NDIS ‘market failure’ leading to vulnerable people being unfairly jailed

Victoria Legal Aid (VLA) is calling for the National Disability Insurance Agency (NDIA) and the Victorian Government to urgently find solutions for people who are currently imprisoned or at risk of imprisonment, because of gaps in the National Disability Insurance Scheme (NDIS).

VLA Mental Health and Disability Advocacy Program Manager Sonia Law said: 'We’re seeing cases where service providers pull out of contracts and others simply say they don’t want to provide care to our clients, despite their NDIS plans offering generous funding for supports and services.

'In such cases, even minor offending leads to long-term imprisonment because bail can’t be granted to our clients without services on the ground and no one will step in and provide these services.' she said.

Additionally, we urge that a system of ‘provider of last resort’ be set up, to prevent these situations from occurring in the future.

As Victoria moves onto the NDIS, our lawyers are dealing with cases where the market is failing to provide services to our clients. These clients have complex intellectual disabilities and failure to provide services to them is having harmful consequences, such as imprisonment for several months.

'Our clients are amongst the most vulnerable in the population, they have complex intellectual disabilities and prison can be the worst place for them. It is in everybody’s interests that they receive the support they need to manage their behaviour.

'People are being transitioned from the existing state system to the NDIA even though there are no actual services there for them. As soon as they are transitioned, the support that was in place from the state disappears.' said Sonia.

A provider of last resort would ensure everyone who is entitled to services receives them. The state and the NDIA need to urgently agree to a safety net system.

Our client Francis

As featured on tonight’s ABC 7.30 program, 20-year-old Francis is being held in the Melbourne Assessment Prison. Francis’s disabilities include a significant intellectual disability, autism and Tourette’s. He is estimated to share the capacity of a three or four-year-old child.

On 16 September, he was arrested and placed on remand after a minor assault while living in a Victorian Department of Health and Human Services (DHHS) house. Francis has never been in custody before and he has no prior criminal convictions. Two days after his arrest, his disability service provider withdrew from its contract, stating Francis was ‘a business risk’. Francis has an NDIS plan that entitles him to one million dollars’ worth of around-the-clock support services, but because no service provider wants to run these services, he remains in jail.

Francis is not coping well in prison. He tells his lawyer he wants to go home and has started self-harming, leading to restrictive practices, such as handcuffing whilst outside his cell. The trauma that Francis is experiencing will affect his ability to live independently in the community when he is eventually released.

While advocating for Francis, we found no one would take responsibility for finding him appropriate care. The NDIA stated that they were ‘just a bank’, with no obligation to ensure that he receives the services funded in his plan and the Victorian Department of Health and Human Services told his lawyer they were his ‘landlord’.

Although we welcome the development that Francis will soon be released from jail, we have identified at least three similar cases where clients are unable to access the support services they need and expect that more will emerge as the scheme expands.

'We are pleased it appears a solution has been found for Francis’s case. However, what happened to Francis should never have happened, took too long to fix, and will keep happening unless urgent action is taken to fix the problem.' said Sonia.

A service provider of last resort needs to be available for people like Francis who are unable to access the support in their plan because there is no provider willing or able to provide the service. They should not be subject to significant adverse effects, such as prolonged detention.

Yesterday we appeared before the Joint Standing Committee on the National Disability Insurance Scheme and gave evidence about Francis and the need for a provider of last resort.

For more information see our Submission to the Joint Standing Committee on the National Disability Insurance Scheme.

Media enquiry

If you have a media enquiry, please contact Alma Mistry on 0418 381 327 or Alma.Mistry@vla.vic.gov.au.