Employing a Private Disability Support Worker Has Potential Risks

NDIS Self-Managed Potential Risks – When Employing a Private Disability Support Worker

This is a Discussion Paper on the Potential Risks Associated with Employing a Private Disability Support Worker

Background:

I believe the NDIS is a world leading progressive approach to ensuring that Australians with a disability can live their best life.

Since its inception the NDIS has been evolving through a process of continuous improvement or “action learning”. A problem is identified an appropriate solution is developed and implemented creating a resolution to the problem whist simultaneously improving the overall scheme. A lot of progress has been made; however, I believe there currently exists within the NDIS scheme a significant opportunity to tighten up as quickly as possible.

The problem is ABN Private Disability Support Workers who are an unregulated sector of the NDIS workforce which is exposing the NDIS (Participants, Families and Private Disability Support Workers) and the sector to significant potential risk. There are guidelines provided but compliance is not audited or enforced. This is well known but there appears to be no plan to address the risk. The purpose of this discussion paper is to educate and open the conversation within the disability sector to ultimately result in a plan for the state and federal governments to take steps to address the risks.

“WHAT” IS THE CURRENT SITUATION: NDIS Self-Managed Participants Employing Unregistered Private (ABN) Disability Support Workers

• The NDIS has provided different options for participants to manage their NDIS plan, promoting choice and control. One option for the NDIS self-managed participants is to engage an unregistered private sole trader Disability Support Worker/s. The benefits of this consumer directed support include promoting choice and control as well as providing one solution to the ongoing workforce demand. Unfortunately, because of the shortcomings with this approach from a quality and safeguards perspective, this can potentially expose the Participants and the Private Disability Support Workers to significant risk. There is no regulation of these Private Disability Support Workers who are funded from and enabled by the NDIS.

• Private Disability Support Workers can commence services as soon as they gain an ABN and work immediately as an unregistered NDIS provider.

• While there are several mechanisms and safeguards in place, the reality is that they are not enforced. The NDIS Quality and Safeguards Commission (NDIS Commission), Australian Taxation Office, Office of Fair Trading and the NDIA all have a role to play to ensure that relevant legislation, rules, and regulations are followed.

• A best practice checklist as an unregistered sole trader provider of NDIS funded supports and services below (Sourced from My Foundations) highlights the sheer complexity of operating as a sole trader. While some sole traders would be compliant, safe to say many would not be. Registered NDIS providers are subject to regular comprehensive audits to ensure compliance, corrective actions, and continuous improvement. There is no audit process for sole traders providing the exact same services.

1. have a Tax file number (TFN)
2. obtain an Australian Business Number (ABN) from the Australian Taxation Office (ATO) and understand what it means to have an ABN
3. know if you need to register for goods and services tax (GST), even though many NDIS supports, and services are exempt from GST
4. hold a current National Police Check, and paid worker Working With Children Check (if you are working with or around people under 18 years of age) OR have an NDIS Worker Screening Clearance
5. understand your obligations under the NDIS Code of Conduct, and the Child Safety Principles
6. complete, and have the certificate to show you have completed, the NDIS Quality and Safeguards Commission Worker Orientation Module – this is an essential training module for all NDIS workers who engage directly with participants and/or their confidential information
7. complete, and have the certificate to show you have completed, the Infection Control (COVID-19) Training – this is recommended for all health workers, including support workers
8. be able to show a certificate of currency demonstrating that you have adequate Insurance against claims of Professional Indemnity and Public Liability
9. assess your risk to determine if you need or want some form of Personal Accident and Injury Insurance in case you sustain serious injury or illness – as you are not typically eligible to take out workers compensation insurance as a sole trader
10. have a current and valid Driver Licence, and the ability to provide a Demerit Points Check, where your services include travel and/or transport
11. be able to show a certificate of currency demonstrating that you have Comprehensive Motor Vehicle Insurance, which includes coverage for business use if your vehicle is used for work purposes
12. have a Service Agreement 
13. have a Consent Form with Privacy Policy in accordance with the Privacy Act 1988 – see sample consent form
14. have an Invoice that meets NDIA requirements – see sample invoice
15. obtain and maintain qualifications and/or training where this is necessary to provide responsible and safe service delivery, mandated by industry, desired by the participant, or required by your insurance company
16. develop a process to manage Incidents, including Reportable Incidents, in accordance with the NDIS Act 2103
17. develop a process to manager Complaints and Feedback, which is typically also explained within your service agreement
18. have a thorough knowledge of Restrictive Practice and your reporting responsibilities under Human Rights Law and the NDIS Act 2013
19. develop relevant forms, policies, processes, and procedures where day-to-day tasks and functions need to be clearly defined, for example; how and where will you safely store confidential information and notes about supports and services provided; if you provide assistance with medication, how will you document and act on things like a medication error;  if you handle another person’s money as part of your service, how will you be transparent and accountable; when visiting a person’s home, which is also your workplace, how will you assess, document, and act on risks while still respecting that you are in a person’s home?
20. understand your responsibilities under Consumer Law, as NDIS participants are consumers of products and services and therefore protected by consumers’ law
21. have the ability to provide referees or testimonials should a perspective participant request them
22. be able to provide some form of photo identifications to show participants you are who you say you are
23. engage in regular Professional Supervision, especially in the absence of a manager and/or senior peer support

“SO, WHAT” ABOUT THE CURRENT SITUATION:   NDIS Self-Managed Participants Employing Unregistered Private (ABN) Disability Support Workers

• NDIS self-managed Participants engage with sole trader Private Disability Support Workers with an ABN on the understanding and belief that all the compliance, checks and balances are adhered to. After all, the Private Disability Support Worker has an “ABN”. This can potentially provide significant exposure to risk for all involved. The NDIS self-managed Participants assume that the Private Disability Support Worker is running as an independent business and as such, the duty of care rests with the Private Disability Support Worker. However, many overwhelmed families may not understand the risks to their estates if there was a WorkSafe incident in their home, and may not have the correct insurances in place, as well as the list of checks they must ask for prior to employing a Private Disability Support Worker.

• As the NDIS allows individual Private Disability Support Workers to provide supports, the perception by NDIS self-managed Participants is that the ABN Private Disability Support Workers have been approved by the NDIS and comply with the level of quality and safety stated in the NDIS Practice Standards, in the same way NDIS registered providers who have undergone stringent application and audit processes comply with the standards.

• The varied employment conditions of the sole trader Private Disability Support Worker, especially remuneration and benefits are creating a workforce paid significantly out of kilter in relation to the role performed and with no relation to the SCHADS award. NDIS self-managed Participants have no limit on the hourly base rate or other rates they choose to pay Private Disability Support Workers.  It is not uncommon for a sole trader to be charging from $50 to $80 per hour as a base rate. This could be judged as an inappropriate application of the NDIS funds and would not stand public scrutiny. It is also potentially attracting people into the sector for the wrong reasons. This remuneration is also at odds with a NDIS registered provider who for $60 per hour as per the pricing limits under the NDIS Pricing Arrangements must undertake the same work but also meet all the NDIS rigorous compliance requirements, fund the organisation, as well as pay the Disability Support Worker under the complex SCHADS award. An uneven playing field has been created, making it unsustainable for registered service providers.

• Given the stark difference in the playing field for registered and unregistered Private Disability Support Workers, it is not uncommon for the Disability Support Workers to commence at a registered provider, engage with participants sourced by the NDIS provider, be trained up by the NDIS provider and then leave to work directly into the Participant at a significant premium just by attaining an ABN. This is promoted as an example of the Participant exercising choice & control over their paid supports. The time and effort spent by organisations undertaking checks, training, and matching with Participants is not recognised.

• “Mable” who is not a NDIS Registered Provider, provides an alternative way to engage Private Disability Support Workers independently, but there are very similar challenges with this model.

• One of the aims of the NDIS was to allow for new and innovative NDIS registered service providers, however there are increasing barriers to entry, in an uneven competitive landscape where anyone can start providing services. It is a two-stream environment, one being highly unregulated, which creates an environment of risk for a vulnerable section of the community.

“NOW WHAT” ABOUT THE CURRENT SITUATION: NDIS Self-Managed Participants Employing Unregistered Private (ABN) Disability Support Workers

• The issue about the sole trader Private Disability Support Worker is well known in the sector and a growing issue, ultimately putting at risk the Participants and Private Disability Support Workers.

• The plan from here is to start to open a conversation in the disability sector to create an awareness of the issues and risks to ultimately influence positive change in the interests of Participants, Disability Support Workers and Families.

Justin Scanlon – Founder Hearth Support Services

14th October 2021