Victoria Legal Aid

Our advocacy for an NDIS provider of last resort continues

We have a new submission to the Joint Standing Committee on the NDIS about ‘market readiness’, including market failure, crisis accommodation and provider of last resort frameworks.

Thursday 22 March 2018 12:00am

We have shared more stories of how market failure by the National Disability Insurance Scheme (NDIS) is affecting our clients.

In our new submission to a parliamentary inquiry we outline how our clients, including a six-year-old girl, are being let down by the scheme, due to thin markets for service providers and a lack of expertise and resourcing.

The Joint Standing Committee on the NDIS (JSC) is conducting an inquiry into NDIS ‘market readiness’External Link including market failure, crisis accommodation and provider of last-resort frameworks.

Our submission notes that since our last appearance before the committee in November, we have seen a growth in cases where inaccessibility of fully funded NDIS supports is directly affecting the freedom and safety of people with disability. Our lawyers across our criminal, mental health and disability law and NDIA appeals practices are now all engaged with clients experiencing this same issue. Critically, the submission shows that when the NDIS market 'fails', our clients:

  • remain in prolonged custody in prisons
  • are unable to be discharged from psychiatric hospitals, often after emergency admissions in the context of market failure
  • experience serious risks to their health and wellbeing
  • become or remain homeless.

We have had a number of clients who have been detained on remand with no ability to be granted bail because they were left utterly without disability services when private providers of NDIS supports refused to engage with them. These serious consequences are at odds with the intention of the NDIS to enable people with disability to live with choice and control.

Client’s stories show the extent of the problem

The stories of several clients are told in the submission, including six-year-old ‘Sam’, who has complex disabilities.

'The market failure in Sam’s case has had dire effects on Sam and her family’s health. When the market fails, the consequence for Sam is that she does not have disability workers in her home for much of the day. In their place, Sam’s family attempt to fill the gaps. On several days, her father has cared for her for 36 hours without sleep. When Sam’s family members get sick, the market failure and absence of any backup mechanism means that they face a choice between attempting to care for her with the risk of infection, and failing to care for her. There have been days when her family explains "we were just like, what are we going to do?"'

While we appreciate the complexity which the roll-out of the NDIS continues to present for all governments, the burden of the current market and regulatory shortcomings is mostly falling on NDIS participants. Market failure and the absence of responsible regulation to remedy it are issues which must be resolved now. Interim and permanent solutions can, and must, be identified and put in place by both the Victorian and Commonwealth governments. To this end within the submission we have outlined several approaches and recommendations to assist in resolving some of the market weaknesses and to provide a safety net for vulnerable clients when the market fails.

Advocacy leads to fresh inquiry

This inquiry comes after advocacy by Victoria Legal Aid and others, including the Office of the Public Advocate, about how the NDIS market is failing vulnerable participants with complex needs.

We have made two previous, relevant submissions to this inquiry – the recent submission regarding market failureExternal Link and an earlier submissionExternal Link regarding the value of the NDIS in providing pathways back to the community for people with psychosocial disability. This current inquiry is also linked to a Victorian Ombudsman inquiry into the prolonged custody of people with disability, to which we are currently contributing.

In November we worked with journalist Louise Milligan to tell the story of a young client Francis, who was held in jail for an extended period due to service providers unwillingness to service his needs. Recently Louise received a Quill Award for her reporting. Watch what the judges said about Louise's workExternal Link .

We will continue to tell our client’s stories and raise awareness about how the NDIS is affecting some of our most vulnerable community members.

Media enquiries

For media or stakeholder enquiries about this issue please contact Alma Mistry via or phone 0418 381 327.

Reviewed 14 April 2022