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A census of staff morale provides an insight into the chaos engulfing the NDIS Quality and Safeguards Commission, putting vulnerable people at risk. By Rick Morton.
NDIS Commission on the brink
The underperforming regulator of the National Disability Insurance Scheme has fallen further into disarray as its leadership team receives the agency’s worst public service employee census results on record, draws the ire of Government Services Minister Bill Shorten and spills frustrations onto overworked staff.
Just weeks after the final report of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability delivered findings that criticised a sluggish NDIS Quality and Safeguards Commission, and following a devastating investigation by the ABC’s Four Corners, the first census results under the tenure of NDIS commissioner Tracy Mackey were released to staff.
On every metric, with the exception of one, outcomes have slipped further into negative territory. One in five employees said they had experienced bullying or harassment in the previous year, while just 28 per cent said they thought the agency managed change properly. Scarcely more than a third of staff thought the agency did a “good job of promoting health and wellbeing”, while only 38 per cent agreed it cared about their personal wellbeing.
Every Australian government department and agency is required to carry out this public service census each year and the results are used as a critical part of managing toxic workplaces and poor behaviour and identifying potential systemic issues across the bureaucracy.
Current and former employees of the NDIS Commission told The Saturday Paper the results reflected their concern the regulator was being run to manage negative media attention rather than focusing on the work of protecting people with disability who used NDIS services from abuse, neglect or harm.
“It is erratic in there and the explanation for that is not just about the historic lack of resourcing, it goes to the leadership team and the decisions they are making,” a former senior staff member says.
“There are different areas of the commission and things are particularly grim in the regulatory division, which is the engine of the commission.”
Another current officer says “they don’t know which way is up”. They continue: “Any matter with media interest goes straight to the urgent/important bucket. It’s chaos.”
Three days before Four Corners aired its investigation into shocking abuse at the provider Irabina Autism Services – but notably after Commissioner Mackey had been asked about her lack of serious compliance action – Irabina chief executive Debra Goldfinch and her daughter, Rebecca Goldfinch, were banned from “being involved in the provision of NDIS supports or services to people with disability for a period of 3 months”.
The online register of banning orders, typically only updated once a month, was refreshed on September 25, the day the Four Corners investigation aired.
What makes this case particularly interesting is the commission had already learnt about the abuse via restraint and “restrictive practices” at the service and had intervened to shut down its severe behaviour support unit – but had not stopped the practices elsewhere in the service.
The decision to close the unit was taken by the senior practitioner and deputy commissioner, Dr Jeffrey Chan, who has a three-decade career in specialist and clinical disability settings.
Broader compliance action, which at the time was the responsibility of a different deputy commissioner, was not taken against the service until Four Corners came looking.
Mackey reportedly spoke with Chan on Friday, September 22, three days before the program went to air, and later announced he was suddenly taking a “period of leave”. The Saturday Paper approached Chan for comment but did not receive a response.
An email sent to all employees by Commissioner Mackey on September 27 included a section titled “senior staff changes”.
“While Jeff Chan is taking a period of leave, Ken Teoh will act in the Deputy Commissioner Practice Quality and Clinical Advisory role, effective Thursday 28 September.”
Teoh is the NDIS Commission’s general counsel, a lawyer who does not have clinical or specialist disability qualifications. During an online video conference with Dr Chan’s national team, some reported Teoh began crying when informing them their leader would “be absent” and had to go off camera. Another staff member took over. Chan has not returned to work.
Since the spotlight was turned on the NDIS Commission, it has launched a flurry of regulatory activity. On September 29, Sydney doctor George Abou-Hatoum was permanently banned from providing NDIS supports. He was charged and convicted for using fake medical certificates to dishonestly obtain financial advantage through insurance fraud in 2020. His medical licence was suspended for three months to August last year. The NDIS regulator waited three years to act.
At the beginning of last year, the Victorian government seized control of two disability group home services where residents lived in squalor and were found to have been routinely abused, coerced and to have had their NDIS funding packages withheld.
On October 2, almost two years after the state intervention, the NDIS Commission issued a permanent prohibition against its chief executive, Pradeep Divakar, preventing him from “being involved, either directly or indirectly, in the provision of NDIS supports or services to people with disability”.
The disability royal commission found the regulator was “not sufficiently active” in monitoring providers under the scheme and was “reluctant to use its compliance and enforcement powers” when matters came before it.
“Now that the NDIS Commission is in its fifth year of operation, we recommend it review its approach to compliance and enforcement,” the inquiry said.
“It should consider transitioning its primary compliance approach from educational and capacity building strategies to stronger compliance and enforcement activities, where appropriate.”
According to the NDIS Commission’s own quarterly reports, in the three months to June last year there were 87 revocations of provider registration. In the same quarter this year that number had fallen to just five. Banning orders fell from a high of three in the March quarter this year to just one in the most recent quarter. However, since it became aware of the Four Corners investigation, the commission managed to make 12 banning orders in a matter of weeks.
Corrective action requests nosedived from a high of 376 in the March quarter this year to just 21 by June. Meanwhile, the commission has overseen a twelvefold increase in “education” over the same period, which it counts as “compliance activity”.
This is where the commissioner gets her figure, repeated by a spokesperson in a statement to The Saturday Paper, that there has been a “tenfold increase” in compliance activity. Almost all of that is education.
“The NDIS Commission is on track to another record-breaking year of compliance activity, following a tenfold increase in compliance actions in the 2022-2023 financial year,” a spokesperson said.
“In the six months from 1 January 2023 to 30 June 2023, the NDIS Commission issued 50 banning orders and 11 compliance notices. This represents an increase on the previous six months (to 31 December 2022), when the NDIS Commission issued 42 banning orders and 5 compliance notices.”
Despite the largest single funding boost in its history, delivered by Shorten, the commission still has an extraordinary staff turnover rate. By one count, almost half of executive level two directors in the regulatory division have left the agency.
“The NDIS Commission acknowledges the need for continuous improvement, which is particularly important during this period of significant transformation and growth,” a spokesperson said in a statement.
“It is not appropriate to comment on the leave arrangements of individual staff. Leave arrangements for all staff are approved consistent with their terms and conditions of employment and approved in accordance with the Commission’s delegations.”
Despite what it calls “notable improvements” in some APS Census results, there has been little change in the outcomes for people with disability who rely on the commission to be an effective guardian of services and behaviour.
“The NDIS Commission’s reportable incidents processes can be lengthy and involve poor levels of communication with providers, people with disability and their families,” the disability royal commission found in its final report. “We were told about perceptions of inaction and a lack of attentiveness once a matter is reported...
“We heard repeatedly of the risk to people with disability when NDIS providers do not take complaints seriously or handle them properly. This risk is compounded if the NDIS Commission does not take adequate action to address poor responses from providers.”
Shorten was asked about the regulator during an interview on ABC Central Coast on Tuesday. He has hardened his stance on the performance of the NDIS Commission.
“We’ve got them an extra $140 million to do their job properly. But it’s not just bodies and it’s not just resources. It’s a mindset,” he said.
“And enough of the education. It’s got to be compliance now. Some people are making a lot of money out of NDIS, but others are getting hurt and not being properly safeguarded. The latter is what really upsets me.”
This week, Commissioner Mackey again threatened staff with code of conduct investigations for speaking to the media.
“Over recent weeks we have become aware of incidents where staff are not adhering to these information [disclosure] provisions,” she said.
“It is important that you are aware of your information obligations. We are currently, and will continue to take action where this occurs.
“I also wanted to let you know that we have again responded to media requests from The Saturday Paper and expect that an article may run this weekend. It remains disappointing that individuals continue to use the media rather than seeking to use any of the communication channels available in the Commission.”
The internal memo warning against leaks was subsequently leaked to this newspaper.
This article was first published in the print edition of The Saturday Paper on October 14, 2023 as "Crisis management".
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