As seen in Understanding disability and the law, under the National Disability Agreement, the Commonwealth Department of Social Services (DSS) (formerly called the Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA)) does not itself provide any specialist services, but funds and monitors some employment and advocacy services.
By contrast, the Victorian DHHS currently directly provides a number of specialist accommodation, case management and support services, as well as funding and monitoring a range of local government and non-government services. Most of the government operated services are for people who have an intellectual disability and who are eligible for services under the Disability Act.
Funded local government and non-government services include services for people who have an intellectual disability, as well as services funded under the Disability Act for people who have other sorts of disabilities and need specialist services.
Requests for services for a person who has an intellectual disability may be made directly to disability service providers. A formal assessment may not be required if disability is accepted as self-evident. Under previous legislation, the IDPSA, an assessment and declaration of eligibility had to be made, using the definition of intellectual disability in the legislation, before services were provided.
As with intellectual disability, requests for services for people who have other disabilities may be made directly to disability service providers. A formal assessment may not be required if disability is accepted as self-evident. (Under the previous legislation, an assessment and declaration of eligibility to receive disability services had to be made prior to provision of services.)
Depending on the individual person’s type of disability, disability services may be requested for children under the category of intellectual disability (s 3(b) of the Disability Act), or, where more relevant, under one of the other categories, including:
•section 3(a) – sensory, physical, acquired brain injury or neurological impairment (e.g. for neurological impairment and Autism/ASD see “Autism Spectrum Disorders”); or
•section 3(c) – developmental delay*.
* A definition of “developmental delay” is provided in Understanding disability and the law, under “Disability Act”.
Sections 49 and 50 of the Disability Act set out the process for requesting disability services, which may include a request to the Secretary for a decision as to a person’s disability. If the decision is that the person does not have a disability, an appeal may be made to the Victorian Civil and Administrative Tribunal (VCAT) (s 50). An application for a review must be made within 28 days after the person receives the written advice from the Secretary.
Eligibility to receive services under the Disability Act does not give rise to an “entitlement” to services. It should be noted that there is extensive unmet need for disability services in the Victorian community, with many people on waiting lists for appropriate accommodation and other vital services; governments frequently cite “finite resources” as the reason for this. Disability advocates have long lobbied government for adequate resources and for an entitlement to disability services; the National Disability Insurance Scheme is the response.
Services provided or funded by the DHHS are considered to be “voluntary” except for “security residents” or “forensic residents” (for more details, see “Intellectual disability” in Disability and criminal justice). However, note that people who are neither security nor forensic residents may be subject to restrictive practices without consent in accordance with restraint and seclusion provisions under parts 7 and 8 of the Disability Act, regarding restrictive interventions and compulsory treatment (see “Supervision of restrictive interventions”).
Services include case management (e.g. linking clients to a range of services), preparation of a service plan (termed a “Support Plan” in the Disability Act and also called a “Person Centred Plan”), outreach support in the person’s home, respite, long-term accommodation, recreational and vocational services.
Under the Disability Act, a person with a disability, or a person on their behalf, may request assistance with planning from a disability service provider. The provider must, within a reasonable time, arrange for the assistance to be provided (s 53). A person receiving “ongoing disability services” must be provided with a Support Plan within 60 days of commencing to regularly access the disability services (s 54). Review of the Support Plan may be requested at any time and must occur at least once every three years.
Section 52 of the Disability Act sets out “Guiding Principles for Planning”, including, among others, that it should: be individualised; directed at the person; consider (where relevant) the role of family and other significant persons; advance participation in the community; be underpinned by the right of the person to exercise control over their own life; and maximise choice and independence. Planning for people who have an intellectual disability should be undertaken in accordance with these principles.
The new approach to planning is referred to as “person-centred planning”. A person who has an intellectual disability must be offered assistance with planning by the disability service provider from whom they have requested disability services. The assistance must be provided within “a reasonable time” after an offer of services is accepted (s 55).
Prior to 1 July 2007, under the IDPSA (now repealed) people who had an intellectual disability had the “right” to receive a “Review of their Plan” by either the DHS or the Intellectual Disability Review Panel, which is now disbanded. The Disability Act does not provide a “right” to have a plan independently reviewed. Instead, a person who is unhappy about the contents of their plan may “make a complaint” to the service provider, which must have a complaints mechanism in place. The person may also make a complaint to the Disability Services Commissioner (“the Commissioner”). The Commissioner may accept or reject the request to deal with a complaint, or may decide to deal with some aspects of the complaint, but not others.
Investigation and/or conciliation may follow the making of a complaint to the Commissioner (ss 14, 16, 107–124 Disability Act). Complaints about various other decisions or actions of service providers, not only planning issues, may also be made to the Commissioner. To date, the Commissioner has usually chosen to conduct conciliations rather than investigations. Unfortunately, unlike its predecessor the IDRP, the Commissioner does not make recommendations. The conciliation process itself may, however, lead to some beneficial outcomes for complainants. It is often a slow process due to limited resources.
It is generally expected that a complaint to the Commissioner will have first been made to the service provider itself, in an effort to resolve the issue. The Commissioner may, however, decide to consider a complaint where one has not first been made to the service provider. It may be useful to advise the Commissioner of an issue and that a complaint is being made to a service provider, so that the Commissioner will be aware of a situation in advance of it possibly becoming a complaint to the Commissioner.
The Disability Act provides for some matters, such as disability accommodation tenancy issues and restraint and seclusion matters, to be dealt with by VCAT.
Further information about making a complaint to the Commissioner can be obtained from the Office of the Disability Services Commissioner’s website at www.odsc.vic.gov.au. Further information on the Disability Act and complaints mechanisms can be obtained from the DHS website at www.dhs.vic.gov.au/disability.
From 1 July 2013, residents of the Barwon Region of Victoria have been applying to the National Disability Insurance Scheme (NDIS) for disability services.
Complaints about the NDIA (which administers the NDIS) are managed internally by NDIA officers, or can be escalated to the Commonwealth Complaints Resolution and Referral Service, Commonwealth Ombudsman, or the Administrative Appeals Tribunal for a review of a decision.
For further details, see the NDIS website at www.ndis.gov.au.