As the NDIS regulator pushes to meet targets, its staff say they are pressuring disabled people to drop complaints and are missing serious abuse and neglect. By Rick Morton.

Overstretched NDIS regulator in crisis

NDIS quality and safeguards commissioner Tracy Mackey (right).
NDIS quality and safeguards commissioner Tracy Mackey (right).
Credit: Facebook

When a fire broke out in the offices of the National Disability Insurance Scheme Quality and Safeguards Commission last year, a  woman was stranded in a fire escape stairwell. She was a wheelchair user and the lifts were not working, so she made it no further than the stairs.

The woman, who had previously survived a house fire, was “highly distressed” by the experience. She was offered only cursory follow-up support.

“If you want to get a sense for how the commission thinks about and treats its own disabled staff, that incident is a good place to start,” an employee tells The Saturday Paper. “And it flows to everything else.”

A series of interviews by The Saturday Paper with NDIS participants, current and former commission staff and outside observers has revealed an agency that has become preoccupied with “looking good” and avoiding negative media at the expense of thoroughly regulating disability service providers and properly investigating complaints. Staff are severely overworked and pressured to “cut corners” to keep up with workloads.

“What you get is the appearance of doing the job while the really bad stuff gets missed,” a former staff member says. “Some of it you will never hear about.”

Last week, The Saturday Paper revealed the NDIS quality and safeguards commissioner, Tracy Mackey, denied the existence of a Comcare notice regarding unsafe work practices at the regulator, which have allegedly led to psychological harm among its employees. 

Part of that damage is inflicted because the overwork has demonstrably led to dangerous gaps in the regulator’s capacity to address abuse and misconduct.

Parliament has previously been told the commission failed to investigate the death of a man who was administered powerful sedatives during a routine examination. At least two serious cases of sexual assault, including one where the victim had been photographed, were either ignored by the commission or put on the backburner for months. 

At a single point last year, every staff member in a state-based reportable incidents team had more than 300 cases of assault, abuse, neglect or other serious incidents to manage. 

“We missed things. We missed big things,” a worker says. “People just cannot manage with that kind of caseload.” 

When some employees tried to convince management there was a problem, they were told reportable incidents team members were not caseworkers and did not have a “caseload”. In other words, they just had to log the reports and move on. 

To deal with a significant backlog of complaints – a function handled by the commission and for which it has legal obligations – management has established a temporary pool of staff who are given scripts to phone old complainants and encourage them to drop the matter.

“The scripts are very deliberate. You know, it’s staff phoning up disabled people or their family, apologising for the fact the commission hasn’t been in contact for an extended period of time, and then soliciting from them a ‘No, it doesn’t matter anymore’,” a person familiar with the procedure tells The Saturday Paper.

“Once they have that, bang, case closed. They don’t have to investigate the complaint, nothing else needs to be done, the backlog gets smaller. But they’re not actually helping anyone.”

Participants and their delegates have reported complete silence from the commission when they made contact about not being able to access Covid-19 vaccines in 2021, for example.

“I never heard from the commission when a family member died, which was a requirement when death occurs with support workers or a company,” a woman says. “That was also in 2021. I still haven’t heard from them.”

When Mackey, who was appointed to the commissioner role under the former government, began the job in January 2022, she was aware of these significant work pressures and a historic funding chasm that had hampered the agency since day one. 

The organisation was in crisis. 

Employees were perplexed when Mackey built herself an executive office in the Parramatta suite, not the Penrith head office, as one of her first orders of business. They were unenthused when $1.7 million was spent on consultants to help design a strategic future for the authority. 

On taking over, Mackey set about filling out the ranks of the senior leadership.

She hired a former associate from her time leading the New South Wales Environment Protection Authority, Alisa Chambers, and promoted her to assistant commissioner. Catherine Myers, who had resigned as chief executive of the Victorian Gambling and Casino Control Commission, which had been thoroughly criticised over its handling of Crown casino’s licence conditions, was brought on as deputy commissioner. 

Sian Leathem became the NDIS complaints commissioner under Mackey, leaving three months early from her position as registrar at the Administrative Appeals Tribunal. As AAT registrar, Leathem was accused of misleading parliament over her role in a process that saw the office of the then attorney-general, Christian Porter, rewrite answers to questions on notice. 

“I can only offer my apologies for my role in the confusion and the fact there was not an adherence to the process,” she said in a 2021 estimates hearing. “We had not appreciated it would be interpreted as misleading.”

Leathem also faced questions over the AAT’s role in robo-debt, being asked whether any specific research notes or memos regarding the scheme’s legality were circulated to other members or the then Department of Human Services. None were.

“All I can confirm is that we would be providing a copy of that decision to the agency,” Leatham told parliament in March 2021.

“You’ll have to ask them about what they do in relation to processing the information contained in it.”

Since the end of last year, numerous mid-ranking staff with regulatory expertise have quit or been pushed out of the organisation. 

In that time, however, Mackey has managed to lift the number of orders banning NDIS workers and providers from 34 in the previous financial year to 74 so far this year. 

At an NDIS conference in Sydney earlier this month, the commissioner told attendees there had been a “10-time” increase in regulatory activity, although almost all of this was in the form of education letters sent to disability service providers. 

While banning orders are important, these are usually not the result of commission-specific work but done in conjunction with tips from the National Disability Insurance Agency and information provided by other law enforcement agencies. 

The number of compliance notices – which tend to target more systemic problems and disability service provider management, rather than just workers – has actually fallen from 17 to six between financial years, and warning letters by half, to 40.

By all accounts, Mackey is ambitious to achieve results at the regulator but staff have questioned whether the results she wants are compatible with good outcomes for disabled people. 

At a meeting of every state director and some of the most senior members of the commission’s legal team early this year, Mackey became involved in what some called a “shouting match”, arguing there was no obligation under law to serve a “notice of intent” on people the commission was seeking to ban from providing services under the NDIS. 

This wasn’t true and legal officers attempted to explain this to the commissioner without success.

“Literally her proposition was, ‘If we know the facts, we don’t need to issue a notice of intent and there’s no need to confirm the facts,’ ” a former staff member says.

“So, she has massively and totally confused a notice of intent as being an evidence-gathering process. It’s not. It’s a procedural fairness process and it is a legal requirement.”

A similar legal error was made on November 29 last year, when the entire NSW reportable incidents team were called to a meeting with Mackey. At this meeting, they were told they were all “authorised officers” under the legislation and should “get out there” and visit providers.

They were not authorised officers, however, and had no legal basis to turn up for inspections. 

Mackey told these employees “you all have the capacity to act and make decisions regardless of your level” and used banning orders as an example. 

According to notes made at the time of the meeting, Mackey told staff: “I will back you if you take action and make a mistake. However, I can’t back you if you don’t act.”

Again, her direction was not part of official policy.

“It was all very political,” a staff member says. “This wasn’t about being thorough; it was about artificially juicing the stats so we could tell everyone we’re doing a great job. And it was wrong.”

Community and Public Sector Union deputy secretary Beth Vincent-Pietsch told The Saturday Paper staff at the regulator were increasingly concerned they were being asked to cut corners.

“All of the pressure is about closing cases, not adequately investigating and dealing with them,” she said.

“And members know the regulator is not doing what it needs to do and they are really worried about participants in the scheme who deserve a regulator that’s really making sure that their service providers are up to scratch.

“We continuously hear of horrific cases of people missed in the system. You know, sometimes it’s fatalities.”

Cases have been “assigned” to all and sundry in the commission, including executives, even though these cases could never be investigated by those staff.

“When the backlog of cases was brought up as an issue, [the commission] took the vast backlog of old cases and assigned them to the directors, you know, to senior leaders. And then they can report that those cases have been assigned and they’re being looked into, but they just sit there for months and months and months,” Vincent-Pietsch says.

“On the flip side, they do everything they can to make sure that people are dissuaded from pushing further around complaints and investigations.”

Vincent-Pietsch says she knows disabled people are being abandoned by this approach and, from her perspective at the union, staff at the commission, many of whom have disabilities themselves, are suffering trauma as a result. “It has a huge physical and psychological impact on the workers to know the scheme is failing its participants and the regulator is not regulating,” she says. 

The NDIS Quality and Safeguards Commission did not respond to a request for comment before deadline. Commissioner Mackey did not respond to a separate request for comment.

After The Saturday Paper’s report last week, she sent a note to all staff reminding them of the work being done since she took on the role as commissioner.

“We are changing things for the better,” she said. “This is why I was concerned and saddened to read the weekend media attributing a very different view. I am disappointed that any staff member would choose to use the media to express their views.”

This article was first published in the print edition of The Saturday Paper on June 10, 2023 as "Keeping up appearances".

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