INTRODUCTION
5.1 One of the objects of the DSA is:
to ensure that the outcomes achieved by persons with disabilities by the provision of services for them are taken into account in the granting of financial assistance for the provision of such services.1
The provisions of the DSA concerning funding should ensure that the resources allocated for disability services assist people to have equitable access to, and receive satisfactory outcomes from, those services. This chapter examines whether the funding provisions of the DSA are appropriate for securing the Act’s objects.
TYPES OF FUNDING
5.2 In practice, the main types of funding available to disability services are capital, recurrent and transition funding. Capital funding is provided for the purpose of purchasing land, or purchasing, building, repairing and upgrading service premises and equipment. Recurrent funding is the regular, ongoing financial support that all services receive to cover daily operational costs. In Chapter 6, the Commission discusses the transition process. Briefly, the process involves ensuring that all disability services comply with the objects, principles and applications of principles in the DSA. Transition funding is provided to some services, generally the older services that existed before the DSA was enacted, to assist with the extra costs associated with improving the type and quality of support they provide in order to meet the policy objectives of the DSA. The DSA does not distinguish between the various types of funding, but refers generally to “financial assistance”. In this chapter, the Commission also uses the term “funding” in a general sense to include any type of financial assistance provided to disability services by ADD. Specific issues concerning transition funding are raised in Chapter 6.
WHO MAY RECEIVE FUNDING?
5.3 The DSA is the legal basis for funding services for people with a disability. The Minister may approve the granting of financial assistance (out of funds appropriated by Parliament for the purpose)2 to:
- a person in the target group,3 or a person providing direct care or support to a person in the target group, to enable the person in the target group to be provided with designated services;4
- an eligible organisation5 providing (or proposing to provide) designated services to people in the target group, to enable the organisation to provide the services; or
- a person or eligible organisation conducting (or proposing to conduct) an approved research or development activity to enable the person or organisation to conduct the activity.6
The Minister for Ageing and Disability may also agree to provide funds to the Minister for Health to enable that Minister to fund eligible organisations to provide services to persons in the target group whose disabilities are attributable to a psychiatric impairment.7
Target group
5.4 Services may be provided or funded under the DSA for people in the target group. A person is in the target group if the person has a disability (however arising and whether or not of a chronic episodic nature):
5.5 The target group also includes the following people,9 but only if the services provided for them are not inconsistent with the objects and relevant requirements of the Mental Health Act 1990 (NSW):
(a) a temporary patient, continued treatment patient or forensic patient, or
(b) a person subject to a community treatment order, or
(c) a person under detention in a hospital.10
Views in submissions
5.6 A small number of submissions considered whether the target group outlined in the DSA was appropriate. Some favoured no change.11 One argued that there was a need to limit the target group, given the limited funding available, so that people with the greatest need had a better chance of receiving the support they require.12 Most submissions were of the view that the DSA should cover all people with a disability who need support. Some submissions suggested that the definition should be consistent with the Disability Discrimination Act 1992 (Cth) definition to include all people with a disability.13
The Commission’s view
5.7 The concept of defining disability, and the ramifications that flow from this, has been the subject of some critical discussion.14 As the Commission has noted, the DSA currently does not contain a broad definition of disability, but defines the target group of potential consumers who may be eligible to receive services under the Act. Submissions suggested adopting a broader approach in the DSA, and argued that the definition in the Disability Discrimination Act 1992 (Cth) may be an appropriate model. A similar definition is included in the Anti-Discrimination Act 1977 (NSW) which is consistent with Commonwealth legislation and simpler. Under that Act, disability means:
(a) total or partial loss of a person’s bodily or mental functions or a part of a person’s body, or
(b) the presence in a person’s body of organisms causing or capable of causing disease or illness, or
(c) the malfunction, malformation or disfigurement of a part of a person’s body, or
(d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or
(e) a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.15
5.8 These definitions are broader in scope than the target group in the DSA. For example, they include people with learning disabilities and people living with HIV/AIDS. Consequently, if the DSA were to include a definition of disability based on the suggested models, people who are not currently eligible to receive services funded under the Act (because they have a disability that falls outside the narrower definition of “target group”), would be brought within the scope of the DSA. The Commission considers this to be a positive step, since people with a disability should not be excluded from the operation of the DSA solely on the basis of their disability type.
5.9 Including a definition of disability in the DSA would not, however, result in a greater number of people actually receiving services funded under the Act.16 The Australian Law Reform Commission emphasised this point in making a similar recommendation regarding the Disability Services Act 1986 (Cth).17 Many people who fall within the broad definition may not require services of the type provided under the DSA, either because their disabilities may be mild, or because other forms of support may be more appropriate. Potential consumers of DSA services would, as is the case currently, have to demonstrate a need for those services.
5.10 Consequently, the Commission recommends that the definition of disability in the Anti-Discrimination Act 1977 (NSW) should be included in the DSA to replace section 5(1)(a). However, discrimination is a different concept from service provision, and the definition needs to be qualified to reflect that difference. While all people with a disability should be protected against unlawful discrimination, not all people with a disability need DSA-funded services. Accordingly, the qualifications currently contained in sections 5(1)(b) and 5(1)(c) of the DSA, namely, the requirements that the disability be permanent, reduce the person’s capacity in some areas and give rise to the need for support,18 should remain.
TERMS AND CONDITIONS OF FUNDING
Minister’s duty
5.11 The DSA imposes a duty on the Minister for Ageing and Disability to ensure that services are provided and funded under the DSA in conformity with the objects, principles and applications of principles.19 This is modified for services making the transition from non-conforming to conforming services, during which period services need only conform “as closely as possible”.20 The DSA also provides that the Minister may not approve funding unless he or she is satisfied on reasonable grounds that providing the assistance would comply with the objects, principles and applications of principles.21 Before receiving any funding, the recipient must agree to the terms and conditions on which the funding was approved by the Minister.22
5.12 The DSA provides that the terms and conditions must deal with:
- the extent to which the organisation must conform to the principles and applications of principles;
- the purposes for which the funds may be applied;
- the amounts to be applied for those purposes;
- the outcomes to be achieved for people in the target group as a result of receiving services, and the rights of those people in relation to the services they receive; and
- the performance indicators to be used in measuring the outcomes achieved for people in the target groups as a result of their receiving the services.23
5.13 In addition, the DSA states that the terms and conditions of funding may deal with:
- the agreements between the service provider and the recipients of the services;
- the furnishing of information;
- certifying compliance with terms and conditions;
- repaying funding;
- giving security for compliance with terms and conditions; and
- the use and disposal of, and recovery of the Government’s interest in, land, buildings and equipment acquired, erected, altered, extended or installed using Government funding.24
The Commission’s view
5.14 The Commission recommends in Chapter 7 that a new and independent quality assurance body be established to certify that a service complies with the objects, principles and applications of principles.25 The Minister would be empowered to fund only those services which have been certified. It is envisaged that section 12 would need to be amended to reflect these new arrangements. In particular, the terms and conditions should make funding conditional upon participation in the quality assurance process and certification by DisQAC.
FUNDING INNOVATIVE SUPPORT MODELS
Funding models
5.16 One of the objects of the DSA is:
to encourage innovation in the provision of services for persons with disabilities.26
A recent ADD initiative is the 300 Supported Accommodation Program. It provides for 300 individual funding packages (“IFPs”) which, although paid to a service provider, are allocated to services for the support of an identified individual. Where possible, the funds may be transferred to another service or another area if this is what the individual wishes.27 The DSA currently permits funding of an individual, subject to the general terms and conditions applicable to all types of funding.28 In IP 16, the Commission asked if the DSA should provide specifically for a number of funding models with specialised funding and terms and conditions attached.29
Views in submissions
5.17 Submissions that addressed the issue did not support the inclusion of specific funding models in the legislation.30 The NSW Government stated that prescribing different funding models could limit rather than encourage flexibility and innovation.31 This view was supported by other submissions which argued that the DSA should encourage new approaches to support people with a disability, and should allow for a flexible set of options for supported living.32 In particular, the DSA must recognise the need for flexibility in services assisting people with high support needs and multiple disabilities.33 According to one submission, the diversity of service delivery is shrinking and there is less experimentation and innovation now than there has been in the past.34
5.18 Of the submissions which discussed the issue of funding individuals directly, some suggested that the DSA should clearly state all matters necessary for the provision of funding to individuals.35 Another submission approved of individual funding, but warned against the development of a two-tier system of funding.36 NCOSS outlined reasons why IFPs were desirable, and discussed the barriers to their implementation. It concluded that it was more important to develop adequate and effective support systems for people with a disability rather than relying only on IFPs.37 The Disability Council of New South Wales reported positive feedback on the potential for individual funding from the participants at its consultations. Itl reported that, for many people with disabilities, IFPs represented “true” independence from welfare subsistence. In its consultations, people with physical disabilities viewed individual funding as empowering, while people with intellectual disabilities were apprehensive about the day-to-day management of the funding allocation.38
The Commission’s view
5.19 The funding provisions of the DSA attempt to ensure that services provided as a result of financial assistance from the Minister comply with the Act’s objects, principles and applications of principles. The DSA makes no attempt to control or fetter the exercise of the Minister’s discretion when determining which services should be funded. The DSA does not inhibit the funding of any particular type of service or organisation, and permits the funding of individuals if this is deemed appropriate. The Commission therefore agrees with submissions that the DSA should not prescribe particular funding models.
FOOTNOTES
1. DSA s 3(c).
2. DSA s 19(1).
3. See para 5.4-5.5.
4. Services provided or funded under the Home and Community Care Act 1985 (Cth) are not designated services, except those co-funded services provided or funded through the Home Care Service. All other services provided or funded by the Minister for Ageing and Disability are designated services: DSA s 4; and Disability Services Regulation 1993 (NSW) cl 3 and Sch 1. This is discussed further in Ch 10.
5. Eligible organisation means: a body corporate; a local authority; a tertiary institution; the Commonwealth Government; a Minister or authority of the State (or someone exercising powers on his or her behalf); and any society, association or body prescribed by the regulations, or belonging to a class prescribed by the regulations: DSA s 4.
6. DSA s 10(1).
7. DSA s 12A.
8. DSA s 5(1).
9. Within the meaning of the Mental Health Act 1990 (NSW): DSA s 5(2).
10. DSA s 5(2).
11. Disability Safeguards Coalition, Submission; Paraquad NSW, Submission; Nepean Independent Living Committee Inc, Submission; and NSW Government, Submission.
12. Nepean Independent Living Committee Inc, Submission.
13. Multicultural Disability Advocacy Association of NSW Inc, Submission; Physical Disability Council of NSW Inc, Submission; NCOSS, Submission; and Dare to Care, Submission.
14. See, for example, R Banks and R Kayess, “Disability Advocacy: Too Much Talk and Not Enough Action” in M Hauritz, C Sampford and S Blencowe (ed), Justice for People with Disabilities: Legal and Institutional Issues (Federation Press, Sydney, 1998) at 156-158.
15. Anti-Discrimination Act 1977 (NSW) s 4.
16. Unless, of course, additional funding was provided.
17. ALRC 79 at para 5.10-5.12.
18. See para 5.4.
19. DSA s 6.
20. This is discussed in Ch 6.
21. DSA s 10(2).
22. DSA s 17(1).
23. DSA s 12(1). Funding for approved research or development activity must also be subject to similar terms and conditions: DSA s 13(1).
24. DSA s 12(2). Funding for approved research or development activity may also be subject to similar terms and conditions: DSA s 13(2).
25. See Recommendations 26-27 at para 7.27. This body would also certify a transition plan that has prepared a satisfactory transition plan.
26. DSA s 3(d).
27. NSW, ADD, Annual Report 1997/98 at 36.
28. DSA s 10(1)(a).
29. IP 16 at para 2.48-4.50.
30. See, for example, DeafBlind Association NSW, Submission; NSW Government, Submission; Autism Association of NSW, Submission; and NSW Council for Intellectual Disability, Submission.
31. NSW Government, Submission.
32. Centre for Developmental Disability Studies, Submission; and The Spastic Centre of NSW, Submission.
33. Paraquad NSW, Submission.
34. ACROD Ltd NSW Division, Submission.
35. Disability Safeguards Coalition, Submission; and DeafBlind Association NSW, Submission.
36. NSW Council for Intellectual Disability, Submission.
37. NCOSS, Submission.
38. Disability Council of New South Wales, Submission.
