a period of time before. So have you had to look, as an incoming CEO, at what the reporting structure is and the extent to which there are lines of reporting that don't just solely go through you?
MS BERRY: So we I previously worked for the organisation for two years before becoming the CEO, so I'm quite familiar with how we operate in that space. Just in relation to your previous question around whether or not our committees will seek external advice -
MS EASTMAN: Yes.
MS BERRY: yes, we our committees will do that as required. In regards to a particular policy so our risk management policy, for example, requires a particular type of reporting up to our board. So our board regularly receives reports from our quality and safeguarding team around levels of complaints, level of reportable incidents, any relevant data which they require in order to assess our performance and how we are providing supports. So there's a number of mechanisms that we have to ensure that the board gets the information it requires.
MS EASTMAN: So if I put this proposition to you. We have heard earlier that for support workers who may not have sufficient time to do their admin work, as they described it, and that they don't have the skills in relevant record keeping, be it paper records or using the electronic software systems, how are you confident that the reporting to the board accurately is picking up what's actually happening on the ground if part of that reporting up to you and through you to the board relies on what happens at the at the grassroots level? How do you address that in terms of board reporting?
MS BERRY: So we have an ongoing program of training our direct support workers to ensure that the information that they put into our risk management system is adequate. We also will provide feedback to support workers when we feel that the information that's included is not adequate. We have a number of different levels of management that will look at risk incident data and ensure that the quality of that data is appropriate so that we can identify any issues that require our attention. So this is an ongoing piece of work for us that we prioritise.
MS EASTMAN: Ms Toohey, I want to ask you about finding number 27. And the Royal Commission has found that:
In 2018 and 2019, Afford's board and senior management failed to act on a number of indicators of the serious cultural and structural issues impacting on Afford's operations.
That's a shorter finding than the proposition put by Counsel Assisting. But in response to paragraph 403 of the Counsel Assisting's submissions, at paragraph 132 of Afford's response, it accepted that it did not act on the concerns raised regarding the adequacies of its systems to monitor compliance. So looking at the finding expressed by the Royal Commission and I don't know if you have had sufficient time to reflect on this do you accept that finding that the board and senior management and that's not you at the time failed to act on a number of indicators of serious cultural and structural issues impacting on Afford's operations?
MS TOOHEY: Yes, I do.
MS EASTMAN: Would we be right in understanding that the actions taken as part of the business improvement plan, which I think you commenced when you started as the CEO, has been ongoing work to address these structural and functional or dysfunctional matters? Is that right?
MS TOOHEY: That's right.
MS EASTMAN: To what extent do you think it will take or how long do you think it will take to work its way through what were quite significant structural issues and cultural issues in Afford? Do you feel you are there yet?
MS TOOHEY: No, I don't think we are completely there yet, but we have made significant progress and we are probably about 60 per cent of the way through the business improvement plan. But already in this first year, we have implemented a number of changes, particularly in terms of how it relates to governance. So things like the board reporting for example, the board and committee reporting. It is very comprehensive. We have a formal reporting framework in place now which details exactly the types of reporting that goes. There is far more visibility for the board in relation to the quality of what we are doing, our performance indicators around quality, safety, HR.
The board gets full visibility of all external audit reports, for example, now. They get full visibility of our corrective actions register. They can monitor that. I think one of the most important changes for me was actually the executive team attend the board meetings with me, and I think that's very important because what that does is actually give the board direct line of sight and access to the executive without me having without them having to go through me and thinking maybe I'm filtering the information.
MS EASTMAN: Can I
MS TOOHEY: And I think that's been very successful.
MS EASTMAN: Can I ask you this and I mean no criticism of any person when I say this.
MS TOOHEY: No.
MS EASTMAN: But if the board has basically remained the same with one or two new additions, then is that not itself a difficulty in addressing the Commissioners' findings, which was a finding directed not just to a past senior manager but to the board itself? So you've just talked in your answer about what you are doing to support the board, but how would the Royal Commission see a material change in the way the board approaches its business, given its current composition?
MS TOOHEY: I think in relation to composition, that's probably a question you need to ask the board.
MS EASTMAN: The board. Okay.
MS TOOHEY: The board directly.
MS EASTMAN: Thank you.
MS TOOHEY: But I would say that the structure and focus of our board meetings, for example, and our board committee meetings have changed significantly. So the audit and risk committee is the classic example where it was solely focused primarily on financials. That probably takes 10 per cent of the time of the committee now. So they are, in fact, looking at our critical incidents, our risk reporting, all of that. So they are, you know and, yes, that is things that management have put in place. But I think the composition question needs to be directed to the board.
MS EASTMAN: All right. No doubt those behind me have listened to that. The final topic I want to ask you about is about the sort of large number of regulatory structures that operate on Australian corporations. And in the context of delivering disability services, often our attention is very much focused on the NDIS regulatory requirements and the QSC requirements. So the NDIS Act sets out a lot of requirements, together with the practice rules and various other procedures that you have to follow. But as corporations, you have also got other obligations. For example, as those who are corporations, you have obligations under the Corporations Act. How have you met, for example, the obligations under the Corporations Act with respect to part 9.4AAA, otherwise known as the not so new but fairly significant whistleblower provisions? Is that Coastal, I'm leaving you out of this unless you have embraced part 9.4AAA of the Corporations Act. But for I would imagine for Afford and for Disability Trust, you have obligations to set up whistleblower regimes within your organisations.
MS TOOHEY: Yes, we do.
MS EASTMAN: How you have met that obligation, having bearing in mind the obligations in the NDIS regime? How do they fit together? Is there a conflict between how they work?
MS TOOHEY: I don't believe there is a conflict. We have an external whistleblower officer who is external to the organisation. Our external our policy and procedure has just been completely revamped over the last sort of eight, nine months. The whistleblower policy is on our website as well. I don't think it causes a conflict, and I think it's an important obligation.
MS EASTMAN: For The Disability Trust?
MS BERRY: I would agree with Jo. I don't think there's a conflict. We have a whistleblower policy. We also have a no wrong door approach to complaints and feedback. And our quality and safeguarding team plays a role in ensuring that there is some internal independence in terms of how some of that feedback is treated. And, likewise, we would bring in an external investigator if we felt that additional objectivity was required.
MS EASTMAN: For The Disability Trust, we have noticed that you publish a modern slavery statement. So you have opted into the reporting arrangements around modern slavery and supply chains. To what extent has that exercise had an impact on your organisation in looking at your supply chains and thinking about those supply chains in the context of any modern slavery implications that involve people with disability, including people with disability who may not be paid minimum wages?
MS BERRY: We have we intend to take more of an educative approach to that in terms of ensuring that the contractors and suppliers that we use are across our statement and our policy, and that we ensure that they are aware of their modern slavery obligations. That's probably the best I can provide you on that topic.
MS EASTMAN: Okay. Another obligation that you have is as employers and a range of obligations under the Fair Work Act in relation to meeting National Employment Standards but also a range of obligations around record keeping. Are there any conflicts that arise in meeting the obligations under the Fair Work Act with respect to your employees and obligations that you seek to meet for the people with disability for whom you provide services? And do any tensions arise in meeting those two sets of obligations?
MS BERRY: No, I don't believe any tensions arise.
MS TOOHEY: No, I don't believe so.
MS EASTMAN: And from a work health and safety perspective, the Royal Commission has heard at different points in time that work health and safety doesn't sit easily with disability, either in terms of employing people with disability. The Royal Commission has heard that there is a perception that a person with disability may impose a work health and safety risk, but that perception doesn't seem to be backed up by data. Have there been any conflicts or inconsistencies or challenges in meeting work health safety obligations for the places in which you deliver services, particularly if you may have people with whom you provide services who may have challenging behaviours and the use of restrictive practices meeting both work health and safety obligations? Is there a challenge in meeting both sets of obligations?
MS BERRY: No, not in my view. There is not. In fact, the obligations under work health and safety law, I believe, enhance our ability to provide safety safe and quality services. Likewise, I do not see any impediment in terms of us deepening the representation of people with disability in our workforce or in our governance structures. There's no impediments there, in my mind.
MS EASTMAN: Last one on legislation, and I'm mostly focusing on national rather than say, in Tasmania, I know there's particular obligations. But for those organisations that are registered charities and not for profits, there's reporting obligations through the Australian Charities and Not for profits Commission in terms of reporting a range of matters. Is this reporting consistent with the reporting that you have to undertake for corporations law purposes or NDIS purposes? So is there a consistent of approach or is there a challenge that you are reporting to several different agencies much the same information?
MS TOOHEY: Pretty much the same information, yes.
MS BERRY: I don't see any issues there.
MS TOOHEY: No. No.
MS EASTMAN: Okay. And my final question the Commissioners might have a question is the Royal Commission recently held a Public hearing in relation to a vision for a future. And so one of the issues that we looked at was the extent to which the private sector and that includes the disability services organisations have a role in giving effect to Australia's Disability Strategy 2021 to 2031. And we heard evidence about the use of targeted action plans, meeting priority areas and an evaluation framework that applied to government. Has there been any consideration of your organisations opting into the ADS and using the ADS as a model of improving the quality and safety of the services that you provide? So, Ms Berry, you are nodding.
MS BERRY: So broadly speaking, the disability strategy, I think, is an excellent document which outlines the aspirations of the Australian community and which we absolutely are aligned with. In terms of the targeted plans that you referenced, I think that's a good model. We haven't utilised that model that specific model as yet, but I can certainly see there would be benefits in doing so.
MS TOOHEY: I would agree with that.
MS KAPENE: I think for our organisation, again being small, it is something that we need to be able to share the good news stories that we have, where we have people with disability who play a vital role in as support workers in our organisation, in inducting new staff and participants who induct new staff. I think it's really important that we look at those things and find some way to put those into place.
MS EASTMAN: Ms Toohey, is there any
MS TOOHEY: I completely agree. Yes.
MS EASTMAN: So the topic I want to end on and, again, we are thinking about corporate governance. Have any of your organisations reflected in advance and think about where disability services may be in 2031? And what do you think will be the material changes required in the corporate governance models for disability service providers?
MS TOOHEY: That's a big question.
MS BERRY: It is. I can I'm happy to start on that one. I think a critical lesson for service provision is around strengthening the voice of people with disability in a range of ways throughout the services we provide. So that's where I believe we will see material changes. I think the opportunity to explore quotas, which I know has been considered, I think is an excellent opportunity to compel organisations like ours to ensure that we have the voice of people with disability, including the voice of people with intellectual disability, on our boards.
MS TOOHEY: I agree with that. I think there also is a need for a continued need and I think it's been a sort of evolution in relation to corporate governance. But, you know, many of our organisations are large, complex organisations. And I think, at times, community and this goes to even when you are trying to recruit more directors, for example, people will often have this assumption that not for profit boards, for example it might look great on my CV to be on a not for profit board, but don't really understand the complexity of what we are actually working with every day and the fact we are, in fact, large, multi million dollar you know, tens of millions hundreds of millions of dollars organisations. So there is all that complexity that also comes with it.
So I think that there's a level of sophistication that also needs to occur across the sector. I think there are a lot of I think there are a lot of particularly, I think, smaller organisations and larger organisations such as our own that grew very quickly. We had, you know, a board that was community focused, from a local community. But there's a level of sophistication that's now required in relation to corporate governance. It's no different to your executive leadership team or your management systems across the organisation, and it needs to continue to evolve and grow as the sector continues to evolve and grow.
MS EASTMAN: Coastal?
MS KAPENE: I think from the perspective of a smaller organisation, I would really like to see that smaller organisations like ours can stay and operate effectively from a corporate governance perspective but not lose sight of the benefits that a small boutique provider can give. And that's that proximity to participants, to their families, to be approachable and to able to be really reactive and responsive as well.
MS EASTMAN: Thank you all very much for answering my questions. The Commissioners may have some questions for you. Thank you.
CHAIR: Commissioner Bennett?
COMMISSIONER BENNETT: My question, I think, is directed to Ms Berry and Ms Toohey. As larger organisations lots of money, as you just said, lots of people, a lot of services. We've been talking about representation of people with disability on boards, in leadership roles and as employees of your organisation. The Disability Trust is funded to provide a school leavers employment support, training and are a DES provider. Afford is a school leavers and ADE and a DES. And yet you have hardly any people with disability working in your organisations, in your leadership roles and on your boards. Do you not see a dilemma that you are funded to do this, to help people with disability in their work choices and in the skills of their working life, and yet your organisation itself isn't structured to increase that participation actively?
MS TOOHEY: Yes, I do see that as an issue. Yes.
MS BERRY: Yes, I would agree that's an issue too. There are a number of initiatives that we are involved in to try and increase the number of people with disability that are employed not only within our own service but in other services too. But in principle, yes, I agree with you.
COMMISSIONER BENNETT: Have you and your boards and organisations considered the setting of targets to increase? Which is obviously combined with reasonable adjustments and active recruitment and working with disability organisations. Have you considered the targets?
MS BERRY: I think taking a target based approach would be an excellent way forward, yes. I agree that we should consider that, and we will consider that.
MS TOOHEY: Yes, we have talked about that with the launch of the inclusion and diversity policy, setting targets.
COMMISSIONER BENNETT: And finally, in the public sector, they are required to include in their annual report the diversity of their workforce, gender and including people with disability or culturally and linguistically diverse. Do you think your organisations should also report that information in a public way that can be read by the broader community?
MS TOOHEY: I think reporting diversity is I would have no issue with that. I think reporting diversity in relation to the number of people with disability, the number of older Australians we might employ, you know, there's there's a range of diversity applications that I would see would be appropriate for reporting. I would have absolutely no issue with reporting that.
MS BERRY: Likewise.
COMMISSIONER BENNETT: Thank you.
CHAIR: Commissioner McEwin.
COMMISSIONER McEWIN: Thank you. Thank you to the three of you. My question for all of you is, have any of your boards given thought or consideration to CEO succession planning that could or would involve a disabled person potentially then becoming the next CEO of your organisation?
MS BERRY: I can't speak to the mind of the board on this topic, but certainly I have given that consideration personally in terms of how I might be able to upskill and mentor a person to take my role as CEO, a person who has a disability. I would be very pleased with that outcome.
COMMISSIONER McEWIN: Anyone else?
MS TOOHEY: No consideration at this point in time, no.
MS KAPENE: From my perspective, certainly CEO succession is really important. And I will take on board as far as passing on to them that it should involve anybody that is appropriate for the position.
COMMISSIONER McEWIN: To close off, are you aware of any other models around Australia that other disability service organisations might be doing in that respect?
MS BERRY: To enable leadership of people with disability, do you mean?
COMMISSIONER McEWIN: No, the CEO succession planning that relate specifically to the CEO. Are you aware of any model?
MS BERRY: No.
MS TOOHEY: Not that I'm aware of, no.
COMMISSIONER McEWIN: Thank you.
CHAIR: Thank you. Mr Lloyd, it probably won't come as a great surprise to you, but I have a proposition to you. Let me provide a little chronology. The hearing for Public hearing 23 report took place in May 2022. Counsel Assisting's submissions were provided on 26 August 2022. Afford responded, commendably swiftly, on 16 September. Afford basically accepted all of the major propositions advanced by Counsel Assisting, with some minor variations. Afford has only recently received the report of the Commissioners, but there's nothing in that report that I would have thought came as a particular surprise. The findings, as we have discussed today and Ms Eastman's questions are brought out, demonstrate that Afford was, in fact, a deeply dysfunctional organisation and that the board over a long period failed to effectively discharge its governance obligations to ensure the safety and quality of services provided and to safeguard its clients against the risk of violence, abuse, neglect and exploitation.
It's not evident on the evidence that we have received that the board has actually accepted responsibility and been accountable for the failings that occurred. It's one thing to try and do things better, and that's very commendable, and obviously Ms Toohey has played a major role in that. But accountability is rather different from saying, "We have got to do better.” And I bear in mind that in a commercial organisation where the board has overseen a deeply dysfunctional organisation or an organisation that has failed to comply with its legal obligations, the members of that board not necessarily all, but many would not survive. We've had recent examples with Crown. We have had examples arising out of the Financial Services Royal Commission.
So my question to you and, again, I will take the same approach as I have earlier today. Is there any reason why the Royal Commission in its final report should not find that the board has failed to accept responsibility and been accountable for its serious failings? I put that question in the light of the evidence that there has only been minor changes to the board. The structure of the board and the composition of the board apparently seems to be pretty much as it was during the relevant period. So that's the proposition I put to you. I invite you to make any submissions on behalf of Afford that you would want to. And as with the previous exchange, if that can be done within a period of seven days, that would be helpful.
MR LLOYD: That can be done, Commissioner.
CHAIR: Thank you very much. Ms Eastman, if we adjourn now, when should we resume?
MS EASTMAN: Could we I'm just conscious that Ms Toohey has still got to be here after lunch.
CHAIR: Yes, it's a long
MS EASTMAN: So I just wonder whether this given the length of this morning and the detail, that we take an hour. So if we can come back at 2.15.
CHAIR: All right. Well, if we do that, is 2.15 all right? That's just a couple of minutes longer than an hour.
MS EASTMAN: I hope that's enough time.
CHAIR: And in that time, Ms Toohey, take advantage of the opportunity to relax.
MS EASTMAN: And Ms Toohey and Ms Berry will be back after lunch. Thank you very much.
CHAIR: All right. Thanks to each member of the panel for your contributions today. We appreciate your assistance, and it's been a very interesting and helpful discussion. Thank you.
<THE WITNESS DEE-ANNE KAPENE WITHDREW
<ADJOURNED 1:12 PM
<RESUMED 2:16 PM
CHAIR: Yes, Ms Eastman.
MS EASTMAN: Thank you. Commissioners, the next panel will address the issue of risk in the context of corporate governance. And you will see that Ms Toohey has remained on the panel, Ms Berry has remained on the panel and Ms Dean has returned to join us, having given evidence as part of the human rights panel on Monday. So thank you all for attending. That relieves me of the burden of doing the formalities to introduce all of you. And I think everybody has given their respective oaths and affirmations already.
<HAYLEY DEAN, RECALLED
CHAIR: Since you are all seasoned veterans, there is no need for a further welcome. But thank you anyway.
<EXAMINATION BY MS EASTMAN SC
MS EASTMAN: So, Ms Toohey, the final matter I want to raise following Public hearing 23 is the Royal Commission's finding number 24, which says:
As documented in the Ansvar report, the board's finance audit and risk committee did not have sufficient oversight of risk management in the organisation. The risk management framework maintained by Afford was fundamentally deficient in addressing the risks to clients of violence, abuse, neglect and exploitation.
That reflects the submission made by Counsel Assisting at paragraph 361. In Afford's response, in Afford's submissions, at paragraph 120, Afford accepted the deficiencies within Afford that were identified in the Ansvar report. And at paragraph 125, Afford accepted that there were failings in relation to the oversight function performed by the board. It acknowledged that the board should have been aware of the care and support needs provided in its services and that it should have acted on the advice and recommendations of a particular person. So Afford has not addressed directly the proposed finding, and now the Commissioners' finding, that the board's finance audit and risk committee did not have sufficient oversight of risk management in the organisation, and the risk management framework maintained by Afford was fundamentally deficient in addressing the risk to clients of violence, abuse, neglect and exploitation. Is there any response or comment that you wish to make to that finding?
MS TOOHEY: I think the organisation agrees with that finding. We've done significant work in that space since the Ansvar report actually came out, just over 12 months ago. In fact, I have just had Ansvar back to do a health check on our risk management framework, just to check how things are progressing, and they are coming back to do a full audit again in about four or five months' time. We have put in place a new risk management policy, a new risk management framework. There is a whole suite of reporting now that goes both to the audit and risk committee as well as the board. And as I mentioned in the previous panel -
MS EASTMAN: Can I ask you to slow down a bit.
MS TOOHEY: Yes, I thought that in my head.
MS EASTMAN: Thank you.
MS TOOHEY: As I mentioned to the previous panel, the reporting now that goes to particularly to the audit and risk committee has completely shifted the focus of conversation in that committee. So we are only spending a quarter of the time talking about our financial matters in the organisation. The rest of the time is around risk, and it is around risk, critical incidents, quality indicators, those sorts of things. The board also gets a suite of reporting as well. The one of the board directors who comes from a health background, she actually worked for the executive director for experience and safeguarding in developing up the performance reporting framework that she thought would also be appropriate. She has considerable skills in clinical governance, for example. And that reporting then also gets reflected in things like our performance score card, which gets circulated across the organisation and goes up to the board. Things like complaints, restrictive practices, critical incidents -
MS EASTMAN: Slow down, please.
MS TOOHEY: Yes. All of those sorts of things now get regularly reported up through the board.
MS EASTMAN: So with this panel, I want to ask each of you, who represent large providers, about the approach to preventing and responding to violence, abuse, neglect and exploitation. As a starting point, is it right that every organisation should assume that violence, abuse, neglect and exploitation is occurring in their organisation?
MS BERRY: Yes.
MS DEAN: Absolutely.
MS EASTMAN: And without that assumption, then it is almost impossible to think about responding to violence, abuse, neglect and exploitation if the starting premise is, "It doesn't happen here.” So if the starting point is to assume that violence, abuse, neglect and exploitation is occurring in organisations, from your experience, what is the nature of the violence, abuse, neglect and exploitation that we should assume is occurring within organisations? From The Disability Trust’s perspective, do you want to comment on that?
MS BERRY: Yes. I think that, fundamentally, you need to assume that at any time there may be a serious incursion of a person's rights occurring in your service. Most commonly for our organisations, and for many organisations, the issue of client to client incidents is a very live risk, and how we work towards making changes to prevent that ongoing violence and or abuse is a critical area of practice for us.
MS EASTMAN: Can I ask you without going back to the particular context in which this evidence was given, but at a previous Public hearing, the Royal Commission has heard from a CEO of a service provider to the effect that it's inevitable that there is going to be violence, abuse, in an organisation that provides services to people with disability in the same environment. That it's inevitable. Do you share that view?
MS BERRY: No. I would say that we need to work we have a zero tolerance approach to violence, abuse and neglect, and that we should be always working towards having no occasions where a person is subject to ill treatment in our services.
MS EASTMAN: And, Ms Dean, we spoke earlier in the week about a human rights approach and the zero tolerance model that is adopted at Melba. From your experience, what is the nature of the violence, abuse, neglect or exploitation that you inherently assume exists within the organisation?
MS DEAN: Very much as my colleague has expressed. But also in terms of what we would term coercive control, so some of that more insidious violence, abuse, neglect, exploitation. And a good example would be the withholding of a particular valuable item for an individual or making decisions about that individual in terms of them not being allowed to see their family member if they don't clean their room. And I think often not to take away from the seriousness of the more well known incidents of violence, abuse, neglect and exploitation - but I think it was mentioned earlier in the hearings about that slow violence. So that imbalance of power and the understanding of the support worker's role in terms of we are all equal by virtue of being human. And it's those areas that are much as much as an insidious issue of violence, abuse, neglect and exploitation as an assault.
MS EASTMAN: And, Ms Toohey, have you got a sense of how you would approach describing the nature of violence, abuse, neglect and exploitation on the assumption that it is existing in the organisation?
MS TOOHEY: Look, I think I would probably agree with my colleagues, particularly in relation to client-to-client as well. I think that's, you know, often underreported generally as well. It's often assumed that it is staff to client, but there is, you know, obviously, quite a bit of client-to-client. I think that coercion, that abuse of power that, for me, is really insidious.
MS EASTMAN: Is the coercion and the abuse of power not only a form of violence and abuse but also perhaps a cause of violence and abuse?
MS DEAN: Absolutely. I think I mentioned in when I was on the previous panel about us using the term "behaviours of protest". And that, more often than not, is as a result of a reaction to that abuse of that coercive control.
MS EASTMAN: In terms of the extent of violence, abuse, neglect and exploitation that may be existing in the organisation, often the measurement of the extent is done by incidents as they are reported. Have you reflected on examining the extent of violence, abuse, neglect and exploitation within an organisation not by reference to a critical incident or reported incident?
MS BERRY: So, yes, we are first of all, we have an approach whereby we do have high expectations in regards to information which is entered into our risk reporting system. We also work at having a no blame culture to begin with. There may be staff members who we find are accountable for their behaviour. But we do encourage, as I mentioned, a no wrong door policy where people can bring forward any kinds of information which are relevant to emerging cultures of abuse within our services, for example. So we like to move on situations where we think there might be some emerging concerns around an individual staff member, for example, or group of staff members so that we can address those issues before we prevent incidents from occurring in the future.
MS EASTMAN: So how is that relevant to measuring the extent of violence and abuse within an organisation?
MS BERRY: Because I think it goes to proactively preventing those incidents from occurring in the first place, which I think is where we need to more proactively use the data that we have available to us.
MS EASTMAN: That's a different approach, isn't it, from what traditionally is a reactive model, that the response to violence and abuse is when the incident occurs, you move into action with that responsive model. If you move into a different type of model which is proactive and you need to understand both the nature and the extent of violence and abuse, what are the sort of key elements to taking a proactive or preventative approach?
MS BERRY: As I mentioned, it is about the sort of data that you are receiving. And it could be through your risk management system, it could be reflections from staff members, from team leaders, from managers around potential emerging cultures of concern or concerns about the particular approach being taken by a staff member who may require further education or counselling around the approach they are taking to the people they are supporting. So that there's a number of ways that you can work to attempt to prevent abusive cultures from emerging in the first place.
MS EASTMAN: Ms Toohey, just on this point, I think you mentioned yesterday about the housing stock and the whether it was you, I think, but the legacy housing stock.
MS TOOHEY: I don't think that was me.
MS DEAN: That might have been on the panel that I was on.
MS EASTMAN: It was. So I think in the I think in the context of some evidence yesterday, and perhaps even on Monday, is that the environmental factors are relevant to understanding and addressing the extent of violence and abuse that may occur. If, for example, service providers have taken over historically services run by State Governments and we are talking about housing which might be the five bedroom, four bedroom arrangements where the housing stock is quite old and not suited and I think that was the effect of the evidence yesterday then to what extent do those environmental factors alone contribute to the extent of violence and abuse? So that's stripping out the person. There's a lot of the responses that we have seen in the Royal Commission very much focuses on the person who engages in conduct. But I want to bring that back to the environmental circumstances. So if I didn't ask you that, Ms Toohey, and I asked someone else, I will let you off the hook here.
MS TOOHEY: I'm happy to answer it.
MS EASTMAN: But, Ms Dean, is that something you want to address?
MS DEAN: Absolutely. I think the environment of the house is absolutely critical, together with the compatibility of the people that live that in the house and having the appropriate spaces, makes a massive difference in terms of people being exposed, as in, the people living in the house. I think compatibility is a massive issue, especially when you talk about legacy stock and five individuals living together. When we think about the environments that I know I would choose to live in, or every member of society would want to live in, we may live in a shared house when we are at university, but it mainly lasts for a short period of time. So the choice and control of who you live with, especially when you are talking about person to person abuse.
MS BERRY: I would agree with those sentiments. I think that point around the importance of the physical layout of the home to enable people to have spaces they can go to is really critical.
MS EASTMAN: So looking broadly at the causes of violence and abuse, there is the environmental factors, there may be interpersonal behaviours. But have you looked at, within the culture of the institution, what is it about the way in which that culture might lend itself to being a cause of violence and abuse? And the example I will give you I think was the example that Ms Riddell raised yesterday of neglect and a culture of just overlooking the simple things or overlooking things that just "it doesn't matter". So that culture seems to be a contributor to violence. How do you measure that at an institutional level within organisations?
MS DEAN: At an institutional level, I think there are a number of ways that one can measure it. So the way that we would look at it is we actually have a team of practice coaches that will actually work alongside support workers in terms of supporting their role and the particular task that they that need to be the priority. And being able to look at the culture and I think my colleague over here mentioned it as well. So it's being able to look at what is actually critically important in the delivery of supports, picking up whether that's being delivered and then looking at the particular trends that may be emerging.
And by being able to use practice coaches working alongside, you can actually then pick up on some of those emerging trends. Yes, we have incident reporting. We may have a positive speaking up culture, a welcoming of complaints, anonymous complaints, protective disclosure. But actually being in that particular home and working alongside enables you to then understand what those trends are and then work with that group of staff in terms of what is best practice, what is important. And maybe having a dirty floor is less important than supporting someone to actually be engaged in something that they are going to enjoy.
MS EASTMAN: To and I want to ask you in a moment about managing risk. But before we get to that, I want to ask about what data you keep that is directed to the matters that we've just been talking about, identifying nature, understanding extent and identifying causes. Is for any of your organisations, is there a practice of collecting data that helps you measure each of those elements as opposed to just how many critical incidents have occurred? Ms Toohey, you have included in your response to the Royal Commission a particular model that you use. Do you want to speak to that?
MS TOOHEY: Yes. I mean, there are elements of what you're speaking about that we collect and then that information then is used to identify trends and patterns. I think the other element that we are also talking about is just in relation to organisations having really solid safeguarding frameworks in place, because elements such as environment, making sure that staff speak up, but also making sure that staff actually have the tools and the knowledge to be able to identify behaviours of concern when things just don't feel right, they have a niggle about something, you want staff to be able to call it out with each other as well. It's not just about after the incident has occurred or when it gets to a particular point. And, you know, a good safeguarding framework incorporates all those elements, including environment.
MS EASTMAN: And, Ms Berry, do you use any tools to identify nature, extent and cause?
MS BERRY: Yes, we would have. We've got a number of ways that we have types of incidents that might occur within our organisation. We have within our risk management system a number of indicators within that risk management system which trigger particular responses by our management team. So culture is a you need to keep a constant barometer on culture, not across your organisation but within houses, within day programs, within every setting where you are delivering services. We have a zero tolerance approach to abuse and neglect within our organisation. We have that culture where we encourage people to speak up. So there's a number of ways I would support Ms Toohey's suggestions there, that there's a number of ways that you can find out relevant information in order to address any concerns.
MS EASTMAN: To what extent have any of your organisations looked beyond models of addressing violence, abuse, neglect and exploitation for people with disability to other areas? And I will give you one example. If people living in a group home are have a mixture of gender, maybe male and female, to what extent have you drawn on the work done on family violence and domestic violence, including, for example, the strategies identified in the National Plan for the Elimination of Violence Against Women and Girls which the Federal Government released late last year? Have you looked to other models of dealing with violence that may be situational or relational to understand the nature and extent of violence and abuse that might occur, for example, in a group home? So, Ms Berry, you are nodding.
MS BERRY: Yes. I think certainly from my perspective, the consideration of violence within individual homes ought to be considered in that domestic violence context. It is intolerable for any of us to live in circumstances whereby we are subject to abuse, and we need to have that prism of not accepting any kind of abuse within living contexts. And I think that domestic violence framework is a critical one for us to see this through.
MS EASTMAN: Ms Dean, has Melba looked at different types of models in understanding situational or relational violence?
MS DEAN: We have certainly looked at it in a very similar context from a family violence perspective. Hence when we look at human rights, for example, together with abuse, we look at areas such as coercive control, financial abuse. So all those areas of abuse that would occur and would be named within family violence that are not necessarily named as such within the NDIS Safeguarding Framework. And we certainly break that down. Instead of just using the term "poor quality of care", we may use that as a broad term, but then we break that down into the specific areas of abuse that would relate more to a family violence situation from a general societal perspective rather than from within the NDIS context of reporting.
MS EASTMAN: Ms Toohey, is there anything you want to add to that?
MS TOOHEY: No, I completely agree.
MS EASTMAN: So the Royal Commission's work for Public hearing 17, which focused on violence and abuse experienced by women and girls with disability, one of the issues that arose is how we define in our laws domestic and family violence, and the laws across Australia are different. But some laws would capture people living in a group home, and they live there because of disability. But others jurisdictions would exclude that. Do you think that there would be merit in having clarity for people who live in group homes live in domestic situations and that the way we think and approach family and domestic violence should be the way we think about approaching violence and abuse within group homes or even long respite services long care respite services or even ongoing day programs? Would you all agree with that?
MS TOOHEY: Absolutely.
MS BERRY: Yes. The only thing I would add to that as well is that if you are supporting people with cognitive impairment, you know, the importance of supporting people with their behaviour as well. So that's just an additional complexity, I suppose, which I would call out.
MS EASTMAN: Right. Now, I want to go to another area of law and ask the extent to which you are thinking about addressing violence and abuse within the provision of the services, is, as service providers, you have an obligation to ensure that those receiving the services are not subject to being sexually harassed. And there is now a new raft of laws about hostile working environments and hostile workplaces. To what extent have the service providers and I'm only asking you to speak for yourself really thought about that group home, for example, as both a workplace and a place where services are provided? And if, for example, there are incidents of sexual violence or sexual harassment, to what extent do you have regard to the legal framework in the way in which you respond to incidents that might occur?
MS BERRY: So we would consider sexual harassment to be, once again, not acceptable, whether or not that is anyone who is engaging in sexually harassing behaviour. Obviously if it was a staff member towards a staff member, absolutely there's no acceptance of that. If we saw that there was we had circumstances whereby a person we support is engaging in that type of behaviour, we would not accept that that's okay for staff members to be exposed to that, and we would be working to educate and redirect that individual to really clearly signal to them over time that that's not appropriate behaviour.
MS EASTMAN: What about in the reverse? So that for the support workers going into the homes but place which services are provided, how do you approach the obligations for support workers in relation to sexual harassment?
MS BERRY: To ensure that they don't engage in sexual harassment? Yes, we have absolutely a zero tolerance approach to that. If there was any information which came to hand that a staff member was engaging in sexually harassing behaviour, that would be immediately acted upon.
MS EASTMAN: But are you approaching that in terms of just managing risk or are you approaching that thinking about the fact that there are legal obligations? And I think you were both on the panel earlier where I went through a raft of different legal obligations, and we didn't get to the anti discrimination, sexual harassment ones.
MS BERRY: I'm thinking about that in relation to rights. It's not appropriate for anybody to be exposed to that kind of behaviour in any context.
MS EASTMAN: Ms Dean, you operate in Victoria, and I asked you the other day about the Victorian Charter having work to do. But I didn't ask you about the Equal Opportunity Act in Victoria, which has a positive duty on service providers and those subject to the Equal Opportunity Act in Victoria to take positive steps or use positive measures to eliminate discrimination, harassment or victimisation in workplaces or in the services that they provide. That's been in operation in Victoria for about 10 years now. How has that obligation had any impact on the way in which your service operates in managing the risk of violence, abuse, neglect and exploitation?
MS DEAN: I think it depends on how one is looking at it. Certainly when it comes to our workers, it is exactly the same as my colleague said. We absolutely would not abide by any level of harassment sexual harassment from worker to worker or from a worker to a person that's being supported. That would clearly be a breach. When we are talking about a person whose being supported and it's often termed as occupational violence. When a person supported may appear to be engaging in occupational violence with a support worker, we would look at that from a behavioural support perspective, and we would absolutely then look towards supporting the staff and supporting the individual in terms of what would the behavioural strategies be. As I've mentioned, we call them behaviours of protest, and we know that that can be a product of the environment or absolutely a form of communication. So it would be about that intensive work to ensure that both are being protected and that we do know with excellent behaviour support strategies, occupational violence then becomes less.
MS EASTMAN: I want to turn to risk and the approach to risk. On one hand, the model of supporting the advancement of rights of people with disability is the recognition of dignity of risk, and inherent in that is the opportunity to take risks or make decisions that others might not necessarily agree with. But you we also see in the material a view that there should be a zero tolerance approach to the risk. Is there not a tension in the model that says there should be zero tolerance but at the same time seeking to advance the rights of people with disability in practising dignity of risk? How do you navigate a tension, if that does exist?
MS DEAN: I'm not sure it's actually a zero tolerance to risk. It's a zero tolerance to violence, abuse, neglect and exploitation. And everybody has the right to dignity of risk, and it's about working together with the person around what that risk may mean to that individual. And our responsibility is to work with the person to ensure that they are informed in terms of what that risk may be and then to support them if they choose to participate in a particular activity that does have a level of risk. I think to support individuals to truly explore and enjoy life, one has to understand that there is risk involved.
MS EASTMAN: Well, what if exercising dignity of risk and supporting the person to exercise a choice to undertake that risk imposes a work health and safety or a risk of work health and safety breaches, for example, in a group home or the delivery of a day program? That's a tension I'm how do you resolve that?
MS DEAN: Yes, no, there is an absolute tension between the protection of the worker, the dignity of risk for the individual. I would be interested in an example because I'm trying to think through an example whereby there would be a situation whereby an individual would be prevented from being able to explore an opportunity that would cause risk to the workers.
MS EASTMAN: So I will give you an example.
MS DEAN: Thank you.
MS EASTMAN: So assume that there's a group home, and there is four residents in the group home. One of the residents who came to the group home late in the piece has a nicotine addiction and is a chain smoker. That person can't smoke outside for a range of reasons, but wants to smoke inside. That causes a risk to the other three residents in the home, and it may also cause a risk to the workers there. But the dignity of risk for that person is to enable him to be able to continue to smoke. The service provider says, "This is tricky for us because in the past we have had a situation where we have allowed a smoker to smoke outside unsupervised and, as a result, he incurred a serious injury in relation to effectively causing a fire.” Now, that's an example, but you might sort of say that scenario would weigh in favour of preventing the smoking, but dignity of risk would say you have to find a way through on that.
MS DEAN: Yes, absolutely. So it would be looking at the external outside environment as to what are the other risks to the environment, as in externally, so that that person could actually smoke outside. One I mean, I'm thinking through myself in terms of the person. A space even in their bedroom would probably not be possible because a support worker would be entering that bedroom and therefore would be exposed. So it would be about looking at the external environment outside to be creative. I think that's critically important to look at every possible opportunity to be able to uphold that person's right to smoke. Yes, there is a tension.
MS EASTMAN: So in that just take that scenario, which assumes hypothetical, is who makes those decisions, then, on managing that risk in that location? Would that come up to you as a CEO of the board or would that sorry, CEO of the organisation, perhaps reporting to the board, or would that be made by a support worker at a local level or a house manager?
MS DEAN: As it's potentially a breach of their rights because as I mentioned previously, our human rights checklist actually has the question, "Can that person smoke if they smoke?” So in that situation, it would actually come up to firstly, it would go to our practice, quality and safeguards committee and our senior practitioner. If there was not the ability to respect that person's rights, it would be reported through to me and then to the board as part of our reporting.
MS EASTMAN: And what would be the approach that you would take in terms of having to make a decision in a scenario like that?
MS DEAN: That is a very challenging situation.
MS EASTMAN: I'm wanting to apply human rights in practice and see how you all -
MS DEAN: Yes. Absolutely. It's not black and white, is it? It is very challenging. We would have to work through all sorts of different scenarios to be able to understand how we could uphold that person's rights. And, you know, at times it may actually be looking at is there another place that that person may want to choose to live if it's that important to the individual. And obviously smoking would be because it is an addiction. So we would have to look beyond just what's in front of us in terms of the environment that they are living in. And there would be a lot of rigorous conversation around what would the outcome be, and that could be that the person moves.
MS EASTMAN: So that
CHAIR: That assumes a prolonged decision making process about a long term issue. Practical examples involve can be postulated but involve snap decisions where the use of principles like dignity of risk and balancing risk against the responsibilities of the service provider do no more than indicate there's a problem. They don't provide an answer. Take someone who is going down with a carer to the beach. That person says, "I want to go in and have a swim.” And there is an undercurrent. And the carer may or may not be able to swim. What does the carer do if the carer thinks that this is really going to pose a significant risk? The person perhaps isn't very adept at swimming. There is a real risk of harm to that person. What do you do?
MS TOOHEY: I mean, I would expect the staff member to call their direct line manager and ask for help and assistance. I mean, it's I think
CHAIR: All right. So the person rings the manager. What does the manager do?
MS TOOHEY: I think for providers it's always that I mean, dignity of risk whenever I've done a risk appetite statement with a board, the concept of dignity of risk has always been the element that's caused the most conversation. Because there's always that balance for providers around duty of care and what is a failure in our duty of care as opposed to someone choosing to live the life they want to, whatever that entails and whatever that means. It's and even the tension of the scenario you are talking about in relation to, you know, smoking in the group home, again, there's that tension between it's actually someone's home and a workplace. Is it a home or is it a workplace? And there's that tension that continues to occur.
And I don't think there's any easy answers to it. I think it's about the organisation setting that organisational risk appetite, being very clear about the fact that that we absolutely support our clients to make the choices they want to make and that we will help to enable that and we will support that. But we will not tolerate failures in our duty of care. And our duty of care doesn't have to get overlaid with that risk appetite we have in relation to duty of risk. You know, it's a very difficult situation for organisations to continue to navigate.
MS EASTMAN: Well, in terms of that duty of care, there has been some suggestion and I'm not saying this represents in any way the views of the Royal Commission that in disability services, there should be the concept of a non delegable duty of care, similar to perhaps a common law duty of care that exists for educational institutions in relation to children. If there was a non delegable duty of care, would the result be that the risk appetite would be less on any potential risk that might expose the organisation to liability? Would that be a consequence of a non delegable duty of care?
MS TOOHEY: I think it could be, yes.
MS EASTMAN: Can I come to you, Ms Berry, because I'm looking at your risk appetite statement that you provided to the Royal Commission. And if the Commissioners have got the Hearing Bundle I don't know what G. Behind tab 23. Are you familiar with this document? Again, I'm mindful that you have only come to the role recently. This approach to the risk appetite statement measures risk as zero, low, medium or high. And then it sets a series of questions to work through to make an assessment in relation to risk. And I think, Ms Toohey, you have just referred to risk appetite statement. I think it's something that, in the broader corporate world, ASIC is quite fond of risk appetite statements, and we see that language in other places. But, Ms Berry, can you just walk us through how would this work? How would this risk appetite statement work in the scenarios that we are exploring of dignity of risk and risk management?
MS BERRY: So in our risk appetite statement, we do articulate that in relation to client safety, our approach to risk management we have a low tolerance of risks in relation to client safety. However, we will consider where there is scenarios where a dignity of risk is in play, our risk appetite goes up to medium. And the reason for that is that we want to enable people to take risks where that's their desire. And as my colleagues have mentioned, we individually assess situations and apply our risk appetite to those situations. In relation to the example that was provided before in regards to the individual client who wants to go to the beach, for example, an important analysis of that situation would involve ensuring that the relevant staff member taking that person to the beach can swim. So there's those individual assessments which are undertaken in advance of activities to make sure the person supported
MS EASTMAN: That doesn't lend itself to much spontaneity in life, is before you say, "It's a pretty hot day. I need to get down to Bondi.”
CHAIR: I assume you have taken children to a beach.
MS EASTMAN: "Here is the risk management assessment that we have to do.” So how do you again, dignity of risk is also the risk to be able to do something without necessarily thinking through everything and it might be spontaneous. How do you how do you navigate that?
MS BERRY: I think part of that is around how you train your staff to enable people to take risks. Likewise, I think it's about your knowledge of the person that you are supporting and ensuring that you have a good knowledge of that person and their goals and their interests, and ensuring that the supports that you put around that person enable that person to make those choices, I suppose is the point that I was trying to make with that example. Yes.
MS EASTMAN: Ms Dean, in the material that you have provided to the Royal Commission and, Commissioners, this is in the same volume behind tab 27 you have provided to us a document called a VANE report, incidents of violence, abuse, neglect and exploitation. And it's got a number of graphs and figures that record the incidents. So is this a model that you use, coming back to our earlier discussion, to measure nature, extent and causes?
MS DEAN: Yes, it's we use this particular document in combination with a number of other documents, and we look at them at a number of levels across the organisation. We look at it at the practice level, and we also look at it at board level to be able to interrogate, evaluate and look at how we can actually reduce incidents and improve people's quality of life. So this particular VANE report would be looked at also at an operational level, together with a raft other incidents, restrictive practices and Personal Outcome Measures.
MS EASTMAN: I want to now move to the interaction with the NDIS Commission, and the NDIS Commission says it uses a risk based approach to regulation that is proportionate to the scale of the organisation and any breaches. And obviously all organisations have got the reporting obligations under the practice standards, the code of conduct. And to what extent for each of your organisations has the reporting obligations on reportable incidents to the NDIS Commission changed the way in which you think about risk in the organisation and how you also record incidents of risk? Is that something, Ms Toohey, you want to speak to?
MS TOOHEY: Yes, I mean, I look, I think I think what it does is probably make organisations more risk averse. One of the things I was going to say in relation to dignity of risk is that it's actually not just about how an organisation manages particular, you know, risky activities or things that people want to be involved in. It's also about how our regulators respond to the outcomes that may occur as a result of that. So if every time you help someone go to the beach and go swimming and someone does get into difficulties and the Commission finds out, it becomes a critical incident and then, you know, you get a compliance notice and I mean, that doesn't go a long way to actually helping organisations facilitate that whole sort of dignity of risk culture that you actually want in the organisation around service delivery. So, you know, I think it's and, again, it's that balance between duty of care and, as a regulator, how do they monitor to make sure organisations are doing the right thing, but how are they also helping to enable that approach where someone with a disability can actually live the lives that they want to live as well.
MS EASTMAN: Well, I think you are all aware of the NDIS Commissioner's recent own motion report, and that report at page 113 deals with preventing ongoing risk. And the report says:
It is apparent from examining the incidents and complaints included in this inquiry that incidents and issues will reoccur, and the practice of support workers does not necessarily adjust over time to avoid incidents and issues repeating.
And there seems to be in this report and I'm paraphrasing a frustration that there are repetitions of matters and an apparent failure of providers to address the underlying cause of an incident or issue so that it can continue to occur. And the report suggests that there is further work that needs to be done by providers to develop a culture of learning that leads to the elimination or resolution of the factors that drive incidents and issues within the ability of the service provider to address. So you've seen that aspect of it.
MS TOOHEY: Yes.
MS EASTMAN: Do you sort of share the view of the Commission in terms of managing risk, but managing the same risk over and over again?
MS TOOHEY: Yes, I do.
MS EASTMAN: So what do you do about that? What's going on if that is the case?
MS TOOHEY: So, I mean, one of the things we do in the organisation now is that our safeguarding team actually reviews all reportable incidents. So they look at the type of incident that's occurring, the quality of the reporting that's going in, whether or not people have actually investigated it as they need to. So having that central oversight where you can then get an organisational picture, I think when particularly for sort of, you know, larger organisations, I think that's incredibly important. It's very hard otherwise to see all the individual, you know, circumstances that may arise. So I actually completely agree with that. I think that's and that's just part of your continuous improvement learning culture that you want.
MS EASTMAN: So, Ms Berry, your organisation, Disability Trust, was part of the one of the organisations that participated in this own motion. Is there anything you want to say reflecting on the participation in this process with the NDIS Commissioner and that observation about addressing risks, not necessarily addressing causes, so that you have a repetition of the same things?
MS BERRY: So we welcomed the opportunity to be part of the own motion inquiry and found that a very beneficial experience in regards to the observations that the Commissioner made in relation to our service. We I I have a slightly different perspective perhaps to my colleague around the benefit of a reportable incident scheme, because I do believe it sharpens the mind of the organisation when you see repeat incidents and the need to lean in to attempt to prevent those incidents from occurring again. So I wholeheartedly agree with that observation.
MS EASTMAN: Ms Dean, any sort of experiences from your organisation's perspective?
MS DEAN: Yes, absolutely. As well as what both my colleagues have said, I think it's a combination of the ability to, as you have said, lean in to it, but also to have systems and mechanisms to be able to deal with those repeats and having the appropriate training and learning on hand to be able to look at the trends and then to be able to specifically design supports and learning to be able to work with those teams to understand what would be better practice. And some of those mechanisms, going right back to the question before around understanding risk, is understanding what each individual person that you are supporting wants to do to enjoy their life and having the mechanisms to do that through Personal Outcome Measures and then being able to have for example, we have a 24/7 practice hotline that a support worker can call.
Now, naturally, if they are on the beach, they are not going to pick up their phone while somebody could be, unfortunately, drowning in the water. But that staff member could then pick up that phone and call just before they head out and have a conversation with an expert in that space to assist. And all those points of contact with our practice, quality and safeguard team, again, enable us to look at trends so that we can then actually understand why we are getting potentially maybe repeats of particular behaviours that put people at risk.
MS EASTMAN: So my last questions that I want to ask you are about working with the NDIS Commission into the future. The Commission has given its perspective of the service providers. Have from the service providers' perspective, have you had an opportunity to say to the NDIS Commission, "This is what we think might need to improve at your end and how to make the system work better"? So you are all nodding. But what needs what needs to improve, if anything, to make the system of safeguarding work even better?
MS BERRY: I have two points to make on that. First of all, one of the most important points in the own motion inquiry report, in my view, was the fact that the Commission only you know, in terms of the number of complaints that they considered, only three per cent of those complaints came directly from people within supported accommodation. So, to me, that speaks to the importance of us continuing to provide opportunities to empower people to speak up within services.
The second point, which I think is important, is around the opportunity potentially for the NDIS Commission to create a repository of best practice examples from across the sector of documents, processes, et cetera, and potentially even the creation of some sort of best practice working group made up of service providers where we can work in collaboration with the Commission to continue to improve our practice.
MS EASTMAN: Is there any present repository of best practice examples? I know Professor Bigby has provided a best practice framework and, on the literature review, identified the sort of 10 or so elements that are critical to providing a safe environment. But other than some of the academic work, is there a repository of best practice?
MS BERRY: No, there is not one, I think, at the moment. And I think it is a really great opportunity for us to consider that. I know a previous panel member suggested that as well, and I think it's a very good suggestion.
MS EASTMAN: Ms Dean.
MS DEAN: Yes, I would agree. I mean, we are fortunate enough to work closely with Professor Bigby and were part of the longitudinal PCAS research. But and her cultural review survey that we have done across our services. But that's something that we see as an investment, and it does come at a cost. And to be able to access that sort of information, supports, research through the NDIS and for the NDIS to take more of a learning and development approach, together with a repository and the ability to access best practice, would be highly valuable.
MS EASTMAN: Thank you. Ms Toohey, any additional comments?
MS TOOHEY: Look, only I think that there's a fine line that they walk in relation to whether or not they are actually our regulator or they are an organisation that, in fact, continues to help the sector learn and grow.
MS EASTMAN: They are not necessarily mutually inconsistent objectives, are they?
MS TOOHEY: They are not. They are not, but I think but I think like, in terms of, you know, communities of practice, you know, best practice materials and things like that, like, we have a whole lot of resource out there. We actually also have a sector as well. And, you know, I think that the Commission I mean, we've had a lot to do with the Commission, as you would expect, over the last year or so. And I think I think they also feel that tension a little bit as well. I think, you know, they are also in a phase of learning and changing and growing. You know, I think if there is one thing that I can talk about in relation to the Commission, it would actually be to operate as a national organisation, not state organisations. That would be a great benefit to the sector.
MS EASTMAN: Thank you for that.
MS TOOHEY: I just wanted to get that in.
MS EASTMAN: Commissioners, those are my questions. The Commissioners may have some questions.
CHAIR: Yes. Thank you very much. Commissioner McEwin, do you have any questions?
COMMISSIONER McEWIN: Yes, I do. Thank you. Thank you again for your evidence. Ms Berry, at the beginning of the panel, you said that you have to assume that there is always a high risk of violence, abuse, neglect and exploitation in your services. Are you suggesting that your service is inherently a place of violence and, if you weren't then, what were you suggesting?
MS BERRY: No, I don't suggest our service is an inherent place of risk. But I think that as service providers, what we have learnt in recent times, unfortunately, is that we can have individual staff members, for example, who can present significant risks to the people we support. We support people who are highly vulnerable at times. Not everybody we support is highly vulnerable, but some of those people are. They may not communicate with spoken language, for example. And so we need to be highly attuned to the fact that we may well have staff members who present a risk to those clients. And I do not think we can ever rest on our laurels on that front.
CHAIR: I think, to be fair, you were responding to some questions that Ms Eastman asked which required you to make certain assumptions. Carry on.
COMMISSIONER McEWIN: Well, Ms Berry, on that note then, are you suggesting that there are particular people out in the community who are attracted to working in your service because they think they can get away with it or they think they will be not disciplined or there will be no penalties or any consequence? Is that what you are suggesting?
MS BERRY: I in those comments, I don't think I'm talking about my service particularly. I think I'm talking in general about our sector. Are there individuals who seek to exploit vulnerable people in our community? Yes, I think there are a very small proportion of people that do do that. And we need to be very sensitive to that, given that we have people who are quite vulnerable within our care.
COMMISSIONER McEWIN: Thank you. One more question. Ms Toohey, towards the end, you said that you felt that service providers are becoming more risk averse because of the NDIS Quality and Safeguards Commission and, say, the example of swimming that was discussed, that it could become an incident report and then a compliance report. I suggest to you, would it not be - to see the Commission's role as an opportunity for service providers to be more accountable for how they might, as you describe, let that person live their best life, including going swimming? Do you have a response do you want to respond to that?
MS TOOHEY: No, I completely agree with that. I completely agree with that. I think I think that the Commission, to a great extent in terms of its, you know, inception and where it sort of currently sits now, I think it is a regulator. Like, it's but I do think it probably has a role to play in exactly as you're describing.
COMMISSIONER McEWIN: Thank you again, all of you. I appreciate your contributions.
CHAIR: Commissioner Bennett.
COMMISSIONER BENNETT: Ms Dean, there was a conversation between you and Ms Eastman about the in the context of peer on peer violence - clients. And Ms Eastman referred to the conversation that we had, I think, with David Panter about reviewing their housing stock. And it was a general conversation to say in people exercising choice and control, there was definitely a move to smaller housing. Is that what your organisation is doing in your housing stock, to single or maybe two-people type dwellings?
MS DEAN: We are actually one of the providers that receive government services, which were the group homes, and that is something that we are absolutely working towards. Any of the new homes that have been provided and we are actually a SIL provider, so a provider to supported of the supports, not necessarily the SDA, the Specialist Disability Accommodation. But we work together with the SDA provider to look at much smaller accommodation. So, in fact, we have had one very recent development with a whereby we worked with an SDA provider to build townhouses so that individuals can live on their own or they can live with a friend. So not even looking at three together, but people being able to live by themselves or with somebody else. And it may be with two units on the one site or three units on the one site where the staff are located in another unit and, through the use of technology, those people can live independently, even people with very high complex support needs.
COMMISSIONER BENNETT: And those units are in normal streets, not clustered?
MS DEAN: No. Absolutely in normal streets, yes.
COMMISSIONER BENNETT: And I know you say you are looking at it, but you have some already. Has it reduced the peer on peer violence?
MS DEAN: I would have to speak anecdotally, because I don't have any documentation in front of me. But yes. So we do have quite a few homes that actually represent those sorts of environments. So there will be apartments, townhouses. And, absolutely, individuals who have displayed behaviours of protest when they have lived with others now have had the opportunity to live on their own or live with somebody else that they have chosen to live with, and that has absolutely reduced.
COMMISSIONER BENNETT: Just a few more questions.
MS DEAN: Sure.
COMMISSIONER BENNETT: It may not necessarily be a person with disability that they choose to live with. Is that right?
MS DEAN: We've not had that experience, but that can be the case. Absolutely.
COMMISSIONER BENNETT: And how does what protections do you put in then to make sure that there's not a greater risk from your staff that go in there? Is it rotation of staff so it's not just one member of staff seeing one person all the time?
MS DEAN: No, absolutely. It could be a team of staff and they would then rotate. But then more often than not, the person living in the apartment may choose a number of staff that they want to support them. But we have certainly learnt from the experiences previously in terms of having one staff member only provide support, and we know the risks involved in that. And we don't have actually any situations where that's the case.
COMMISSIONER BENNETT: And do you have a governance - management where maybe a team leader goes to visit and see how things are going, not just leaving it
MS DEAN: Absolutely. One of our approaches and it is part of our approach to a human rights framework is and we just call that "presence". So it's expected that team leaders so in those particular environments, there are actually a team there is a team leader on site that will work in the staff unit, which is separate to the others. And we also expect managers at all levels to visit homes, to have presence, including myself.
COMMISSIONER BENNETT: Can I ask the other members, are you thinking those options, given that information that's just been provided?
MS BERRY: Yes. So where we have individuals that we support who have a single worker who provides the majority of their supports, we do have mechanisms to ensure that there's checking in with that person independently of just that individual support worker. Because we have learned through previous experiences that it's not personally, but the sector, I think we have all had impressed upon us those risks around single worker environments and the safeguards we need to build in.
COMMISSIONER BENNETT: And a move away from those larger group home arrangements?
MS BERRY: Yes.
MS TOOHEY: That's the intent, yes.
COMMISSIONER BENNETT: Thank you.
CHAIR: Thank you very much to each of you, Ms Dean, Ms Berry and Ms Toohey. Ms Toohey, thank you for participating in three sessions. You may regard yourself as released for the day.
MS TOOHEY: Thank you.
<THE WITNESSES WITHDREW
CHAIR: We will now, I think, adjourn for a short while or are we going straight into the next session?
MS EASTMAN: Can we have a very brief adjournment just to do a small reconstitution.
CHAIR: Thank you very much for your contributions. They have been very helpful. Thank you.
<ADJOURNED 3:18 PM
<RESUMED 3:24 PM
CHAIR: Yes, Ms Dowsett.
MS DOWSETT: Thank you, Chair. The next witness this afternoon is Ms Laurie Leigh from the National Disability Services.
CHAIR: Has Ms Leigh taken the oath or affirmation, as the case may be?
MS DOWSETT: Your Associate is going to.
CHAIR: Not yet?
MS LEIGH: I have not.
CHAIR: All right. Ms Leigh, thank you very much for coming to the Commission and giving evidence today. We appreciate your assistance. If you would be good enough to follow the instructions of my Associate, she will administer the affirmation to you.
<LAURIE LEIGH AFFIRMED
<EXAMINATION BY MS DOWSETT
CHAIR: Thank you very much. I will now ask Ms Dowsett to ask you some questions.
MS DOWSETT: Thank you. Ms Leigh, you are the CEO of National Disability Services.
MS LEIGH: Yes.
MS DOWSETT: And we can refer to that as NDS.
MS LEIGH: Yes.
MS DOWSETT: You have been in that role since 12 January 2022.
MS LEIGH: As the permanent CEO, yes.
MS DOWSETT: Your professional background is as a registered mental health nurse?
MS LEIGH: Yes.
MS DOWSETT: And you appeared as a witness in Public hearing 22 with your colleague Kerrie Langford.
MS LEIGH: Yes.
MS DOWSETT: We are going to turn now to NDS and just go quickly through some background material. Please correct me if I get anything incorrect. So NDS is a peak body for non government disability service organisations throughout Australia.
MS LEIGH: Yes.
MS DOWSETT: In your 2022 annual report, you say you have more than 1,200 members.
MS LEIGH: That's right.
MS DOWSETT: And they include not for profit disability service providers, for profit disability service providers, sole traders and government agencies?
MS LEIGH: Yes, that's right.
MS DOWSETT: And among those members, you do have members who are on digital platforms?
MS LEIGH: Yes.
MS DOWSETT: In addition to your members, NDS has the National Disability Practitioner Network.
MS LEIGH: Yes.
MS DOWSETT: And there are 16,000 people on that network?
MS LEIGH: Yes, that's right.
MS DOWSETT: And these are the disability support workers themselves?
MS LEIGH: That's right.
MS DOWSETT: And NDS provides resources to that group?
MS LEIGH: Yes.
MS DOWSETT: In terms of membership, you are made up of from sole traders to entities with more than 1,000 people in their organisation?
MS LEIGH: Yes.
MS DOWSETT: And revenue of less than $1 million, which is described as very small, up to members who earn more have more than $20 million in revenue, which is large.
MS LEIGH: That's right.
MS DOWSETT: And but in that spread, one third of your membership have an annual revenue of under $650,000.
MS LEIGH: That's right, yes.
MS DOWSETT: And you have members in all states and territories of Australia.
MS LEIGH: Yes.
MS DOWSETT: NDS members provide disability services across a spectrum, including housing and accommodation. You do assistance in house, so personal care, daily life tasks, household tasks.
MS LEIGH: Yes, that's right.
MS DOWSETT: And just skipping through, support coordination, plan management.
MS LEIGH: Yes.
MS DOWSETT: You do home and vehicle modification.
MS LEIGH: Yes.
MS DOWSETT: And a whole other spectrum.
MS LEIGH: A range.
MS DOWSETT: And your members include people who are or members who are registered NDIS providers and people who aren't registered?
MS LEIGH: That's right.
MS DOWSETT: NDS produces an annual document called the State of the Disability Sector Report.
MS LEIGH: Yes.
MS DOWSETT: Commissioners, you have the 2022 version of that report in Bundle L at tab 9. This report is a snapshot of where the sector is in a particular year.
MS LEIGH: That's right.
MS DOWSETT: And it is drawn it draws on the results of your annual market survey, which is conducted by the Centre for Disability Research and Policy at the University of Sydney.
MS LEIGH: That's right.
MS DOWSETT: And we see in the 2022 report that, on this occasion, the annual survey received 364 responses.
MS LEIGH: Yes.
MS DOWSETT: Are you able to comment on whether the consistency of the outcomes of the market survey are whether that's consistent with what you are hearing from your members through other means?
MS LEIGH: Yes, that's absolutely consistent. We have a number of other forums that we meet with our members, either individually or through communities of practice or through network forums or workshops. And we regularly poll them on these kind of issues, and the sector the State of the Disability Sector Report, sorry, is absolutely congruent with those other means.
MS DOWSETT: So you are confident in the results of that survey, notwithstanding the small sample size relative to your overall membership?
MS LEIGH: Yes. Part of the analysis of the data of the survey was confidence interval, and the data is sufficient to have a good level of confidence across the sector.
MS DOWSETT: Thank you. Against that background, I would like now to turn to a couple of NDS products that have been referred to in evidence in this hearing but also in other hearings of this Royal Commission. And the first is your product or NDS's product, Human Rights and You. And, Commissioners, you have a copy of the workbook from this in the materials, but I won't take you to it. We will just talk about what it is. This is a video-based e learning program.
MS LEIGH: That's right.
MS DOWSETT: And it is targeted to disability support workers, families and practitioners?
MS LEIGH: Yes.
MS DOWSETT: The video is supported by a workbook.
MS LEIGH: Yes.
MS DOWSETT: And the video takes took 30 minutes to play. Is that including time to complete the workbook?
MS LEIGH: No, that's the time to complete the workbook is in an additional to that. And there are a number of modules within that 30 minute video.
MS DOWSETT: How many modules?
MS LEIGH: Four.
MS DOWSETT: And so how much time in addition to the 30 minutes does it take to complete the workbook?
MS LEIGH: I think on the overview of the whole piece, we think about somewhere between 60 and 80 minutes.
MS DOWSETT: So service providers who have told this Royal Commission that they use that product as their human rights training, we are talking about up to 80 minutes of training to do that. And the product is free? It's available online?
MS LEIGH: Yes, freely available to anybody on our website.
MS DOWSETT: And as I understand from the workbook, this product was developed by NDS in collaboration with a number of entities, including people with disability.
MS LEIGH: Absolutely. So we work together with the Victorian Advocacy League For Individuals With Disability, VALID. We work together with a group called Beyond Edge, which is a theatrical group which include all crew and actors are people with disability. We also work together with a disability advocacy resource unit, and in addition with our own lived experience network who are employees of ours who have disability and are skilled facilitators and educators.
MS DOWSETT: Has NDS undertaken any evaluation of this product? If you spent the 80 minutes watching the video and working through the workbook, do you achieve the result that NDS was hoping for?
MS LEIGH: Yes. So all of our training and education has competency based assessments at the end of the e learning so that people will need to answer questions and answer them correctly in order to be able to complete the training. And in addition, we have a usual satisfaction type survey as well.
MS DOWSETT: Why did NDS develop this product?
MS LEIGH: I think it's before my time at NDS, but understanding from my team that it was the importance of human rights within the disability sector was clearly there and an understanding that, particularly for disability support workers and for some of our smaller members, those who haven't got the resources to have a learning and development team or a learning and development manager, being able to make sure there was really easily accessible information and training on human rights was going to be important. And so we had a grant from Victoria and the department in WA that enabled us to develop this training.
MS DOWSETT: And since it was developed, has it been reviewed and updated?
MS LEIGH: Yes. We review it quite regularly, although I'm not sure exactly when this one was. I know the zero-tolerance ones have just been updated.
MS DOWSETT: And we are just about to turn to those, the Zero-Tolerance Initiative. So I understand from the website that this was led by NDS in partnership with the disability sector to understand, implement and improve practices which safeguard the rights of people they support.
MS LEIGH: Yes, that's right.
MS DOWSETT: What does that mean?
MS LEIGH: So as we've heard many times in the testament in this hearing, the importance of really being able to educate and train and develop our disability workforce to understanding what violence, abuse, aggression sorry, violence, abuse, neglect and exploitation are, and how to respond to them, how to effectively report and what needs to be said. So, for example, in our zero-tolerance resources, again, they are all very accessible. We have used our own lived experience network facilitators to develop the films for this. So they are easy to understand. They drill into and give examples of day to day practice for disability support workers, the things that they might see, the things that they might hear, the situations that they might need to run through. And there are a number of modules throughout that course which hopefully will give disability support workers a really good understanding of their role and their expectations around zero tolerance.
MS DOWSETT: So I would just like to back up a little bit and talk a little bit more about what the Zero-Tolerance Initiative comprises. So as I understand it, there is a framework which is a two page document that lays out an overview of what you what the initiative is seeking to achieve.
MS LEIGH: Yes.
MS DOWSETT: And then underneath that, there is the zero tolerance presentation and facilitator guide?
MS LEIGH: Yes.
MS DOWSETT: So that, as I understand it, is aimed at if I if I'm in a service provider, I use the facilitator guide. I watch and work out how to do it and then I deliver it to my people. Is that have I understood that correctly?
MS LEIGH: That's right, yes.
MS DOWSETT: And the facilitator the presentation and facilitator guide takes 15 to 20 minutes to complete?
MS LEIGH: Yes.
MS DOWSETT: And then sitting underneath that are the resources that you just mentioned, and it's a collection of more than 150 online resources.
MS LEIGH: That's right.
MS DOWSETT: Some of those are videos.
MS LEIGH: Yes.
MS DOWSETT: And some of them are workbooks and worksheets.
MS LEIGH: Workbooks, worksheets, pieces for reflective practices for individuals, but also templates and examples that organisations can then take and amend for their own context and use themselves.
MS DOWSETT: You were present in the hearing room a moment ago for the previous panel?
MS LEIGH: Yes.
MS DOWSETT: And so you would have heard Ms Dean reflecting on the need for there to be a repository of best practice. And she was speaking about the NDIS Commission and whether it could be the repository. Do you regard that as a function that perhaps NDS is already doing or could do?
MS LEIGH: So there are certainly places that we do provide that, zero tolerance being one of those that we have pulled up. We also provide communities of practice where we bring together providers in various different specialities, whether it's rural/remote or working with younger people, to share good practice. We have in the past had a repository of example policies and procedures of best practice that providers could take and use. We found that very expensive to keep updated as regularly as it needed to be.
MS DOWSETT: Just returning to the Zero Tolerance Initiative, I from your website, we know that the resources hub for the initiative has been visited more than 108,000 times since it was launched in 2013.
MS LEIGH: Yes.
MS DOWSETT: Has NDS examined how its members use that resource, whether support workers are using it in paid time with facilitated sessions? Are they required to watch it in their own time? Have you done any of that work?
MS LEIGH: That's not data that we collect specifically, about whether support workers are doing the education in their own time or paid by providers. We do know that around 800 or slightly over 800 providers have specifically used our resources. So we would assume that that would be within their time. And that its been completed over 19,000 times in this last 12 months by disability support worker providers sorry, disability support workers. Whether that means it's within their own time or not, we don't have the data on that, I'm afraid.
MS DOWSETT: Is that something you could ask your members?
MS LEIGH: We could ask.
MS DOWSETT: Does NDS have a view about how this resource is best used? Is it intended to be done on your own, in your own time, or is it intended to be done as a learning in the workplace?
MS LEIGH: I think it's intended to be flexible enough to use across the very multiple varieties of workplaces that you find within the disability sector. So as we talked about earlier, our membership is very variable, from very large to extremely small. And so providing the resources in ways that people can use that is helpful for them, whatever their organisational context, I think that's that was the aim of having all the different parts to it.
MS DOWSETT: As with the human rights training, the Zero Tolerance Initiative is available online for free?
MS LEIGH: Yes.
MS DOWSETT: But members can also purchase it and have it posted in their own training, learning and development programs?
MS LEIGH: That's right, yes. And we can also deliver it as an in house workshop if needed.
MS DOWSETT: How often do you deliver it as an in house workshop?
MS LEIGH: Because that costs a little more money than the free versions that are online, I think in the last year or so there has been only one in house booking for us.
MS DOWSETT: Is there any difference between the free version and the version members can purchase?
MS LEIGH: No. It's available it depends. Some larger organisations who have their own learning management systems might want to host that on their own systems. Smaller places might want to access it directly from us.
MS DOWSETT: In some evidence earlier this week, speaking on the human rights panel, Ms Dean said that speaking of her organisation, had a zero tolerance approach to any breach of human rights. The way that would work practically is if there is a breach and it's committed by a support worker, for example, there would be an immediate action, and that would be a stand down and probably result in a termination. Firstly, does that evidence describe how the Zero Tolerance Initiative operates in practice?
MS LEIGH: So I guess that is an example of what would happen if there were an incident, whereas the Zero Tolerance Initiative really talks around the entire framework for an organisation. So it goes from helping people to understand what abuse might look like. It talks through the development of a positive culture, one where disability support workers feel free and enabled to speak up. It talks around recognising what restrictive practices are. It goes through trauma informed support, positive behaviour supports. So the zero tolerance framework is much wider than the individual response to an incident, but that is also included in there.
MS DOWSETT: So it really does have that capacity and culture building element to it?
MS LEIGH: Absolutely.
MS DOWSETT: Within the zero tolerance framework, where does institutional accountability sit? Is there part of the framework that deals with that?
MS LEIGH: Yes. So the within the framework, we have a part that's significantly around human rights. And we also pull that out for particularly around boards and board governance and that more institutional approach to it. So both within the zero tolerance resources but also with some of our resources that were also referenced earlier, which we work in partnership with Purpose At Work, the Right on Board program, that embeds a zero tolerance approach and those that time of framework at a board level for that institutional responsibility.
MS DOWSETT: I take it you would accept that a zero tolerance approach which was simply if there is a report, then the individual support worker is stood down and terminated and that's the end of the story there's no more problem from that person because they are not here anymore that's not the approach that's intended?
MS LEIGH: No. I mean, that might be the outcome if an individual support worker has significantly breached someone's human rights and acted outside of the policies of the organisation. But that as I said, the framework the zero tolerance framework is much wider than that. And I think it's really important that those type of responses and the zero tolerance approach is bedded into that culture, the learning and development, the positive behaviour support, all of those pieces that go around making sure or hoping to make sure that incidents or complaints are reduced and eliminated.
CHAIR: Ms Dowsett, I'm not sure whether you are assuming that if there's a breach of human rights regardless of its gravity, that the result necessarily will be termination. Is that what you are intending to assume?
MS DOWSETT: In the hypothetical I just put then, yes, I was intending to
CHAIR: But you are not suggesting that any such contravention would necessarily result in termination, are you?
MS DOWSETT: I'm not suggesting that it should, and I think that that would be inappropriate, but
CHAIR: Yes, no, I just want to make sure we are on common ground. That's all.
MS DOWSETT: Ms Leigh, have you read the NDIS Commission Own Motion inquiry Report that we have spoken about a number of times in this hearing?
MS LEIGH: Yes, I have.
MS DOWSETT: Has NDS released anything on that report to its members?
MS LEIGH: So shortly after that report was released, I think within the first 48 hours, we released an analysis of that report to our members going through some of the key themes that were found in the report and also some of the recommendations for our members to have a look at proactively in terms of their practice, a bit of a head's up about what we think the Commission might do in terms of the recommendations they made around the practice standard, around additional regulation. So, yes, part of our role as a peak is to make sure our members are informed about key findings for reports like that.
MS DOWSETT: And what's the next step for the organisation as a peak? So you have informed them, and then what do you do?
MS LEIGH: So there are some specific things coming out of that report, particularly around active support, practice leadership, a practice standard for Supported Independent Living. And so part of what we are now working on is looking at developing some resources in that practice leadership, active support space that will be accessible to our members. And we are hoping to engage with the NDIS Commission on the development of the practice standards so that it can be informed by provider experiences as well.
MS DOWSETT: One of the matters touched on in the own motion report which you didn't speak of then was the the observation in relation to service agreements. And the own motion report says at page 61:
Many complaints would be avoided if there was clearer communication with a person with disability and/or their supporters and if service agreements were clearer and presented in a form that was accessible to the person with disability and their supporters.
Does NDS issue any guidance or best practice advice to its members, firstly on the use of service agreements?
MS LEIGH: Yes. We have an example service agreement a high level template which is accessible to our members for them to take and use which goes through some of the things that we think are important in service agreements, like how to make a complaint and what level of service people might expect and when how responsive providers might be to requests for change. There is a number of different points. There is about 20 different aspects that we cover in that sample service agreement.
MS DOWSETT: Does the guidance provided by NDS deal with the fact that other than for SDA, service agreements are not required to be in writing?
MS LEIGH: Our guidance is that we think it is good practice to have service agreements because it does really clearly set out the contract that a provider has with its participant with participants. It isn't mandatory and we can't make it mandatory. And I think there are a variety of circumstances. We have heard previously about people who have been moved from state based Supported Independent Living to a provider where perhaps their experience of making their own agreements or their family or advocate’s experience of making their own agreements has not been there previously and, through that moving process, potentially is not there either. Whereas there may be members of ours, for example, who are bringing new participants into different services, day services or community engagement, who would, as a standard, have a service agreement.
MS DOWSETT: If the purpose of the service agreement is to provide that clarity of expectation about what the services are going to be, would a best practice model see that detail what the service is, when it will be provided and who is going to provide it would you see that in the agreement rather than in a document that's developed later after the agreement is entered into?
MS LEIGH: I think it's difficult to say that on the basis of the difference in the types of services and the circumstances across the sector at the moment. As I said, there might be circumstances where somebody has been in a service for many, many years and so and hasn't had the opportunity for the service agreement to be developed through that. And there may be on the other side, you know, great examples of practice where service agreements are down to that level. You mentioned in there, in terms of details, who is going to be providing the service. And, again, I think that's difficult depending on the type of service. So, if you had a one on one service or, for example, perhaps a support coordinator type service with an individual where, you know, that support coordinator was there to find out and support and assist that individual, then you might specify the "who". Whereas if it's a service where you might have more people coming in and out, or a shared support across a number of different people with disability, it might be difficult to say, "Well, it will be provided by me today.”
MS DOWSETT: Turning to a couple of other topics, because I need to keep this moving. I would like now to turn to advocates and community visitors. Does NDS have a policy or does it provide best practice guidance to its members on how to engage with advocates and community visitors, firstly in a proactive approach, so reaching out to them or supporting the people they support to access those services?
MS LEIGH: NDS's policy is that we absolutely support people with disability to have access to advocates. So, we think that is a clear and important part of service provision. What we can say strongly is that there are insufficient advocates within the system. So part of the data within our State of the Sector Report is we ask our members around their ability to get advocates in to support people when they need it, and only 14 per cent of our members said that there was sufficient advocacy available.
So that goes to both at an individual level and the ability for individuals to have advocates that will help them to find the right services, but also at a systemic level. So within the individual NDIS packages, I have many examples of providers who have wanted an advocate to assist or to step in who have worked with the family or the decision makers or the person with disability themselves to request that advocacy goes into an NDIS package, and I have not seen one yet that has come back with that. So from an individual perspective, the funding for advocacy is not coming through the system. But from a system wide perspective, many advocacy organisations, as you would have heard earlier this week, have no consistent source of funding either. And I think that is a risk to the system.
MS DOWSETT: A related topic, does NDS have a policy or provide best practice guidance to its members on how to build and embed supported decision making into its practice model?
MS LEIGH: Yes. In fact, we have quite a few resources on supported decision making, again because we feel that it is a really important part of good practice as far as service provision goes. And so we absolutely support the move from previous regimes of substitute decision making into supported decision making. We have an e learning module around this, which has had over 3,000 completions in this last 12 months. We have guides for providers around supported decision making and the NDIS and how to do that. We have in house workshops, and we also include on our the Right On Board product, supported decision making. Having said that, we also believe strongly that supported decision making is something that takes time, it takes expertise, it takes skilled professional staff who have had training in that. And I think as we've heard at the beginning of this week, all of those are in very short supply.
MS DOWSETT: Is there something that NDS can do or is doing to try and respond to that issue of short supply that you are talking about?
MS LEIGH: Regular discussions with the NDIA about the Disability Support Worker Cost Model and its inadequacy in terms of helping providers to deliver high quality services.
MS DOWSETT: Next topic, workforce. So in her opening on Monday, Ms Eastman quoted from your State of the Disability Sector Report in which workforce issues were described as "going from bad to worse."
MS LEIGH: Yes.
MS DOWSETT: In NDS's annual report for 2022, there's an estimate an estimated additional 83,000 workers will be required by 2025 for a skilled, competent and engaged workforce to ensure people with disability can receive high quality services and supports. Firstly, where does the number come from?
MS LEIGH: That was the number that was in the it was a government document. It was the Disability Sector Workforce Strategy.
MS DOWSETT: So it's not an NDS number; it's a government estimate.
MS LEIGH: It's not an NDS number. And can I just add to that, 33,000. That is the number of new workers because of the growth of the NDIS and the growth of service provision within the NDIS. We have heard over this last week about the extraordinary turnover within the sector. So when you add those figures in there, which are over 200,000, in the next couple of years we are going to need an extra 300,000 workers in order to be able to provide high quality services to people with disability under the scheme. It is an enormous challenge.
MS DOWSETT: Is there a particular occupational group within the sector where there is a most urgent need, or is the need spread across the sector?
MS LEIGH: So what we have seen in this last 12 months and the change from the survey 12 months ago to the one this latest one is that the workforce need has spread beyond its sort of traditional areas of need into even back of house workforce, like finance teams and HR teams and quality teams. 60 per cent of providers say they find it very difficult to recruit disability support workers sorry, it was 60 per cent, now it's up around the 80 per cent. But the key group, I think, that disability service providers are saying they find it almost impossible to get are allied health. So therapists, speech pathologists, occupational therapists, psychologists. And the figures for there are in this last 12 months, in this last report, 96, 97 per cent of providers saying they cannot get workers in allied health sufficient to meet the demand for those services.
MS DOWSETT: The next topic I would like to move to is career pathway for disability support workers. Did you hear Dr Panter's evidence earlier this week?
MS LEIGH: I must admit I missed the last bit of his evidence, I'm afraid.
MS DOWSETT: So what he said and this is page 173 of the transcript:
There should be a career pathway. We are a big sector, and you can't necessarily accommodate in one organisation all of somebody's particular needs as they are moving through that pathway. Nationally, we need to have more work done on establishing what those career pathways are. We don't have some of the systemic elements in place to enable that to happen. We have quite a lot currently working against people having those career pathways.
He is talking about there is a need, it needs to be sector wide rather than organisational. Does NDS have a perspective on what could be done to develop a career pathway for disability support workers?
MS LEIGH: Yes. That is a very complex question, that one, with a lot of moving parts to it, and I think probably there is some context that should be provided as well around that. We heard from, I think, Dr Macdonald earlier about the older workforce that we have in the disability sector as well, and many of the disability support workers within the sector are, you know, not looking to progress to management. And I think one of our evidence from our witness before was that they don't want to progress to management. They like being a disability support worker, albeit it would be good to build up skills around that.
In terms of the career pathway, absolutely we think that that should be better defined, that there should be clearer pathways for people. Not just to do that traditional, you know, become a house manager, become a team leader, become a regional manager, become a CEO, but also in terms of developing their own practice. So for example, if somebody is really interested in working with people with different types of behaviour, being able to see their development into a behaviour support practitioner and how that works. There are so many areas of need within the workforce outside of the disability sector that there are opportunities. But, again, they aren't necessarily well defined at the moment.
MS DOWSETT: The final topic that I want to address with you this afternoon has multiple parts, but it is registration. So we have dealt with NDIS registration and the fact that some of your members are registered and some aren't. Are you able to say what factors your members tell you drive their decision to register or not? Leaving aside those for whom registration is mandatory, just when it's a choice.
MS LEIGH: Thank you. And there are only a small section of people for whom registration is mandatory. But there is a significant group of providers within the sector who choose to be registered. Some of that is from organisations who have always been registered, who are older not for profits who have always been in the sector, and their registration is part of their demonstration of quality and the systems that they have behind that. Some of that is driven by the classifications of people within the NDIA. So if you are providing support to people who remain agency managed, then you have to be a registered provider. There is an increasing group of people who are self managed or plan managed. And for those people, you do not have to be a registered provider, even if you are providing higher levels of risky services, for example, Supported Independent Living or personal care. So you can be unregistered regardless for those.
There is a live conversation within the disability service provider sector at the moment about what is the point in registration. So if I'm a provider who has many participants who are self managed or plan managed, what is the point in being registered? Because it costs more money, you do a lot more reporting, you have a lot more systems in place in terms of worker screening that you would then otherwise have. And they see very clearly that many other providers doing the same sort of work are not being registered, and so what is the need for them to take on that registration, especially when it comes with all of those additional costs but no additional funding.
MS DOWSETT: So other than the marker of quality that you spoke about earlier, what is the benefit for, firstly, providers and then, secondly, for users of registration?
MS LEIGH: So I am not running a provider anymore. I don't need to go through the pain of the certification system that it is. But in terms of the benefit, I think, for the sector, people with a disability and providers, having a set of standards to work to that clearly annunciate complaint systems, incident management systems, governance, practice standards that you need to meet, I think is really important of raising that level of quality of the services.
In addition, there are some things that registered providers need to provide which I think are a basic level of safety that should be there across the whole disability sector, registered or not registered. And in particular, I'm thinking about worker screening there. For non registered providers, there are no even basic screening requirements for their workers. So somebody could have, you know, murdered somebody and be convicted for that and still work as a disability support worker the next day.
MS DOWSETT: Of your members who are in Victoria, are you aware of any who are encouraging their workers to register under the Victorian scheme?
MS LEIGH: I am not aware of that, no, that there are providers recommending that.
MS DOWSETT: And finally on this of the final topic, does NDS have a view about the benefits or otherwise of national mandatory registration?
MS LEIGH: So I think my absolute our absolute preference would be for national registration rather than a piecemeal state by state approach, because I think that that leads to additional processes for some providers that are not there for others. It's not clear for people with disability what the providers that they are approaching, what requirements they have and how they should be meeting them. So if we are going to have a registration scheme, absolutely it should be national and not piecemeal by state or territory. I think that the worker screening piece is absolutely essential. But our learning from the worker screening process is at the moment is that it can at times be difficult. It can take time. You can lose valuable workers because their screening has taken too long. Actually, they can start to
CHAIR: Is your preference in relation to providers within the NDIS or a national scheme for any service provider to people with disability?
MS LEIGH: I think anyone looking after somebody or providing support for somebody with a disability should, as a basic minimum, have a screening. And the registration scheme that works well and is not a burden would be a good way of doing that.
CHAIR: Thank you.
MS DOWSETT: Thank you, Ms Leigh. Those are my questions. The Commissioners may have some more for you.
CHAIR: Commissioner Bennett?
COMMISSIONER BENNETT: Very quickly. I understand you have got about 120 employees. Is that right?
MS LEIGH: Yes. Fluctuates a bit, but -
COMMISSIONER BENNETT: How many employees do you have with disability?
MS LEIGH: We have 17 per cent of those with disability. So twenty
COMMISSIONER BENNETT: 17 per cent. And are any of the directors on your board people with disability?
MS LEIGH: The question that we ask our directors is not that, it's whether they have a connection a personal connection with disability. And out of the 13 directors that we have on our board, five have answered "yes" to that. It is something we are looking at in terms of the additional opportunity for appointed directors now, which until very recently we didn't have, to be able to recognise in our skills matrix and potentially recruit in that area.
COMMISSIONER BENNETT: Thank you.
COMMISSIONER McEWIN: Thank you. Ms Leigh, you talked at length about the e learning modules that you have. Are you able to point to or provide any data or other information that demonstrates the effectiveness of, say, for example, the human rights training that you talked about? I don't want to simplify it, but if can you say, for example, service provider X provided the training to their staff and then there was a reduction in violence, abuse, neglect? Now, I know I'm oversimplifying it, but I'm really looking for the effectiveness of the training. Can you point to anything?
MS LEIGH: So no, unfortunately, that wouldn't be data that we would have access to in terms of our members. What we do is a competency based framework. So we are able to say at the end of the training, this individual who has completed the training has a good understanding and has answered sufficient questions correctly.
COMMISSIONER McEWIN: Thank you.
CHAIR: Thank you very much, Ms Leigh, for coming to the Commission.
MS LEIGH: Thank you.
CHAIR: Thank you for your evidence this afternoon. It has been interesting and helpful. Thank you.
<THE WITNESS WITHDREW
CHAIR: Ms Dowsett, what is to happen now?
MS DOWSETT: If it please, Chair, I would call Mr Jess Harper, who is in the room. So we will do a quick swap over and press on.
CHAIR: All right. Well, in that case, we shall stay where we are. If Ms Harper would be good enough to come forward. Or is it Mr Harper?
MS DOWSETT: Mr Harper.
CHAIR: I'm sorry. Mr Harper. We shall do a lightning switch. Has Mr Harper been sworn or affirmed, as the case may be? He has not. Mr Harper, thank you very much for coming to the Commission. If you would be good enough to follow the instructions of my associate, who is seated opposite to you, she will administer the affirmation to you.
<JESS HARPER AFFIRMED
CHAIR: Thank you, Mr Harper. I will ask Ms Dowsett now to ask you some questions.
<EXAMINATION BY MS DOWSETT
MS DOWSETT: Thank you. Mr Harper, you are the CEO of Disability Intermediaries Australia.
MR HARPER: Yes.
MS DOWSETT: And you have held that role since November 2019.
MR HARPER: Yes.
MS DOWSETT: You are also a member of the NDIS Quality and Safeguard Commission's Industry Consultative Committee?
MR HARPER: Yes.
MS DOWSETT: And you are a member of the NDIA's Industry CEO Reference Group?
MR HARPER: Yes.
MS DOWSETT: And you are an executive committee member of the NDIA's Digital Community of Interest.
MR HARPER: Correct.
MS DOWSETT: But you are here speaking to us today in your capacity with Disability Intermediaries Australia.
MR HARPER: Yes.
MS DOWSETT: And I can call that DIA.
MR HARPER: Yes.
MS DOWSETT: You have prepared a statement for this Royal Commission?
MR HARPER: Yes.
MS DOWSETT: And there are two minor corrections to that statement?
MR HARPER: That's correct.
MS DOWSETT: Commissioner, this is in Bundle A at tab 21. The first correction is at paragraph 64. There is a remnant footnote number 6 that doesn't have a any text. It should be omitted.
MR HARPER: Correct.
MS DOWSETT: And in paragraph 78, the cross reference should be to paragraph 77.
MR HARPER: That's correct.
MS DOWSETT: With those two corrections, are the contents of the statement true and correct?
MR HARPER: Yes, they are.
MS DOWSETT: Thank you. So DIA is the peak body for plan management support coordination providers and practitioners.
MR HARPER: That's correct.
MS DOWSETT: You have 900 provider members and 35,000 practitioner members?
MR HARPER: Yes.
MS DOWSETT: And they deliver intermediary supports, so plan management or support coordination, to over 255 NDIS practitioners NDIS participants.
MR HARPER: 255,000 NDIS participants, yes.
MS DOWSETT: Very briefly about plan management and support coordination, just for people who are not as familiar as you with those terms, a participant chooses how the funds in their plan are administered or managed. There are three options, and a participant can choose between the three or a combination of the three.
MR HARPER: That's correct.
MS DOWSETT: There is agency managed, and according to some NDIA statistics from the 2022 23 quarter 1 report, 13 per cent of all NDIS participants are agency managed.
MR HARPER: That's correct.
MS DOWSETT: Then there is self managed and plan managed.
MR HARPER: That's correct.
MS DOWSETT: And self managed and plan managed, people can choose a combination of those.
MR HARPER: That's correct.
MS DOWSETT: Plan managed, we have 57 per cent.
MR HARPER: That's correct.
MS DOWSETT: And the balance are either partially or fully self managed.
MR HARPER: That's correct.
MS DOWSETT: Plan management is financial administration, and that's funded separately to reasonable and necessary supports.
MR HARPER: That's correct.
MS DOWSETT: There is another component to it, which is capacity building, supporting a participant to be able to manage their own plan in the future, and that's funded through reasonable and necessary supports.
MR HARPER: Yes.
MS DOWSETT: And so then plan managers picking up on Ms Leigh's evidence before, plan managers need to be registered NDIS providers?
MR HARPER: That's correct, under the legislation.
MS DOWSETT: Yes. And the support coordination?
MR HARPER: Do not need to be registered, no.
MS DOWSETT: So there are three levels of support coordination, and you must be registered if you are delivering support coordination to a participant who is agency managed.
MR HARPER: That is correct.
MS DOWSETT: Or if you are providing level 3 specialist support coordination.
MR HARPER: Correct.
MS DOWSETT: And you've spoken in your statement about the vital role of these intermediaries, plan managers and support coordination in terms of enabling choice and control for participants.
MR HARPER: Yes.
MS DOWSETT: If I could just ask you to stick with support coordination, can you just very briefly talk about how that how the process of the person providing support coordination enables choice and control?
MR HARPER: Support coordinators across all three levels by their function are there to support a participant to be informed consumers and to understand and unpack their plan and what opportunities their NDIS plan or package is able to then be procured. They will work with a participant to engage and connect with service providers and ultimately are there to support a participant to, as much as possible, self direct their service. So they are there to support a participant and to allow a participant to exercise their voice as much as possible.
MS DOWSETT: So it's more than just providing a list of phone numbers of people who might do what you want?
MR HARPER: Correct. It's working with a participant to understand their specific needs, requirements, preferences, and then working with that participant to find the most appropriate providers to deliver that support.
MS DOWSETT: And DIA is doing some work on what I might refer to briefly as professionalising intermediary support. So you've developed professional standards of practice.
MR HARPER: That's correct.
MS DOWSETT: And you have provided copies of those to the Royal Commission.
MR HARPER: Yes.
MS DOWSETT: And you are also working on an accreditation model.
MR HARPER: That's correct.
MS DOWSETT: And this work is done in consultation with service users, people with disability.
MR HARPER: That's correct.
MS DOWSETT: With your members?
MR HARPER: That's correct.
MS DOWSETT: And also with the NDIA and NDIS Commission.
MR HARPER: That's correct.
MS DOWSETT: I want to turn now to a specific topic that is addressed in both of the professional standards of practice, but I will refer to it in the context of support coordination, and this is the issue of conflict of interest. And so the question that has arisen in a number of hearings in this Royal Commission, and one which you address in your statement, is the potential for or the actual conflict of interest when a participant's support coordinator works for the same provider as from whom they get other services. So can you explain Disability Intermediaries Australia's view about that conflict of interest issue?
MR HARPER: Absolutely. From a professionalisation perspective, and as you mentioned, in our professional standards of practice, DIA takes a view that if you are going to operate as an intermediary so plan management or support coordination you shouldn't be able to be the same provider to the same participant for other supports and services. And the reason for that and we've heard some very telling evidence throughout these hearings and some themes around coercive control, power and influence. And what we have found prior to implementing our professional standards of practice was the number of organisations who are multifaceted, provide lots of different types of supports and services, using support coordination as a client capture mechanism. It's extremely difficult for a support coordinator to be able to question and challenge a provider's response to a particular type of service, so why does it have to be delivered that way or why can't you go to the beach or why can't I in
MS DOWSETT: Just ask you to slow down for the interpreters.
MR HARPER: Why can't I as a participant have a service the way that I would like, when you are an employee of the same organisation.
MS DOWSETT: Can I just pause you there. Is it the support coordinator's role to be asking those questions?
MR HARPER: It's the support coordinator's role to support the participant to ask those questions. And in cases where a participant might be non verbal, then, yes, they would be asking that on their behalf. It can also be supporting legal decision makers through that process as well.
MS DOWSETT: And you do allow in your document for an exception. So can you explain where you see a basis for an exception to
MR HARPER: Yes. So there's a number of exceptions we have to that particular standard, and they are in circumstances where there's bespoke service settings where a more integrated service response might be appropriate. Some examples might be within particular Aboriginal and Torres Strait Islander settings. There could be some within the CALD community where there may only be a single provider available within that area to support a participant. But in those circumstances, what our professional standards of practice seek to do is say, on top of that exception, that doesn't mean that it's a carte blanche. You need to be able to demonstrate a certain level of management of that conflict throughout that process, as opposed to a more free flowing ability to be able to influence participants' choices.
MS DOWSETT: From DIA's perspective, why is it not sufficient that if I'm a service provider and I have got a support coordinator and I offer a range of other services, and I explain to you the participant, "Look, we do all these things. And if you are with our service our support coordinator, you don't have to use the rest of our services. You just need to understand that we are all related," why is that not enough?
MR HARPER: So that's where we put it at our independence of service provisions at the participant level as opposed to a organisational level. Because for a participant to be taken through from a choice and control perspective when looking at what their service offering portfolio might look like and the supports that they might engage, there is inherent bias and challenges with that conflict that will exist if you as the support coordinator are recommending or supporting a participant to engage with your own organisation. There is likely to be a range of policy and we have seen examples of this policy and employment settings which might preclude you as a support coordinator from questioning those particular support arrangements. So without that independence, it's very difficult for participants to be empowered to exercise their voice around the choices that they might want.
CHAIR: Why hasn't this already happened, do you think?
MR HARPER: That is a wonderful question. There's been a number of reviews, from the Tune Review to JSC inquiries to yes, I think about eight or nine over the last number of years that have all recommended increased conflict of interest provisions and service independence. And that was what prompted us as an organisation to take that line in the sand and put it into professional standards of practice, ahead of more traditional regulatory structures.
CHAIR: Are there particular interest groups that are resisting this change?
MR HARPER: We have had discussions with a number of organisations who deliver supports and services like this. One of our requirements to being a member of DIA is to accept our professional standards of practice. But in saying that, we have a process that allows a provider to accept them on a transitional basis. So they might not be in alignment with that particular clause but are able to demonstrate to DIA that they have an action plan in place that can be monitored to implement such independence of service at a participant level. And we have successfully gone through 12 of those arrangements so far with providers who have recognised the challenges in trying to manage conflict of interest and have undertaken our structure incentives.
CHAIR: Thank you.
MS DOWSETT: What's the transition time on those 12?
MR HARPER: They have been varied, the shortest being 18 weeks, the longest being just over 12 months. We tend to find that during the transition period, most participants take plan reassessment or plan review windows as a natural juncture to be able to find alternative support arrangements. For some organisations, that has meant retaining the participant as a support coordination participant and having that support coordinator find alternative services for the other services they were delivering, or vice versa.
MS DOWSETT: Coming back to what you were saying earlier about the capacity of support coordinators to assist and enable the participant to question and seek information or seek a service in a different way, can you speak to the crossover involved there and where the appropriate boundary is between support coordination and advocacy?
MR HARPER: It's an ongoing discussion and topic area. In our part of the sector, we talk about advocacy in the terms of ‘little a’ advocacy or self advocacy and supporting a participant to advocate on their own behalf. Where a participant might require more robust advocacy supports that could be engaging through an AAT review, it could be going through other processes or systems that require the in depth service that an advocate would undertake a support coordinator would be expected to assist the participant to engage that advocate.
MS DOWSETT: When you said it is an ongoing conversation, is there is there any resistance within the sector to support coordinators exercising that ‘little a’ advocacy? Is it something that everybody accepts you do and should do, or is there a contrary view?
MR HARPER: It's very much a funding based discussion and consideration. So support coordination, unlike most other services in the NDIS, is not a fixed service. You don't buy support coordination as a total package. Participants are funded based on a reasonable and necessary consideration. And the number of hours and then the types of service or choices from the menu of support that a support coordinator might be able to deliver are variable. So for some participants with large support coordination funding will have a multitude of service functions to deliver to a participant and support a participant with. Where others may only have we see unfortunately too many examples of 10 or 12 hours of support coordination funding which then limits the level of capacity building and ‘little a’ advocacy work that they might be able to undertake.
MS DOWSETT: Does that 10 to 12 hours correlate with a particular level of support coordination?
MR HARPER: Not necessarily. We tend to see that more at level 1 and level 2. Less at level 3. But it's not specific to an individual level.
MS DOWSETT: And that notion you were talking about then, about the funding level impacting on the service that's provided, steers us to another topic touched on in your statement, which is that of unfunded work. And in the 2022 Australian sorry, Disability Intermediary Australia Sector Report, which, Commissioners, you have in your bundle, Bundle A at tab 24, you say that or the report says:
94 per cent of support coordinators reported they supported participants beyond or outside the funding within their plan.
Firstly, what are those 94 per cent of people doing? Are they doing support coordination but just beyond the funding, or is it something additional to support coordination?
MR HARPER: Just beyond the funding.
MS DOWSETT: Is it this ‘little a’ advocacy?
MR HARPER: Not necessarily. It can be a range of different reasons for providers to deliver that in an unfunded capacity, everything from moments of crisis that a participant might be going through. It could be meeting regulatory obligations, so reporting to the Quality and Safeguards Commission or to state based regulatory structures. It could be supporting a participant through change of circumstances or an unscheduled plan reassessment or review. Practice supervision, particularly where there could be greater levels of complexity to a participant's support needs that might not have been originally assessed or considered during planning process. And many others. It is really very variable across the sector for the reasons why a support coordinator would do that in an unfunded capacity.
MS DOWSETT: And so I understand from that it's a combination of face to face work and non direct or non face to face work.
MR HARPER: That's correct.
MS DOWSETT: Some have been described in other evidence this week as the admin that goes along with the direct contact.
MR HARPER: Absolutely. Unlike some of the other disability supports, when a participant is funded for support coordination, the NDIA will support a participant to connect with a support coordinator. That process is the request for service process. And in that request for service process, the agency indicates some reporting requirements that the support coordinator may have to report back to the agency, to the NDIA, on how the participant is implementing their plan.
Typically, there is three reporting periods that a support coordinator will be required to do: one is a plan implementation report, which is typically eight weeks after the participant is connected with the support coordinator; a mid plan report, which is variable based on the length of the plan; and then a plan review or plan reassessment report, which is typically due eight weeks before a participant will go through a plan reassessment. And in those reports is a whole range of information as to how the participant has gone with their with their plan and what considerations the agency might wish to take at the upcoming plan review.
MS DOWSETT: And the preparation of those reports is included in this 10 to 12 hours.
MR HARPER: Absolutely.
MS DOWSETT: Moving on to the last collection of topics that I would like to raise with you this afternoon, it's the topic of registration.
MR HARPER: Yes.
MS DOWSETT: You say in your statement that about half of the support coordinator members are registered with the NDIS. You have given us some figures of how much it costs to go through that registration, an estimate of between 8,000 to 15,000 dollars.
MR HARPER: That's correct.
MS DOWSETT: What do your members see as the benefit or value of registration?
MR HARPER: The value proposition for registration is incredibly stressful at this particular juncture. Support coordination providers have had their pricing frozen for the last three years, which makes it very difficult from an overheads perspective to be able to go through those registration costs and processes. But from a benefit perspective, our members who go through registration report to us that it's there are particular areas in which audit processes focus on. And Laurie Leigh gave some evidence earlier around some of those areas, in particular risk management frameworks and employment relationship structures, as well as a series of other reporting requirements that the Commission might have.
And going through that audit process, those policies and procedures are stress tested, which provides some assurance to those providers that what they have in place is robust enough to be able to meet those audit requirements. In saying that, the NDIS Commission regulates the market regardless of registration. And a number of our members have previously been registered and chosen not to re register or continue with their registration for financial reasons in order to be able to remain viable and continue to deliver services.
MS DOWSETT: You have members in Victoria?
MR HARPER: That's correct.
MS DOWSETT: Are you aware of firstly, has Disability Intermediaries Australia given any guidance to your Victorian members on the Victorian scheme?
MR HARPER: Yes, we have.
MS DOWSETT: And are you aware of any providers who are actively encouraging their workers to register?
MR HARPER: We are aware of a handful of providers that are actively encouraging their workers to register through that scheme. At this stage, I believe it's about eight. For particularly our plan management members, that process is a little bit more difficult because of the way they operate nationally, and that can create some duplication and difficulties. But within the support coordination space, we are aware of a few providers that are interested in that.
MS DOWSETT: So you said a handful and eight. How many members do you have in Victoria? What proportion is that?
MR HARPER: From a percentage perspective, it would be less than one per cent.
MS DOWSETT: And does Disability Intermediaries Australia have a view on the whether it would be appropriate or not to introduce a national registration scheme affecting support coordinators and plan managers?
MR HARPER: Well, plan managers are already required. So that would, in our view, continue to be appropriate. For support coordination, DIA takes the view that a national mandatory worker screening process is the more appropriate way than what the current provider registration process is. If the current provider registration process was to be reviewed, then we would be able to make comments on whether that would be appropriate moving forward.
MS DOWSETT: Are you able to say briefly why the worker screening would be the appropriate process, from your point of view?
MR HARPER: In not too dissimilar a context to disability support workers, support coordinators hold a long standing and well trusted relationship with the participants and the people with disability that they work with. So having a worker screening process to review the workforce within that service provision is completely reasonable, and none of our members have particular concerns about going through that. Echoing some of the comments made earlier, though, a national scheme rather than a state by state piecemeal approach is something that we would strongly encourage.
MS DOWSETT: Thank you very much, Mr Harper. Those are my questions. Chair?
CHAIR: Thank you very much. I will ask first Commissioner McEwin. Do you have any questions?
COMMISSIONER McEWIN: One question one, maybe two questions. Mr Harper, thank you. You say that you have got 900 over 900 provider members. What percentage is that of all the support coordinator providers in Australia?
MR HARPER: So there's currently somewhere in the vicinity of about 4,500 providers of support coordination. However, when we look at the volumes of participants that they serve, we approximate that it's about 70 per cent of participants that have funding with support coordination are serviced by our members.
COMMISSIONER McEWIN: And my final question related it kind of relates to what the Chair asked earlier about whether there has been resistance. So why don't many other providers become members of your organisation? Do you know why?
MR HARPER: We are rapidly and continuing to grow from a membership perspective. When I started back in 2019, we had approximately 60 members and we are now at 900. So we are continuing to dive into the market and support the sector. But there's a range of reasons why providers might seek not to, including not willing to accept our professional standards of practice. So where those providers are conflicted, as we discussed earlier.
COMMISSIONER McEWIN: Thank you.
CHAIR: Commissioner Bennett?
COMMISSIONER BENNETT: No, thank you.
CHAIR: Thank you very much for coming to the Commission to give evidence today, and thank you also for the detailed statement that you have provided. We are grateful for your assistance. Thank you.
MR HARPER: Thank you.
MS DOWSETT: Chair, I tender the statement of Jess Harper dated 6 February 2023 and ask that it be given the marking of exhibit number 32 6. And together with its annexures, which you have in your bundle from tabs 22 to 29, I ask they be given the exhibit numbers 32 6.1 to 32 6.8.
CHAIR: I think you mean 32 6.1 to .8?
MS DOWSETT: Yes.
CHAIR: Yes. Okay. Thank you. Those documents will be admitted into evidence and given the markings indicated by Ms Dowsett.
<EXHIBIT 32-6 STATEMENT OF JESS HARPER DATED 6 FEBRUARY 2023
<EXHIBITS 32-6.1 TO 32-6.8 ANEXURES TO STATEMENT OF JESS HARPER
<THE WITNESS WITHDREW
CHAIR: Thank you. Before we conclude, I will just formalise the discussions that I had with two of the counsel today. I make the following direction: Sunnyfield and Afford each file with the Office of Solicitor Assisting within seven days from today's date any written submissions it wishes to provide in response to the propositions put by the Chair to its counsel. Thank you. Is there anything else we need to do today?
MS DOWSETT: No. Thank you, Chair. Adjourn until 10 am tomorrow?
CHAIR: 10 o'clock tomorrow. Thank you very much.
<ADJOURNED 4:35 PM TO THURSDAY, 16 FEBRUARY 2023 AT 10 AM