This guide clarifies the roles and responsibilities of Family and Community Services (FACS), FACS funded non-government organisations (NGOs) and the Department of Justice, Juvenile Justice NSW (JJ NSW) in supporting shared clients1 with disability to access the National Disability Insurance Scheme (NDIS).
JJ NSW supervises and supports children and young people sentenced to community-based or custodial orders, supervises children and young people on bail as directed by the court, provides support to young offenders to meet the conditions of bail, supervises children and young people remanded in custody pending finalisation of their court matters and prepares reports for the consideration of the courts in determining sentences. JJ NSW also administers youth justice conferencing.
All elements of the justice system (and relevant elements of the civil justice system) are responsible for meeting the needs of children and young people with disability in line with the National Disability Strategy and existing legal obligations, including making reasonable adjustments2 in accordance with the Disability Discrimination Act 1992.
Pathways to the NDIS for children and young people with disability serving a custodial sentence, on bail, parole or a non-custodial order are outlined in the Operational Guidance for NSW Mainstream Services on the Interface with the National Disability Insurance Scheme.
The NDIS Act3 assumes that children or young people under the age of 18 are generally unable to make decisions for themselves and will be represented by the person(s) or agency that holds Parental Responsibility. This person is referred to as the ‘child’s representative(s)’ and is responsible for making decisions in accordance with the child or young person’s best interests.
For children and young people under Parental Responsibility of the Minister for Family and Community Services, the person with out-of-home care (OOHC) case management responsibility (FACS or NGO) will be the child’s representative.
The Parental Responsibility of a shared client and their representative for NDIS purposes remains unchanged when entering custody.4
JJ NSW has primary case management responsibility of a shared client in custody. For shared clients in the community that are under Parental Responsibility of the Minister, the relevant designated OOHC agency (either FACS or a NGO) has primary case management responsibility.
Where applicable, JJ NSW staff will undertake relevant assessments (or obtain existing assessments from other agencies), such as undertaking a Justice Adolescent Health check, to identify any psychological and/or psychosocial, intellectual, sensory or physical disabilities. JJ NSW centres can also provide information on the child or young person’s functional and specialist support needs, with consent of the person or their guardian.
For shared clients with disability who enter detention it is the responsibility of FACS (or NGO) staff with OOHC case management responsibility to undertake activities related to the NDIS access, planning, monitoring and review process.
JJ NSW will determine if there is an NDIS plan in place by contacting the FACS or NGO with OOHC case management responsibility. Where the person has funded support coordination, JJ NSW staff will also contact the Support Coordinator responsible for coordinating their NDIS Plan.
The OOHC caseworker, in collaboration with JJ NSW, will need to determine if an urgent NDIS plan review request is required. If one is required, the OOHC caseworker must submit this request to the National Disability Insurance Agency (NDIA) as soon as possible.
Where a young person experiences changes in their functional needs or circumstances and these are assessed as requiring support beyond reasonable adjustment, JJ NSW staff will notify the OOHC caseworker to contact the NDIA to request a plan review.
The OOHC caseworker is responsible for notifying the NDIA of any change in circumstance that may affect the child or young person’s NDIS plan.
JJ NSW staff will provide copies of relevant assessments and other information on the person’s functional needs that may assist the Support Coordinator or the NDIA to determine whether a plan review is required or to inform a plan review.
JJ NSW centre staff may meet with the Support Coordinator and/or NDIS representative, subject to the OOHC caseworker’s consent.
Should a review be approved by the NDIA, JJ NSW will need to have input regarding the young person’s revised needs and reasonable adjustments whilst in the detention centre and post release.
JJ NSW staff will facilitate the access to and delivery of NDIS funded support while a participant is incarcerated. This includes obtaining approval for relevant stakeholders (including the OOHC caseworker) to enter the detention centre environment to meet with participants and develop their NDIS plan, review their plan and deliver NDIS funded supports.
JJ NSW will provide information to the NDIS representative, OOHC caseworker and/or Support Coordinator on known or estimated timeframes for when release decisions will be made, as appropriate.
The OOHC caseworker and JJ NSW staff must undertake joint case planning and/or facilitate multi-agency transition planning, particularly with Housing NSW and other relevant agencies and support services, to ensure that no child or young person exits care or custody into homelessness.5
Where a shared client is an existing NDIS participant and serving a long sentence, the JJ NSW detention centre will inform the FACS/NGO OOHC agency at least 3 months prior to the earliest release date, so that the OOHC caseworker may request an NDIS plan review (and where appropriate mark it as urgent) to facilitate supports required.
JJ NSW detention centres will facilitate appropriate access to day/work release to enable the timely completion of NDIS assessments for determining the NDIS supports required for the person’s successful re-entry into the community
JJ NSW detention centre staff will provide information to JJ NSW Community base staff on the person’s post release plan, where available, including any NDIS funded supports and the names of providers that will be delivering these supports. Information on the person’s post release plan will also be provided to their NDIS providers by detention centre staff, subject to consent.
Where a participant’s NDIS plan includes funded disability specific skills and capacity building, and support to successfully re-enter the community, the JJ NSW detention centre will support the timely delivery of this support including assisting the person to engage with their Support Coordinator.
Preparation for a young person to leave the Parental Responsibility of the Minister needs to commence at age 15.
During this time the young person’s leaving care plan must focus on assisting them to become more independent and may include supports relating to tenancy and housing; living skills development; and social and cultural connection. It is important that these needs are incorporated into the young person’s NDIS plan (when applicable).
The OOHC caseworker will need to consider whether the child or young person requires the appointment of the Public Guardian with an advocacy or decision making function. Should this be required it is the responsibility of the OOHC caseworker to undertake the application with the NSW Civil and Administrative Tribunal (NCAT).
For more information on applying for guardianship see: http://www.ncat.nsw.gov.au/Pages/guardianship/gt_matter_about/matter_guardianship.aspx
FACS and JJ NSW are committed to working collaboratively and undertake joint case planning to maximise the safety, wellbeing and welfare of the child or young person and create the best outcomes possible.
It is therefore essential that JJ NSW and FACS/NGO caseworkers collaborate to inform a shared client’s NDIS plan and related supports. Both agencies should adopt an information-sharing approach as outlined in the Memorandum of Understanding (MoU).6
Once an NDIS plan is approved or modified the OOHC caseworker will share the NDIS plan with JJ NSW and arrange for it to be attached to ChildStory.
Section 8 of the MoU outlines a process to address dispute resolution between FACS, JJ NSW or an NGO. Any disputes should be resolved at the local level as soon as possible, and when necessary escalated as per the MoU. For more detail on the dispute resolution process, see http://docsonline.dcs.gov.au/__data/assets/pdf_file/0011/287363/signed_mou.pdf.
If you have a question about a participant’s NDIS Plan or NDIS related questions, please contact the NDIA on 1800 800 110.
If you have a question about out-of-home care and the NDIS, please email the FACS NDIS team at email@example.com.
For further details about the NDIS Guidelines for OOHC casework staff please visit www.facs.nsw.gov.au/ndis.