Public hearing: Homes and living, Melbourne - Day 3

COMMISSIONER SACKVILLE:   Good morning, everybody.  I commence the third day of the hearing this week by acknowledging the traditional custodians of the land on which we meet today, the Wurundjeri people of the Kulin Nation.  I pay respects to their Elders past and present, and I honour their young people who one day will take their place as custodians.  Yes, Ms Eastman.

MS EASTMAN SC:   Commissioners, good morning.  I want to start today ‑ ‑ ‑

COMMISSIONER SACKVILLE:   I’m sorry, I made a note to myself but I forgot to read the note.

MS EASTMAN SC:   I will let you do that.

COMMISSIONER SACKVILLE:   We’re going to affirm one of the interpreters who is new today.  Thank you.  Thank you very much.  Thank you.  Yes.  Ms Eastman.

MS EASTMAN SC:   Commissioner, I’m just going to defer an outline of what will happen today because we have two witnesses already in the witness box and I want to turn directly to their evidence.  So visiting us today for the Royal Commission, and he has come from Geelong is Alan Robertson.  He’s going to tell the Royal Commission a little bit about his life, the work and research that he’s done.  You will also see with him is Mr Kevin Stone from VALID.  So they’re going to give their oath and affirmation now.  And then I’m pretty much going to hand over to them today in terms of the questions that we ask and the issues that we explore.  So perhaps if we just do the oath and affirmation.

COMMISSIONER SACKVILLE:   Yes.  Thank you very much for coming today and being prepared to share your thoughts and experiences with the Commission.  I will now ask you to take the oath or affirmation as you wish.  Thank you.

<KEVIN STONE, AFFIRMED                                                                                                                    [10.04 am]

COMMISSIONER SACKVILLE:   Thank you very much.

<ALAN ROBERTSON, SWORN                                                                                                                    [10.05 am]

COMMISSIONER SACKVILLE:   Thank you very much, Mr Robertson.  Thank you.  Yes, Ms Eastman.

MS EASTMAN SC:   So Mr Robertson, could I start with you.  You live in Geelong.  Yes.

MR ROBERTSON:   Yes.

MS EASTMAN SC:   And you’ve come to the Royal Commission today because you want to talk to the Royal Commission about your life experience.  Yes.

MR ROBERTSON:  Yes my name is Alan Robertson and I am living in accommodation in Geelong, private accommodation.  But when I was a young kid I was put away into an institution called Kew Cottages.

MS EASTMAN SC:   In Kew Cottages.

MR ROBERTSON:   Which now is closed down [inaudible] Kew I went to Stawell down the river, I think Pleasant Creek as it was now.  Then I went to Stawell, Bendigo Boys Town in Bendigo.  Bendigo [inaudible] in Ararat, and then Ararat to Ballarat in a hostel.

MS EASTMAN SC:   So you were in a hostel at Ballarat.  How old were you when you were at the hostel?  Can you remember?

MR ROBERTSON:   What was that?

MS EASTMAN SC:   How old were you when you were at the hostel; can you remember?

MR ROBERTSON:   Originally though, I was a baby when I was staying in Kew – in Kew I couldn’t remember.

MS EASTMAN SC:   Okay.

MR ROBERTSON:   I couldn’t remember.

MS EASTMAN SC:   Right.

MR ROBERTSON:   I was about – 15 when I left Stawell when – now, went across to Bendigo.  Then from there I went into a group home. 

MS EASTMAN SC:   I think people might be watching you, Alan, and they’re ringing you to say they’re watching you.

MR STONE:   Throw it out the window.

MR ROBERTSON:   Throw it out the window.  As I said, I went to a group home.

MR STONE:   Can someone – you can’t turn it off?

MR ROBERTSON:   Referred from a hostel to a group home, then I went to a group home, shared a house with some people who ‑ ‑ ‑

MR STONE:   I will take it out.

MS EASTMAN SC:   So you’re in a group home and you shared with some people.

MR ROBERTSON:   Yes.  Look, other people would you believe an institution – it’s an institution to teach you basic independence because in my young days, there was nothing. Absolutely nothing.

MR STONE:   You learnt nothing.

MR ROBERTSON:   No, one place up in Stawell where staff do what they want, not what you want, and that means if you play up in meal breaks, you go down the front, you wait for the staff to have their meal breaks, when you notice your head’s fallen back and the staff go “this person’s playing up, doing this, doing that.” [inaudible] 

MS EASTMAN SC:   Right, for playing up.

MR ROBERTSON:   There was no [inaudible] capital punishment for misbehaving, you get punished. So that was our hell. Staff were allowed to do what they like. Bash you up, clip you over the ears, do this, do that. Bendigo wasn’t too bad. There was more freedom.

MS EASTMAN SC:   At Bendigo.

MR ROBERTSON:   Yes, you could get down the street.

MS EASTMAN SC:   So a little bit more freedom there. 

MR ROBERTSON:   You we weren’t locked away.

MS EASTMAN SC:   So you didn’t feel locked away at Bendigo.  Okay.  Where did you go after Bendigo?

MR ROBERTSON:   Speak up.

MS EASTMAN SC:   Where did you go after Bendigo?

MR ROBERTSON:   Ararat. 

MS EASTMAN SC:   Ararat.  All right. 

MR ROBERTSON: In those days people still [inaudible]. People just really thought they’ve got it good now.

MS EASTMAN SC:   They’ve got it good now.  Well, that might be a good opportunity for me to introduce Kevin Stone who’s sitting next to you.

MR ROBERTSON:   I mean, we’ve got – we’ve got a lot more freedom now.  We can even work. 

MS EASTMAN SC:   Because you live in your own unit now.

MR ROBERTSON:   Yes.

MS EASTMAN SC:   And that gives you a lot of freedom.

MR ROBERTSON:   Yes.

MS EASTMAN:   You’ve got your own key to your own front door.

MR ROBERTSON:   I’ve got keys, but I can get support from my family, from Kevin, Encompass, NDIS, things have changed over the years from what they were.

MS EASTMAN SC:   So can I introduce Kevin now.  And then I think the two – the two of you are going to have a discussion and just tell us about some of the work that you’ve done.  Because, Alan, you’ve done some research with Patsie Frawley who’s giving evidence later this morning and you’ve visited lots of group homes other than just where you’ve lived.  Can I introduce you, Kevin Stone.  So you are the CEO of VALID.

MR STONE:   That’s right.

MS EASTMAN SC:   And you prepared a statement for the Royal Commission.  Commissioners, that’s behind tab 141.  And the statement’s true and correct.

MR STONE:   Yes.

MS EASTMAN SC:   And you’ve also prepared some notes and some comments that you want to share this morning.  So can I – as I said to you this morning, I’m just really going to leave it to the two of you to help the Royal Commission have a bit of an understanding about the work that VALID does and the role of advocacy, and to talk about Alan’s experience as an advocate.  But also coming back to some of the experiences that have been really difficult for him in his life.  So, Kevin, do you want to start by telling us a little bit about VALID and then I’m going to hand over to you?

MR STONE:   Thank you.  So VALID, Victorian Advocacy League For Individuals with Disability, is celebrating its 30^th year.  We were founded back in 1989 after a 1988 pulling it together organising, and since 1993 we’ve been the peak advocacy organisation for adults with intellectual disability and their families within Victoria.  We’re funded by DHHS, the Office for Disability, and our core funding grant is for individual advocacy.  We provide – we’re funded to provide 200 cases a year, which equates to two advocacy units, around $240,000 a year.  And I just would say that gives us around less than two advocates for the entire State.

MS EASTMAN SC:   Right.  How do you manage that?

MR STONE:   Well, we did work out back then that it was going to be fairly futile trying to run individual advocacy for everybody who needs it, and we embarked on a range of other strategies to try and augment that.  The primary strategy being, of course, to empower people with intellectual disability to speak up for themselves, to support self-advocacy.  And – so over the years we’ve sought, pursued all sorts of project funding, particularly from DHS – DHHS, now – the regions kicked in in metropolitan Melbourne, at least three regions.  And that’s allowed us to develop self-advocacy groups, self-advocacy networks within services and freestanding in the community, and although we’ve never been funded for it we also provide systemic advocacy, that is, we provide advice to anyone who we think needs it, and that is usually government. 

And we’re involved in a whole range of committees and working groups with – with the department and the Victorian government.  The other, I think, unique thing about VALID of which we are very proud is that we embrace the advocacy of family members.  We see families of people with a disability as being a very important part of the equation, and also recognise that they need support to be effective in their advocacy.  So we operate a whole range of strategies there.  And the other thing of which we are very proud is that our advocacy has developed and our networks have developed right through group homes particularly across metro but across the State and we empower people to set up their own resident meetings and – and talk directly to management about the issues that they encounter.

MS EASTMAN SC:   And Kevin and Alan – I think, Kevin, you wanted to tell the Royal Commission about some recent examples that you have come across in terms of people reporting abuse and violence in their homes.  So I think you had a couple of cases that you wanted to talk about.

MR STONE:   Well, I ‑ ‑ ‑

MS EASTMAN SC:   And Alan might also have some experiences that he wants to talk about too.

MR STONE:   Sure.  I won’t talk specifically about cases, for obvious reasons, but in general terms.  I’d just like to give you a sense of the work that VALID does in this space.  As I said, we’ve celebrated – celebrating our 30th year and we are pretty proud of the things we’ve achieved, but the truth is, as good as we feel about what we’ve achieved, we continue to despair at the work that still needs to be done.  The demand for individual advocacy support continues to outstrip massively the demand.  And like most advocacy organisations across the state, we’ve had to close our books several times. 

It’s just, you know, we are – we don’t have the capacity to cope.  Our capacity to provide systemic advocacy, that is, to represent the interests of people to government, to the Department, etcetera, we’ve never been funded for it.  We’ve always been able to sort of, you know, get there.  But one of the very sad things that happened – and it happened – it coincided with the beginning of the NDIS, was the

organisation that VALID works through at a national level is Inclusion Australia National Council on Intellectual Disability.  We’ve always relied on that organisation to get our message across to the Australian Government and to the departments, etcetera. 

And surely at the beginning of the NDIS, that was a time they really needed to hear from people with intellectual disability and their families.  That was the time they chose to defund the inclusion of Australia and NCID.  We’ve been struggling for five years to try and have any impact on the policy decisions that are being made.  The other thing I’d say is that our core funding is for individual advocacy.  We are flat out doing that job.  We do a whole range of other things through project funding which is ad hoc, one off, and we never know what our budget is from year to year.  And we, you know, many times we succeed in getting something up only to see it disappear because it’s not funded.

COMMISSIONER SACKVILLE:   Can I just ask you, would you mind just slowing down ‑ ‑ ‑

MR STONE:   Sure.

COMMISSIONER SACKVILLE:   ‑ ‑ ‑ just a little so that we can get the transcript fully with your remarks.

MR STONE:   Absolutely.

COMMISSIONER SACKVILLE:   Thank you.

MR STONE:   Thank you.  I mentioned families.  We are a little unique in that we do see that families are an important part of the advocacy movement and have a natural partnership role with people with intellectual disability.  We tried for 15 years to convince the Department, Government that that is the case, that families should be – our work with families had to be recognised.  It wasn’t until about six years ago that we started getting funding for the sorts of things that we do.  We run a program called Families as Planning Partners, and that’s proved to be incredibly successful, when families are equipped with the right skills, the right values, when they’re helped to actually, you know, be effective in their advocacy, they’re a phenomenal force to be, you know, harnessed for good, but they are spurned and dismissed, you know, too readily.  So, again, I’m getting to the question.

MS EASTMAN SC:   That’s fine.  Take your time.  I haven’t jumped in.

MR STONE:   There are things I want to say.  You know, as an aside, I just say we’ve been doing this for 30 years.  We’ve been saying these things for 30 years.  I can’t tell you how pleased and relieved we are to see a Royal Commission.  We called for a Royal Commission back in 2012 out of despair.  From the very beginning, the number one issue for VALID – or two number one issues.  One was

housing, the lack of housing options for people, forcing people to be incarcerated, institutionalised.  And the other major issue is abuse, exploitation, neglect. 

And you don’t have to be Einstein to realise those two issues are inextricably linked.  They go hand in hand.  So I just want to make the point here, VALID’s core budget funds its individual advocacy work.  We’ve succeeded in developing a range of other strategies which perhaps technically now fall under the banner of capacity building.  The – we have an increase now in our case load to 250 cases a year.  I should point out that many cases of abuse, neglect, etcetera, go beyond the period of six months for which we’re funded for each case.  And so a lot of the work we do in individual advocacy goes completely unfunded and unrecognised.  25 per cent ‑ ‑ ‑

COMMISSIONER SACKVILLE:   Could you just explain the six month period?

MR STONE:   Okay.  So we’re funded through DHHS at two advocacy units for two and a bit now.  And when we count those cases, it’s a case that occurs and concludes within a six month period.

COMMISSIONER SACKVILLE:   I see.

MR STONE:   And you can’t double count.  So the fact that people don’t tend to have their problems solved within a six month period means that we, you know, are often working 12 months, two years.  You know, I’ve got clients that I’ve supported for close to 20 years that aren’t technically funded.  Does that clarify?

COMMISSIONER SACKVILLE:   Yes.  Yes, thank you.

MR STONE:   Thank you.  25 per cent of our individual advocacy cases involve people who are living in a group home.  And 25 per cent of those cases involve client-to-client abuse.  And as I will, I think, explain a little later, if I can, most of those incidents of client-to-client abuse are a direct result of basically herding people together against their will without choice, without compatibility, in compressed situations, and we see the results of that.  30 per cent of the cases that we deal with in group homes are actually involved – are involving staff-to-client abuse.  And there’s a whole range of other factors that we think are a very strong bearing on why that’s the case. 

I just will read to you if I can just – I asked our advocacy team just to give me a bit of a snapshot of recent cases just to give you a sense of what comes through our door.  Six cases where clients were fearful in their homes due to the violence of other residents.  In one case, a man was afraid to go to a toilet because of the violence.  In another case, the resident was punched in the back of the head while he watched television.  In two of these cases, the residents were not allowed to move to the other houses due to restrictive practices being dependent on them living with a particular service provider.  The assumption being only that provider could provide those practices.  Three cases where people moved out of the group homes for extended

periods of time because they were fearful of a violent co-resident.  This included an assault by another resident. 

One client now lives with her mother in a retirement village.  The service provider in this case stated in this case they were unable to move the violent resident.  This client has complex health needs, including needing to wear an oxygen mask at all times.  This resident’s mother now has to manage her daughter’s health needs, despite being elderly and finding it extremely difficult to cope.  One client in the group home has been sleeping on the floor in the hallway because she is no longer able to access her bedroom.  Another client assaulted her and service provider has been unable to find suitable alternative accommodation for either client, leading to one client sleeping in the hallway to avoid contact with a violent client. 

One client where the advocate observed faeces smeared in the bathroom over the toilet and walls and a towel covered in faeces beside the toilet.  The advocate also found that there was no crockery in the house and that the kitchen table was covered in dried spilt food.  Despite the resident being unable to perform some personal care tasks, the staff did not assist with cleaning or personal care.  One client who made regular complaints about the behaviour of a staff member, the staff member was not removed from the house and allegedly has assaulted the resident by punching him in the face and grabbing his arm so tightly it left finger-shaped bruising.  The client stated that he reported this assault to staff because he thought this time he would be believed because there was a bruise as evidence. 

One resident who was not able to keep any personal items in common areas and has been told that he must keep all of his possessions in his bedroom, including a fridge.  This client was also forced to relinquish his pet birds as staff refused to assist him to care for them.  One case where a resident alleged an assault by a staff member which has resulted in spinal fracture and hospitalisation.  One resident who lives in a house supposedly designed for people with behaviours of concern, where the service provider has promoted their service as being specialists in managing clients.  The service provider is now evicting the client due to his behaviours. 

In this instance, the house staff do not follow the behavioural support strategies provided by clinicians.  There has been little oversight of the house staff by the service provider.  And despite numerous complaints being made about the quality and behaviour of support staff, no improvements have occurred.  Staff in this home have repeatedly refused to assist the client to cook, despite the client wishing to learn to cook.  Instead, support staff have facilitated the client eating takeaway food constantly.  This client has gained a large amount of weight accordingly.

MS EASTMAN SC:   So these are all recent examples?

MR STONE:   Yes.

MS EASTMAN SC:   Not many years ago.

MR STONE:   This is over the last 12 months.

MS EASTMAN SC:   Just in the last 12 months.

MR STONE:   In the last 12 months.

MS EASTMAN SC:   Right.  And so with these incidents, they’ve come to light through the work of the advocates, and is that visiting, contacting homes, engaging with families?  How have these matters come to light?

MR STONE:   I’d describe our individual advocacy as reactive.  I wish we could be proactive and reach out.  What I’ve just described to you is stuff that has come to us.  I can’t imagine what’s happening out there that no one is coming forward about.

MS EASTMAN SC:   Right.  And you’ve worked with Alan for a very long time.  And Alan is also an advocate; is that right?

MR STONE:   Absolutely.

MS EASTMAN SC:   All right.  And Alan, what have you done in your advocacy work, and maybe Kevin, you, I think, can speak in very high terms in terms of what Alan has done.  He might be a bit shy telling us all the great work that he has done.  But I’m interested, Alan, what would you like to say?

MR STONE:   I will introduce that, Alan, if you like.  I first met Alan back in 1988.  I was the president of a particular service provider organisation, the committee.  And Alan was the representative of a client group that had formed within that service.  And Alan had pulled other clients together to start speaking up about the service and demanding to have a say to the committee.  That’s when we got to know each other, and Alan has taught me just about everything I know about what good advocacy and self-advocacy should be about. 

I then employed Alan in a range of projects through VALID.  One of the things that maybe Alan, you could talk about, is your work at Kew Cottages.  Alan mentioned he lived at Kew Cottages when he was a child.  It was a wonderful thing when Alan started going into Kew Cottages every Tuesday evening for several years, supporting self-advocates to some together, people with disability to come together, to speak independently about the quality of that service.  Remember those days, mate?  Just talk about the self-advocacy group. What did you used to do at Kew for the self-advocates?

MR ROBERTSON:   I used to go down to what they called the old pharmacy, had a shit time, talking about this and that, just having a coffee. And what they do once you move out of Kew into a new house.  And some of the clients said, “Well, that’s a wonderful thing to do.” But it doesn’t stop there.  It’s got to happen more.

MS EASTMAN SC:   So when ‑ ‑ ‑

MR ROBERTSON:   I was up there last year [inaudible], after [inaudible]. No more institutions.  That’s a good thing. We don’t want them.

MR STONE:   There’s no more institutions in Victoria.  It’s a good thing.

MR ROBERTSON:   Yes.  As I said before, I was in a group home. I was pretty glad to get out.  I will tell you why.  I told Kevin and my family what’s going on.  The idea about a group home,  or a CRU, as it is now, it teaches you about your rights once you move out of the institution.  That leaves – with support of staff or a carer, depends what you prefer.  And this place, teach you how to cook, wash your clothes, change your clothes, changing your own bed, being more independent.

MR STONE:   You can do things for yourself, yes.

MR ROBERTSON:   Because if you don’t be independent, nothing will get done.

MR STONE:   Can I just explain to you, what Alan is talking about there is when institutions started to close in Victoria, we all understood that the group homes were, you know, they weren’t an end point.  They were a point along the way through which people could learn how to become independent.  But there would be flow-through.  People would start moving into their own places as they developed learning those skills.  That was the idea.

But I guess what we have found in many houses – certainly not all, but in many houses, they have become just the end of the road.  And that’s largely because houses and often staff and services have lost the art of actually equipping people with those skills.  And concepts like active support and person-centred planning, encouraging and teaching people how to, you know, live for themselves.  Instead what we see, many services have become containment services, have become just as much an institution as – as previously. 

Alan, the other thing that maybe – so Alan has worked on a number of different projects.  One was going around Victoria teaching people with disability about their rights and under the Victorian Disability Standards and another one with Professor Patsie – I think she’s a Professor – are you a Professor, Patsie – Patsie Frawley.  You weren’t a professor back then but a good friend, Patsie Frawley.  Alan worked with Patsie going around looking at group homes and trying to develop guidelines for what makes a good group home versus a mini-institution.  So Alan, maybe you can talk about – when you – when you were going into those houses, just talk about some of the conversations you had with people, the questions you were asking them about their choices and that?

MR ROBERTSON:   That was a long time ago [inaudible], when they started to contact Kew, and I was working with Kevin, I was talking to a – department personnel. I said to her, what makes you wear that jumper? What makes you wear that skirt or trousers?, what makes you get a choice? What’s wrong with jumping on a bus and going down the mall with us? Target, Kmart, [inaudible].

MR STONE:   Alan’s point there is that he’s talking to a department person who was showing him through the houses and talking about stuff, as if just the architecture was good enough.  Alan quizzed her about the choices that she as a, you know, citizen of this State got to make every day.  What clothes did she wear, what food did she eat, where did she shop?  Ask those questions of the residents and see if they give you the same answers.  It’s a profound insight into what happens in many houses.

MR ROBERTSON:   When I was at Kew, I said what’s wrong with [inaudible] pick out the colour walls they want?  You know, white, or pink or white or yellow, purple.  It’s their bedroom, they’re the ones that live with it and sleep with it.  Just telling you guys dictate terms, let the client dictate terms, they’re the one living there.  Meals same, meals, well, haven’t got the choice of meals.  When I was put in an institution, there was no choices. In those days you were given what you were given.  Was – I think it was fish and chips  Friday lunchtime.  Nothing like what you’ve got now.  As I said before, you’ve got freedom now, and that’s how it should be.  I’ve been lucky in my life.  Where I’ve got Kevin, where I’ve got my sister, I’ve got my brother in Bendigo,  Encompass, carers, everyone behind me, the last few years, see inside of me and the outside of me, you see the difference where – how do I explain – I’ve become a bit more mature, because I’m out and I’m living in the community.  I think that’s how I describe it.

MS EASTMAN SC:   How important is living in the community to you, Alan?  How important is living in the community to you?  How does that affect your life and the decisions you make?

MR ROBERTSON:   What’s that, sorry, I couldn’t hear that?

MR STONE:   How important is living in the community to you?

MR ROBERTSON:   I think it’s great. It’s very important.  It’s actually crucial. It’s got to be more though.  It can’t stop here. And that’s why I said the Minister should be here listening, so he can take notes and take them back and talk about it in Parliament. That’s the only way it will get better.

MR STONE:   So perhaps, I guess, Alan’s life over the last 30 years has been very different from his previous, you know, 25 years or so.  He lives in a flat in Geelong.  He has the support of a wonderful sister who still cooks him meals and things.  Anyway, she does things.  He’s got a good network of people around him, but Alan has also been an incredible advocate for other people with disabilities, travelling around Victoria.  He’s actually travelled around the world, places like Kathmandu and other places, talking to people disability all around the world about their journey.  And it’s incredibly important.  As I said before, he’s taught me a lot about advocacy. 

I also – a lot of what I’ve learnt I’ve learnt from people like Doug Pentland and Des McIntosh who are the founders of Reinforce.  And my background is in special education.  Just for the record so you understand .....  I talk about disability services

having a very sad culture and a history of abuse.  My – my testimony to that is my first day on student placement was at Kew Cottages.  And my first job was to be given a hose with cold water and to hose down 12 men who were lined up against a brick wall.  That was my job.  In 1976, one of the jobs I had at Kew Cottages, the day that the Minister was coming to open the minors – children’s buildings, I was part of a group of staff.  I was volunteering there but we had to herd all the people with complex behaviours into one room, and on that – on the floor in that room was newspaper just torn up to soak up the piss and shit and we had to herd them in and lock them away from the public eye. 

My first day as a teacher in a special developmental school, I was having difficulty coping with one young woman; I didn’t know how to – what to do.  I certainly didn’t have the skills.  The teacher from next door came in and showed me what to do.  He grabbed her by the hair, dragged her across the floor and locked her in a cupboard.  That’s what you do.  I became principal of a special developmental school in 1979 up in the country.  And – and that gave me the opportunity to try something different and we started integrating all of our students into regular schools because despite everything that I’d been taught and told, I came to see that special really was a sneaky way of locking people away and hiding the truth about how they were actually treated.

And what they needed was to be with their peers.  They needed to be in open spaces.  They needed – they needed teachers who could actually teach, too.  And so over a period of years we integrated all of our students into regular schools.  At that time, my wife and I started a respite farm – this is the early days – there was no – there was no accommodation, no respite up in Cobram where we were, and we started this facility where every couple of weeks we’d take groups of people from institutions and they would come up and, you know, have a holiday on the Murray River basically.  It was during those times that I started to see what was going on in institutions.  I’d had some sense of it but I could not believe the stuff that I was seeing and hearing. 

And the thing that changed my life was when a group from a particular institution, one of the institutions that Alan had lived at, where he lived with men, accompanied by two staff members, they were – they were out fishing, shooting, etcetera, during the day and each night they’d come back and drink beer.  And we were sitting around that particular night and chatting.  And I notice there was one man standing over in the corner just rocking by himself.  And I said, “So what’s up with him?  Why isn’t he participating?”  And the two staff looked at each other and sniggered.  They said, “Don’t worry about him; we’ve got him sorted”.  I said, “What do you mean?  Like what’s – what’s going on?”  And he said, “He’s only new.  He’s only come to us new.  Both of his parents got killed in a car accident.  They were rich, so he thinks his shit don’t stink.”  “Well, what do you mean?”  “He thinks he’s better.  He’s come here with a new” – and I think it was called a ghetto blaster or a CD player – “and he thinks he’s better than everybody else but we will sort him out.”  “What do you mean by that?”  “We chuck him in the quiet room, and every few hours we go in there with

a length of hose filled with wet sand and beat the shit out of him until he calls us ‘sir’.  We will sort him out.”  It was from that point my wife and I ‑ ‑ ‑

COMMISSIONER SACKVILLE:   Take your time.

MR STONE:   ‑ ‑ ‑ realised we could do – we could integrate kids into schools for the rest of our lives and they’d live happy lives within that school.  But when they came out they were going – they were almost certainly destined to live in places like that with people like that.  And the only thing that’s capable of making a difference is advocacy.  The only thing that’s capable of making a difference is the advocacy movement, speaking up for people’s rights.  It was around that time I got to know people like Doug and Des.  And – and I guess that’s a journey that VALID, you know, has been part of for the last 30 or so years.  What we see these patterns – we don’t see – like I won’t say we don’t see things as stark as that.  We do.  I’m sorry to say we do.  We see terrible things that are perpetrated by people who have real power problems, real power issues. 

And we shouldn’t be surprised that it happens in disability services because it happens out there on the streets.  You know, people can be bastards.  You know, people can be bullies.  It’s bad enough it happens out there on the streets but when it happens in the very services that people are being paid to care for people, then there’s something seriously wrong.  And I’ve – and the only – the only strategy I’ve ever seen capable of making a difference is advocacy and self-advocacy, particularly self-advocacy, empowering people to stick up for themselves.

MS EASTMAN SC:   How do you empower people, particularly in self-advocacy?  What does the Royal Commission need to hear about the way in which that could be done?  And what needs to be done in the future?

MR STONE:   Well, I think the first thing is to do what you’re doing today.  And that is to listen to people like Alan.  You know, Alan’s a little unique in that he is – he is very confident.  You know, he’s talked in settings all around the world, and he’s learnt he has nothing to fear.  Lots and lots of people with disability, particularly people living in closed settings, group homes, institutions across this country, they don’t know that they’re safe.  They don’t know that there are people around to look out for them.  They, many times in many situations, live in fear.  If they speak up, they will be hurt.  The repercussions of them speaking up will be taken out on them either physically, psychologically, or in the opportunities that are denied to them.  We see it constantly. 

And even in services that might like to say – you look at their mission statements and they’re all about empowering people with disabilities, but when it comes down to it, it’s often about them preserving their power to dictate terms to people with disability to actually not generally allow them to speak up and stand up to them.  So what can you do about it?  It’s really difficult.  It is really difficult to get – to have those conversations with people in those settings because there is this cloak that has been laid upon them.  I have to say – and you might say, “Well, I would say that,” but advocates are pretty good to talk to.

We live alongside – I mean, that’s one of the great things about – I have to say about Victoria, and even though we’re not terribly well funded we’ve got some bloody wonderful advocacy services and self-advocacy groups in this State and other places around Australia.  You’ve got to talk to them, you’ve got to take them seriously and work with them as conduits into those networks of people. 

You have to respect that people are genuinely fearful.  It’s not as if they’re just being shy.  They are fearful.  And they’ve learnt that over many years that if they speak up and tell you what they really think, then they might lose your favour, they might lose that opportunity.  And so often people with disability will become compliant and they will just go along with whatever they think you want to hear because they have been taught over many, many years to believe that they are not worthy, that they are not equal.  And we can all sit here and say, “You are equal”, but, you know, we would say that.  We haven’t lived their lives.

MS EASTMAN SC:   So how do we – as the Royal Commission, how do we make sure that we provide the right environment for people with disability to come, whether it be in the Commission’s private sessions, making a statement or what is a very large step is to come to a public hearing and to give evidence in public?  What are your guidelines and recommendations that the Royal Commission might wish to take into account?

MR STONE:   Look, you know, there are all sorts of things that could be done to make it more accessible and easier.  It’s been quite a process to get to this point.  And the rules, the statements you have to make, the legal process, they – it’s just intimidating to anyone, intimidating to me.  God, for a person with an intellectual disability, who cannot read your stuff or understand the stuff, it’s just forbidding.  And the issue of consent for people who live in a limbo world around consent.  None of that stuff’s been sorted. 

You’re going to have to sort that stuff and I haven’t got the answers but, you know, we all in the sector will be wanting to help you work that through.  But there is something also that you could do.  And, you know, that is send a very clear signal to any services in this country that are guilty of manipulating or pressuring, inhibiting clients, people with disability, from giving evidence from speaking up.  If there’s any suggestion that services are getting in the way of people speaking up, then you should come down on them like a tonne of bricks.  It’s witness tampering, it’s intimidation. 

We’ve seen evidence of it to this point and we don’t expect it to go away.  And we would say, please, act on it.  Let’s take this stuff seriously.  Send a clear signal.  The reason that Alan and others are able to stand up strongly is that they know they’ve got organisations like VALID and Reinforce and AMIDA and Inclusion Australia, all these other – DANA, Disability Advocacy Network of Australia.  We’re all part of a network of reinforcing rights.  Alan knows that and others know that.  Many people don’t.  And they also know that we’re pretty fragile too.  We need you.  We

need the legal process to reinforce the fact that they, yes, we keep saying you have rights.  Well, now is the time to prove it.  Do they have rights or not?

MS EASTMAN SC:   Alan, we’re about to finish.  But I don’t think this is the end of your advocacy, but for today’s purpose, what would you like to tell the Royal Commission about our work and what would you like to see the Royal Commission do?  Because I know you will continue being a strong advocate outside the evidence that you give today, but today what would you like to tell us?

MR ROBERTSON:   As I said, I was in an institution.  The problems are all gone.  And now I’m more joyous.

MS EASTMAN SC:   Thank you.  Kevin?

MR ROBERTSON:   One more thing. And stop people being victimised.

MS EASTMAN SC:   Stop people picking on you.  Victimised. 

MR STONE:   Being victimised, yes.

MS EASTMAN SC:   Kevin?

MR STONE:   Look, there’s a range of things we would say and we will say those things in a submission – in a written submission.  But I will take the opportunity to highlight a couple of things that are critically important.  The right to support for decision-making is absolutely critical.  And so we just point that out, that unless people with disability, particularly people with intellectual disability, are given support, funded support to assist them in developing their plans in the NDIS, making their choices, then they will remain captive to people who will basically take that right away from them.  So there’s the supported decision-making concept that needs to be really fleshed out and developed. 

And the other is the absolute critical need for there to be independent support coordination.  What we’re seeing is that right to choose services has been taken away from people because support coordinators are often captured by service providers.  The support coordination is coming from the very organisation that is providing services to them.  So, you know, little wonder that people aren’t told about what their options might be and the choices that are available to them.  If they don’t know what’s beyond, you know, their immediate horizon, they will stay captured there. 

And so we have the opportunity right now to make real, to make manifest the rights that people have.  The NDIS has that opportunity but they don’t do anything about it.  You know, everybody knows that there is a conflict of interest in support coordination coming from service providers, but none of them are doing anything about it.  Everybody knows that people with disability need support for decision-making but no one’s doing anything about it.  And unless we do things about – unless action is taken on those issues, then the rights of people to move out, to move into the community will not be there, they will remain captive in group homes, etcetera. 

And unless we do something – the third issue, of course, is the fact that those group homes, which were supposed to be a transition into community, that’s what they were supposed to be.  They’ve become an end point.  Unless we start skilling staff with the skills necessary to teach people independent living and to get that flow-through and also to make sure that there are housing opportunities made available to people.  Increasing rental assistance so they can get access the private sector.  All sorts of things that can be done. 

So I guess I will just say to you that, as an advocacy organisation, we believe passionately that people with disability have every right to be part of the community, and it is so goddamn frustrating to see Australia spending so much money in the disability sector and getting such poor, poor result, poor outcome from that money.  Largely because these issues aren’t being addressed.  It is not rocket science.  Just listen to people like Alan, listen to people with disability, and help them achieve what they want to achieve.  Why should that be so hard?

MS EASTMAN SC:   Commissioners, any questions?

COMMISSIONER SACKVILLE:   I think I speak for my colleagues when I say we’re profoundly grateful to both of you for coming along and talking to us.  One thing I can promise you is we are listening and I think we are hearing.  Thank you.

MS EASTMAN SC:   Commissioners, I thank Alan, who has come at very short notice and from Geelong.  We very much appreciate Alan coming at short notice and for his contribution today.  But Kevin, we also thank you for supporting Alan today and for your contribution as well. 

<THE WITNESSES WITHDREW                                                                                                                    [10.53 am]

MS EASTMAN SC:   If it’s appropriate, we might have the morning adjournment now.

COMMISSIONER SACKVILLE:   Yes, I think we might perhaps take – it’s now 5 to 11.  Perhaps if we take 30 minutes.

MS EASTMAN SC:   Thank you.

ADJOURNED                                                                                                                    [10.53 am]

RESUMED                                                                                                                    [11.25 am]

COMMISSIONER SACKVILLE:   Yes, Ms Eastman.

MS EASTMAN SC:   If the Commission pleases, the next witness is Associate Professor Patricia Frawley, otherwise known as Patsie Frawley.  And so Associate Professor Frawley will give her evidence now, if the Commission pleases.

COMMISSIONER SACKVILLE:   You may take the oath or affirmation as you wish, and if you just follow the instructions.  Thank you very much.

<PATRICIA FRAWLEY, AFFIRMED                                                                                                                    [11.26 am]

<EXAMINATION BY MS EASTMAN SC

COMMISSIONER SACKVILLE:   Professor Frawley, please sit down.  Thank you.  And now Ms Eastman will ask you some questions.

MS EASTMAN SC:   So you’re Patsie Frawley.

PROF FRAWLEY:   Yes, I am.

MS EASTMAN SC:   You’re currently Associate Professor of Disability and Inclusion at Deakin University.

PROF FRAWLEY:   Yes.

MS EASTMAN SC:   And you have a PhD and Masters in special education.

PROF FRAWLEY:   Yes, I do.

MS EASTMAN SC:   And you have prepared a statement for the Royal Commission.

PROF FRAWLEY:   Yes, I have.

MS EASTMAN SC:   And are the contents of the statement true and correct to the best ‑ ‑ ‑

PROF FRAWLEY:   Yes, they are.

MS EASTMAN SC:   ‑ ‑ ‑ of your knowledge and belief?

PROF FRAWLEY:   Yes, they are.

MS EASTMAN SC:   Commissioners, a copy of the statement is behind tab 54 in the tender bundle.  And Associate Professor Frawley has also included a number of research papers and publications at tabs 55 to 60.

COMMISSIONER SACKVILLE:   Thank you.

MS EASTMAN SC:   So can I start by a bit of background.  You’ve been present this morning when Alan Robertson has given some evidence to the Royal Commission, and mention was made that you have done some work with Alan in his capacity as a researcher and in your capacity.  I wonder before we move to the particular issues I want to talk to you about in your statement, can you tell the Royal Commission the work that you’ve done with Alan and the nature of the research that he has been involved with.

PROF FRAWLEY:   Certainly.  Thanks.

MS EASTMAN SC:   You might just have to keep your voice up a little bit.

PROF FRAWLEY:   Sure.  I’ve known Alan for many years and it was a great pleasure to hear his evidence this morning and Kevin’s, and before I go on I think I feel a little ill-equipped to follow their evidence but I’m very glad to be able to outline as a starting point the work that I did with Alan.  This is just one piece of work in around about 2006 and ’07 published in 2008.  And it coincided with the deinstitutionalisation of Kew, the redevelopment of Kew, and a piece of research called Making Life Good in the Community.  I was working at La Trobe University at the time with Professor Christine Bigby and others.  We had the opportunity to do a piece of work that was about what does a home look like;  what is homeliness in regard to the experiences of people moving from Kew into ‑ ‑ ‑

COMMISSIONER SACKVILLE:   I’ve just received the customary note.  I wonder if you would just mind speaking a little more slowly.

PROF FRAWLEY:   Of course, I’m sorry.

COMMISSIONER SACKVILLE:   No, no.  Loudness is fine, just a little slower.

PROF FRAWLEY:   Certainly.  Thank you.  So we did a piece of work, really, to augment a much larger piece of research that was looking at what that redevelopment was achieving for people leaving Kew.  And Alan and my piece of work was about going to a number of group homes to have a look at them, really, together, and to consider how homely they were, and from that to establish a bit of a sense of what homeliness meant.  Just to say in addition to that is that the kind of research approach that I have is I work in a framework called inclusive research, which is research with people with disabilities as part of the research team, and so Alan was working as a co-researcher in that research. 

And we – yes, we did, as Alan said before, we went into the houses and we talked to the support staff and we wandered around the houses.  And really, I was thinking about, as Alan was talking this morning, and Alan would – we would turn up at the house and inevitably the staff would direct their questions to me and look at me, and Alan would push forward and say, “I’m here to do some research about how homely your house is.”  And that was – that started the process of – of the work that we did.  The report is called Making Life Good in the Community:  When is a House a Home.  I also thought as Alan was speaking this morning he talked about the importance of things like people’s bedrooms being how they want them to be.  And I recall us going into our – a different house. 

We went to a house that we were told was a really good house in a different place so that we could think about different models.  And in that house each person’s room had a different colour on the wall.  I remember going into a room that was bright purple.  And Alan is like, “Whoa, that’s more like it.  That’s the kind of house.  That’s the kind of choice that we’re looking for.”  So thank you.

MS EASTMAN SC:   And a little bit about your background before you joined the academy and joined an academic life.  You yourself have had a background working in the area of disability and also a lot of experience working in institution and homes.  Do you want to tell the Royal Commission a little bit about ‑ ‑ ‑

PROF FRAWLEY:   Sure.

MS EASTMAN SC:   ‑ ‑ ‑ your background and your experience prior to the work that you are presently doing?

PROF FRAWLEY:   So my undergraduate degree was a Diploma of Teaching, Primary Teaching, and in that I specialised in special education and quickly found out that primary schools weren’t for me, and I wasn’t for them.  And pursued a career in special education.  And at the time Deakin University had a degree in – a Graduate Diploma in Special Education.  While I was doing that course, I needed to support myself and I worked as – what was called in those days an emergency teacher.  I lived at Kew.  I was in the suburb of Kew.  I was studying special education and I began to work as an emergency teacher at Kew.  At that time they had a school model within the institution so every resident went to a form of school and they had a form of education.  And I worked in that – in – at Kew in that – in those education programs for a couple of years. 

And when Kevin was – Kevin Stone was giving his evidence and talking about his experiences of – those very first experiences of what you experience at Kew, they were very reminiscent of my own experiences.  As a young woman I found it very challenging, indeed, to see people treated so inhumanely, and to be in a position where I was expected to do the same but I absolutely did not.  And it was my starting – I think it was my starting off in a career that is – has actually included advocacy.  I worked in government and I eventually became an academic and do my research in disability as well.

COMMISSIONER SACKVILLE:   While you were at Kew did you actually observe examples of inhumane behaviour?

PROF FRAWLEY:   I absolutely did, yes.

COMMISSIONER SACKVILLE:   What sorts of things?

PROF FRAWLEY:   I will share a couple of examples that I think maybe also connect to the kind of work that I – that I do now, particularly.  I remember – so just as background, the – the residential staff wouldn’t take the residents to the school programs.  So teachers had to do that.  So we would have to go into the units in the morning and – and support the residents to finish their breakfast and to go over to the program.  So that would mean us transporting people, pushing wheelchairs, etcetera.  But the staff were pretty unsupportive of – of the residents having an education.  So they kind of treated the teachers a little bit the same way as they treated the residents with that disregard for that experience that people were having. 

So I remember one morning going to accompany half a dozen people over to the school program.  And there was a number of women in my group that I was going to accompany.  They were in the breakfast room with no underwear on, no underpants on, sitting on a large sheet because they were menstruating.  In that same mode there were people who had been given laxatives so they would have bowel motions before they went to school.  They were being given their breakfast as they were sitting on a commode chair.  These were some experiences that really stayed with me. 

And I also remember thwarting the system quite a lot by supposedly having to give people the breakfast that they were given which was essentially their porridge with Senokot granules, which are a laxative, all in a cup of Milo with toast dunked in it.  That was the breakfast, and I used to just push it aside and take people over to the school and make toast and make coffee and just take as long as it took for people to have their breakfast.  So these are just experiences – sorry, yes, that I saw, that I observed and that I think have stayed with me forever.

MS EASTMAN SC:   Those experiences have informed the approach that you take in your research.  So your research focuses on social inclusion, people with disabilities from a human rights framework.

PROF FRAWLEY:   Yes.

MS EASTMAN SC:   And the work – that work has involved access to domestic, family and sexual violence services for women with disability.

PROF FRAWLEY:   Yes, it has, yes.

MS EASTMAN SC:   Sexuality rights and violence.

PROF FRAWLEY:   Yes.

MS EASTMAN SC:   Sexual assault experiences, support and services for people with cognitive impairments.

PROF FRAWLEY:   Yes.

MS EASTMAN SC:   A human rights framework for promoting safety and inclusion in services for people with disabilities.

PROF FRAWLEY:   Yes.

MS EASTMAN SC:   And inclusive research approaches.

PROF FRAWLEY:   That’s right, yes.

MS EASTMAN SC:   All right.  Now, in your statement you talk about the research methodology that you use and you talk about an ecological framework and an intersectional lens.  So I want to try and understand those a little bit more.  Can we start with what ecological framework means, and you’ve addressed this in the written statement but it might be helpful to just help us understand that framework.  And I think it’s Dick Sobsey ‑ ‑ ‑

PROF FRAWLEY:   That’s right.

MS EASTMAN SC:   ‑ ‑ ‑ who is the Canadian researcher who has very much influenced the approach that you’re taking.

PROF FRAWLEY:   Yes.

MS EASTMAN SC:   So if we were to understand how an ecological framework operates in the context of the research that you do, help us understand that.

PROF FRAWLEY:   Okay.  So I will try and be brief, not always something that academics can do but I will try.  So yesterday Professor Sally Robinson also referred to a similar framework that she uses and called it multidimensional.  So we’re talking about the same thing, really.  An ecological framework has come from child development theory, but basically what it says is that we look for factors that are impacting on an issue that are beyond the individual focus.  So looking beyond the bio-psycho-social – the biological, psychological kind of characteristics of people to looking at social, relational and systemic factors.  And I think – just if I may refer back to some of what Kevin and Alan were talking about, they were talking about how individuals with an intellectual disability are – are placed in services where there’s a whole lot of things going on that actually impact on their experience of their disability and make it more difficult for them to achieve what they can achieve. 

And that overarching this is policy and frameworks that – that further impact on the way that people can develop and can – can be their – themselves, I suppose.  In terms of my research, I do follow the work of Dick Sobsey and I remember as a much

younger student having the opportunity to see Dick Sobsey present.  It wasn’t long after I was having those experiences I reflected on earlier in my teaching at Kew Cottages.  And what he – what he developed was what was called an integrated ecological framework.  It was about challenging the view that people with disabilities and, in particular, people with intellectual disabilities are inherently vulnerable, because of their cognitive impairment, and looking at what happens around people, particularly his early work was in institutions.  And what that means is looking at the person with the disability and looking at what – what’s going on for them in relation to their lived experience of disability that is impacting on their being victims of abuse.

So things like lacking critical information about their rights, and never having experienced autonomy.  Looking at factors of a potential offender, particularly again, as many people have spoken about here, the potential offender’s sense of power and control and their use of that power and control, looking at an environment in which abuse takes place and really thinking about, again, that emphasis on control.  But also understanding that these environments are isolated from society, there are many caregivers coming and going.  We’ve talked about the casualisation of care, but also what do those workers and people bring into the environment; their own values, their own ideas about disability but also things like ableism, sexism, racism, the things that people can carry with them that are abuse supportive values and attitudes.

COMMISSIONER SACKVILLE:   Is this – would you regard this as an offshoot of the social model of disability?

PROF FRAWLEY:   That’s a good question.  Yes, it is.  Yes, it’s akin to that.  And it’s about applying that sense of disability not being an embodied experience of its own but one that is formed by social and systemic factors.  And I think underpinning this, and certainly the work that Sobsey and many others have done and now I do is highlighting within that the question of worth, the worth and value of people with disabilities.  And we talk about that being sort of a sense of othering, very different and therefore it’s okay to treat very differently in a not so positive way.

MS EASTMAN SC:   So paragraph 19 of your statement, you say:

Central to an ecological framework for understanding violence and abuse is understanding how power and control play out in relationships and environments where abuse occurs.

PROF FRAWLEY:   Mmm.

MS EASTMAN SC:   And so this is very much looking at the power dynamic that might operate within a group home.

PROF FRAWLEY:   Yes.

MS EASTMAN SC:   And still with the ecological framework, you give one example in your statement about the research that you’ve done on sexual relationships in group homes, and the rights of people with disability to have a sexual life.

PROF FRAWLEY:   Mmm.

MS EASTMAN SC:   And you talk about the story of Hannah.  Can you help us a little bit more?  What brought you to Hannah’s story, and what was the learnings, I think, from ‑ ‑ ‑

PROF FRAWLEY:   Sure.

MS EASTMAN SC:   ‑ ‑ ‑ your experience with Hannah’s story?

PROF FRAWLEY:   So much of my work is on sexuality rights of people with an intellectual disability in particular.  In that research overall I use a narrative approach, which means talking to people so that they can tell their stories.  And we – we use those stories now in a peer education program called Sexual Lives and Respectful Relationships, where people with a disability are peer educators.  And via the stories we’ve gathered, they talk about those experiences with their peers.  So that’s just to contextualise it.  Hannah’s story – Hannah not being her real name – is one of those stories that was gathered in about 2000 in some work that was led by a colleague of mine, Professor Kelly Johnson, and others from the Australian Research Centre in Sex, Health and Society, when I was working there. 

So Hannah’s story is a story about herself and her boyfriend Kevin – again, not his name – living in a residential service.  They tell their story about not being allowed to have their intimate sexual relationship in the privacy of their own room, putting up signs that are pulled down, putting up signs saying “do not disturb” that are pulled down by staff.  They tell their story that, well, of course they’re going to have a sexual relationship because they love each other and they like having a sexual relationship but only on a Saturday.  And so they go off into a disused staircase in the city and up to a public area, really, and that’s where they feel that they can conduct their sexual life. 

And we unpack that in our program.  So people with an intellectual disability as peer educators talk about that with other people and they say, “This is not okay.  What’s the problem here?  Is the problem that Hannah and Kevin don’t know about how to be sexual with each other and don’t know about privacy and don’t know how to respect each other’s relationship?  No.  The problem is they’re not given privacy.  And that puts them in a position where they are at risk of and, in fact, do experience abuse.”  And, you know, the answer is give people privacy.  So that’s just an example of the work that we do, via Hannah’s story.

MS EASTMAN SC:   All right.  Can I turn to intersectionality.  And this is an expression that’s come up a few times in the work of the Royal Commission.  So

paragraph 16 is where in your statement you deal with an intersectional approach.  Can you take us through what that means in the context of the research that you undertake?

PROF FRAWLEY:   Thank you.  So many in the room will probably be equally able to explain this as I am.  But essentially, what this means is we look at how multiple oppressions exist that interplay with each other to result in particular experiences of life, essentially.  And it was developed by one of the – one of the earlier people speaking about this is Kimberlé Crenshaw, who really raised it around the question of gender and culture and rape in America with black women.

And it was saying the problem doesn’t exist in culture.  The problem doesn’t exist in gender.  It exists across the multiple oppressions that people experience.  And in terms of people with disabilities, what that means is the oppression and, again, othering and discrimination that people experience because they have – or they’re seen as being different and labelled as disabled and yet sometimes that in itself is a problem, where we only see the single identity of disability as the defining experience of a person’s life.

MS EASTMAN SC:   I wanted to ask you about that.

PROF FRAWLEY:   Mmm.

MS EASTMAN SC:   In the work that you’ve done, is it that when you look at intersectionality – so you’re taking a whole range of characteristics – that for a person with a disability it almost stops there.  And then being a woman, being LGBTI, whatever the religious beliefs might be, that sort of comes later.

PROF FRAWLEY:   Mmm.

MS EASTMAN SC:   And so does that not – those other characteristics then not have same value in terms of how we might then approach ‑ ‑ ‑

PROF FRAWLEY:   Sure.

MS EASTMAN SC:   ‑ ‑ ‑ all the assumptions we make about people with disability?

PROF FRAWLEY:   Or they don’t come at all.

MS EASTMAN SC:   Or at all, okay.

PROF FRAWLEY:   Yes.

MS EASTMAN SC:   So you just stop at disability.

PROF FRAWLEY:   You just stop at disability. 

MS EASTMAN SC:   And then everything else is forgotten after that.

PROF FRAWLEY:   Yes.

MS EASTMAN SC:   So what – how does that have an impact, in terms of the research that you do, about causes of violence and abuse?

PROF FRAWLEY:   I think, again, it’s about understanding violence and abuse in the lives of people with disabilities.  It’s not – people aren’t inherently vulnerable, vulnerable victims because they have a disability, particularly because they have a cognitive disability.  That’s about a way of explaining it away that doesn’t acknowledge the complexity of their lived experience.  Many of the people that I work with, both as peer educators in the program that we do and in my research group, are women who have multiple experiences of oppression and discrimination.  They’re women, they’re women with intellectual disabilities, they’re poor women, they’re unemployed women, they haven’t experienced an education, they’re bullied and victimised in society because of many of those ways that they’re seen.

MS EASTMAN SC:   Just pausing there, I don’t – did you see Jane Rosengrave gave some evidence on Monday afternoon?

PROF FRAWLEY:   Yes.

MS EASTMAN SC:   And Commissioner Atkinson had asked her a question about, how did you develop this resilience?  And her answer to that was not to talk about a disability but to talk about her experience of family violence.

PROF FRAWLEY:   Mmm.

MS EASTMAN SC:   You’ve worked with Jane, haven’t you?

PROF FRAWLEY:   I have worked with Jane, yes.  Yes, I have.

MS EASTMAN SC:   And so does the evidence that Jane gave on Monday give you a little insight in terms of how we might start to think about intersectionality?

PROF FRAWLEY:   Yes, it does.  I think also Jane’s, I guess, strength around her culture and her capacity to think about her life in its many complexities has been really important for Jane but important for people who have listened to Jane as well, and in her advocacy.  She’s worked with me on a couple of projects that we do around access to domestic and family violence for women with disabilities.  And, you know, she tends to be able to switch people’s understanding about what that lived experience is like pretty quickly.  One of the things – so you talk about family violence.  I think, if I may pick up on another part of my statement ‑ ‑ ‑

MS EASTMAN SC:   Of course.

PROF FRAWLEY:   ‑ ‑ ‑ which is about thinking about how in fact the family violence law in Victoria has – was changed and to be able to apply the idea of family life to residential or to group homes.  So that that was an important law reform in that it recognises that what people experience in that home is a family-like environment and some of those relationships are family-like.  And that’s an important thing because what that then says is it’s not a different kind of abuse.  It’s family violence.  It’s the kinds of experiences that other people have that are around power and control, lack of choice and autonomy, lack of privacy.  And that the same kinds of things that happen for other people experiencing family violence are what the effects of that violence are for people with disabilities as well.

COMMISSIONER SACKVILLE:   What were the – what are the reforms to which you are referring?

PROF FRAWLEY SC:   So it’s the Family Violence Act.

COMMISSIONER SACKVILLE:   In consequence of the Royal Commission?

PROF FRAWLEY:   No, it was earlier.

COMMISSIONER SACKVILLE:   Earlier.

PROF FRAWLEY:   Yes, it was earlier.  Sorry, I don’t remember the date off the top of my head.

COMMISSIONER SACKVILLE:   No, that’s all right.

PROF FRAWLEY:   But it was an important thing that particularly some of the women with disabilities advocacy groups really worked hard to get because it really opens up that group home to a sense of, well, this is where people are living and the idea that, despite us seeing them as a service, people who live there are living in a family-like environment.  It shifts the idea about violence and abuse, really, to be looking at it as what constitutes violence and abuse is actually the same for people with disabilities in group homes as for other people experiencing family violence, power and control, lack of choice, the lack of autonomy, etcetera. 

And I think for Jane to use that also enables people to see her as a woman, and as an Aboriginal woman and as a woman who has experienced homelessness.  She’s experienced, you know, some of those other factors that really can – those multiple oppressions that we talk about.  And it’s really about that, I think, recognising that we’re not talking about something that should be dealt with differently.  We should – we’re talking about something that needs to be dealt with within the law of violence and abuse and understood around gender, culture, geography, in the same way we do within the family violence and – domestic and family violence framework.

MS EASTMAN SC:   All right.  So against that background, can we turn to the work that you’ve done on homeliness.  And paragraph 25 of your statement talks about the

research that you’ve done with Professor Bronwyn Naylor at Monash University and Alan Robertson.  And you looked at some characteristics that would impact on that concept of homeliness in group homes.  So you’ve set that out in paragraph 25 and you’ve identified four in particular.

PROF FRAWLEY:   Mmm.

MS EASTMAN SC:   Can you take us through each of those four characteristics and perhaps just elaborate a little bit on how, either separately or together, they impact on that ‑ ‑ ‑

PROF FRAWLEY:   Sure.

MS EASTMAN SC:   ‑ ‑ ‑ impact on that concept of home and homeliness?

PROF FRAWLEY:   So just for clarity, they’re two different pieces of work.  I did some work with Professor Bronwyn Naylor from Monash University on a large grant that was looking at closed environments and experiences of violence and abuse and Alan – you know about – was the work I did at La Trobe University.  And I’ve sort of brought components of those work together in this part of the statement.  I also just read a really good article this morning on the train on the way here, which I will forward to you, which is Swedish research that talked about power within the group home and how that actually impacts the culture, so that it is not homely at all and so I will share that with you because it was enlightening and rather good timing. 

So, look, the first thing I want to say is that if, you know, if you haven’t been into a group home, some of this might sound strange, but it’s in walking into, going into a group home, that these differences and characteristics are really stark.  And it was really important for me to do that research with Alan Robertson because he is an expert by experience.  He’s lived, as you heard this morning, in almost every institution in Victoria.  He’s lived in a group home, he’s lived in his own home.  He knows a lot more about it than I will ever know.  He was able to pick up immediately when we went to a group home what aspects were homely and which weren’t.  Very quickly.  So we walk into the house and there would be a large, very, very, very wide passageway, supposedly for access for people in wheelchairs, but I lived in a home with a family member with a wheelchair and our passages didn’t need to be that wide. 

So – anyway.  And Alan would walk in and he would go, “That’s like an institution.  That’s like an institution.  Smells like an institution.  You know, it’s a house in a street but this is how it feels to me.”  So some of those components, I guess, just to walk through them a bit, people really cannot come and go and decide to leave as they wished.  And that was really important in relation to the research I did with Bronwyn Naylor because they were looking at lots of different environments and seeing what constituted a closed environment.  So what was a closed environment.  That’s an environment where people really can’t come and go as they wish.  And in group homes, if someone does go and doesn’t come back, it’s a big problem. 

And people don’t have keys to their own houses.  And you saw what Alan did when he said about the keys, he’s like, “Yes, these are my keys”.  Very important.  I think significantly – and you’ve heard this before – that staffing and staffing arrangements and the workplace status of the house is something that makes it not homely.  And particularly that status and the way it impacts on the way residents operate and impacted on choice and control of residents.  So doing things in the time that suits the roster, not in the time that suits your needs or interests.  The physical environment, including layout, which again you heard from the community visitors yesterday, use of locks in shared spaces and lack of locks where you would expect locks to be. 

And I have done – I have been to many, many group homes and the key – having a key to your room can be one of the most powerful things that people can have because they can then say who comes and doesn’t come.  And this is where I do what I want to do.  And I have done work around sexuality and disability for 30 years, and privacy is the key to that, literally.  The support practices, I think, that intersect with the physical layout and staffing arrangements that impact on privacy and what I would call dignified support.  And I think these factors altogether create an environment that really struggles to be home-like.  It just doesn’t feel like a home.  It might have four or five bedrooms and be in a suburban street but the moment – I could drive down I think any street and pick out which one is the group home in the street.

MS EASTMAN SC:   Just from the exterior?

PROF FRAWLEY:   Yes.

MS EASTMAN SC:   Why is that?

PROF FRAWLEY:   They always have fire hydrants outside of them and mostly white vans in the driveway.

MS EASTMAN SC:   Right.

PROF FRAWLEY:   And not well-tended gardens but, yes, rarely pets.  You know, you’ve heard all these things before.

MS EASTMAN SC:   Right.  The last topic I want to move to is this issue that you raise in paragraph 35.  So you talk about the fact that there is a lot of information that is available in Victoria to various agencies, be it the Disability Services Commissioner, the Public Advocate, the Department, the Ombudsman.  So you say in paragraph 35 that you look at a collection of Ombudsman’s reports to Government, other reports to Government, and you say:

The collective knowledge that they provide to government about individual experiences and systemic issues of violence, abuse, neglect and exploitation of people with disabilities in group homes is significant and important.

PROF FRAWLEY:   Mmm.

MS EASTMAN SC:   But your research has also touched on the fact that while there can be this collective knowledge, translating that knowledge into change and addressing where the problems are, that you’ve identified in your research, that there’s a block there.

PROF FRAWLEY:   Mmm.

MS EASTMAN SC:   So has your research examined why there is this block between the collection of knowledge and then action that might be taken?  And that’s the final topic I want to deal with. 

PROF FRAWLEY:   Okay.

MS EASTMAN SC:   The Commissioners will be aware that your statement covers a lot more than what we’ve been able to talk about this morning and that material will be before the Royal Commission.  But I just – the Disability Services Commissioner is about to give evidence following you.  So I would just be interested in why is there a block with all of this collective knowledge, as you describe it?

PROF FRAWLEY:   First of all, I would like to commend the work, of course, of all those agencies.  And a particularly good read is the most recent annual report of the Disability Services Commission.  And I have the benefit of having worked with the Office of the Public Advocate in the past, so I understand the process when I heard the community visitors yesterday speaking about, you know, from the report through to the annual report to – that ends up tabled in Parliament.  The strength of those – you know, those messages do come through in those reports.  I’ve seen them, I’ve helped collate them when I’ve worked with the Office of the Public Advocate. 

I think one of the words I’ve heard yesterday in particular, and I think from Mr Sackville, was transformation.  Transformational change.  And I think that what is needed in that is a closer understanding of the pervasiveness of violence and abuse in the lives of people with disabilities, particularly in group homes.  It’s day-to-day practices, it’s often not the big shocking – they are big, they are shocking and in your opening you outline some of those in the case very clearly and I think very importantly, but it is a question of the pervasiveness of that abuse. 

And the kinds of things that are reported are a collection of those small indignities through to large and very significant individual cases of violence and abuse.  And I just think that there is a social problem here about how we understand what is okay for people with disabilities.  And try as these agencies might to identify that they don’t match up with human rights, they don’t match up with other rights legislation; they don’t match up with the expectation we have for ourselves in our community.

There is still a large block, I think, and a gap in society’s understanding of the importance of recognising the hurt, the pain, the human response that people have to

that violence and abuse.  And I – I think we need to be able to – to bridge that gap and, you know, once I was in a – one piece of research I did and I was revisiting it yesterday, and we were talking about human rights and seeing how people understood human rights and if they could understand them in applying them to their work.  And one of the quotes that sits in my mind is one of the staff members saying, “Those annoying little bits of paper.” 

You know, so there’s a – there’s a lot of annoying bits of paper in the staff, I think, you know, for staff working in services and things that they have to get their head around and, you know, understanding big things called human rights.  But they’re not actually big things called human rights they’re day-to-day reflections of you seeing the person in front of you as a human being.  That’s what these agencies try to report on and do report on but we don’t see the stories from those reports in the paper the next day the way we see some other stories.  And I think it is about that social attitudes that we’ve really got to be thinking about.  I don’t know if that answers your question but it’s the way I perceived what you’re asking.

MS EASTMAN SC:   So there are a few things that you just wanted to raise with the Royal Commission based on your research that you thought might inform some of the work of the Royal Commission going forward.

PROF FRAWLEY:   Sure.

MS EASTMAN SC:   Did you want to comment on those and then I will ask the Commissioners if they have any questions.

PROF FRAWLEY:   Okay.  Thank you.  I will be brief.  I guess I’m very pleased like Kevin Stone said that we’ve come to this opportunity.  It seems like it’s been a long time.  There’s many things I’d like to say.  I really appreciate having been able to provide a statement and will be putting a submission.  But I think radical change is needed.  We’ve talked about transformation, that can take time.  So can any change but it’s radical change that we need.  We don’t need to be tinkering around the edges any more about this issue.  It’s big change and it’s immediate, as immediate as we can make it.  And people then ask, well, okay, if we get rid of this model – and I think this model needs dismantling, absolutely, what will we do.  There’s many places that have done different things in – in the world. 

I’m not saying that they don’t still have some of the problems that we have but the – at the core of that is we’re – better practice anyway is where we really do live up to the convention that says people with disabilities can and should be determining their own lives.  That includes determining policies and practices in the services and supports they get.  So looking to disabled people’s organisations and models particularly like in Canada where these organisations do develop policies and practices and do run houses and do manage supports;  I think we should be looking at that and paying absolute respect to and – and operationalise what the UN Convention expects us to do around people with disabilities being at the centre. 

Just as an aside I think we should be separating housing and support too.  That’s a whole other thing.  I know that people with disabilities can do this because that’s the sort of work I do, it’s the research I do.  I did my PhD on people with an intellectual disability and government advisory councils.  Alan is an example.  You will see many more examples.  I think we need to get that radical change by getting the – by getting the radical people right there to do the change, the people who have experienced the violence and abuse and – and human rights abuses.  I think we need to apply the same understanding of violence and abuse and what constitutes it to the experiences of people with disabilities in these closed environments as we do everywhere else, and apply the same legal framework around that. 

So I’d like the Commission to think about how do we raise issues about people with disabilities and disability models and practices, but by engaging with mainstream ideas of violence and abuse and bringing those together because the research makes it very clear that what can work is cross sector work where we really think about the – what they call violence and abuse prevention science that is used, for example, in the National Plan to Reduce Violence Against Women and Children and Our Watch;  these sorts of agencies.  You will have seen these campaigns bringing that science and those ideas into what we’re seeing with people with disabilities, and their own experiences, and rather than dealing with it separately bring those resources together. 

And I do that in my work.  That’s what our program is about, is working in collaboration with domestic and family violence sexual assault services across Australia in the work that we do and it does work.  And I think that my last one – and I – is a little bit philosophical, but it’s something that is at the heart of all of this is that we have to see people with disabilities as our fellow human beings.  And I know that that sounds kind of like of course we do.  No, we don’t.  Not when we say what happens to them in their home is an incident.  And it’s an incident that may not get reported and if it does get reported it doesn’t get acted on.

There’s no police at the door.  There’s no domestic and family violence services there to help them with their experience.  We have to break through that and we have to start saying they are our fellow human beings with the same human rights and with an – we have an important job to continue to raise awareness in the community about that.

MS EASTMAN SC:   Thank you, Associate Professor.  Any questions from the Commissioners?

COMMISSIONER ATKINSON:   Can I just ask you a question about the Canadian experience.  Where could we find out more about that?  Is it about – is it some of the provinces or is it a national program?

PROF FRAWLEY:   It’s been in place in Canada for a really long time, that disabled people organisations run organisations for disabled people.  I’m happy to send you some examples of that ‑ ‑ ‑

COMMISSIONER ATKINSON:   Good.

PROF FRAWLEY:   ‑ ‑ ‑ but it’s pretty – you could Google it.  But, no, yes, there’s – there’s – and it’s been going for a long time.

COMMISSIONER ATKINSON:   I was hoping you might do ‑ ‑ ‑

PROF FRAWLEY:   I will google it for you, certainly. 

COMMISSIONER ATKINSON:   More help with research than just Googling.

PROF FRAWLEY:   No, certainly.  And I think that there’s – I think it’s a really important question because I’m not – as I said, I’m not suggesting that the same – some of the same problems may not exist but I think it changes that dynamic so importantly about power, choice and control.  And we talk about people with disabilities hiring and firing their support staff.  It doesn’t really happen in practice so much.  We have individualised funding and supports coming, of course, through the NDIS, and, you know, I – I would like – I think that the disabled people’s organisations are important around getting around individuals so that they can have some safety in what they’re doing as well. 

For example, with the Human Rights Convention it is Disabled People’s Organisations that are monitoring how we’re going with those, and I think that it’s – it’s – we need to look at how that works and how people with disabilities, including those most marginalised and most silenced, people with an intellectual disability and other cognitive disabilities, challenging the idea that they can be very good – you know, in governance and in policy development and in hiring and firing people.

COMMISSIONER ATKINSON:   Sure.  Thank you.

PROF FRAWLEY:   Yes.

COMMISSIONER McEWIN:   Professor, throughout your evidence you often referred to the phrase “inherently vulnerable” in the context of people with disabilities.  So help me understand your evidence as a whole.  Was it your view that it is the systems that are currently in place that make them inherently vulnerable, not that they are vulnerable themselves?

PROF FRAWLEY:   I see.  Sure.  Thank you for the question.  Yes.  That’s – you have understood that correctly, that far too often we hear, “Well, it’s a person with an intellectual disability.  They don’t understand.  They don’t know that it is abuse.  We have to teach them or they’re not capable of learning”, which then says they are just vulnerable.  And so it is – it is a phrase that we use in our work and I – I use to understand, I guess, the challenge that we’re up against which is to say that it does – it’s not something that exists within a person that is a – what we would call an impairment effect that they’re vulnerable.  That’s not the case.  That it is about the systems, the relationships and what underpins that is the values and attitudes people

have about that person that – that work within a whole heap of other characteristics and components that can increase vulnerability. 

I accept that people with disabilities can be seen as a more vulnerable group but if you apply the World Health Organisation prevention of violence continuum across that, what you say is we need to do secondary prevention there and recognise that there are – that this group is a cohort that will experience violence and abuse more than other groups, and what we need to be looking at changing is the things around them, the systems and practices around them that are creating that increased vulnerability.  I hope I explained that clearly.

COMMISSIONER McEWIN:   Yes.  Thank you.

COMMISSIONER SACKVILLE:   Thank you very much for coming and giving evidence, Professor Frawley.  You’ve been very helpful.  Thank you.

PROF FRAWLEY:   Thank you. 

<THE WITNESS WITHDREW                                                                                                                    [12.09 pm]

MS EASTMAN SC:   Commissioners, the next witness is Arthur Rogers, the Disability Services Commissioner, and I’ll now hand to Malcolm Harding.

COMMISSIONER SACKVILLE:   Mr Harding, can we proceed straightaway?

MR HARDING SC:   Yes, you can, Commissioner.

COMMISSIONER SACKVILLE:   Thank you.

MR HARDING SC:   Commissioners, and there will be an appearance for the Commissioner.  If you would announce your appearance now.

COMMISSIONER SACKVILLE:   Are you about to announce an appearance?

MS P. HARRIS:   I am, Commissioner.

COMMISSIONER SACKVILLE:   Or are you just moving chairs?

MS HARRIS:   No, I’m about to announce an appearance.  My name is Penny Harris.  I appear for the Disability Services Commissioner.

COMMISSIONER SACKVILLE:   Thank you, Ms Harris.  Thank you.  Mr Rogers, you may take the oath or affirmation as you wish, if you don’t mind following the instructions.  Thank you.

<ARTHUR HENRY PELLY ROGERS, AFFIRMED                                                                                                                    [12.11 pm]

<EXAMINATION BY MR HARDING SC

COMMISSIONER SACKVILLE:   Thank you very much.  Please sit down.  Thank you.  And now Mr Harding will ask you some questions.

MR HARDING SC:   Thank you, Commissioner.  Is your name Arthur Henry Pelly Rogers?

MR ROGERS:   That’s correct.

MR HARDING SC:   You hold the position of Disability Services Commissioner.

MR ROGERS:   I do.

MR HARDING SC:   You’ve held that appointment since 6 August last year, 2018.

MR ROGERS:   I have.

MR HARDING SC:   And prior to that you held senior public service roles including senior leadership roles in the Victorian Department of Health and Human Services.

MR ROGERS:   That’s correct.

MR HARDING SC:   And you were also a special adviser on NDIS implementation in the Victorian Department of Premier and Cabinet from 2016 to 2018.

MR ROGERS:   That’s also correct.

MR HARDING SC:   And you have prepared a statement for the Commission.

MR ROGERS:   I have, yes.

MR HARDING SC:   Is that statement true and correct?

MR ROGERS:   It is.

MR HARDING SC:   Have you also annexed a number of documents to your statement?

MR ROGERS:   I have, yes.

MR HARDING SC:   Those documents are in the tender bundle at tab 26 and thereafter, Commissioners.

COMMISSIONER SACKVILLE:   Thank you.

MR HARDING SC:   Now, Mr Rogers, you set out in your statement the role of the Disability Services Commissioner from paragraph 13.  Perhaps you could summarise that role for the purposes of the Commission.

MR ROGERS:   My role broadly relates, firstly, to the resolution of complaints.  So we are an independent body that receives complaints from anybody about a registered disability service in Victoria.  My role is to – is to resolve those complaints either informally or through conciliation or through investigation.  More recently my role was expanded in 2017 to include own motion investigation powers and referral investigation powers where I could investigate matters that I of my own motion that came to my attention or things were referred to me by the Minister or the Secretary and I have powers in relation to those investigation matters.

MR HARDING SC:   And can you investigate complaints that come to you from individuals as well?

MR ROGERS:   I can.  The Act requires that I look at informally resolving those complaints or through conciliation, but if I consider that they can’t be resolved through that manner or they have not been successful in that manner I can investigate those complaints.

MR HARDING SC:   And your powers and functions are contained in the Disability Act; is that right?

MR ROGERS:   That’s correct, yes.

MR HARDING SC:   Which you have a copy handy next to you.

MR ROGERS:   I do, yes.

MR HARDING SC:   Doubtless you refer to it a lot.

MR ROGERS:   Yes, I do.

MR HARDING SC:   You spoke a bit earlier about your powers and functions in 2017 being expanded.  Can you tell the Commission a bit about why that was so?

MR ROGERS:   I wasn’t the Commissioner at that time but from my reading of the material and my knowledge of the situation, the changes to the Act in 2017 arose out of primarily the Victorian Parliamentary Inquiry to Abuse and Neglect into Disability.  And that Inquiry recommended changes and expansion of the powers of the Disability Services Commission.  Prior to that time as I mentioned previously, the Commissioner’s role was primarily a complaints body and we could – could resolve complaints as informally as possible but the Parliamentary inquiry recommended a broader oversight for the Commission which included broader matters relating to

incidents and other matters of possible abuse and neglect and recommended broader powers for the Commission. 

That was the result of evidence given to it and submissions to the Commission about gaps in the regulatory framework in Victoria and the Act – the Victorian Government immediately act to recognise that and give additional powers which I’ve outlined just previously.

MR HARDING SC:   Do those include referral powers?

MR ROGERS:   That – well, powers in terms of – there are two matters that primarily I think would – I refer to as the increase in powers.  One was own motion investigation powers.  So I could, where I believe there was persistent and ongoing neglect or abuse I could investigate those matters on my own motion.  It also included referral matters – referral powers either from the Secretary or the Minister, and I have attached to my statement that referral power from the Minister which refers me to review incidents reports – all incident reports of abuse and neglect of a major nature occurring in Victorian disability services and at my own discretion to investigate those matters.

MR HARDING SC:   Mr Rogers, you give some evidence in your statement from paragraph 20 about your role being predicated on the basis that the service provider is registered under the Act.  And that gives you oversight jurisdiction in relation to that service provider.  Can you tell the Commission how registration works and what the criteria is for registration to the extent that you’re aware of that?

MR ROGERS:   Perhaps if I could answer that by referring to prior to the 1^st of July this year and then post 1^st of July when the NDIS commenced fully in Victoria.  So under the previous fully-funded State system my jurisdiction was provided to me by virtue of the service being registered and generally funded by the – by the Victorian Government through the Department of Health and Human Services.  So my powers extended to that registration which was a function taken by the Department of Health and Human Services to register a body and I would act on any registered provider that I received a complaint about.  So registration was a function of the Victorian Government and generally as a function of them having a service agreement with the State Government.  In the transition to the ‑ ‑ ‑

COMMISSIONER SACKVILLE:   But there could be unregistered providers?

MR ROGERS:   Indeed, there were unregistered providers and there still are in Victoria before the NDIS because Victoria also was – had implemented a system of individualised funding and self-management, and those persons who were self-managing their disability services in the old State system could indeed choose a non-registered provider, and I had no jurisdiction over a non-registered provider and I still don’t through transition.

COMMISSIONER SACKVILLE:   Did anybody have jurisdiction over a non-registered provider?

MR ROGERS:   Not prior to 1 July 2019 in Victoria, although where I did receive complaints about a non-registered provider where I could I would refer them to another body such as the police.  On occasions where it was possible I have referred them to other – to other Commissioners.  So on one occasion I referred a matter to the Health Complaints Commissioner because it was deemed to be something that the complaints – Health Complaints Commissioner could consider.  But generally I was not able – I have not been able to receive a complaint relating to a non-registered service provider.  So post the 1^st of July 2019 the National Quality and Safety Commission has operated in Victoria.  So those people who were fully transitioned to the NDIS on that time, the national Commission has jurisdiction over those participants and those providers, and the national Commission has broader powers in relation to non-registered providers than I do and did. 

They can receive complaints about non-registered providers.  But prior to that – and still for me, if it’s a non-registered provider I don’t have jurisdiction to receive a complaint and, of course, a non-registered provider is not required to do incident reports and notify the Department or others about issues that arise in services.

COMMISSIONER SACKVILLE:   And what is your role now, given the introduction of the NDIS in Victoria as from 1 July 2019?

MR ROGERS:   Post 1 July where people have transitioned – fully transitioned to the NDIS I don’t have jurisdiction over those any more.  So they’re now with the National Quality and Safety Commission which has commenced in Victoria from that date.  So my jurisdiction relates to those people not yet transitioned to the scheme, and there are some people who have not yet made that transition which was originally intended to be the middle of this year but there are still people who haven’t transitioned.  There are some people that I have jurisdiction over that will not transition to the scheme.  So I have jurisdiction where they are registered by the Department of Health and Human Services or people funded by the TAC and WorkCover in Victoria and they provide services ‑ ‑ ‑

COMMISSIONER SACKVILLE:   TAC being the Transport Accident Commission?

MR ROGERS:   Transport Accident Commission yes.  They do fund services which, to all intents and purposes, are like group homes.  There are some people who will not be part of the scheme such as those who are in the disability forensic system in Victoria which are people who have been subject to the criminal justice system might be on a court order and services, and there are a small number of people who are not eligible for the scheme such as non-residents and others not eligible for the scheme. 

So I will cover those in general.  The largest group I cover in the transition are those group homes who were transferred to five non-Government providers previously run by the department and they, because of their funding status, have not yet transitioned

fully to the NDIS.  So my jurisdiction will cover approximately half of the group homes in Victoria from 1 July probably till the end of next calendar year, where they transition to the scheme.

COMMISSIONER SACKVILLE:   What is going to happen to all the accumulated expertise, experience in your office, for example?  Has that been magically transferred to some other entity?

MR ROGERS:   Well we, as I have mentioned in my witness statement, we – at some stage we will wind up the office.  We’ve got a wealth of information.  Over, I think, 12 years of information, which we are currently working out where that might go to.  Where we need to at the moment and we see matters that would be of – we think we should bring to someone else’s attention, such as the National Quality and Safety Commission.

COMMISSIONER SACKVILLE:   Sounds like a good idea.

MR ROGERS:   We are talking to them, yes.  But as to the repository of the information we hold, that’s still being determined when we wind up and that’s the matter we will – we’ve got the next year to sort out.

COMMISSIONER SACKVILLE:   Trying to get my head around the various – and I’m sorry ‑ ‑ ‑

MR HARDING SC:   That’s fine, Commissioner.

COMMISSIONER SACKVILLE:   ‑ ‑ ‑ to carry on.  But trying to get my head around the intergovernmental and legislative arrangements, all of this strikes me as astonishingly complex.  Is that your impression?  That is, the division of functions between various Commonwealth and State entities, transitional arrangements, and so forth.

MR ROGERS:   It is – in some respects, it is complex.  The transition is a matter of – its complexity to the NDIS, but through the transition period we have a clear understanding of our jurisdiction. 

COMMISSIONER SACKVILLE:   All right.

MR ROGERS:   And we have a strong working relationship with the National Quality and Safety Commission, both nationally and with their State office.  So most of the time we can work with them around who has jurisdiction.  We have spent some time trying to make sure that’s clear to the participants and service providers because it can be complex but we have a – we have a good strong working relationship about jurisdiction.  The difficulty is because the transition is not clear-cut for some people, so it’s happening at different paces.  So as I mentioned, some people, of course, won’t transition.  There are some people who are yet to transition.  And some people, because of the nature of the group home’s funding model, are not

transitioning.  And yes, that’s complex.  But the jurisdiction we have – we’re clear on our jurisdiction.  And so far through the post-July period, I’m confident that people have not fallen through the gaps and we’ve made sure it’s not too complex, importantly for the people with disability and their families, who want to complain or raise issues.

COMMISSIONER SACKVILLE:   Well, that’s what I had in mind.  Do you think this is clear enough to people with disability, their advocates, their families, as to where they should go, who they should contact?

MR ROGERS:   I think in relation to the largest group of people, which are the people living in the group homes previously operated by the department, that’s a fairly self-contained group to five providers.  I’m confident that those five providers know who has got jurisdiction and we’ve been at pains to talk to as many people as we can about that jurisdiction.  So for that largest group, I’m confident that it’s relatively clear on that and we are ready to help people work out that.

So we’ve got also, you know, incoming phone line, the resolution is part of my Commission, they’re very clear that when someone rings up, we help them to make sure they get to the right jurisdiction and we do that through sort of warm handovers, so that they’re not chucked around the system or have to move through the system themselves.  So we are at pains to make sure that it’s as accessible for people with a disability and their families because that’s, at the end of the day, the most important people we’re dealing with.

COMMISSIONER SACKVILLE:   Perhaps Mr Harding might now like to ask a question.

MR HARDING SC:   I don’t think I need to ask anything, Commissioner.  Mr Rogers, you did give some evidence earlier about the distinction between registration and unregistration.  And it seems like in – a big change to go from a system in Victoria, where providers had to be registered, to a situation where under the NDIS you can have unregistered providers.  Do you have a view about that?

MR ROGERS:   Perhaps if I could first clarify that in Victoria prior to 1 July, there was individualised funding available and people could choose to self-manage.  And I don’t know the numbers who did off the top of my head.  I would acknowledge that that’s a broader sort of number of people within the NDIS, in terms of the numbers to self-manage.  But in Victoria there were people who self-managed, who chose to use non-registered providers, and Victorian system allowed them to do that.  When I say allowed, it agreed with them they should be able to do that because the feedback that we sort of all got was that people who self-manage want to make those choices for themselves and they want to choose their providers and a number of them were very clear that they should make that choice for themselves, rather than the Victorian Government or anyone else, as to who they could have. 

So the policy of having non-registered providers for self-managing clients is something I’ve supported, and I still do, on the basis that they want to make those choices and they should – who am I to say they shouldn’t?  The point I was making before is that it meant that the oversight of those non-registered providers was basically with the self-managing person.  They chose to make that decision around their suitability and what happened to them.  I had no jurisdiction.  As I mentioned before, the National Quality and Safety Commission has some oversight of non-registered providers which I support and I think is a good useful regulatory mechanism.

MR HARDING SC:   Thank you, Commissioner.  If you can skip through to paragraph 57 of your statement, please.  There you address, based on your experience and observations, the factors that you say have contributed to complaints and incidents and reports of violence and abuse in residential settings.  And you observe in paragraph 57 something about the progress of deinstitutionalisation and you note that it combines housing with 24 hour support usually in the form of group homes that house up to six people.  Are you aware of whether it’s necessary to configure group homes in that way ‑ ‑ ‑

MR ROGERS:   I ‑ ‑ ‑

MR HARDING SC:   ‑ ‑ ‑ under the Act?

MR ROGERS:   In my opinion, the Act would not require them to be configured the way that they are.  In fact, I think the Act doesn’t talk about that and the principles of the Act and the objectives of the Act were to be about freedom of choice and community participation.  So I’m not aware that there’s anything that requires them to be configured in the way they are.  If I might just touch on – you mentioned the closure of institutions and I just would like to make the distinction around the original thought of group homes, which from my reading and my knowledge, was as a replacement for large institutional living, and it was seen as something that was a transition to other things, as I think Kevin Stone mentioned and I support that statement. 

And it was also – at the time, it was a replacement for a large institution where people already had friendship and acquaintance networks and they moved with those people to those new homes, usually with staff that they knew as well.  So that original intention as a stepping stone to other things.  What we see now is group homes became the model, and for most people perhaps the only choice, and the ongoing use of those group homes, the change for those group homes changed.  There were changes that people then were allocated to vacancies and moved in with people they didn’t know, with staff they didn’t know.  And the home itself became – seemed to become the model of the group home with five or six bedrooms, common living space, common bathroom became the model.  I don’t know there’s any reason in legislation to do that or policy reason other than the economics of providing 24 hour support to people obviously cheaper with five or six people in a home than individually.

MR HARDING SC:   So in a circumstance of deinstitutionalisation, it made sense in that situation to keep – to make the home smaller but enable people to stay together, if they wished to.  But as time went on, circumstances changed and it didn’t quite have the same rationale as it once did.  Is that what you’re suggesting?

MR ROGERS:   I am suggesting that.  The original intention was about people moving out in friendship groups and acquaintance groups.  It became the only model and as a model I mention in my statement that I think it’s got some deficiencies, clearly. 

MR HARDING SC:   Yes.

MR ROGERS:   The other thing was it’s been exacerbated by the fact, I say in my statement, that there’s generally been previously a shortage of supply and much more demand for those homes.  In fact, you know, for a long time there was a thing called the Disability Support Register which was a list of people waiting for a place in a group home – not a wait turn list but a waiting.  And people could wait for a long time and wait and wait.

MR HARDING SC:   Yes.

MR ROGERS:   And then when a vacancy came up in a place, you know, a panel would allocate the vacancy, offer the vacancy to someone.  Often those people, by the time they got offered a vacancy, were desperate.  They were in desperate situations.  They were living at home with ageing parents who could no longer provide that support role.  So they were desperate for a vacancy.  And so they were offered a vacancy and I think often took the vacancy which may not have been their first or second choice.  But they’re allocated a place. 

And when you think of it at its most basic, the person is allocated to a place with other people already living, all the people – the staff were already there, the place that they may not have chosen to live in, the sort of building they may not have chosen to live with, with routine and structures already in place and they moved to that place and they were required to fit into the structures of that place, with people they didn’t know and staff they didn’t know.  And perhaps even changed their group – their day program, where they went to during the day, because they moved.  And I think because of the shortage of supply of housing and the desperate situation people were in, there were compromises about who they lived with and the compatibility of residents in those homes, which leads to lots of troubles which the Commission has already heard about.

MR HARDING SC:   Yes.  In fact I think in paragraph 65 of your statement, you talk about the source of complaints and you note that 41 per cent – in the last financial year concluding this year, 41 per cent of complaints that you received – and that’s all complaints within the jurisdiction that you have, I take it – pertained to group homes;  is that right?

MR ROGERS:   That’s correct.  So consistently it’s somewhere between 40 and 50 per cent of complaints my office has received over many years have been relating to group homes, which – in Victoria there are about 5000 people living in group homes and many, many more thousand people receiving disability services that don’t live in group homes, obviously.

MR HARDING SC:   And to be clear, when you mean – when you refer to in scope you are talking about the whole range of disability services that a person with a disability can receive under the Disability Act.

MR ROGERS:   That’s correct.

MR HARDING SC:   Right.  And I think you note that that has been a trend over the last four years, that number of complaints that your office receives?

MR ROGERS:   Yes, certainly over the last four years and probably a lot longer than that.

COMMISSIONER SACKVILLE:   What sort of complaints are they about group homes, typically?

MR ROGERS:   They typically relate to the quality of support a person has received.  In other words, that the person or their family member, it’s not the standard they think it should be.  It could be from just around a range of things around that they have to fit into the routine of the home or they’re denied certain activities, to where the staff member treats them poorly, swears at them or treats them poorly or mishandles them.  A range of things like that.  It can be around the communication within the home, that they’re actually not being told what’s going on, they don’t understand it, or they might be being denied a certain activity or required to do things that they want to do.  So for some – no complaints are minor.  So please, I’m not saying that.  But matters where they are things that people don’t think it’s acceptable to sort of quite abusive intolerant situations. 

So a range – such a range of things that we receive but they are around either a staff member’s doing something they shouldn’t do or not doing something they should do and a person’s experiencing poor outcomes.  I should also say that most of the complaints we receive are from families, about their – what they observe for their family members in the group home.  It’s about 60 per cent.  And about 25 per cent from people with disability themselves.  And so we receive complaints and I just would perhaps note that where a person living in a group home does not have a close family connection, clearly most complaints come from families.  Where that’s not present I would not hear from people who don’t feel they’ve got – they can speak up or feel somewhat they’re intimidated, that they can’t speak up.

COMMISSIONER SACKVILLE:   Do you have any – or have you received in recent times any complaints about restraints?

MR ROGERS:   I do receive complaints about restraints but I probably see more that through another function that I perform which is a review of the incident reports, including incident reports relating to services of people who have died, where you do see unauthorised use of restraints in group homes.  I don’t receive complaints particularly or receive incident reports where the restraint is authorised through the process in Victoria, but I do see them through incident reports and other reviews and through complaints, and then mostly where I see it, it’s about the culture of the home, where staff think it’s okay to do things.  They don’t realise it’s a restraint.  In fact it clearly is a restraint of someone’s freedoms and we note that basically it’s about sort of ignorance to that or acceptance somehow of the culture and the process of the house that restraints are okay.

COMMISSIONER ATKINSON:   But can you give an example.

MR ROGERS:   Well, a couple of examples.  I think I mention one in my witness statement but I can give a few more as well.  Just where one person in the home might have some issues where the food has to be excluded and locked away, so it’s locked away for everybody.  Or where that one person may need a door locked, so it’s locked for everybody.  Or where a person routinely might be in their room and they’re not allowed out because of other issues of compatibility.  Those are matters which seem to be acceptable within homes and when they come to our attention we clearly point out they’re not.  And often, you know, notices to take action or notices of advice about training for staff around those matters because they’re just not acceptable, even though they’ve become acceptable and normal for the home.

COMMISSIONER SACKVILLE:   It’s unlawful, isn’t it?

MR ROGERS:   A restraint without authorisation through the Disability Act, in my view, is unlawful, yes.

COMMISSIONER SACKVILLE:   And what happens if something is unlawful?  Does anything happen?

MR ROGERS:   I guess it would depend on the nature of the restraint.  Where there’s, as I say, locked food, which we would still say is restraint, we would bring that matter to the service provider and ask that that matter stop and also that staff be trained in relation to that.

COMMISSIONER SACKVILLE:   How do you know whether it’s been done?

MR ROGERS:   Well, where we issue a notice to take action, which I can do under both my referral and my own motion powers of investigation, I will provide that notice to take action to the provider.  The Act requires them to provide me with their response to that action within 45 days.  If I’m satisfied that they have – their response is adequate, I can take that matter and I can recheck on that.  Where it’s not adequate, I can take further action against them in terms of requiring them to further investigate.  Generally where I would see a matter through an incident report review,

where I see something like that, I would ask the provider to outline what they propose to do, then I would follow that matter up and ask the provider had they done it.  And where I have concerns, I could also launch another investigation.

COMMISSIONER SACKVILLE:   Has any provider to your knowledge ever been prosecuted for unlawful restraints over the last, say, three years?

MR ROGERS:   Not to my knowledge, no.

MR HARDING SC:   And just on that subject, in your investigations, do the question of restraints arise frequently or infrequently in the course of what you’re looking into?

MR ROGERS:   I guess it’s a matter of what you mean by infrequent.  We see it often but it wouldn’t be in the majority of incident reports that we review.  Where we see it a lot where in terms of reviews of deaths because the – well, services relating up to – services where a person dies because we actually review the whole service.  So we actually have a broader look at the service and we see it too often there.  In incident reporting we don’t often see an incident reported where there has been an unauthorised use of restraint and we don’t see it very commonly through a complaint.

MR HARDING SC:   Okay.

COMMISSIONER SACKVILLE:   Who prepares incident reports?

MR ROGERS:   The incident reports are report – prepared by the service provider and generally by the staff on hand when the incident occurs.  And I just do note perhaps before this comes – incidents do minimalise the fact this is about an impact on a person, so I just would like to say that.  But they’re provided – prepared by the service provider, generally by the manager on duty or the staff member.

COMMISSIONER SACKVILLE:   I imagine that perhaps service providers might have an incentive not to report unauthorised restraint.

MR ROGERS:   The difficulty with incident reports is we don’t know the ones that we don’t get mostly.

COMMISSIONER SACKVILLE:   Yes, precisely.

MR ROGERS:   So there is a requirement for them to do it and we can occasionally discover there should have been an incident report when there hasn’t been and we would follow that up.  I do go to the nature of incident reporting in my statement, where I’ve seen a reduction in incident reporting where providers have been given a change to a system where they could make a judgment about what’s major and non-major.  And over the last course of last financial year, when that provision was provided to service providers, that I saw a 35 per cent reduction in incident reporting. 

So I guess that tells you where you give some subjective ability – more subjective ability to providers, they will tend to report less than they have previously.

COMMISSIONER SACKVILLE:   Self-reporting, in other words?

MR ROGERS:   Well, every incident report by virtue – it’s originated by the service provider.

COMMISSIONER SACKVILLE:   Yes.

MR ROGERS:   And we receive about 1000 a year, so a significant number.  But we only receive the major ones.  So where a provider determines that it’s a non-major or non-category one we won’t receive it.  So as you say – as I mentioned before, it’s with the provider to make those judgments.

MR HARDING SC:   Thank you, Commissioner.  Can I take you back, Mr Rogers, to paragraph 58 of your statement.  And there you address what you have identified as the factors based on your experience that have contributed to complaints and incidents of reports of violence and abuse.  And the first thing you mention is the group home model itself as a factor.  And you’ve identified a range of reasons in the following paragraphs for why you say that is.  But is that something that comes out of the complaints and investigations that you receive, that the problem is – a problem is, if not the first problem, the model?

MR ROGERS:   Generally, the complaints and incidents we review relate to specific incidents so we investigate those generally.  But I would say if you form an overall view around that, often the – the issues around that are around the group housing model and the particular features of the model.  And I mentioned a few of those before but perhaps if I go back to a few of those.  In fact, it’s – it’s where you’ve got a home which is also a workplace, and – so that’s compromising certain abilities to have a domestic sort of living arrangement.  But you’ve also got routines within that model for the group and, therefore, by virtue of that I think inherently it’s got to be – there’s got to be less individualised choice when you’re living in a group.  And there are routines that apply in the home and we often see that those routines would not meet the individual needs of a person living in the home.  So we see some issues around that. 

So clearly, those matters are things that impact on the individual’s choice and freedom to have their own sort of choices rather than fit in with the group.  And we often see that.  But the complaints around both that the – that the routine of the home taking over the life rather than the person having their own routines for their own individual living situations.  So that just by virtue of living in a group of people who may not have the same interests as you and the same support needs.  So I think that’s an issue clearly around that.  I say more broadly – and I mention this in my statement – it’s also about the culture of – that’s generated in group homes, and the fact that certain practices seem to be accepted as normal within the home that we – none of us would accept as normal and acceptable in terms of upholding our human rights. 

So it’s the culture within the home which I think some have – has – gives people with disability a different value than other people in the community, and – and that’s not acceptable.  I think it’s part of the culture of homes which can develop.  It doesn’t have to but I think it has developed in some homes that I have had the need to look at.

MR HARDING SC:   Commissioners, I’m going to try something here and ask for a document to be displayed.  I’m told I’ve got to read a number out for that which is DRC.9999.0007.0001.  Hopefully that comes up on the screen.

COMMISSIONER ATKINSON:   Is it in the tender bundle?

MR HARDING SC:   It was a document that was provided earlier.  But if it’s ‑ ‑ ‑

COMMISSIONER SACKVILLE:   We seem to have the Disability Act 2006 on the screen.

MR HARDING SC:   That’s the document.

COMMISSIONER SACKVILLE:   That’s the document.  All 400 pages of it.

MR HARDING SC:   No, summary.

COMMISSIONER SACKVILLE:   Summary, right.

MR HARDING SC:   If the document can be scrolled through, please, to the Objects and Principles.  Okay, it’s coming up in piecemeal fashion which doesn’t assist, I think, because there’s quite a long list of Objects and Principles.  But maybe, Mr Rogers, if I can put a couple to you – yes, that’s a bit better.  Maybe the next page as well.  Section 5 of that Act sets out certain principles that apply to disability service providers, and in particular you can see on page 3 in subsection (3):

Disability services and regulated disability services should –

And then a whole bunch of principles that follow.  And the first three:

Advance the inclusion and participation in the community of persons with a disability; 

be flexible and responsive –

and –

(c) maximise the choice and independence of persons with a disability.

There’s a range of principles there, you would agree, would you not, that reflect questions of choice and autonomy?

MR ROGERS:   Yes, I would.

MR HARDING SC:   And based on your experiences and what you’ve said about group homes, are you able to tell the Commission about whether you think the group home model is consistent with the principles of the Disability Services Act?

MR ROGERS:   I can relate specifically to the work I’ve seen through complaints and incident reporting, and reviews of different services that on many occasions I see that where there have been issues of poor quality of care and poor outcomes for people. It’s been where the principles of the Act have not been complied with.  And I generally will base my notice of action or notice advice to providers based on those principles and requirements of the Act.  So I’ve seen consistently where there’ve been breaches of the Act in relation to that.  I would probably need to just preface my next remarks by saying I don’t see every group home in Victoria.  In fact, I only see the ones where I get a complaint or incident about, and that’s certainly not the majority of group homes. 

But in my experience and my work I see it’s – it’s often that a – the person’s rights and the person – and the objectives of the Act are not met by the group homes that I look at.  So I would have to say that’s the context.  My next remark is that generally whilst I think there are some very good group homes, the degree that they can help a person with inclusion, participation, have individual needs and maximise their choice, they can do that but only in the context of living in a group home in a group situation with staff that they don’t choose and people they don’t choose to live with.

COMMISSIONER SACKVILLE:   The side note indicates that section 5, subsection (3)(a) was amended in 2017, and a number of these provisions were inserted in 2012 or 2017, I think.  So there were some amendments made to section 5(3).  This hasn’t been in the same form throughout your tenure, I take it?

MR ROGERS:   Since I’ve been in the position, this has been the Act.  So I ‑ ‑ ‑

COMMISSIONER SACKVILLE:   Because you started last year.

MR ROGERS:   I only started last year.  So they have – through the – through the life of the Disability Services Commission there have been a number of changes to the Act.  The most significant was 2017 ‑ ‑ ‑

COMMISSIONER SACKVILLE:   Yes.

MR ROGERS:   ‑ ‑ ‑ which I mentioned before.  And some of these objectives and principles were changed then to reflect the revised approach to regulation and oversight, and also the department’s approach to zero tolerance and – and obviously the – the approach to action making sure that places are safer than they were.

MR HARDING SC:   Commissioners, the ones that you mentioned or the ones I took this witness to were in the Act from its inception, 2006.

MR ROGERS:   Certainly – yes, those in (3), they’ve been consistent.

MR HARDING SC:   Mr Rogers, you do mention in paragraph 64 that you have seen:

...examples of innovative group homes that have proactively implemented person-centred care philosophies and practices.

Are you able to say something more about what those look like compared to your earlier evidence about the model that you criticise?

MR ROGERS:   Well, the comments in 64 principally relate to my broader observations through the review of services to people who have died.  Those are the only reviews and investigations I do that relate to broader issues where a person may well have died and, in fact, there are no issues around the quality of care for those persons.  They unfortunately die from natural causes and other reasons, of illness.  So we have seen in cases there where within the group housing model that the house itself operates in a way that produces better outcomes for people by virtue of the nature of the – the culture in the home, the quality of the staff and, as I mentioned, there are still always limitations in a group housing model but within that group housing model you see the culture of the place is where there is, I think, probably a more respectful, open relationship with staff, where staff – where staff do the best they can to make sure people have individual choices within their lives. 

So we just see that it’s probably around the nature of the staff and the culture of the home.  It’s actually not as much the – the physical fabric of the home.  It’s what the staff make out of the physical fabric, how they can actually change the processes.  So we do see that.  I guess that’s just for balance.  However, as I said before, most of my work relates to where there has been a complaint or something that shouldn’t have happened in a home.  So I just – I guess I made that comment for balance because we do see some homes where within that model people do get better – and better outcomes than other people in different homes.

MR HARDING SC:   You refer to culture in the culture of the home and you draw attention in paragraph 62 to the increasing casualisation of the workforce.  When you – you speak about the increasing casualisation, is this a trend that you’ve observed pre-NDIS or just after NDIS or both?

MR ROGERS:   I don’t have the data on this with me.  So this is my observation, that casualisation has been a part of the system for some time.  I think it has increased pre-NDIS, today and post.  And I can’t – I can speculate but I don’t know the reasons for that.  My reason for referring to it is that in my work I see that where you get frequent different people, workers – different workers in homes, you are more likely to see issues within that home particularly where there has been poor communication of residents’ needs to workers.  They work in a house where they don’t know the needs of a person and can’t respond to them. 

And it’s also just the fact that, you know, our observation where you get a home with a lot of different – people working in it, it becomes less homely.  It becomes less familiar for people.  So clearly that’s an issue as well.  And when you get a house with lots of different people it’s actually hard to build up a respectful and positive culture within the home because you’ve got a lot of people working in the home that work there at different times and for short times.

MR HARDING SC:   Yes.  Now, if I can take you to paragraph 80 of your statement.  And one of the – we’ve already referred to this in conversation with the Commissioners, to some extent, but you there in this paragraph identify one of the systemic issues as being the incident reports you review which miscategorise the incident, to use that expression, and that leads to a reduced reporting of incidents, an issue that arises with this lack of monitoring of non-major incidents.  Now, perhaps you can tell the Commission about the distinction between major incidents on the one hand and non-major incidents on the other?

MR ROGERS:   This refers to the non-government reporting – incident reporting process that has been in place which is largely now not within my jurisdiction and doesn’t occur, but it relates to the guidelines on reporting change so that a service provider could categorise and incident as a major impact on a client or a non-major impact on a client.  And in my view, what happened was that some incidents were categorised as non-major impact on a client, and I found that difficult, particularly where there’s a person with an intellectual disability with limited communication, and/or sometimes without communication, plans and staff aren’t able to communicate with them in an appropriate manner. 

It would be difficult for a provider to determine that it was a non-major impact on a client.  And – and in my view that was leading to an underreporting or a reduction in reporting that reduced the oversight that I had of those incidents.

MR HARDING SC:   And do you see both categories of incident or only one?

MR ROGERS:   I only see the major – the major impact on a client.  So as a result of that changes to categorisation which I call miscategorisation – I believe it to be that case – I saw a 35 per cent reduction in incident reporting coming to my office from the non-government sector last financial year.  And I’m not suggesting that perhaps some of them weren’t non-major.  The point that I’m making is that I don’t know and – and the few – the some that I did see I did believe they were miscategorised and some that I did see were re-categorised to major later on.

MR HARDING SC:   And because there’s a self-reporting system, whether or not you can perform your function ultimately depends on whether you get the report and whether it’s, therefore, raised for attention with your office?

MR ROGERS:   That’s correct.  I – I can only act on the ones that I receive in my office.  And if I – obviously, if something is categorised as non-major and I don’t see it, I have no oversight.  And my view would be that there should be a culture of more

reporting and more – more light shone on services rather than less, and it would be a matter for the regulator to determine whether they were major or non-major.

COMMISSIONER SACKVILLE:   What is the source of the provider’s obligation to report major incidents?  Is this a provision in an Act or is this – or is the source something else?

MR ROGERS:   In the previous State system or what current – what has been operating until this financial year, it would have been a requirement for the Department by virtue of their service agreement with the provider to report incidents and they would have provided those guidelines.

COMMISSIONER SACKVILLE:   There would not be a statutory obligation?

MR ROGERS:   I don’t believe it is a statutory obligation.  I believe it’s a function of the policy – the service and funding arrangements of the Department to – to service providers.

COMMISSIONER ATKINSON:   So the incentive – the disincentive is that they might lose their funding or they might lose their registration.

MR ROGERS:   Commissioner, I couldn’t say that that’s a positive disincentive that’s actually in the forefront of providers.  I don’t actually think providers, in my experience, make a conscious decision that they wouldn’t report something because they don’t want the oversight.  I think my view would be that where a staff member or someone else has the occasion to sort of – can make that decision that it’s – it’s a non-major impact, I think the system – a tendency to sort of make it a non-major rather than major.

COMMISSIONER ATKINSON:   To minimise it.

MR ROGERS:   Where it’s not clear.  It’s not clear.  The Department – I’m not sure the Department sees the non-major ones or not.  But as I said before, where you – where they don’t provide a major impact statement, no one sees it.  I don’t see it and I can’t make that decision.  I have seen retrospectively somewhere it’s come to my attention where I’ve looked at it, and I think it wasn’t appropriately categorised as non-major.

COMMISSIONER SACKVILLE:   If the source of the obligation is contractual, that is, to say the agreement between the service provider and the State, and if there is a breach which comes to your attention because there is an incident report and it’s mischaracterised or you learn that a report that should have been made has not been made, does then that information go to the State as the contracting party to do something based on the contractual provision?

MR ROGERS:   Yes.  In short, I – where I see a matter that had been relating to a funded service, and I was – I would notify the Secretary of the Department of Health

and Human Services both as the funder but also as the regulator.  The Secretary of the Department is ultimately the one that is the source of registration for those service providers.  So I would bring that to her attention, it’s her now.  And also as the funder.  And where I’ve seen some breaches where I thought were important I’ve given a notice of advice to the secretary around, say, doing a service review of a provider to make sure that they’re more completely meeting their obligations, and generally I would have that interaction with the Secretary of the Department as the funder and regulator and, as it has been in the past, as the provider.

MR HARDING SC:   I’m conscious of the time, Commissioners.  I’ve only got one additional question unless the Commissioners do.

COMMISSIONER SACKVILLE:   You go ahead.

MR HARDING SC:   Mr Rogers, in paragraph 93 you speak about the function that you perform in relation to deaths.  And you observe that there were a number of potentially avoidable deaths of people with disability, and a failure of disability services to manage some key risks.  Now, is it correct that you have conducted a number of investigations into these deaths and is it correct that you’ve provided those investigations to the Commission?

MR ROGERS:   Yes, it is correct.  I – I review since the referral from the Minister which I’ve attached both of those, the circumstances – the services leading up to deaths of people with disability in services since I’ve received that referral, so I think that’s from September ’17.  We investigated all those deaths by virtue of getting some information through questionnaires and documents, and where we have particular concerns we go into a more detailed investigation.  As a result of that we produce a report which we will provide to the service provider and often provide them with a notice to take action around that matter, and those reports have been provided to the Commission.

MR HARDING SC:   Thank you.  No further questions from me, Commissioners.

COMMISSIONER SACKVILLE:   Can I just ask just before we break, one question.  It may be a little technical and I’m sorry if it is.  Section 5, subsection (3A) of the Disability Act of Victoria says that:

Restrictive practices used on NDIS participants have to comply with certain requirements and that it is the intention of Parliament that the principles stated in that provision should, wherever possible, be given effect to in the administration of restrictive practices and compulsory treatment by registered NDIS providers.

Does that mean that it’s the State law that applies to NDIS providers despite their registration under Commonwealth legislation?  If that’s too technical that’s fine.

MR ROGERS:   I’m quite happy – I can answer in the broad ‑ ‑ ‑

COMMISSIONER SACKVILLE:   Good.  Okay.  Yes. 

MR ROGERS:   ‑ ‑ ‑ that through the National Quality and Safety Framework for the NDIS implementation, restrictive – restrictive practices are subject to two matters.  One is the national process but the authorisation of restrictive practices in Victoria still remains with the Victorian law and the Victorian senior practitioner and other processes.  So there is ongoing requirements for the authorisation and part regulation of restrictive practice to remain with Victoria, and that’s a common position across – nationally.

COMMISSIONER SACKVILLE:   So there’s interaction between Commonwealth and State laws on this issue.

MR ROGERS:   Broad – yes, and broadly surround that the – the authorisation of those practices still remain a State matter and there’s some other matters that the Commonwealth deal with through the National Quality and Safety Commission.

COMMISSIONER SACKVILLE:   All right.  Well, thank you very much for giving evidence and preparing your detailed statement, Mr Rogers.  Thank you.  Shall we now adjourn until when?

MS EASTMAN SC:   2 pm, if that’s convenient.

COMMISSIONER SACKVILLE:   2 pm.  Yes. 

MS EASTMAN SC:   Thank you.

COMMISSIONER SACKVILLE:   Okay.  Thank you. 

<THE WITNESS WITHDREW

ADJOURNED                                                                                                                    [1.01 pm]

RESUMED                                                                                                                    [2.00 pm]

COMMISSIONER SACKVILLE:   Yes, Mr Harding.

MR HARDING SC:   Thank you, Commissioner.  Our next witness is Ms Janine Toomey.

COMMISSIONER SACKVILLE:   If Ms Toomey could come forward.  Thank you.  And you may take the oath or affirmation.  Just one moment.  Are we missing some interpreters?  I think we can administer the oath or affirmation and then we will work it out from there.

<JANINE LOUISE TOOMEY, AFFIRMED                                                                                                                    [2.01 pm]

<EXAMINATION BY MR HARDING SC

COMMISSIONER SACKVILLE:   Thank you.  Please do sit down.  I think our interpreters have arrived.  So, Mr Harding, we can commence.

MR HARDING SC:   Thank you.  Ms Toomey, is your name Janine Louise Toomey?

MS TOOMEY:   It is.

MR HARDING SC:   And are you employed as the Executive Director, Disability and NDIS in the Department of Health and Human Services?

MS TOOMEY:   I am.

MR HARDING SC:   And you’ve held that role since October 2017?

MS TOOMEY:   Yes, that’s correct.

MR HARDING SC:   And the Department of Health and Human Services is the Victorian department.

MS TOOMEY:   Correct.

MR HARDING SC:   And prior to holding that role you held a number of other roles.  I won’t list them all but they were roles with the Department; is that correct?

MS TOOMEY:   That’s correct.

MR HARDING SC:   And have you prepared a statement for the purposes of this Commission?

MS TOOMEY:   I have.

MR HARDING SC:   And have you read it recently?

MS TOOMEY:   I have.

MR HARDING SC:   Is it true and correct?

MS TOOMEY:   It is true and correct.

MR HARDING SC:   Thank you, Ms Toomey.  And in addition to the statement, you have annexed a number of documents to it comprising some 70 annexures, which is set out for you in neat form there next to you in the event that we need to refer to them.  For the purpose of the tender book, the statement starts at 77 and the annexures thereafter.

COMMISSIONER SACKVILLE:   Thank you.

MR HARDING SC:   Ms Toomey, perhaps if I could start at the beginning.  You’re the Executive Director of disability and NDIS in the Department.  What does that involve?

MS TOOMEY:   I see the role having four main areas – areas.  I have oversight of the transition to the NDIS of the State system, that includes both the disability program but also oversight of other services that are transitioning to the NDIS.  I’ve overseen the transfer of government-delivered and department-delivered services to the non-government sector as part of that NDIS transition.  I’m also responsible for the Office for Disability, which drives the whole of Victorian Government inclusion agenda through the State Plan.  And the fourth area is broadly the program management of disability services that are residual to the State.  So those out-of-scope services that remain under funding and – funding and service delivery within the State of Victoria.

MR HARDING SC:   When you refer to out-of-scope services, you’re referring to those that are not NDIS services upon the transition.

MS TOOMEY:   That’s correct.  So mostly the disability forensic program is out of scope for transition to the NDIS.

MR HARDING SC:   Is that the language that’s used to describe the situation which there are some that the NDIS runs and some that Victoria retains?

MS TOOMEY:   It – it’s language that we use to – to be clear about what is in scope to transfer to the new arrangement under the NDIS for funding and provision under the NDIS versus what stays within the department.  It’s – it’s somewhat complicated by the fact that a number of the individuals that are in receipt of forensic disability services are also eligible to receive services under the NDIS.  So they are in a situation where their reasonable and necessary disability support needs are met by the NDIS but their offence-related needs are met by the state.

MR HARDING SC:   Okay.  And under the Disability Act the Secretary has particular functions – the Secretary of the Department has particular functions; that’s correct?

MS TOOMEY:   Correct.

MR HARDING SC:   And what’s your relationship to the Secretary?

MS TOOMEY:   Organisationally, you mean?

MR HARDING SC:   Yes.

MS TOOMEY:   I report to a Senior Deputy Secretary of Community Services Operations who reports to the Secretary of the Department.

MR HARDING SC:   And the Department is divided up into regions, isn’t it?

MS TOOMEY:   It’s divided up into operationally four divisions: north, south, east and west.

MR HARDING SC:   And in terms of the administration of group homes where does – where do they fall?

MS TOOMEY:   Currently, there are very few group homes delivered by the State, but prior to the transfer of those services they were delivered through the four operational divisions under a Director of Disability and NDIS in those four operational divisions.

MR HARDING SC:   And in terms of the functions that you perform in the department and have performed, according to what you’ve set out at (ii) of your statement, are they operational or are they policy-related?

MS TOOMEY:   They’re policy and reform-related functions.  There are minor operational functions that we have delivered centrally through the NDIS transition.  They are very minor functions, such as a central intensive support team that has guided people with very complex needs through to the NDIS.  But it’s a very unique situation that our central office branch such as mine would have those operational responsibilities.

MR HARDING SC:   Okay.  And have you ever had operational responsibility for group homes?

MS TOOMEY:   No, I have not.

MR HARDING SC:   Okay.  Now, in your statement in part A you talk about – you describe as the evolving nature – evolving role of the Department in residential services, and that evolution is linked to the development of the NDIS.  Yes?

MS TOOMEY:   Correct.

MR HARDING SC:   And you say in paragraph 7 that the – prior to the NDIS commencing, which was on the 1^st of July 2016; is that correct?

MS TOOMEY:   There was a trial within the State, an early trial, but the full roll-out to the Scheme commenced in 2016, correct.

MR HARDING SC:   And prior to the NDIS, the Department was both funder, regulator and provider of residential services; is that right?

MS TOOMEY:   Correct.

MR HARDING SC:   Can you tell the Commission how that – those functions have transitioned or what the effect of the transition has been on those functions?

MS TOOMEY:   If we can exclude the out of scope services, first and foremost ‑ ‑ ‑

MR HARDING SC:   Yes.

MS TOOMEY:   ‑ ‑ ‑ those services that are transitioning to the NDIS, the transition means that we have, over a three-year period of the transition, an agreed period for the transition of Victoria and delivered services, slowly area by area moved from a state-funded system to a NDIA-funded system area by area.  So through the very complex three-year rollout, we were both – we were funder in some areas and not a funder in other areas.

COMMISSIONER SACKVILLE:   The transition will be complete by 31 December 2020, as I understand it?  I know the date was 1 July 2019 but there are some further transitional arrangements to be completed, are there not?

MS TOOMEY:   That’s correct.  The original plan was a three-year transition period.

COMMISSIONER SACKVILLE:   Right.

MS TOOMEY:   We – there was some difficulty in achieving all clients across in those three years.  So we entered a – what we would call – we’ve been calling a fourth year of transition.  To give you some sense of numbers, there are about 10,000 State clients, I believed, at the end of that three-year period that had not yet transitioned across to the NDIS.

COMMISSIONER SACKVILLE:   10,000.  But that transition will be complete by the end of 2020?

MS TOOMEY:   So there are two elements to the finalising transition arrangements.  For those State clients, the 10,000 I’m referring to, we are working very solidly to have all of those individuals into the scheme by the end of this financial year.

COMMISSIONER SACKVILLE:   June 2020.

MS TOOMEY:   That’s correct.  The services that we have that we previously delivered ourselves and are now being delivered by five non-government providers, given the – the delay in the transition of all State clients across to the NDIS and the very complex planning that’s required with each of those individuals around their needs under the NDIS, we have arrangements in place to convert or transfer those

remaining residential clients for the period 1^st of July – 1^st of July 2020, ending at the end of the calendar year of 2020.

COMMISSIONER SACKVILLE:   These will be clients of the five non-government providers now?

MS TOOMEY:   Correct.

COMMISSIONER SACKVILLE:   Which have received the – or taken over the services previously provided by the State.

MS TOOMEY:   That’s correct.

COMMISSIONER SACKVILLE:   Can we – I’m trying to grasp all of this.  As I understand it these arrangements depend upon Commonwealth legislation, regulation of rules, State regulations, legislation and rules, intergovernmental agreements, various practice arrangements, and all sorts of declarations that have been made.  So it’s not altogether easy for me and lay people to follow.

COMMISSIONER ATKINSON:   And contracts.

COMMISSIONER SACKVILLE:   And contracts.

COMMISSIONER ATKINSON:   Contractual arrangements.

MS TOOMEY:   Correct.

COMMISSIONER SACKVILLE:   So at the end of 2020, what remains for Victoria to do in the area of people who require supported accommodation, if anything?

MS TOOMEY:   We have retained a small number of group homes that we are delivering through the State.  A small number of houses for children and adolescents.  And we retained service delivery for those houses due to an as yet unsettled policy position with the NDIA in relation to funding arrangements for children in out-of-home care.  That is now settled, but those services continue to be delivered by the State.

COMMISSIONER SACKVILLE:   But are they to be delivered pursuant to the arrangements under the NDIS or are they outside those arrangements?

MS TOOMEY:   They are absolutely – at the moment whilst we are delivering these services, under financial arrangements known as in kind arrangements.  The regulatory arrangement is through the previous State arrangements.  As soon as we phase those services into cash arrangements under the NDIS, they will be under the NDIS condition.

COMMISSIONER SACKVILLE:   Right.

MS TOOMEY:   So it – all of these services, if we continue to deliver them, we will deliver them under the NDIS and we will be in receipt of revenue from the NDIS to deliver those services.

COMMISSIONER SACKVILLE:   You won’t be in any different position to any other service provider.

MS TOOMEY:   We will be another provider, correct.

COMMISSIONER SACKVILLE:   Yes.  All right.  So where does that leave the State of Victoria post 2020?  What will it actually be doing by way of the provision of or regulation of supported accommodation facilities?

MS TOOMEY:   So we will still be in a small amount of service delivery.  We are delivering support coordination and behaviour intervention and support services under cash arrangements for the NDIS.  We will be a small group home provider.  We will be a very large Specialist Disability Accommodation provider as we have – through historical arrangements we are the primary owner of houses used as group homes.  In relation to regulation, there are a number of things that we have – we will be undertaking in – alongside the NDIS.  I – in particular worker screening will remain a State responsibility, as will the ‑ ‑ ‑

COMMISSIONER SACKVILLE:   Worker screening for which workers?

MS TOOMEY:   For – worker safety screening for any worker operating under the funded arrangements through the NDIS, so for NDIS providers.

COMMISSIONER SACKVILLE:   So that’s a kind of contracted arrangement with the State, is it?

MS TOOMEY:   It’s an inter-government agreement. 

COMMISSIONER SACKVILLE:   Intergovernmental agreement ‑ ‑ ‑

MS TOOMEY:   That’s correct. 

COMMISSIONER SACKVILLE:   ‑ ‑ ‑ between the Commonwealth and the State.  But this is something the State of Victoria will do by way of the provision of services?

MS TOOMEY:   That’s correct.

COMMISSIONER SACKVILLE:   So, essentially, the role of the State of Victoria after the end of 2020 is to undertake those services that have been agreed with the Commonwealth, subject to one or two exceptions like the forensic facilities.  Is that a fair description?

MS TOOMEY:   That’s a good description.

COMMISSIONER SACKVILLE:   So what we’ve got, in brief, is a wholesale transfer of functions from the State to the Commonwealth, under new arrangements called the NDIS and, in effect, the disappearance of the State, for the most part, in the provision of these services, except by virtue of arrangements through the NDIS.

MS TOOMEY:   Correct.  Although the State will continue its role – I mentioned the office for disability earlier and it’s a role in driving, certainly, considerations of how Victoria provides appropriate support and services to people with a disability more broadly but it’s a much broader group of people.  I say in my statement or refer to 1.1 million Victorians with a disability.  That’s obviously – those individuals are not in scope for the NDIS.  It’s a much smaller group.  Some 106,000, I think, is the forecast at this point.  But the State will continue to have a role in relation to ensuring that mainstream services adapt to the needs of people with a disability and respond appropriately to people with a disability.

COMMISSIONER SACKVILLE:   I think I understand.  Thank you.

MR HARDING SC:   Thanks, Commissioner.  Just taking on from where the Commissioner left off, you do refer in paragraph 26 to the sum the State spent on residential services, being $734.8 million.  What happens to that money after the transition?

MS TOOMEY:   All of the funding that the State has for the disability program has been slowly transitioning to the Commonwealth, to pay for the NDIS, as well as additional funds that have been made available through State budgets for the total contribution to the Scheme by the State.

MR HARDING SC:   So the funds aren’t lost to the disability sector, they’re transferred to the Commonwealth ‑ ‑ ‑

MS TOOMEY:   Yes.

MR HARDING SC:   ‑ ‑ ‑ through the NDIS, is that your evidence?

MS TOOMEY:   Yes.

COMMISSIONER SACKVILLE:   You mean the state of Victoria provided money to the Commonwealth.

MS TOOMEY:   $2.5 billion, Commissioner.

COMMISSIONER SACKVILLE:   Very generous.

COMMISSIONER ATKINSON:   Did you say that the State of Victoria still owns most of the group homes?

MS TOOMEY:   That’s correct.

COMMISSIONER ATKINSON:   So has the State of Victoria paid rent for those homes?

MS TOOMEY:   We will be in receipt of the Specialist Disability Accommodation capital payment ‑ ‑ ‑

COMMISSIONER ATKINSON:   I see.

MS TOOMEY:   ‑ ‑ ‑ through the Scheme.  So we are certainly in receipt of revenue from the NDIS having made those houses available for NDIS participants.

COMMISSIONER ATKINSON:   And who are the tenants?

MS TOOMEY:   The tenants ‑ ‑ ‑

COMMISSIONER ATKINSON:   Yes.

MS TOOMEY:   ‑ ‑ ‑ are the residents of those homes.

COMMISSIONER ATKINSON:   Right.  Not the service provider.

MS TOOMEY:   Absolutely not.  And this is, of course, the significant shift that we’re seeing through the NDIS, is the separation of bricks and mortar from support ‑ ‑ ‑

COMMISSIONER ATKINSON:   Yes.

MS TOOMEY:   ‑ ‑ ‑ to enable individuals to exercise and maximise choice.  That was not the system in Victoria.  The system in Victoria, as we have gazetted group homes, combines the bricks and mortar with the support and the tenancy arrangement was in fact with the service provider rather than the service user.  Those changes have now been made within Victorian legislation to ensure that the tenancy agreement is in fact in mainstream legislation through our RTA – Residential Tenancies Act – rather than where it was previously in the Disability Act.

COMMISSIONER SACKVILLE:   But as the owner of the properties, presumably the tenants, under the lease agreement, under the Residential Tenancies Act, pay rent to someone and I assume that someone is the State.

MS TOOMEY:   They will be paying – they do currently pay a board and lodging fee.

COMMISSIONER SACKVILLE:   Yes.

MS TOOMEY:   Under the NDIS, the requirements are to separate and be very clear about what a rental payment is.  So there is a separation that has occurred, to separate rent from housekeeping costs.

COMMISSIONER SACKVILLE:   Well, the lease entitles the person to exclusive possession of the premises and the services are something different.  Who sets the rent?

MS TOOMEY:   The landlord sets the rent.  However, the SDA laws from the NDIA stipulate that rent cannot exceed 25 per cent of the Disability Support Pension.

COMMISSIONER SACKVILLE:   And because the State is in the same position as other landlords for supported accommodation, that applies to the State as well?

MS TOOMEY:   Correct.

COMMISSIONER SACKVILLE:   Yes.  Okay.

COMMISSIONER McEWIN:   I have a question, if I can pick up on that.  For those people with disabilities who will not be under the NDIS and who are currently in your group home that you oversee, what plans are there for them to then transition into independent living arrangements of their own choice?

MS TOOMEY:   We forecast that all of our residents in group homes will be eligible for the NDIS so, therefore, they will transition to – and in fact for the most part have already transitioned to the NDIS, have NDIS plans, have in some situations had additional funds available to them through the planning process through the NDIS.  There are a number of individuals who are not eligible, a very small number, non-residents, for instance, or those over 65.  We have an arrangement with the Commonwealth where those individuals will stay within those group homes and that we will, through a back of house – again an administrative arrangement, pay or fund for those places but they will be overseen by the NDIS Commission and they will be NDIS – they will be alongside NDIS clients.

COMMISSIONER SACKVILLE:   I think in one of your footnotes you say there’s only about 100 people still left to transition under these arrangements.

MS TOOMEY:   Which is a slightly different point, Commissioner.

COMMISSIONER SACKVILLE:   Is it?

MS TOOMEY:   It’s around the delays that I talked about earlier of the planning process that the NDIA is undertaking with clients before they move across.  So we need to have a plan in place.  We then need to withdraw funding from the current Victorian-funded arrangement as part of a very complex back of house funding arrangement.  There are about 100 people in group homes that have not yet had plans

settled with the NDIA for them to move across and we are working to fast-track – it’s very important that those individuals move across this financial year.

COMMISSIONER SACKVILLE:   I suggested that one of the fundamental features of the NDIS was the transfer from States to the Commonwealth of responsibility for supported accommodation through the NDIS.  The other aspect of it is privatisation, isn’t it?  That is, privatisation of service providers.

MS TOOMEY:   Well, I think in the case of the five providers that were chosen to deliver the previously ‑ ‑ ‑

COMMISSIONER SACKVILLE:   I’m sorry, I wasn’t just referring to Victoria.  I was referring to the whole concept of the NDIS and ‑ ‑ ‑

MS TOOMEY:   Of an open ‑ ‑ ‑

COMMISSIONER SACKVILLE:   Yes.

MS TOOMEY:   An open market.  Yes.  I think certainly we’re seeing new entrants to the market, service delivery market for – in Victoria.  It certainly hasn’t shifted significantly.  We saw significant change when we introduced within Victoria individualised funding arrangements and they were introduced on – to some scale within Victoria in 2008/2009 and we saw certainly ‑ ‑ ‑

COMMISSIONER SACKVILLE:   Well before the NDIS. Yes.

MS TOOMEY:   That’s correct.  We have been trialling very early approaches to individualised arrangements.  So we certainly saw new entrants but those entrants were required to meet the same registration processes as the community service organisations.  There were some – as the Disability Services Commissioner mentioned earlier, there were some new providers that were engaged through self-directed, self-funded arrangements that weren’t registered, but we didn’t see a significant shift within Victoria.

COMMISSIONER SACKVILLE:   Mr Harding.

MR HARDING SC:   Thank you, Commissioner.

COMMISSIONER SACKVILLE:   You may wish to resume.

MR HARDING SC:   And going back to the subject of housing and who owns it, it’s correct, isn’t it, Ms Toomey, that currently – which was February 2019 – the Department directly or indirectly owns 835 SDA dwellings, which is about 70 per cent of the SDA market;  is that correct?

MS TOOMEY:   It is correct as at the end of the financial year.  It was 70 per cent of the market.

MR HARDING SC:   And you’ve referred to the separation between the bricks and mortar, the building on the one hand, which the department will own, and the support role on the other hand, which has been contracted out, if I can use that expression, to five non-government providers.  It’s correct, is it not, that in order to become an SDA dwelling under the Commonwealth Scheme, the former group home has to comply with NDIS rules?

MS TOOMEY:   Correct.

MR HARDING SC:   And at the moment, it’s the case, is it not, that Victoria is operating its SDA accommodation – I think the expression is “in kind”?

MS TOOMEY:   That’s correct.

MR HARDING SC:   Now, can you tell the Commission what that concept means?

MS TOOMEY:   It is, as I alluded to earlier, the financial arrangement that we have with the Commonwealth that simply offsets our financial contribution by the amount of the service delivery costs for those services at this time.

MR HARDING SC:   It’s the case, though, isn’t it, that if you had an NDIS participant who has enrolled in the NDIS scheme, then the in kind arrangement means that they don’t see the money for the SDA accommodation;  the State gets it?

MS TOOMEY:   Well, the State – it is the State’s contribution to the scheme that is held.  What it means for the person is that they continue to be in receipt of the service that they are in.  Our arrangements with the Commonwealth, however, and with the NDIA operationally, is that in the event that that individual would like to move from that service, we actually have administrative arrangements in place where they can be moved from that service.  It doesn’t lock them into that either bricks and mortar or that service provider.

MR HARDING SC:   So if they want to stay where they are, then essentially, Victoria gets paid for – prepaid for the NDIS or the SDA component of the person’s NDIS plan until they move?

MS TOOMEY:   It’s in fact not necessarily a payment but a discount of sort to our contribution – our financial contribution to the scheme.  So we’re able to retain those funds until the individual moves across under cash arrangements.

MR HARDING SC:   But the effect is the same.  The NDIS participant doesn’t see the funds.  It is – it remains, whether it’s discounted or paid with Victoria?

MS TOOMEY:   There is some operational differences in relation to that issue.  In relation to a plan, so a participant has line items recorded within a – within their NDIS plan.  In some situations, the NDIA have put a figure associated with their Supported Independent Living service or their Specialist Disability Accommodation

service, and in some cases they’ve used no figure at all, referring to the in kind arrangements.

MR HARDING SC:   Okay.  And will the in kind arrangements cease on 31 December 2020?

MS TOOMEY:   They will phase out starting on 1 July 2020, through to the end of the calendar year.  We’re in the final stages of negotiating with both the NDIA and the five new transfer providers around how we will make that happen.  It’s a very complex planning – replanning process where those individuals will need to plan house by house, making sure that all of those individuals within a group home convert across to the new arrangements.

MR HARDING SC:   So the – I’m sorry.

COMMISSIONER SACKVILLE:   What was the rationale for the transfer to the five non-government service providers?

MS TOOMEY:   I think the Victorian Government has always had a significant footprint in direct service delivery and had somewhere near 50 per cent of the market.  It was certainly seen as an impediment to growing a more vibrant market into the future and there was a view that if there were – it was opened up to more non-government providers, that that would actually have a benefit to how we – some of the workforce planning that we were doing and making sure that there were more providers available to deliver services into the future.

COMMISSIONER SACKVILLE:   And this is a competitive market in relation to consumers.

MS TOOMEY:   Correct.

COMMISSIONER SACKVILLE:   The consumers are people with disability.  Markets normally assume full information.  Is that the way this market is going to work?

MS TOOMEY:   I think that the NDIA – the intent is definitely full information.  I think that we are still as the – as we understand the market and the needs of service users within Victoria, we are still – still seeking information that we need to fully inform the market.  I think the market in relation to specialist disability accommodation, SDA services in particular, we have not seen significant growth over the last couple of years, and as we would have hoped to under our user – user cost of capital contribution through the NDIA.  So it may be that we need to intervene within the market and facilitate and enable growth within the market to respond to the needs of – of people that require SDA.

COMMISSIONER SACKVILLE:   All right.  Yes.

COMMISSIONER ATKINSON:   In paragraph 92 you talk about innovation in accommodation design.  Mr Harding, is it okay if I go on to this now or have you got things you want to do before that?

MR HARDING SC:   I was intending to explore further this accommodation issue if this is a different ‑ ‑ ‑

COMMISSIONER ATKINSON:   Okay.  Before we get to that.

MR HARDING SC:   Yes.

COMMISSIONER ATKINSON:   Yes, okay.

MR HARDING SC:   Ms Toomey, we’ve just been speaking about the rationale for deciding to contract out the services to the five non-government providers.  And this is the support component, isn’t it, as opposed to the bricks and mortar component.

MS TOOMEY:   That’s correct.

MR HARDING SC:   And I think you mentioned that under the previous pre-NDIS regime they were integrated but the Disability Act in that respect hasn’t changed, has it?  Why weren’t you able to separate the two things before now?

MS TOOMEY:   They’ve been separated as a consequence of amendments last – just – just last – sorry, I’m not sure if it was last year or this year.  I think it was last year that those amendments were made that, therefore, separates the capital component from the support component.

MR HARDING SC:   But it’s still, is it not, a group home under the Act?

COMMISSIONER SACKVILLE:   Which Act are we talking about?

MR HARDING SC:   The Disability Act.

COMMISSIONER SACKVILLE:   Right.

MS TOOMEY:   It is a group home under the Disability Act until – until such time it’s de-gazetted.

MR HARDING SC:   Yes.

MS TOOMEY:   And they will be de-gazetted under the Act when the tenancy arrangements move from the Disability Act across to the Residential Tenancies Act and we’re in the process of making those transfers with individuals now across to new tenancy agreements.

MR HARDING SC:   Well, that’s my point.  So we’ve got an arrangement – let’s go back – let’s go back a step.  You said that in order to transition into the new NDIS world there has to be an arrangement made between the SDA provider and – and the resident, and that that becomes subject to the Residential Tenancies Act.

MS TOOMEY:   Correct.

MR HARDING SC:   For those situations where that hasn’t occurred we’re still talking about a group home in its original concept?

MS TOOMEY:   Correct.  And the safeguards under the Disability Act.

MR HARDING SC:   Yes.  So that does assume, does it not, an integrated model?

MS TOOMEY:   Except for those individuals that have fully moved across to the NDIS.

MR HARDING SC:   Yes, but for those who haven’t they’re still within the integrated model.

MS TOOMEY:   Correct.

MR HARDING SC:   So you’re able, even for those who haven’t, be able to distinguish between the bricks and mortar on the one hand and supported – and the support on the other through your transfer of these arrangements to a non-government provider.  And that applies to all group homes under the current arrangement.  You don’t need to have an arrangement under the Residential Tenancies Act to have that occur, do you?

MS TOOMEY:   No, you do not.

MR HARDING SC:   So my question then is why couldn’t that split have occurred before the dawn of the NDIS?

MS TOOMEY:   I think that the – the – the – it certainly – and there were some situations where there was definitely a separation between bricks and mortar and the support provision under the Victorian arrangement, so certainly that existed, but it was – but it was – it was rare.  But for us to be able to – to ensure that the safeguards and the – the residential rights, provisions of the Disability Act were in place, our preference was to gazette group homes.

MR HARDING SC:   Yes.  And so those who are receiving services now from one of the five providers are still subject to those protections under the Disability Act, aren’t they?

MS TOOMEY:   Correct.

MR HARDING SC:   And so – and so the mere fact that you’ve separated bricks and mortar on the one hand and support on the other doesn’t affect whether or not they get the protections, the safeguards the Act provides.

MS TOOMEY:   It is the registration arrangements, correct.

MR HARDING SC:   Yes.  Okay.  Just dealing with the accommodation issue, you’ve produced a document for us called the SDA Asset Register.  And I think, Commissioners, you have copies of this document.  And that tells us some information about what the SDA accommodation is in Victoria and where it’s located?  Yes.

MS TOOMEY:   Correct.

MR HARDING SC:   And also ‑ ‑ ‑

MS TOOMEY:   In relation to Department-delivered SDA.

MR HARDING SC:   Yes, that’s right.

MS TOOMEY:   Yes.

MR HARDING SC:   Yes.  Yes, I think I may have misdescribed the document.  SDA Asset Strategy is the one I’m looking at; are you looking at that one?

MS TOOMEY:   Correct.

MR HARDING SC:   Yes.  And if you go through, please, to page 30.

COMMISSIONER SACKVILLE:   You mean the pagination on the bottom left-hand ‑ ‑ ‑

MR HARDING SC:   I do mean the pagination at the bottom of the page.  The left-hand side.  Do you see that;  it’s got 6.3, divisional distribution and operation of SDA.

MS TOOMEY:   Yes.

MR HARDING SC:   That says that:

The composition of government-owned SDA in Victoria is 60 per cent –

your Department –

and 40 per cent non-government owned.

And you say:

By late 2019 all SDA will be operated by the community sector.

Just in terms of the concepts, when you use that phrase “SDA” or the Department uses that phrase, are we talking here about the bricks and mortar, are we talking about the provision of support, or are we talking about both?

MS TOOMEY:   The SDA is a NDIA term and it is all about the bricks and mortar, the house.

MR HARDING SC:   It is all about the bricks and mortar.

MS TOOMEY:   Yes.  Or in their language, the dwelling.

MR HARDING SC:   Okay.

COMMISSIONER SACKVILLE:   What you’ve described as part of this transition – and I’m trying to look at this from the point of view of the resident, the person with disability who is in supported accommodation – if that person is in accommodation, ie, bricks and mortar, previously the services provided by the State, now the service is provided by the five non-government entities, but the State still is the owner of the property.  There must be then an agreement between the owner of the property and the resident.  What’s the actual procedure, bearing in mind that many of these residents have intellectual disabilities?  What’s the procedure to ensure that they understand what is happening?

MS TOOMEY:   So under the previously funded State system and support residential statements were required to be issued under the legislation and it was our practice to issue those statements in a range of formats, including a plain English format.  It was also a requirement of our supervisors to talk through those statements with individuals.  Many families, many residents that have active families, those statements would, by request, be issued to a family member or a significant supporter of a person.  We – I think the feedback that we’ve had in relation to those residential statements is they’re very difficult to – to understand but they do outline our – outline what our responsibilities were as a service provider but also an asset owner in that residential statement.

COMMISSIONER SACKVILLE:   Were they intended to be, in effect, a contractual document?

MS TOOMEY:   I don’t think they were ever intended to be contractual documents as opposed to the requirement to issue a service agreement under the NDIS.

COMMISSIONER SACKVILLE:   But did they impose some obligations, however described, upon the resident?

MS TOOMEY:   They did.

COMMISSIONER SACKVILLE:   Yes.  And was there any independent advice provided to people when this document was given to them?

MS TOOMEY:   I think in some situations the issuing of residential statements was undertaken very well with – with advocates and families.  I think – I think in some situations it was – it was perhaps more an administrative process rather than a conversation that should have occurred.

COMMISSIONER SACKVILLE:   And if we move to the transition to residential tenancies agreements and I know the Residential Tenancies Act is designed to give tenants more rights than otherwise they might have as mere licensees, for example, again, is there a process of explanation to people to inform them as to what is being done and why and how it’s different?

MS TOOMEY:   We’re working – that process will be undertaken by Consumer Affairs Victoria.  And we’re working with Consumer Affairs at the moment to ensure that they understand the needs of this particular client group and are informed by our experience.  We’ve even linked Consumer Affairs Victoria up with a number of key stakeholder groups within Victoria so they can also hear from families and individuals, our peak bodies, about the best way to implement this change, because it is a significant change for residents.

COMMISSIONER SACKVILLE:   Yes.  The usual apology, Mr Harding.

MR HARDING SC:   That’s fine.

COMMISSIONER ATKINSON:   Too soon.  What I don’t understand is this – and I just ask you to explain it to me – so there’s now – there will be a contractual relationship between the Victorian Government and the tenant, the resident, but there are five service providers.  So if a tenant lives in a group home owned by the government as the landlord and wishes to have a service provider that’s different from the service providers the other tenants have, is there any difficulty with that or do certain service providers provide service in certain of the group homes?

MS TOOMEY:   There is no requirement to – for those individuals the people that have been part of – or subject to the transfer to retain the services – the new service providers.  However, in a group living situation you would have to get agreement if – if it is four or five people living together.  It’s not possible to bring multiple providers in to provide ‑ ‑ ‑

COMMISSIONER ATKINSON:   I see.  They would all have to agree the same ‑ ‑ ‑

MS TOOMEY:   They would have to.  In a smaller dwelling absolutely that can happen immediately.  There is no arrangement – no contractual arrangement that limits that choice ‑ ‑ ‑

COMMISSIONER ATKINSON:   But that’s ‑ ‑ ‑

MS TOOMEY:   ‑ ‑ ‑ for smaller dwellings.

COMMISSIONER ATKINSON:   That’s a significant barrier to real choice, isn’t it, if you have to get every other tenant to agree to a change of service provider from the service provider who has provided the service in that house.  And who got to originally choose the service provider for that group home; the residents or someone else?

MS TOOMEY:   So in relation to the five new providers, there was a very lengthy expression of interest process followed by a tender process.  The criteria that was settled upon in relation to the selection of those providers was developed through a co-design process with families and residents and advocacy groups.  So there was significant input into what government was looking for in relation to the right providers for those services.  We certainly were very actively engaged with the advocacy sector but there were no house-specific decisions in relation to a provider.

COMMISSIONER ATKINSON:   So, in fact, the Government made the decision.

MS TOOMEY:   Correct.

COMMISSIONER ATKINSON:   And so if a person wants a different service provider, even though it’s now separated from the dwelling, they would actually in fact have to move dwelling if they wanted to change their service provider, unless they could persuade every other person in the dwelling that they want to change to the same service provider as that person?

MS TOOMEY:   That’s – that’s correct.

COMMISSIONER ATKINSON:   So the theory and the practice might be – might have some distance between them?

MS TOOMEY:   I think, though, as we work towards the next step to have smaller dwellings available for people, that will be, I think, much easier to be able to reach consensus about the type of service provider to bring into a – a dwelling, but equally, I think with individually attached and portable funding what we’ve seen in Victoria through dedicated effort a large number of people in fact have exited supported accommodation in group homes because of the availability of the funding to do so.  So we’ve had through – through – through project work about 200 people leave when individual support packages have been available to them.

COMMISSIONER ATKINSON:   Okay.  Thanks.

COMMISSIONER SACKVILLE:   What is – what’s a small home?

MS TOOMEY:   Our dwellings – and I would need to reference a table but it goes from a one person group home – and I know there’s a tension in the language.

COMMISSIONER SACKVILLE:   Yes.

MS TOOMEY:   But we certainly have group homes that accommodate one individual, but over – if I ‑ ‑ ‑

MR HARDING SC:   Table 6.4, if it helps.

MS TOOMEY:   Thank you.  Group homes with capacity for five residents make up nearly 48 per cent of the – our dwellings that are available to NDIS participants.  And then we have 14.4 per cent of our stock that is for six residents.

COMMISSIONER ATKINSON:   Six plus, this says.

MS TOOMEY:   Six plus.

COMMISSIONER ATKINSON:   So what does the plus lead up to?

MS TOOMEY:   I think – and I will need to come back to the Commission with this exact upper limit, but I think that the maximum number of people within one of our SDA services is eight.

COMMISSIONER ATKINSON:   Okay.

MS TOOMEY:   And that’s a very small number.  A couple of services with eight.

COMMISSIONER ATKINSON:   I’ve heard people referred to houses with a number of bedrooms and one bathroom.  So those houses with five residents, how many bathrooms would they typically have?

MS TOOMEY:   It depends a bit on whether they were purpose-built or purchased – spot purchased.  To give you a sense of the age of some of these facilities, I will just find the relevant ‑ ‑ ‑

COMMISSIONER ATKINSON:   Essentially we’re not talking about residences that have five bedrooms with five en suites, are we?

MS TOOMEY:   I think, over the last 20 years, as the majority of homes that the State has either funded to a housing association to build or built to deliver ourselves, I think that the layout and style of these houses has changed significantly.  So if you look at our recent closure of the last institution within Victoria, being Colanda, I think there about 15 dwellings that were built to support those residents.  Five of those were five bed group homes, all very large facilities, all with, I think, multiple living spaces and multiple bathrooms.  The other dwellings were built under a sort of duplex arrangement, where you actually had unit developments with en suites on site – on some of the site and three residents in one unit and two residents in the other, for instance.  And I think there was also a layout where there was one resident in a unit and three residents in another unit, all with en suites.

COMMISSIONER SACKVILLE:   I realise this is not a question specific to the State but when we look at what you’ve described, it’s, in effect, for the premises that in respect of which service providers – the five service providers have been determined by the State.  It’s a kind of tie-in, that is to say the landlord, the State, has determined which service provider will service particular premises.  That’s the way it works, isn’t it, in the way you’ve described it?

MS TOOMEY:   In relation to the transfer.

COMMISSIONER SACKVILLE:   The properties that are state-owned but where the services are to be provided by those five non-government agencies.

MS TOOMEY:   Yes.  But when – as we – and the Asset Strategy goes to the work that we need to do ‑ ‑ ‑

COMMISSIONER SACKVILLE:   Yes.

MS TOOMEY:   ‑ ‑ ‑ to change the profile.

COMMISSIONER SACKVILLE:   Right.

MS TOOMEY:   Significantly change the profile of the stock but we will need to work very, very closely with the residents and those providers because it’s not as simple as building another ‑ ‑ ‑

COMMISSIONER SACKVILLE:   No, it’s not.

MS TOOMEY:   ‑ ‑ ‑ house.  It is doing very detailed reconfiguration work and thinking about the needs of residents, where they want to go, which is going back to your question before around information, how important it is for us to capture the needs and wishes of people that require and want this type of service, whether it be a one bed offer or something else.  We had – the Disability Services Commissioner talked about the Disability Support Register previously.  It wasn’t a waiting list but it was certainly a register of need and it was the way in which we prioritised access to services.  It was one way of being able to capture the needs – unmet needs of individuals around their housing and support needs.  And they – we used that register as a planning tool across the State when there were growth funds available to us.

COMMISSIONER ATKINSON:   He said it was crisis-driven.

MS TOOMEY:   Entry to the system.  I think the Commissioner talked about being often crisis-driven in the context of choice.

COMMISSIONER ATKINSON:   Yes.

MS TOOMEY:   I think if families had been waiting for a number of years to find a suitable service for their family member, I think sometimes decisions were made

when they were in critical need to be able to ensure a safe pathway for their family member into the future.

COMMISSIONER ATKINSON:   So it’s a planning tool.  If something is crisis-driven, it tends to be compromised.

MS TOOMEY:   Look, I think there’s two elements to that.  Certainly, the allocation process, I think, showed that sometimes decision – people were making decisions when they were in crisis but for the State it was a very useful tool to capture need, and those in the most significant need, and that when we had capital funds, we could use the support register to make decisions about where new services would be built.

COMMISSIONER SACKVILLE:   Mr Harding, you will be familiar with the fact that the Bank Nationalisation Case famously was argued by the bench with occasional interventions from counsel.  You’re probably in the same position.

MR HARDING SC:   Very occasional, I understand, I think.

COMMISSIONER SACKVILLE:   Yes.  All right.  Carry on.

MR HARDING SC:   I think you were asked some questions around the stock and the number of bedrooms that were in – and you – I drew your attention to 6.4 of the document.  Before we leave the document, it does appear on these figures that the vast majority of group homes in Victoria were four and above.

MS TOOMEY:   Correct.

MR HARDING SC:   Do you agree with that?  And can I draw your attention to page 34 of that document, seven key findings.  And it says here:

Prior to the NDIS the department had focused on the provision of higher bedroom count disability houses.

Then you contrast that with the onset of the NDIA and what it requires.  I’ve got two questions:  why did the department focus on higher bedrooms and why did it take the NDIA to change your mind?

MS TOOMEY:   I would say that we have had significant supply challenges for some time in relation to this type of service, which has meant that we’ve wanted to maximise places and beds for those in critical need.  I would say, though, that we – as we have had funds available to us, a bit like the Colanda experience that I raised, is tried to individualise those settings as much as we possibly can, so not build large-scale group homes.  So I would say that over the last 15 years, that the distribution that you see in 6.4 would have been very significantly different 15 years ago, where the majority would have been five beds and above, whereas we now have a greater range.  We have much further to go ‑ ‑ ‑

MR HARDING SC:   Yes.

MS TOOMEY:   ‑ ‑ ‑ in relation to creating that range, however.

MR HARDING:   But what’s the basis for the statement there is a focus on the provision of higher bedroom homes.

MS TOOMEY:   I think ‑ ‑ ‑

MR HARDING SC:   Why did the Department focus on that?

MS TOOMEY:   I think there was a focus on maximising bed capacity because of the high demand for beds over the last 15 years.

MR HARDING SC:   And when you talk about the challenges of supply, and that – given the high demand, that’s code, is it not, for budget preferences by the government?

MS TOOMEY:   We have been – we can only build new group homes when budget is available.

MR HARDING SC:   When the Government gives you the money.

MS TOOMEY:   When there is an appropriation of funds, correct.

MR HARDING SC:   Yes.  So where you speak in your statement about supply problems and the constraints on choice by reference to supply, that is, again, a reflection of budget priorities?

MS TOOMEY:   Correct.

MR HARDING SC:   Just, again, based on the conversation you had with the Commissioners, and particularly the SIL providers that you – the five non-government providers – there is now a new policy, is there not?  And you’ve put it into your statement as an exhibit.  It’s tab 3 of your documents, which I think is tender bundle 79.  It’s called Offering Residency and Specialist Disability Accommodation Policy and Standards.  Do you recognise that document?

MS TOOMEY:   I do.

MR HARDING SC:   And that’s the document that governs admission to a home now under the changed arrangements;  is that right?

MS TOOMEY:   Correct.

MR HARDING SC:   And I think in answer to Commissioner Atkinson’s question, it’s true, isn’t it, that if you’re in a group home now, you will take the SIL provider

that’s available for that group home unless there’s some meeting of the minds of all the residents?

MS TOOMEY:   Correct.

MR HARDING SC:   Now, this document says – there’s a heading Screening.  If you would like to see the document, it should be in the tender bundle in the first volume.  I think there’s a ‑ ‑ ‑

COMMISSIONER SACKVILLE:   Are you talking about the document entitled Offering Residency in ‑ ‑ ‑

MR HARDING SC:   Yes.

COMMISSIONER SACKVILLE:   ‑ ‑ ‑ Specialist Disability Accommodation?

MR HARDING SC:   On my list, that’s tab 29 of the tender bundle.

COMMISSIONER SACKVILLE:   Yes.

MR HARDING SC:   Can you see tab ‑ ‑ ‑

COMMISSIONER ATKINSON:   What page is Screening on?

MR HARDING SC:   Well, I was getting to that.  It’s page 14.

COMMISSIONER ATKINSON:   Thank you.

MR HARDING SC:   I’m sorry, it might be volume 3.

COMMISSIONER SACKVILLE:   This is beginning to look like a commercial division case, Mr Harding.

MR HARDING SC:   Yes.  Apparently it’s on your table.  Can you see that?

MS TOOMEY:   This is the Disability Support Register Guidelines, not the ‑ ‑ ‑

MR HARDING SC:   Can I just read it to you?

MS TOOMEY:   Yes.

MR HARDING SC:   It might be of assistance.

COMMISSIONER ATKINSON:   Put it up on the – it’s on the screen.

MS TOOMEY:   Apologies.  It is here.

MR HARDING SC:   Okay.  Can you see the screen?

MS TOOMEY:   Yes.

MR HARDING SC:   All right.  So this tells us, does it:

SDA and SIL providers should review all applications to determine who will be the best fit for the household.

MS TOOMEY:   It does.

MR HARDING SC:   And that means that’s a decision by the SDA provider, the government, and the SIL provider;  is that right?

MS TOOMEY:   The intent is for there to be collaboration between the SDA and SIL provider in relation to filling a vacancy within a service.

COMMISSIONER ATKINSON:   What about the tenants?  Don’t tenants normally decide who they get to live with?

MS TOOMEY:   Under the new policy – under the previous policy that wasn’t the practice.  Under the interim policy – so this policy has been developed to guide vacancy management or filling of vacancies through the transition process and the document is under review at the moment, as we have now entered or close to entering full scheme.  The history, really, around filling vacancies within group homes has been through the lens of a prioritised access process, where there has been high demand for service and people in crisis.  So we’ve considered both compatibility of residents but also the – prioritising access to a much needed service.  So there have not been – whilst there had been practice – allocation panels that involved people with a disability sector representatives, government and non-government representatives, it had not been practice to involve residents in those decisions.

COMMISSIONER SACKVILLE:   Does this document apply only during the transitional period, or is this something that applies post 2020?

MS TOOMEY:   So it is a document that will be – need to be developed under the SDA rules, the NDIA SDA rules, by any owner of an SDA property.  So we’ve developed this document to guide our allocation processes.  Other housing associations will develop their own policies under the NDIA rules to allocate vacancies within their services.

COMMISSIONER SACKVILLE:   So under the NDIS it’s open to the owners of properties and the service providers to reach agreement similar to this and, in particular, to reach agreements that do not require the involvement of the residents themselves in any process for replacing tenants as they leave?

MS TOOMEY:   Unlike the State system where the – in Victoria, Victoria decided allocation of resources, the NDIA is leaving it to the market to determine who – who has access to beds within SDA.

COMMISSIONER SACKVILLE:   Premises.  Yes.

COMMISSIONER ATKINSON:   But this suggests – when you read this document, it’s looking at the interests of the SIL provider and the SDA, primarily.  And then incidentally, the interests of the other residents, the participant – the new resident and the other – sorry, let’s call them tenants.  So in a market driven approach where this talks about the cost of having – to the provider of getting a new tenant in, what will mean that the interests of the tenants are taken – are foremost or at least taken into account rather than the interests of the SIL provider and the SDA provider?

MS TOOMEY:   So I think we need – I think it’s a very delicate – a balance of both, making sure – in this case it’s more the support provider to be able – to be comfortable with being able to have – able to provide the appropriate service to that individual in a group arrangement.  I think what we will see is a shift as we – as we make changes to the entry criteria for SDA where there is a definite shift.  We’ve already seen a shift away from considerations of compatibility alongside priority in the previous State system.  What we see under the guidelines we’ve developed here is removing any sense of prioritisation at all, and it’s all about compatibility in relation to the group mix. 

I think that the – a range of stakeholders have certainly spoken to me about the important role that families and residents and tenants play in these decisions and we will certainly be considering those changes as part of the next iteration of these guidelines.

COMMISSIONER ATKINSON:   Because under this they have no role at all.

MS TOOMEY:   That’s right.  The consequence, however – and I feel I need to – to raise the consequence of that, and absolutely support ‑ ‑ ‑

COMMISSIONER ATKINSON:   Yes.

MS TOOMEY:   ‑ ‑ ‑ I support the – the right of the tenants in this situation to have control of who they – they live with and have those choices.  The consequence, however, when we’re not considering any sort of prioritisation, and in a market that’s not yet developed – you know, we’ve not seen significant growth despite investment.  There are very few places available at the moment.  And what we’re seeing as more and more and more people in Victoria are in crisis because they don’t have somewhere to actually move to out of a family home.  So we’re seeing people longer term in hospital, we’re seeing – we’ve got examples of people staying longer in the – in the justice system.  So we are seeing a change in the way in which allocation of – of resources occurs in a market that’s not yet mature. 

So when you look at what the Productivity Commission forecasts is the likely number of SDA beds that we need in Victoria, and it’s the best predictor we have at the moment around need, it’s around 6300 beds.  We know the State system under the State arrangement had 5000 beds.  So we’ve not yet seen the shift and the market – new market entrants and the growth that we need to be able to meet need.

COMMISSIONER ATKINSON:   When you use phrases like a market that’s not yet mature – and I’m not an economist and not given to euphemism – that just means there aren’t enough providers to provide the services that are actually needed, doesn’t it?

MS TOOMEY:   In this context, the – we’ve not seen growth in Specialist Disability Accommodation places.

COMMISSIONER ATKINSON:   So that doesn’t suggest the market will mature.  It just suggests that the market will be insufficient to meet the need, doesn’t it?

MS TOOMEY:   I – I think at the moment it’s – it’s clear that it’s not sufficient to meet need.

COMMISSIONER SACKVILLE:   You’re not the designer of the NDIS and, therefore, you’re not responsible for the concept of market, but there are elements of a market that this concept may or may not satisfy, whether they’re – whether they’re clarified by the concept of an immature market as distinct from a mature market may be a matter for debate.  But one thing I’m interested in, the document we’re looking at now, how is that compatible with the Residential Tenancies Act and the lease that the individual tenants would have?  You can’t, under a lease, substitute when one tenant goes, the landlord says or the – someone who’s providing electricity says, “By the way, here’s your new tenant who’s going to come in and move in with you.”

MS TOOMEY:   The changes to the Tenancy Act are modelled on the provisions of the previous Disability Act.

COMMISSIONER SACKVILLE:   I see.

MS TOOMEY:   So – so the – and I – we’re getting into ‑ ‑ ‑

COMMISSIONER SACKVILLE:   So the position of the residents is not the same as a tenant under a – if I can put it this way – usual Residential Tenancies Agreement.

MS TOOMEY:   In fact, the residential rights within group homes are higher than the – so we’ve not lost any of the – the strengths of the safeguards within the Disability Act, and, in fact, enhanced some of those safeguards.

COMMISSIONER SACKVILLE:   Yes.

MS TOOMEY:   There are – there are provisions within the Residential Tenancies Act that would not apply to these services because of the particular needs of individuals within group homes.

COMMISSIONER SACKVILLE:   But one provision of the Residential Tenancies Act may not be a particular provision – it may be a concept embodied in the Act – would not apply, and that concept would be that you can’t substitute a tenant for a previous tenant against the will of any other joint tenant?

MS TOOMEY:   We’re getting into, for me, technical matters in relation to the RTA which I may have to come back ‑ ‑ ‑

COMMISSIONER SACKVILLE:   Yes, okay.

MS TOOMEY:   ‑ ‑ ‑ to you on, yes.

COMMISSIONER ATKINSON:   I’m not sure it’s very technical.  It’s just saying if you’re a tenant in a lease, you can choose who you live with.  The landlord doesn’t choose who you live with.  That’s not very technical.  That’s all the Chair is referring to, I think, and that choice will not be available to the tenants under the Residential Tenancies Act with the SDAs; is that right?

MS TOOMEY:   It – it sounds – it sounds like that is the case.

COMMISSIONER SACKVILLE:   I’m just picking it up because – and I’m sure you didn’t mean to communicate something that wasn’t accurate, but I just understood the reference to the Residential Tenancies Act to mean that all of the protections under the Residential Tenancies Act would be available to residents of SDA about accommodation but that does not seem to be the case.

MS TOOMEY:   No, my apologies, it is a new part ‑ ‑ ‑

COMMISSIONER SACKVILLE:   No, no, no, I understand.

MS TOOMEY:   A new part within the Residential Tenancies Act.

COMMISSIONER SACKVILLE:   Okay.

COMMISSIONER McEWIN:   I just have one quick question.  It’s sort of related to this document.  When a NDIA participant moved into this arrangement, the payment for SIL, where – does that go to the provider, directly to the provider?

MS TOOMEY:   It goes through the NDIS participant to the SIL provider.

COMMISSIONER McEWIN:   You mean they get to choose how much of that payment is provided to the provider or how does that work?

MS TOOMEY:   We – we’re also getting into NDIA-related territory here but my best understanding is there is a SIL allocation for a NDIS participant and that’s subject to often a quoting process of the SIL provider between the individual and the NDIA.  And it’s an agreement in relation to the SIL costs.  So the SIL will then be – that payment will then be a line item in someone’s NDIS plan, alongside other items, including the SDA payment and other perhaps activities in the community or allied health or other things within that plan, and the SIL payment would then go to the SIL provider.

COMMISSIONER SACKVILLE:   There’s a contractual arrangement between the SIL provider and the resident?

MS TOOMEY:   The NDIA ask for contracts to be – service contracts to be in place, and they are in place in some arrangements and not in others, is my understanding.  They raise a number of other issues associated with – at one levels of high transactional costs associated with the – with the NDIS ‑ ‑ ‑

COMMISSIONER SACKVILLE:   Yes.

MS TOOMEY:   ‑ ‑ ‑ but also the need for supported decision-making support particularly for people with an intellectual disability entering a contractual arrangement with a service provider.

COMMISSIONER SACKVILLE:   I appreciate we’re taking you out of your area of particular responsibility, but thank you.  Mr Harding, you’re on again.

MR HARDING SC:   Before we leave this document I did want you to have a look at the next page, if you could, of – which is page 15 of the same document.  And the top paragraph tells us that:

During the screening process the SIL provider is responsible for representing the preferences and goals of the current residents.  This is vital in determining whether a participant is likely to live harmoniously in the household with the other residents.

Why is it vital, and what look-in do the residents get?

MS TOOMEY:   The existing residents or someone making application to live within the house?

MR HARDING SC:   The existing residents which I think is what that paragraph is speaking about.

MS TOOMEY:   Yes, there would be an expectation – I mean, there are often multiple applications for vacancies – who advertise vacancies.  So they are – there is a sort of a shortlisting process to consider compatibility, and we certainly – the SIL provider who has knowledge of all of the individuals within that house is well placed

to understand the compatibility of the grouping, accepting that large grouping is very difficult to actually make decisions around compatibility in relation to four or five individuals but at the moment that’s where the vacancies are within the system.

MR HARDING SC:   But ‑ ‑ ‑

COMMISSIONER ATKINSON:   Sorry, can I ask another question.  Part of a human rights approach is really saying, would I like to be treated like this?  And it’s really hard to imagine that I would like to be treated like this.  Would you?  I mean, would you like to be treated like this?

MS TOOMEY:   I think it’s a very, very difficult situation.

COMMISSIONER ATKINSON:   Your preferences are not – you can’t even articulate your preferences.  There’s no requirement except for someone else, who may not be the person you’ve chosen, who almost certainly won’t be the person you’ve chosen, will be said to articulate your preferences.  How is that compatible with the human rights approach?

MS TOOMEY:   I think that the system is certainly limited by the – the opportunities that – service offers that are available.  And I think that – and this is not something new to our consideration.  It will certainly be part of the way in which we review the guidelines that exist now.  Families have been very, very strong in relation to these issues.  The difficulty around the needs are very – of people with very complex needs is – is how we reach consensus in relation to filling a bed, a much needed bed within a service and as the Commissioner said earlier, I think it’s – people are making decisions based on what’s available rather than what they would like to experience.  We do need to rebuild the system to ensure that these sorts of approaches that are in place in a rationed system aren’t in place into the future. 

I absolutely agree that the needs of the person here needs to be at the centre of this.  The system and the construction of the system makes that very difficult.  You know, we have certainly a large number of people applying for vacancies when vacancies are posted and we need to make decisions alongside the SIL provider to make sure that we’re giving service to the person that – that we think is going to most fit within that group and, I think, as the Commissioner said this morning, where groupings have come together on previous relationships previously and we didn’t have the same sorts of tensions around compatibility and – and around choice we need to think about how we actually evolve the system to ensure that choice is at the centre here.

COMMISSIONER SACKVILLE:   This is not a problem of your making but it’s a classic conflict of interest, isn’t it?  You’ve got a SIL provider who is directed in some form or another to take account of and represent the interests of residents and the SIL provider has financial interests in determining – maximising profit from the undertaking, and one of the ways of maximising profit is not to accept a

troublemaker, and if someone has a reputation as a troublemaker they’re not going to get in, are they?

MS TOOMEY:   Well, there’s a strong position from the advocacy sector at the moment that that is the heart of their concern; that those individuals who have lower support needs compared to others and accepting that anyone in an SDA environment has very high support needs – they’re all very high support needs.  And there is a view that perhaps those individuals with the most complex needs are not going to be prioritised or selected above others.

We, certainly, have seen in Victoria a larger number of what we call contingency arrangements that are being set up, so single person services because of the complexities of that individual, and whilst we’re wanting to make sure that people have absolute choice about their living arrangement, in some situations standalone one-person services, perhaps, are not going to get us where we need to get to in relation to the evolution of group homes in Victoria. 

So it’s not that simple.  It has to be arranged and perhaps if you are the only person within a group home on your own with complex needs, your social interactions are limited only to those staff.  So you have no social interactions even with other people, other residents.  So we – and I think it was referred to as a wicked problem here yesterday and it is absolutely a wicked problem to ensure that we get the range of stock that we need but also the range of service offers that we need because I think we can’t just talk about fabric here.  We have to also talk about what are the needs of the residents, how do we ensure that the services are developmental in focus and person-directed, and about community participation and about active participation in – for those individuals, not just a group home.  They have to be developmental in focus.

COMMISSIONER SACKVILLE:   Is the theory underlying this project, insofar as deficiency of stock is concerned, that the deficiency will be remedied by new entrants coming into the so-called market in order to build new accommodation and, thus, provide the facilities required for people with complex needs?  Is that how this deficiency in stock is meant to be remedied?

MS TOOMEY:   I think that is the – that is the ‑ ‑ ‑

COMMISSIONER SACKVILLE:   That’s the theory.

MS TOOMEY:   ‑ ‑ ‑ expectation, yes.

COMMISSIONER ATKINSON:   I think theory and expectation are rather different.  Do you think it’s an expectation or a theory?

MS TOOMEY:   I think certainly – I mean, we also – we have a role, as a large SDA provider, in the work that we need to do to ensure that the revenue that we receive from the NDIA is then used to actually shift the profile of the stock that we have. 

And I drew the Commissioner’s attention to the shift in profile over the last few years.  That needs to go much further.  So how are we then closing a number of the large – larger services and developing services that are more attractive to the needs of individuals.

COMMISSIONER SACKVILLE:   And I take it there’s a mixture of service providers.  Some would be profit organisations, corporations, and so forth.  Some would be non-profitable organisations, charitable organisation?

MS TOOMEY:   Again, the NDIA is best placed to answer that.

COMMISSIONER SACKVILLE:   Yes, no, I understand.

MS TOOMEY:   But what I know is that we still have a higher percentage, in this type of service, of non-government charitable organisations.

COMMISSIONER SACKVILLE:   Yes, yes.

MS TOOMEY:   However, there are for-profit organisations that have entered the Victorian market prior to the transition and we will need to see more of those organisations if we are wanting to offer people greater choice, more of those organisations registering to provide services.

COMMISSIONER SACKVILLE:   I think classical economic theory might regard this as a somewhat unusual market, if only for that reason.  But anyway, yes.

COMMISSIONER ATKINSON:   Ms Toomey, we’re currently looking at Victoria, of course, you’ve talked about the wicked problem.  But I take it this is by no means restricted to Victoria and we would find the same problem in every other state and territory and perhaps even worse?

MS TOOMEY:   Well, I think if we – from my knowledge of other states and territories, they’re different.  There are similar problems but there are different problems also.  I mean, we have closed all residential institutions in Victoria, accepting the concern about the alternative model of group homes.  But that is – you know, we have moved away and stopped having anyone enter a residential institution even under the significant pressures in the system back in 2012.  That is not the case for every jurisdiction.  I think we need to certainly look at other jurisdictions for innovative approaches. 

There is – there are things happening elsewhere that we need to learn from.  Summer Foundation here in Victoria is doing very creative work around alternative approaches, use of technology, single dwelling buildings and the like.  So we do need to spend – whilst it’s a common problem, it is unique here.  We’ve had individualised funding here in Victoria for longer and at scale than any other jurisdiction.  And certainly when that was introduced, we would have hoped to see

significant change in the market, in the service offer, and that – but that has been a slow change in Victoria.

COMMISSIONER ATKINSON:   Thanks.

COMMISSIONER SACKVILLE:   Now, Mr Harding, if we promise to be reasonably quiet, how long do you think will be needed?

MR HARDING SC:   At least till 4 o’clock.

COMMISSIONER SACKVILLE:   Sorry?

MR HARDING SC:   At least till 4 o’clock.

COMMISSIONER ATKINSON:   All right, we will be quiet.

COMMISSIONER SACKVILLE:   I promise Commissioner Atkinson will be quiet.

COMMISSIONER ATKINSON:   I make no promises about the Chair because he’s uncontrollable.

MR HARDING SC:   I did want to ask Commissioner Atkinson whether you wanted to return to your question by reference to question 92.

COMMISSIONER ATKINSON:   No.  Well, actually, yes, thank you.  Thank you for reminding me.  You say in paragraph 92 – and you mentioned it again just then – about incorporating technology to maximise people’s independence and reduce reliance on staff support.  What does that mean?

MS TOOMEY:   So I was referring to work that Summer Foundation did in a Melbourne apartment block, where they built, I think, six or seven units – standalone units or flats within a multi – sort of medium density block, where they embedded within the design, use of iPad technology and technology where a range of things could be controlled within the units, but also on-call arrangements and support that was not necessarily in situ but available within the apartment block.  So there were sort of on-call arrangements.  And they certainly spoke to me at the time about the importance of having much more control about not having someone in the apartment the entire time but for somewhere for that person to go and to be called upon if they’re required.

COMMISSIONER ATKINSON:   Okay.  Thanks.

COMMISSIONER SACKVILLE:   Ms Toomey, are you okay if we continue until 4 o’clock or would you like to have a short break?

MS TOOMEY:   No, that’s fine.

COMMISSIONER SACKVILLE:   You’re fine?  Okay.  Thank you.

MR HARDING SC:   Thank you.  It was the case under the previous policy that you put into evidence that in order to be – or a factor for consideration in allocating supported accommodation was that the person had to be compatible with the supported accommodation model.  That’s correct, isn’t it?

MS TOOMEY:   Correct.

MR HARDING SC:   And the supported accommodation model had a staffing model attached to it, didn’t it?

MS TOOMEY:   Correct.

MR HARDING SC:   And the staffing model had – was based on the notion of a rostering arrangement?

MS TOOMEY:   Yes.

MR HARDING SC:   And the individual residents had no choice over who would be supporting them.

MS TOOMEY:   Very little choice.

MR HARDING SC:   Very little.

MS TOOMEY:   Yes.

MR HARDING SC:   And in relation to the employees who provided support, as I understand it, you put the enterprise agreement into your statement – this is – sorry, this is the enterprise agreement negotiated with the union.  It’s at tender bundle 99.  And under that agreement, as I understand it, those employees have been transferred to the five providers.  Is that your understanding?

MS TOOMEY:   They have.

MR HARDING SC:   So they remain the Department’s employees?

MS TOOMEY:   They do.

MR HARDING SC:   And you remain responsible for discipline?

MS TOOMEY:   We do.

MR HARDING SC:   Not the SIL providers?

MS TOOMEY:   The SIL providers under the – they are – they have moved to the new providers under a secondment arrangement.  They will move to direct employment under an offer – offer direct employment at the end of 2020, through an offer and acceptance process.

MR HARDING SC:   Okay.  But insofar as that doesn’t occur, then you’ve got an agreement that runs till 2022 in relation to those employees?

MS TOOMEY:   That’s correct.

MR HARDING SC:   And part of the conditions – working hours conditions in that agreement is that work will be allocated according to a roster?

MS TOOMEY:   Correct.

MR HARDING SC:   So the staffing model continues for the SIL – for those employees employed or seconded to the SIL providers?

MS TOOMEY:   Correct.  Unless the needs of the residents change.

MR HARDING SC:   How does that happen?

MS TOOMEY:   There is a provision within the agreement where additional support can be put in place, so rosters can be changed on a temporary basis because of the changing needs of a resident, but roster changes – permanent roster changes are subject to consultation with the workforce.

MR HARDING SC:   Subject – they’re regulated by the agreement, aren’t they?

MS TOOMEY:   Indeed.

MR HARDING SC:   And you’ve also mentioned that schedule A of that agreement governs the qualifications that are required of support workers, yes?

MS TOOMEY:   Correct.

MR HARDING SC:   And it’s the case, isn’t it, that for those employees providing support to – directly to people with disabilities living in group homes, for the most part the minimum expectation is a Certificate IV?

MS TOOMEY:   Correct.

MR HARDING SC:   And the agreement says that that was judged an adequate qualification.  Can you tell the Commission why Certificate IV was considered appropriate?

MS TOOMEY:   I’m not sure that I’m best placed to advise the Commission in relation to the schedule A.  And I would like to perhaps come back to the Commission with further information about the review that was undertaken in relation to that.

MR HARDING SC:   And an issue that has been raised in some of the evidence before the Commission is the impact of casualisation.  Now, clause 15 of the agreement deals with that subject, doesn’t it?

MS TOOMEY:   It does.

MR HARDING SC:   I don’t know if clause 15 could be put up, if that’s possible.  Whilst we wait for that, this – the clause has been part of agreement making between the department and the union in previous agreements, hasn’t it?

MS TOOMEY:   Correct.

MR HARDING SC:   And one of the key features of that clause is a commitment by the department to ongoing employment rather than casual employment.

MS TOOMEY:   Correct.

MR HARDING SC:   Are you able to tell the Commission how that has been implemented, given the evidence is there is an increasing number of casualisation and that’s a problem in the industry?

MS TOOMEY:   Absolutely.  I think simply the provisions within clause 15 outlined arrangements to prioritise existing employees.  So where a roster line or a shift becomes available within a group home, an ongoing – and that’s an ongoing vacancy because of departure of a staff member, then existing staff, part-time staff, are prioritised for filling that vacancy or familiar casuals are prioritised for filling that vacancy.  And that really goes to the commitment of trying to stabilise the workforce and have people known to residents within the workforce.

COMMISSIONER ATKINSON:   Sorry, Mr Harding.  I am going to ask another question.  One of the concerns that has been raised – that I’ve heard raised is that staff from the large institutions became the staff in the group homes and now it’s apparent from this that the staff in the state-run group homes are going to be the staff in the new provider’s group homes.  What training do they get to change their outlook and attitudes from those that might have applied in the closed institutions, the large state-run institutions with all the problems we know about with them, to understanding person-centred human rights approach to their work?  What training do they get for that transition, if any?

MS TOOMEY:   Sorry, the transition to the transferred providers or broadly step down from institutions to ‑ ‑ ‑

COMMISSIONER ATKINSON:   In each one.

MS TOOMEY:   I’m ‑ ‑ ‑

COMMISSIONER ATKINSON:   In each transition.

MS TOOMEY:   Yes.  Look, I’m not aware of what training occurred following large-scale institutional closures but I can certainly come back to you with some detail about that.  Certainly the most recent transfer of services, group homes to the new providers, there was significant work done in preparing the workforce across to the new arrangements, but importantly, a reach in from the new providers, for the new providers to be talking to that workforce about their expectations and their approach to service delivery and their – their vision and their approaches for new services that’s alongside training that is periodical training around issue-specific training.

So, for instance, as part of the abuse prevention strategy that we developed following the Parliamentary inquiry into abuse of people with a disability in Victoria, there were significant training undertaken under the zero tolerance approach with how supervisors and operational managers, and we use those middle management positions to really inform and bring about a cultural change within those house staff.  So recently it’s been mostly around abuse prevention and preparation for the transfer.

MR HARDING SC:   Ms Toomey, in relation to the employees at the – at the coalface who are doing the work of providing services to people with disabilities in group homes, is the principal way in which the department provides instruction to these employees through the Residential Services Practice Manual?

MS TOOMEY:   That’s correct.

MR HARDING SC:   And you’ve put that into evidence, haven’t you, in your statement, and I think is tender bundle 82.  And so – it’s in volume 4, apparently, of the tender bundle.  So predominantly we’re talking about a workforce trained to Certificate IV level.

MS TOOMEY:   Correct.

MR HARDING SC:   And this is the – this is massive.  And you expect your Certificate IV employees to absorb all this material?

MS TOOMEY:   This is guidance material that is certainly used as part of the on-boarding of all new staff and certainly revisited as part of regular training that occurs.  The manual, I think, has been developed more as a go-to reference for particular issues.  I think, you know, you’ve identified a significant challenge as we put in place more guidelines and more guidance in relation to what is a good service, and an implementation challenge when there are large volumes.  I think what’s important is how house supervisors and how operational managers use these tools in the way in

which they are having their fortnightly team meetings with staff.  There is an expectation that those team managers and operational managers would be working through changes of practice, dealing with some of the new initiatives within residential services, and – and using this as a reference material.

MR HARDING SC:   How do you resolve those challenges?  I mean you’ve got provisions in here, for instance, duty of care, which is 1.2, which tells staff that their obligation is to minimise risk.  And yet you’ve also got provisions in here that have supported decision-making which require residents to be given freedom to make their own choices.  How do you – how do you resolve the conflict between those two types of instruction with a group of employees who have trained to Certificate IV level?

MS TOOMEY:   I – firstly, I’m not sure that there is tension between those two things.  I think supported decision-making is a really important tool that we train to, to ensure that people are aware, and I think Professor Frawley dealt with this issue this morning in relation to assumed capacity of people with a disability and our role to support them in decisions of everyday life.  And it’s important that we train to those procedures for our – for our workforce to then be comfortable putting in place what is active support or person-centred active support approach that we have in place, a service approach that ensures that residents are at the centre of what they’re doing within residential services.

MR HARDING SC:   But if there’s an obligation under the duty of care arrangements to – to minimise risk, is that an instruction to staff to take active measures to ensure that residents don’t take a risk?

MS TOOMEY:   I think the intent is to ensure that residents are supported and in a much more controlled way to take risks.  I think the – the challenge we have as we move towards more personalised supports and person-directed approaches is that tension between ensuring the safeguards are adequately in place for someone with complex needs because of their limited verbal communication, for instance, versus, you know, the dignity to be able to take informed – make informed decisions about what they would like to do.  And I think there lies a significant challenge for the way in which we rethink about service delivery in relation to group homes and making sure that people are given – treated with dignity, that we assume that they have capacity before it’s confirmed else – else – you know, the other in relation to ability to make decisions but the worker should be working with that individual to make – to maximise their ability to be able to make decisions about anything that affects their life.

MR HARDING SC:   Well, they’re complex issues, aren’t they?

MS TOOMEY:   They’re very complex issues.

MR HARDING SC:   And complex in a circumstance where you’ve got vulnerable people who perhaps haven’t had much in the way of choice in their lives.

MS TOOMEY:   I think many of the people living – not just in the previous government-delivered services but group homes more broadly have had very little choices available to them.  I agree.  And I think our challenge as we build – build or create more service models for them into the future, part of the work that we need to do is also build their capacity to be able to make informed decisions which is where supported decision-making is key.

MR HARDING SC:   It’s correct, though, there’s some legislation, isn’t there, concerning workers in the disability support area in Victoria, some new legislation, the Safeguards Commission?

MS TOOMEY:   Yes.

MR HARDING SC:   And that has some provisions that specify minimum qualifications, doesn’t it?

MS TOOMEY:   Are you referring to the new safeguard?

MR HARDING SC:   Yes.

MS TOOMEY:   Yes.  I’m not sure that it refers to minimum qualification other than it refers to – and it’s not a piece of legislation that I have deep knowledge about.  It goes to setting up a Disability Worker Registration Scheme which was a recommendation of the Parliamentary Inquiry, and the implementation details are – are being finalised at the moment to have that commission standing up at the end of this financial year.

MR HARDING SC:   I suppose what I’m getting to is what thought has the department given to how these complex issues that you’re describing against the background of the circumstances which people with disability living in group homes have faced, what attention has been given to how that feeds into training for staff who are providing services?

MS TOOMEY:   I think that they’ve certainly been a feature in the way in which we’ve both reviewed the internally delivered training but also the way in which we’ve informed what occurs within the TAFE system in relation to the Certificate IV, so I think that there has been – there’s certainly been changes in the way the Certificate IV has been delivered in Victoria since some of the reform activities have occurred within Victoria.  So there has been advice from the – from providers.  Our service providers are certainly very strong in advocating for changes, as have we been in relation to the training facilities approach.

MR HARDING SC:   But you don’t have any specific knowledge about what that looks like in practice?

MS TOOMEY:   I don’t, I’m sorry.

MR HARDING SC:   Right.  Now, Ms Toomey, there was – I think you’ve referred to the Victorian report on abuse in this area, which you’ve put into your statement at tab 11 of the statement which is tab 87 of the tender bundle, volume 5.

MS TOOMEY:   Sorry, what tab?

MR HARDING SC:   87.

MS TOOMEY:   Yes.

MR HARDING SC:   Now, page 40 of that document concluded that abuse was rife in relation to people with disability, and there was a recommendation of the Inquiry that:

...reliable data on the incidence of violence against people with disability be developed by reference to gender, age, type of disability, cultural background and place of residence. 

This was said to be, in the absence of that data at that time, the report of course was 2016.  Are you able to tell the Commission what steps have been taken to give effect to that recommendation?

MS TOOMEY:   We have certainly put in place a range of initiatives within central office to better analyse the incident reports that are produced at a service site level.  There is currently, however, no national approach to data collection in relation to this – this issue.  But our focus has been certainly on analysis of incident reports.

MR HARDING SC:   So do you know – does the Department know what the incidence is?

MS TOOMEY:   In relation to reported incidents, yes, we do.

MR HARDING SC:   And the reported incidents, both major and non-major?

MS TOOMEY:   There are – so in relation to NDIS-funded services, we have no line of sight in relation to those incidents.  They are reported to the NDIS Commission.  In relation to the State-funded services, we are in receipt of incident reports under two arrangements, certainly under a major and a major and non-major categories.  We are reported with – the major incidents are reported within a very short time period to the department.  The non-major incidents are reported at aggregate level and inform part of our sort of systemic thinking in relation to incidents.

MR HARDING SC:   Because the Disability Services Commissioner gave some evidence today to say that he only gets the major incident reports.

MS TOOMEY:   So he gets the major incident reports in relation to – up until 1 July when the – those services moved across to the NDIS Commission.

MR HARDING SC:   Yes.

MS TOOMEY:   He’s now getting only reports for the previous government delivered services, which is about 50 per cent of group homes in the State.

MR HARDING SC:   Okay.  But the Department has data that tells us what the incidence is in both the major and the non-major in relation to the services the government – in the pre-NDIS era.

MS TOOMEY:   Yes.

MR HARDING SC:   As well as the era that we’re in, the transitional era.

MS TOOMEY:   That’s correct.

COMMISSIONER SACKVILLE:   It doesn’t tell us the incidence; it tells us the reported incidence.

MS TOOMEY:   That’s right.

MR HARDING SC:   That’s right.  Are you in a position to provide that data to the Commission?

MS TOOMEY:   I think – I think we provided some data but we can certainly take on notice production of any other data.

COMMISSIONER ATKINSON:   The Chair drew attention to a significant factor, and that is that the difference between reported incidence and incidence in reality.  What steps if any does the department take to find out if the reported incidents reflect the reality?

MS TOOMEY:   There are – there’s a couple of steps that we take.  Certainly, the incident reporting system considers an end-to-end consideration of an incident from allegation through to whether something is substantiated.

COMMISSIONER ATKINSON:   Sure.

MS TOOMEY:   Certainly there is detailed analysis in relation to patterns of incidents across the sector.

COMMISSIONER ATKINSON:   Yes, that’s not my – that’s not my question.

MS TOOMEY:   So can I – sorry, can you explain the question again?

COMMISSIONER ATKINSON:   The question is the difference between reported incidents and what actually happens, whether or not – what steps the department, if any, the department takes to see if there are incidents which are occurring which are

not being reported.  So the actual incidence of violence, abuse, neglect and exploitation rather than just those reported by the service provider.

MS TOOMEY:   I think that we are more active in relation to group homes than any other service offer.  I think, as the Commissioner identified this morning, certainly there is a – there is a pattern, there’s a high level of reporting that occurs within group homes.  I mean, he also made the point that it’s only what we receive.  I think that there are a range of audit mechanisms and contract management approaches in place where we are looking at the way in which our funded providers historically were delivering on the expectations under contract management, through both independent audit against standards and delivery of standards. 

We also had within the internally delivered services, something called promoting better practice audits, where there were very detailed audits undertaken, performance audits at a house level of the application of the residential practice manual.  And not just whether there were guidelines in place but whether there was evidence that that was actually being delivered according to the instructions within the manual.  So I think that’s probably the mechanism we used within residential services.  I think, you know, whilst we accept and agree that there are – mostly the services where incidents occur are within the residential setting, that’s exactly what we want to see.  We want to see high numbers of reports coming in and want a reporting culture.  I think the question goes to as we think about more individualised approaches to ensure that we also have high reporting culture within those other service offers also.

COMMISSIONER ATKINSON:   Absolutely.

MR HARDING SC:   But the Commissioner gave some evidence today that there has been a miscategorisation of incidents because they’re subjective.  Do you accept that criticism?

MS TOOMEY:   Yes.  And, in fact, the Parliamentary Inquiry and, I think, the ombudsman made that observation, which led to significant work with the group homes around correct classification of incidents.  There is an oversight arrangement within our operational divisions where they are also scrutinising lower level incidents and ensuring that they’re being classified correctly.  So there is a mechanism – a quality assurance mechanism where there is a review of incidents and then feedback back to the service site.  And that’s a role that the Commissioner is also undertaking for us in his review of incidents.

MR HARDING SC:   But how does this work?  Is it the case that if – the word “incident” – if there’s a situation in which a person is abused in a group home, it’s on the staff member to recognise that as abuse, in the first instance?  In the second instance, to determine whether or not the person has suffered harm; is that right?

MS TOOMEY:   There are – in relation to – it certainly is up to those individuals that have observed an incident to be reporting that incident.

MR HARDING SC:   Yes.

MS TOOMEY:   And in relation to abuse allegations, however, under the system that operates within the transferred services, there are mandatory reporting obligations in relation to all abuse.  So there is no judgment.  There is no – in policy, no judgment is to be made in relation to abuse.  That is an automatic report.

MR HARDING SC:   Who decides – I mean what’s the basis for selecting that system as the preferable system?  Is there some rule or law that requires that to be done?

MS TOOMEY:   It’s in policy.

MR HARDING SC:   It’s in policy.

COMMISSIONER SACKVILLE:   It’s in what, I’m sorry?

MS TOOMEY:   It’s in policy and within contract.  It’s in the funding and service ‑ ‑ ‑

COMMISSIONER SACKVILLE:   Contractual arrangements, yes.

MS TOOMEY:   ‑ ‑ ‑ agreements within – between us and providers.

MR HARDING SC:   So that’s the situation now in relation to the non-government services who are providing SIL.  They have a set of objective criteria, do they, that they are required to – that the staff member’s required to apply to decide whether an incident is critical or not critical?

MS TOOMEY:   They – in practice, they talk to their house supervisor in relation to those incidents.

MR HARDING SC:   So the decision, at the end, is the individual staff member who has seen something in conversation with the house supervisor who – as to how it might be applied; is that right?

MS TOOMEY:   Correct.

MR HARDING SC:   Okay.  But when – in the pre-NDIS era, the Department had a different system, didn’t it?  It categorised incidents by reference to major and non-major?

MS TOOMEY:   There are three separate incident reporting systems that we’re talking about.  There is the incident reporting arrangements under the NDIS Commission, for those services that are transferred across.  There is an incident reporting system that was created within the department for all department-funded services called the Client Incident Management System, which goes to the major and

non-major classification coding.  And then there is the incident system that was in place prior to that.  So during transition, there were two incident management systems in place.  Now there are still two incident management systems in place.

MR HARDING SC:   Okay.

MS TOOMEY:   So I think ‑ ‑ ‑

MR HARDING SC:   So ‑ ‑ ‑

MS TOOMEY:   ‑ ‑ ‑ listening to the Commissioner this morning ‑ ‑ ‑

MR HARDING SC:   Yes.

MS TOOMEY:   ‑ ‑ ‑ I think his comments went to the major/non-major incident arrangement, rather than the system that’s in place for the services that I’m referring to, in relation to the transfer services.

MR HARDING SC:   Is – just so I’m clear – maybe the Commission is clear.  Is the distinction between the two systems in place, that (1) critical management – the critical incident system, the one that the current SIL providers are applying, as opposed to the one that the DHHS applied – is the difference between them that one is subjective in assessing the difference between the categories and one is not – and the other is not?  Or are they both the same in the sense that a staff member has to make a subjective assessment of harm in order to work out which category to put – to fill out the form in?

MS TOOMEY:   I think both required a subjective assessment.

MR HARDING SC:   Right.  So under the major/non-major, there was two levels of subjectivity, wasn’t there?  The first is that the staff member had to form the view that the person had suffered harm.  And in order – and the second level is that it would be major if they formed the view that the harm was severe physical, emotional or psychological injury or suffering.

MS TOOMEY:   That’s correct.

MR HARDING SC:   And that was a decision of the staff member?

MS TOOMEY:   That’s correct, in consultation with supports around that person.

MR HARDING SC:   And a non-major impact was that the person had suffered harm but it wasn’t severe physical, emotional or psychological injury?

MS TOOMEY:   That’s correct.

MR HARDING SC:   And the Disability Services Commissioner got the first but not the second?

MS TOOMEY:   He was in receipt of the first classification, yes.

MR HARDING SC:   Would you accept then that the key part of the regulation of the system, in the form of the Disability Services Commissioner, meant that he or she only got part of the picture?

MS TOOMEY:   He did, and that’s certainly been his position.  And which is why we are now, I understand, providing him with all – both major and non-major incidents in relation to any matter to do with abuse.

MR HARDING SC:   Thank you.  One final topic that I wanted to raise, Commissioners, was the subject of advocacy.  And there has been some evidence given today about the importance of advocacy, and I – you’ve put some evidence into your statement about the government’s zero tolerance approach to advocacy – to abuse, which critically depends on advocacy, doesn’t it?

MS TOOMEY:   It does.

MR HARDING SC:   And the policy in particular focuses attention on self-advocacy.

MS TOOMEY:   It does.

MR HARDING SC:   Can you tell the Commission what the Government’s position or the Department’s position is with respect to individual advocacy, one-on-one advocacy?

MS TOOMEY:   The Department funds – the Department certainly supports individual advocacy, and funds a range of organisations to provide individual advocacy.  Those funds have been taken out of our contribution to the Scheme.  So the funding for the Victorian advocacy system remains a State-delivered service.

MR HARDING SC:   So that will continue after the full transition?

MS TOOMEY:   Correct.

MR HARDING SC:   Mr Stone, who gave some evidence today, spoke about his organisation VALID receiving funding for two advocates for the whole state.  And VALID – you’ve referred to VALID as a significant part of the advocacy program that the Government is delivering, with two advocates for the State.

MS TOOMEY:   So VALID are in receipt of funding to deliver a range of things for the State.  Certainly individual advocacy.  They’re also engaged by us to do very detailed work ‑ ‑ ‑

MR HARDING SC:   Yes.

MS TOOMEY:   ‑ ‑ ‑ group work with the transfer – the residents of those services that have transferred.  They’re also doing work for us to set up client networks and stakeholder engagement mechanisms within the transferred services with the new transfer providers.  So certainly VALID have been working alongside the disability program within Victoria, delivering a range of things, including individual advocacy.

MR HARDING SC:   But in terms of the assistance that a person who is living in a group home now might gain from an individual advocate, do you think two advocates for a critical organisation like VALID is sufficient?

MS TOOMEY:   I would imagine that the demand on VALID as the demand on other organisations, is significant and it has certainly been significant through the NDIS transition period, which is why additional funding has been made available through the advocacy program.  I’m not sufficiently over the detail around the funding for those two positions that Mr Stone referred to this morning, but I’m certainly aware that VALID are delivering a range of advocacy services on behalf of group home residents at the moment.  Certainly in excess of a two-staff person activity across the state so ‑ ‑ ‑

MR HARDING SC:   I think he was speaking about the staffing capacity for individual advocacy as opposed to other activities that the organisation may be engaged in.

MS TOOMEY:   The detail of which I’ve not got with me, but certainly can come back.  Individual advocacy, systems advocacy is critical to support, certainly, the abuse prevention strategy that Victoria has put in place.

MR HARDING SC:   So you see advocacy as critical to preventing abuse?

MS TOOMEY:   Absolutely.

MR HARDING SC:   Thank you.  I have no further questions.

COMMISSIONER SACKVILLE:   Thank you.  Ms Toomey, thank you very much for coming and giving evidence.  I appreciate that you’ve had a lot of questions on a range of matters and your evidence has been very helpful.  Thank you very much.

MS TOOMEY:   You’re welcome.

COMMISSIONER SACKVILLE:   Thank you. 

<THE WITNESS WITHDREW                                                                                                                    [3.57 pm]

COMMISSIONER SACKVILLE:   Mr Harding, are you able to tell us what will happen tomorrow or will we only find that out at 10 am tomorrow?

MR HARDING SC:   I don’t want to speak for Ms Eastman.  I suspect that you will find out tomorrow what will happen.

COMMISSIONER SACKVILLE:   I certainly hope so.

MR HARDING SC:   You will.

COMMISSIONER ATKINSON:   By the end of the day we will know.

MR HARDING SC:   10 am tomorrow is when it’s due to start.  In terms of who’s coming along ‑ ‑ ‑

COMMISSIONER SACKVILLE:   All right.  We will find out.

MR HARDING SC:   I think I will leave that, Commissioners.

COMMISSIONER SACKVILLE:   Someone will let us know in due course.  All right.  Well, thank you very much.  We’ll adjourn until 10 am tomorrow.

MATTER ADJOURNED at 3.58 pm UNTIL THURSDAY, 5 DECEMBER 2019