INTRODUCTION
6.1 The introduction of the DSA heralded a new era in the provision of disability services, with an emphasis on integration and independence for people with disabilities. Services that commenced operation after the DSA was enacted were expected to comply with the Act’s new philosophy (as embodied in its objects, principles and applications of principles). However, most, if not all, of the older services that existed before the commencement of the DSA did not comply with the policy objectives of the Act. To overcome this, the DSA established a process of transition, whereby those older services would develop a transition plan outlining the manner in which they would achieve conformity with the objects, principles and applications of principles.1 Services required to prepare transition plans are commonly known as transition services. It was envisaged in the DSA that transition services would achieve conformity with the goals of the DSA within three years of the Act’s commencement.2
6.2 Funding has been made available which will eventually assist all transition services to achieve conformity.3 The Commission refers to that type of funding as transition funding. To date, only some transition services have received transition funding. Consequently, there are currently three categories of disability services:
1. those which comply with the objects, principles and applications of principles in the DSA;
2. those transition services which are receiving transition funding to assist them to comply with the objects, principles and applications of principles in the DSA; and
3. those transition services which are not yet receiving transition funding.
This chapter discusses the provisions of the DSA designed to ensure that transition services4 achieve conformity with the objects, principles and applications of principles. It describes the transition process to date and considers whether the transition provisions are appropriate for achieving the goals of the DSA.
TRANSITION FUNDING PROVISIONS
Transition plans
6.3 The DSA imposes a duty on the Minister to ensure that disability services are provided and funded in conformity with the Act’s objects, principles and applications of principles.5 In relation to transition services, however, this duty was suspended for three years beyond the date when the Minister determined that the service should prepare a transition plan.6 During this three-year period, the Minister’s duty was to ensure that these services were provided or funded as closely as possible in conformity with the objects, principles and applications of principles.7 That duty continues to apply even though the three-year period has elapsed.
6.4 The DSA requires that transition plans must:
- ensure that the service concerned be provided or funded as closely as possible in conformity with the objects, principles and applications of principles; and
- indicate the date (being the earliest date practicable) by which the service will reach full conformity.8
The Minister may, by order published in the Government Gazette, adopt a transition plan, which comes into effect on the date published.9 Before adopting the transition plan, the Minister must be satisfied that the people to whom the service is being provided and their families, carers and advocates have, as far as practicable, been consulted about the plan.10
TRANSITION PROCESS
Assessment
6.5 ADD uses the Disability Services Standards (“the Standards”) to assess whether services conform to the objects, principles and applications of principles.11 In its 1996/97 Annual Report, ADD reported that approximately 1,100 disability services in NSW have self-assessed against the Standards. Of that number, 278 services conformed to the DSA, while 813 had some non-conforming practices and were required to prepare transition plans.12 Data collected by ADD on the 1998 self-assessments from 1,005 non-government service providers, showed that 390 (39%) had transition plans. Of those, 25 (7%) had been completed, 216 (56%) had commenced working towards achieving the goals in their plans, 85 (22%) were waiting on transition plan funding and the status of 57 (15%) was unknown.13 The 1998 self-assessments from DOCS service providers showed that, of the 556 DOCS services, 92% (509) had transition plans. Of these, 27 (5%) had been completed, 357 (71%) had been commenced and 124 (24%) were waiting for transition plan funding.14 In some cases, considerable funding is required, especially where buildings need to be re-configured and people integrated into the community.15
Duty to conform as closely as possible
6.6 As the Commission noted earlier, the three-year time limit, whereby all services were to reach full conformity with the legislative requirements of the DSA, has expired. However, at least 30% of non-government and 86% of DOCS disability services do not conform fully to the objects, principles and applications of principles.
6.7 In 1997, an audit report of large residential disability services in NSW stated that there was no definition of “conforming as closely as possible”. Nor are there any criteria against which conformity could be measured, or which establish the basic requirements for resident safety and protection from abuse.16 The report found that some non-conforming (transition) services did not meet even basic safety and protection standards. The report recommended that the Government consider having a policy that no more people be placed in non-conforming institutions, even on a respite or crisis basis. Further, it recommended that a decision to place a person in a non-conforming service should only be made by the Guardianship Board,17 in the case of adults, and by the Minister for Community Services,18 in the case of children. The report suggested that any necessary legislative amendments should be made to achieve this.19
6.8 ADD has implemented the recommendations of the report by producing a Standards in Action manual,20 which sets minimum standards for all services for people with a disability. ADD is also developing a standards manual (adapted from Standards in Action) which specifically targets large government and non-government disability residential centres.
VIEWS IN SUBMISSIONS
Transition provisions supported
6.9 Submissions and consultations indicated strong support for a process to ensure that services reach full conformity with the DSA’s objects, principles and applications of principles. Submissions argued that the problems with the transition process arose not from the provisions in the DSA, but from their implementation. Submissions identified a number of reasons why the transition provisions have failed to meet the objectives of the DSA.
Lack of funding
6.10 A major concern expressed in submissions and consultations was that insufficient transition funding has been allocated to enable non-conforming services to reach full conformity with the objects, principles and applications of principles.21 This has had a number of consequences, according to submissions. For example, many people with a disability are being denied the kind of life to which they are entitled as members of the community. Lack of transition funding has led to inefficiency because services are required to prepare transition plans which they do not have the resources to implement. The plans consequently become out of date, leaving the service and its users in an uncertain position.22 A letter to the CSC highlights the effect of this uncertainty:
The fact that [a large residential centre] may be devolved at some unspecified time in the future is, I am sure, a major factor in the inability of the Centre to attract permanent staff and in the low morale among existing staff. It is also a matter of great concern to the parents of the present residents of the Centre.23
Standards are inadequate to measure conformity
6.11 Service users and providers with whom the Commission consulted were of the view that the Standards are not an appropriate mechanism for measuring whether or not a service conforms to the objects, principles and applications of principles in the DSA. This issue is discussed further in Chapter 7.
Inadequate assessment and approval process for transition plans
6.12 Another concern expressed in submissions and consultations was the process used by ADD to approve transition plans. In most cases, services assess themselves to identify whether they comply with the objects, principles and applications of principles. Each service prepares and submits a transition plan, which is assessed by an independent consultant. The Minister then approves the plan if he or she considers it to be appropriate. There have been a number of appeals against the Minister’s decision to approve transition plans. The Community Services Appeals Tribunal (as it then was) criticised certain transition plans initially approved by the Minister on the grounds that:
- the plans did not identify how they were to achieve full conformity by a specified date;
- the plans did not adequately record specific outcomes the service was planning to achieve, and the strategies, performance indicators and time-frame that would be used to achieve these outcomes; and
- the plans would not result in the service achieving conformity with the objects, principles and applications of principles.24
Failure to monitor conformity as closely as possible
6.13 A number of submissions were concerned that services with transition plans, including DOCS services, had not been monitored adequately to assess whether they were conforming as closely as possible with the objects and principles and applications. The CSC has also expressed concern about this in a number of inquiries it has conducted.25
THE COMMISSION’S VIEW
Transition process should remain
6.14 The Minister should continue to have a duty to ensure that services are provided and funded in conformity with the objects, principles and applications of principles. The reality is, however, that there are still a number of transition services that do not conform with the objectives of the DSA. As many transition services are large institutions which house people with a disability and meet most, if not all, of their support needs, closing these services for non-conformity is often not a viable alternative. The DSA should, therefore, continue to provide recurrent funding to enable these services to operate, as well as transition funding to assist them to reach conformity with the objects, principles and applications of principles.
6.15 The Commission considers that the current transition process needs to be streamlined and clarified. At present, the amount of transition funding available is insufficient to assist all transition services to achieve full conformity with the DSA. As a result, all transition services must prepare a transition plan ensuring that they conform as closely as possible with the DSA and detailing how they will achieve full conformity, even though only some services are receiving the funding to implement the plan. Those services not in receipt of transition funding are therefore in an uncertain position, unaware of when their transition plans may be implemented. As there is no system in place to update or revise the plans, they may be out of date or inappropriate by the time the transition funding is made available.
A two-stage transition process
6.16 In October 1998, the Minister announced a 12-year plan to devolve the larger centres.26 Given the impact on the rights and living conditions of the residents of these centres, the Commission considers that 12 years is too long. The critical issue, however, is that the Government allocates funds and sets a final date by which full conformity must be achieved. Providing time-frames in the DSA for the allocation of transition funding and for reaching conformity with the Act has proved not to be realistic. Instead, the DSA should provide for a transition process whereby the Minister gives each service notice of when it will receive transition funding and the final date on which it is expected to reach conformity. The Commission is of the view that the transition process should comprise two stages as follows.
Stage 1 transition
6.17 Stage 1 involves a transition service (referred to here as a “Stage 1 transition service”) that is more than 12 months away from receiving transition funding. Rather than prepare a transition plan outlining the steps to full conformity with the DSA, a Stage 1 transition service should be required to prepare a different plan, referred to here as a “Stage 1 transition plan”. A Stage 1 transition plan must show how the service is meeting, or intends to meet, certain identified basic criteria. This would replace the current vague requirement to show that a service is conforming “as closely as possible” with the objectives of the DSA. In its submission, the CSC suggested the development of basic criteria, such as occupational health and safety standards and human rights issues, below which no service should be allowed to operate.27 In Chapter 7, the Commission recommends the establishment of DisQAC to monitor quality in all services funded under the DSA.28 The Commission considers that the basic criteria for Stage 1 transition plans should be developed by DisQAC in consultation with industry and consumer groups, and peak bodies. Stage 1 transition plans must be lodged with DisQAC.
Stage 2 transition
6.18 Stage 2 concerns a service (referred to here as a “Stage 2 transition service”) that is scheduled to receive transition funding in, or sooner than, twelve months. At that point, the service should be required to prepare a final and detailed transition plan (referred to here as a “Stage 2 transition plan”) outlining how full conformity will be achieved, and the date on which this will occur. The Commission considers that Stage 2 transition plans should only have to be prepared once the receipt of transition funding is imminent so that the plans remain current. The 12 month period should be sufficient time for a service to prepare a plan, lodge it with DisQAC, and have the latter assess and approve it, and recommend any necessary changes.
Assessment and monitoring
Assessment, certification and monitoring of Stage 1 transition services
6.19 Stage 1 transition services should submit their plans to DisQAC, which would assess their adequacy. DisQAC may, if satisfied that a plan would result in the service meeting the basic criteria for service provision, approve the plan and certify the service as complying with the minimum requirements for receiving any form of funding under the DSA. Compliance with the plan would also be monitored by DisQAC through the annual self-assessment process which all services are required to complete.29 To ensure maximum compliance, Stage 1 transition plans should be linked to funding. The DSA should provide that the Minister only has the power to fund or provide Stage 1 transition services, which have been certified by DisQAC as meeting the basic criteria in the Stage 1 transition plans.
Assessment, certification and monitoring of Stage 2 transition services
6.20 The process for assessing Stage 2 transition services should involve input from all sectors, including service providers, consumers and peak groups. It should focus on the rights and needs of people with a disability, and avoid the possibility of a conflict of interest. Stage 2 transition plans should be scrutinised by DisQAC to assess whether they comply with the objects, principles and applications of principles in the DSA. This would remove some of the factors which precipitated the appeals against the decisions of the Minister to adopt certain transition plans. DisQAC would certify a Stage 2 transition service if it were satisfied that implemention of its plan would assist the service to achieve conformity with the objects, principles and applications of principles. Until its plan has been implemented fully, a Stage 2 transition service would be expected to comply as closely as possible with the requirements of the DSA. DisQAC would monitor Stage 2 transition services to ensure that their plans are implemented within the nominated time-frame, and that a sufficient degree of compliance with the DSA is being achieved in the intervening period. The DSA should state that the Minister for Disability Services may only fund Stage 2 transition services that have been certified by DisQAC.
Measuring outcomes
6.21 Submissions did not view the Standards as an effective means of measuring a service’s conformity with the objects, principles and applications of principles. It was considered that they are too prescriptive and focus on process rather than outcomes. The Commission discusses this issue in the context of a new quality assurance system in Chapter 7. DisQAC should develop new methods to assess whether Stage 1 and 2 transition plans are appropriate. The methods adopted by DisQAC should, as far as possible, focus on the outcomes sought for people with a disability, and have criteria against which the achievement of those outcomes may be assessed.
Recommendation 19
The DSA should be amended to require the Minister to prepare and publish, within six months of this amendment coming into effect, a plan stating how all transition services will be funded to reach conformity. The DSA should require the plan to identify:
- the amount of transition funding required to enable all services to achieve conformity;
- the date by which all transition funding will have been granted and all services will have achieved conformity; and
- the date on which each service will receive transition funding and the date on which each service will have achieved conformity.
Recommendation 20
The DSA should be amended to provide for a two-stage transition process: Stage 1 and Stage 2.
Recommendation 21
The Commission recommends that a Stage 1 transition service would be one scheduled to receive transition funding more than twelve months in the future. A Stage 1 transition service should be required to prepare a plan to show how the service is meeting, or intends to meet, certain identified basic criteria. Those criteria should be developed by DisQAC (see Recommendation 25) in consultation with industry and consumer groups, and peak bodies.
Recommendation 22
The Commission recommends that a Stage 2 transition service would be one scheduled to receive transition funding in, or sooner than, twelve months.
A Stage 2 transition service should be required to prepare a final and detailed transition plan outlining the steps to achieving full conformity, and the date on which this will occur.
Recommendation 23
The DSA should be amended to provide that Stage 1 and Stage 2 transition plans should be lodged with DisQAC, which would be responsible for assessing the plans and, if suitable, certifying the services. The development of criteria for assessing the suitability of the transition plans should involve input from the service industry, consumers and peak bodies. DisQAC should also monitor the implementation of the plans.
Recommendation 24
The DSA should be amended to provide that the Minister for Disability Services is empowered to fund or provide only those services which:
- comply fully with the objects, principles and applications of principles in the DSA;
- have been certified by DisQAC as having suitable Stage 1 transition plans and which continue to meet those plans; or
- have been certified by DisQAC as having suitable Stage 2 transition plans and, until those plans are implemented fully, continue to comply as closely as possible with the requirements of the DSA.
Recommendation 25
The DSA should be amended to provide that, on achieving full conformity, a service must comply with the requirements of the quality assurance process applicable to all services (see Recommendations 26-28).
FOOTNOTES
1. DSA s 7.
2. The three-year period proved to be somewhat unrealistic, with many services remaining in transition today.
3. The total transition funding pool of $39.4 million has been allocated over four funding rounds. $18.45 million was made available on a recurrent basis and $20.95 million was available as non-recurrent funds. Of the 572 services that requested funding, 451 services (79%) received full or partial transition funds: NSW, ADD, Annual Report 1997/98 at 42-43. In 1998, ADD estimated the cost of full implementation of transition plans for DOCS large residential services to be $72.96 million: Information provided by DOCS (2 November 1998).
4. In this chapter, transition services are taken to mean those services described in items 2 and 3 in para 6.2.
5. DSA s 6(1).
6. The decision that a service must prepare a transition plan was to be made within two months after the commencement of the Act: DSA s 6(2) and 6(3).
7. DSA s 6(4) emphasis added.
8. DSA s 7(4).
9. DSA s 7(5) and 7(6).
10. DSA s 7(8).
11. See Chapter 7 for a discussion of the Standards.
12. NSW, ADD, Annual Report 1996/97 at 22.
13. NSW, ADD, Non-Government Service Providers’ Self-Assessment Package: Feedback Report to the Director General (1998) at 177 and 179.
14. NSW, ADD, Self-Assessment Package: Feedback Report to the Director General: Department of Community Services (1998) at 107 and 109.
15. Since 1995, the Government has allocated funds that have enabled over 651 people to leave institutions and receive the support they need to live in the community. As a result, 13 institutions have been closed. NSW Government, Submission at 10.
16. CSC and Audit Office Report at iv.
17. As an independent substitute decision-maker.
18. The report argued that this decision-making authority should not be delegated: CSC and Audit Office Report at xii.
19. CSC and Audit Office Report at xii.
20. NSW, ADD, Standards in Action (1998).
21. See, for example ACROD Ltd NSW Division, Submission; Ethnic Childcare, Family and Community Services Co-operative Ltd, Submission; Crossroads Christian Fellowship With Disabled Persons in NSW Inc, Submission; Citizen Advocacy NSW, Submission; NCOSS, Submission; and Disability Information Service Inc, Submission.
22. Consultation (Service providers, Sydney).
23. NSW, CSC, The Lachlan Inquiry 1998: An Assessment of the Standard of Care at the Lachlan Residential Centre and of Progress Since the 1995 Investigation (1998) at Appendix 3 (emphasis in original).
24. People with Disabilities (NSW) Inc and the NSW Council on Intellectual Disability v Minister’s decision to adopt the transition plan for Dunrossil Challenge Foundation Ltd (NSW, Community Services Appeals Tribunal, Appeal No 061 and 195, 12 February 1998, unreported); and People with Disabilities (NSW) Inc and the NSW Council on Intellectual Disability v Minister’s decision to adopt the transition plan for Disability Enterprises Leura, trading as Greystanes Children’s Home (NSW, Community Services Appeals Tribunal, Appeal Number 0167 and 194, 17 March 1998, unreported).
25. See for example, NSW, CSC, Suffer the Children: The Hall for Children Report (1997) at 2 and 55; CSC and Audit Office Report at 80.
26. The Hon F Lo Po MP, untitled paper presented at the NCOSS Conference (8 October 1998) at 7.
27. CSC, Submission.
28. See para 7.20-7.22 and Recommendations 26-27.
29. See para 7.24-7.25.
