Clients and market failure by the NDIS

Clients and market failure by the NDIS

Thursday, 9 November 2017

Francis NDIS case

Francis's story

Francis is 19 years old. He likes watching YouTube videos on his iPad, listening to music with big headphones and all things related to Metro Trains. Francis has been diagnosed with complex disabilities, including a significant intellectual disability, autism and Tourette’s. Cognitively, he has been assessed to have an IQ of 43 and is estimated to share the capacity of a three or four-year-old child. Because of the complex nature of his disabilities, Francis is unable to live independently.

Since leaving his parent’s care around November 2016, Francis has lived alone in a public housing property supplied by the Victorian Department of Health and Human Services (but with intensive supports), paid for most recently through an National Disability Insurance Scheme (NDIS) ‘Participant Plan’. Before he became a participant in the NDIS scheme, Francis received disability services through the Secretary to the Department of Health and Human Services (DHHS) under the Victorian Disability Act. He was a ‘registered client’ of disability client services at DHHS. Francis’s NDIS Participant Plan provides funding for workers to provide intensive residential care for him, a specialist support coordinator to implement his NDIS plan and a behavioural support specialist.

In September, Francis was charged with injury and assault charges. It is alleged that the injury is bruising. It is also alleged that he assaulted police who attended. Francis has been in custody since his arrest. Francis has never been in custody before and he has no prior criminal convictions.

Because of the severity of Francis’s disabilities, he is unlikely to be able to plead guilty to the charges. If he could plead guilty, a likely sentencing outcome would be a good behaviour bond or a fine. He would probably not receive a custodial sentence, given his age, lack of prior criminal history and disabilities. There are lengthy legal processes that now must take place before Francis’s criminal charges can be finalised because of his likely inability to plead.

All parties agree that Francis will not pose an unacceptable risk to the safety of the community and should be immediately granted bail if he is properly supported in his home.

However, two days after Francis was remanded into custody, the agency contracted to provide residential care for Francis terminated their services, effective immediately. They stated that he was a business risk. The National Disability Insurance Agency (NDIA) have stated that they are ‘just a bank’, with no obligation to ensure that Francis receives the services funded in his plan. DHHS officers advised Francis's lawyer that its only obligations to Francis arose as his landlord, and it was ‘up to the NDIA to find a service provider’.

Another service provider indicated that they would take on a contract from mid-December 2017 (having been moved forward from February 2018). At that time, neither DHHS or the NDIA had a plan to provide supports to Francis in the meantime. The NDIA have increased the funding in Francis’s NDIS plan to over $1,000,000 from about $200,000 but despite this, no other service provider expressed interest in taking on this contract.

Even running multiple bail applications in the Magistrates’ Court has failed to exert pressure to result in an appropriate solution. Without the services in place, on 31 October 2017, Francis was refused bail in the Magistrates’ Court. A Supreme Court bail application has now been commenced.

Because of his complex needs, risk of self-harm and his vulnerabilities within the prison population, Francis was initially detained in solitary confinement for his first week of remand, in 23-hour lockdown. He was clothed in a canvas smock and subject to handcuffing when outside his cell. Since this time, Francis remains in isolation, which still heavily restricts his interaction with any other person. He has to be handcuffed at all times outside his cell.

Each time his lawyer speaks with Francis, he says that he wants to go home and that being in prison makes him sad. He says that he finds prison scary and that he does not like the other prisoners. It seems that Francis’s wellbeing is deteriorating since he has been incarcerated. He has started to self-harm and prison staff are having trouble assisting him with washing and toileting. He has blood stains on his clothes and has worn the same stained t-shirt for the last week.

Ultimately, Francis remains in custody and has been refused bail, only because no service provider will contract with him. Today Victoria Legal Aid were informed that a provider may be able to begin assisting Francis in 2 weeks' time.

Elijah's story​*

In 2016, Elijah was remanded into custody, after being charged with breaching an intervention order taken out by his family and assaulting police attending the family home at the time of the breach. Elijah has autism and a profound intellectual disability which means that he is prone to impulsive behaviour and often cannot understand the consequences for his actions. Elijah is 28 years old and before he was remanded, he was living in public housing with DHHS funded workers to support him, because he cannot live independently.

While Elijah was in custody, he transitioned over to the NDIS. In his plan, funding was provided for a specialist support coordinator to coordinate the allocation of funds for the other substantial services provided in his plan.

No service provider was willing to take on this role.

The NDIA have said that they are the provider of funds, not a provider of services. DHHS have said that it is not possible for them to take on the specialist support coordinator role.

Because of Elijah’s complex disabilities and his incarceration, when the market failed he was not able to search for service providers himself. The specialist support coordinator role was critical for Elijah, because this role was the gateway for him to access the other services funded under his plan.

The nature of Elijah’s disability means that he has difficulty in receptive communication: he struggles to understand the court process and the advice of his lawyer. As a result, it is necessary to have Elijah’s fitness to be tried assessed in the County Court. This has resulted in unavoidable delay as the case is transferred from the Magistrates’ Court.

Market failure in this case has profoundly affected Elijah’s liberty, independence and inclusion in the community. Without a specialist support coordinator, Elijah has not been able to use his NDIS funds to go ‘shopping’ for agencies to provide him with 24/7 care. This meant that the rest of the funding under Elijah’s package was rendered inaccessible to him.

Until services are in place for him, Elijah’s lawyer has had to withdraw his bail application which would have enabled him to remain in the community pending the determination of fitness to stand trial. This is because Elijah’s access to the substantive support services under his funding plan are critical to him being safe at home.

*The second case study has been de-identified. Additionally, this second case study does not tell the story of a single client, but rather reflects the experiences of multiple other clients we are also assisting.

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