Identification
Early interventions/supports
Housing and accommodation
Children and families in contact with care and protection
National disability insurance scheme
What's next?

Identification

What we know

The identification of people with disability through screening and assessment is critical to ensuring their needs are meet through reasonable adjustments and supports. Without identification, it is not possible to create an accurate data picture and pin-point key areas for intervention. This is perhaps particularly important for ‘hidden’ impairments such as intellectual disability, acquired brain injury and psychosocial disability.

The Law Council of Australia’s The Justice Report states:

• Many people with disability who encounter the criminal justice system have a long history of undiagnosed or untreated impairment, despite multiple previous interactions with government agencies or services [121].

Training is crucial in terms of a starting point for identification but there are also a range of tools to screen for disability. While these tools— such as the Hayes Ability Screening Tool for intellectual disability— tend to over-capture, they provide a useful indication and a starting point for a functional disability assessment if required.

What we heard

We heard that there is very little screening for disability in the justice system and any screening undertaken is not consistently systematised. We also heard that improving this situation was viewed by many players in the justice system as important to inform the development of an effective Disability Justice Strategy.

What could we do?

Actions under the Disability Justice Strategy could include:

• training of all stakeholders in the justice system to recognise disability
• identification and implementation of screening tool(s) at key points in the justice system such as prior to sentence, entry to the AMC or on entering out of home care
• development of referral pathways for full assessment/diagnosis where necessary
• provision of assessment services to referring entities
• creation of a data snapshot of specific cohorts by undertaking ‘point in time’ screening
• identification of how, once assessment leads to a finding of disability, the person’s needs can be met through services, particularly in a custodial setting.

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Early Interventions and Supports

What we know

We know that acting at the earliest opportunity in the lives of people with disability to provide the necessary services and supports will allow people to achieve their full potential and acts as a protective measure against the range of disadvantages which lead to contact with the justice system. Conversely, we know that not providing early services and supports creates a pathway for people with disability to be in contact with the justice system. In addition, intervening at an early point when an issue arises can prevent escalation leading to contact with the justice system. Early intervention for the Disability Justice Strategy can mean an early point in a person’s life or at the beginning of an issue.

Professor Eileen Baldry has written extensively on the need to act early in order to prevent a web of complex needs (and resulting costs to governments) forming which leads to almost inevitable contact with the justice system. In 2012, Professor Baldry looked at 2,731 people with a known mental health or cognitive impairment diagnosis. She reports:

• In almost every case discussed, significant disadvantage, vulnerability and risk factors are obvious from early adolescence and, for several individuals from childhood, yet care and protection and early intervention do not occur in any substantial or sustained way. The evidence is stark that this early lack of adequate services is associated with costly criminal justice, health and homelessness interactions and interventions later in their lives. Millions of dollars in crisis and criminal justice interventions continue to be spent on these vulnerable individuals whose needs would have been better addressed in early support or currently in a health, rehabilitation or community space [122].

In the ACT, the Government is currently working on a range of reforms that will impact on early identification and support of individuals to prevent a compounding disadvantage over life domains. These reforms are across government and include the Early Support by Design initiative, the Family Safety Hub, the Youth Justice Blueprint, Justice reinvestment, the Office for Mental Health and wellbeing, the Future of Education, ACT Housing Strategy and the Territory-wide Health Services framework. These reforms and strategies share a common theme of aiming to meet the needs of people before they reach crisis point and so achieve better life outcomes.

The education system provides one of the best opportunities to identify disability and provide early supports and interventions.

The ACT Government’s Future of Education Strategy was launched on 16 August 2018. ‘Inclusion’ is one of four key principles underpinning implementation of the Strategy which means ‘embracing diversity in all its forms, as well as specifically ensuring that students with disability and their families are included in a way that suits them’. [123]

We know that people with disability have ‘significantly lower rates of education than people without disability’ [124] which leads to a lifetime of disadvantage which in turn leads to an increased likelihood of contact with the justice system.

This principle will shape thinking, planning and delivery of education for every ACT student to ensure all students can reach their full potential.

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What we heard

Throughout consultations there was a general consensus that acting early to support people with disability was an important objective.

The Law Council of Australia’s The Justice Project notes that:

• Concerted efforts by governments on increasing resources for targeted prevention and early intervention approaches and programs for people with disability are needed. [125]

The First Peoples Disability Network’s submission to the Law Council of Australia stated:

• The effects of [undetected and unsupported disability] carries forward into their schooling years and places them on a trajectory where they are more likely to matriculate into prison than into tertiary education. [126]

The cycle of disadvantage faced by people with disability is a major contributor to being in contact with the justice system. Providing supports early rather than delaying until contact with the justice system is underway will act as a circuit breaker to the benefit of the individual and reduce future costs to government.

We heard that for people in the criminal justice system with disability, low education levels were common. Detainees we spoke to in the AMC almost universally reported a fragmented education, poor literacy skills and difficulties understanding and communicating.

The ACT Education Directorate is committed to effectively supporting students with disability in ACT public schools, actively engaging with parents and carers to provide inclusive, accessible and high-quality education for all students.

All ACT public schools provide reasonable adjustments to meet the needs of individual students. All students in the ACT are able to enrol in their local Priority Enrolment Area (PEA) school or can apply to access a range of programs for students who meet ACT Student Disability Criteria. This includes:

• Inclusion Support Program in mainstream classes
• small groups programs located in mainstream schools
• specialist schools
• hearing and vision itinerant support.

Additional support is available through the multidisciplinary Network Student Engagement Team that includes Allied Health workers, School Psychologists and Inclusion Officers, who can provide targeted support for individual students as well as building capacity of schools to support the inclusion of students with disability.

What could we do?

Actions under the Disability Justice Strategy could include:

• Ensuring the Disability Justice Strategy aligns with the Early Support by Design reform and that all reforms and initiatives successfully engage with people with disability to provide a coherent approach to early interventions for people with disability.
• Identifying where early supports for people with disability could be improved and working with government and non-government services to provide those supports.
• Supporting outreach arrangements which put legal service provision together with other services in locations where people with disability can best access those services and work to ensure efficient referral mechanisms (see Chapter 1, Service models and support workers).
• Working with both government and non- government education sectors to they are informed about the Strategy and are engaged in its implementation.
• Improving information sharing to support the provision of early supports and interventions for the benefit of students with disability.

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Housing and Accommodation

What we know

The shortage of housing and accommodation options for people with disability is an issue throughout Australia. The economic, social and human costs of insufficient appropriate accommodation and other critical supports are clear from research by Professor Eileen Baldry:

• Early and well-timed interventions to establish and maintain secure housing and associated support services could significantly reduce the need for the future years of criminal justice interventions [127].

Housing and tenancy issues for people with disability often arise from their socio-economic disadvantage and dealing with those issues is made more difficult due to issues directly related to their disability.

There is no doubt that a lack of appropriate accommodation both contributes to cycles of offending and results in prison being used as an alternative accommodation option [128]. This means that it is important for a range of housing to be available as both a preventative measure and as a support to the grant of bail and parole or to allow for the imposition of a non-custodial sentence.

The ACT Government has pledged $100 million for public, community and affordable housing over the next five years under the Housing Strategy launched on 29 October 2018. There are a range of objectives and actions under the Housing Strategy targeted at improving housing for people with disability.

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What we heard

Through consultation we heard that housing issues are a key area of legal need for people with disability. Canberra Community Law (CCL) told us that they deal with many housing/tenancy matters for people with disability and that it is not uncommon for such matters to already be before the ACT Civil and Administrative Appeals Tribunal prior to CCL involvement because the person or family did not know how to access legal services. CCL’s socio-legal practice uses a lawyer and social worker working together to solve clients’ legal and associated issues to achieve long-term resolutions.

We heard that there is a shortage of modified housing for people with disability in the ACT and there is a need for cultural change to ensure reasonable adjustments are made. In addition, improvements could be made to how housing providers interact and communicate with clients with disability. On a number of occasions we heard that more of an individualised approach would benefit both people with disability and the housing provider by creating a more positive relationship. In particular, the view was expressed that Housing ACT’s responses to clients with disability could be improved, including by responding better to communication needs and developing a greater knowledge of disability to ensure clients were treated with understanding and more flexibility. It was raised on a number of occasions that Housing ACT are often the provider of last resort and if a public housing tenancy is terminated then homelessness would frequently be the result.

There was also criticism of the NDIA’s reluctance to fund support packages for individuals requiring a high level of care who were living alone. This lack of funding then forces people with disability into sharing arrangements which may not be appropriate for them or safe for the people they are sharing with. The shared accommodation also raised issues of tenancy rights as occupancy agreements often permit termination of the agreement at short notice.

In contrast, we also heard some support for residential share homes for people with disability with a high staff to resident ratio to ensure that those with complex needs could receive a level of care that would help them to progress to more independent living.

We heard concerns that people with disability were being incarcerated because of homelessness and a lack of appropriate
supported accommodation options [129]. This was a particular concern for children and young people and Aboriginal and Torres Strait Islander people. Stable and suitable accommodation is frequently a critical issue for courts considering whether a person can be bailed or serve a sentence in the community. Identifying suitable, or any, accommodation prior to release from detention at the end of a sentence or on parole is also a challenge.

Housing ACT is already working to improve information sharing with ACT Corrective Services to avoid public housing tenancy issues arising when a person is incarcerated and to develop policies to allow improved responses for detainees.

What could we do?

Possible actions under the Disability Justice Strategy could include:

• reviewing procedural requirements in residential tenancy matters in terms of reasonable adjustments
• ensuring public housing information is in an accessible format and meets the needs of tenants (including use of plain or easy English)
• partnering with Housing ACT to develop knowledge and expertise in working with people with disability
• Housing ACT appointing a dedicated skilled staff member in the area of disability who is able to support a culture of reasonable adjustment
• ensuring the Strategy aligns with the ACT Housing Strategy and the respective actions under each strategy work to improve housing options and availability for people with disability
• considering bail accommodation for people with disability
• considering how people with disability in private tenancies could be better supported
• reviewing the current range of accommodation options for people with disability and consider options for improvement.

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Children and Families in Contact with Children Protection

What we know

Available evidence and research indicate that there is a strong correlation between involvement in the child protection system, particularly out of home care, leading toward involvement in the criminal justice system. A recent report by the Australian Institute of Health and Welfare found that young people who had received child protection services were nine times as likely as the general population to have also been under youth justice supervision [130]. There is also a strong correlation between childhood trauma and disability through exposure to violence, neglect, disadvantage and health factors such as foetal alcohol syndrome. A 2006 study found that being maltreated as a child almost doubles the probability of committing a crime [131].

Research from other states indicates that parents with disability— whether physical or intellectual/ cognitive— are also more likely to have children removed and placed in care.

In the ACT, A Step Up for Our Kids: Out of Home Care Strategy 2015–2020, recognises that children and young people with disability are over- represented within child protection services.

The Strategy also acknowledges that children of parents with disability, particularly an intellectual disability, may also be over-represented as clients of out of home care services. However, there is insufficient data to create an accurate picture.

Early behavioural issues for children and young people can be an indication of some form of disability and early support to the child and their family can assist to address such issues and help disrupt the pathway into the youth justice and ultimately adult criminal justice system.

A trauma-informed approach to providing Child and Youth Protection Services (CYPS) is important in supporting children and families to address the underlying factors for child neglect and abuse and to understand the impact of intergenerational disadvantage. A Step Up for Our Kids is seeking to move the system to take a more trauma-informed approach across the continuum of care settings and approaches.

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What we heard

In public consultations and private face-to-face meetings, concerns were raised that people with disability are often afraid to ask for help in relation to their children in the belief that their children would be removed. Such fears were discouraging such parents from seeking appropriate supports and assistance.

We heard examples of the removal of children where those consulted were of the view that with appropriate supports, such removal would not have been necessary. Views were expressed that physical disabilities, such as being a wheel chair user, made it more likely that children would be removed.

An example was provided of a situation in which difficult adolescent behaviour caused parents to restrain the adolescent. This led to action against the parents and the classification of a different child as ‘at risk’. The lack of respite and available options to respond to violent adolescent behaviours was cited as escalating the situation leaving parents with no choice but to call the police, with statutory reporting requirements then coming into play.

Some foster parents expressed the view that they were poorly supported to understand their rights related to seeking disability supports for the children in their care, as well as in understanding the children’s possible disability needs.

These anecdotal experiences indicate a need for more resources to assist parents of children and young people with disability. There are currently few supports available specifically for parents with disability, with no services specifically funded to support parents with disability in their parenting role. We heard that the NDIS does not fund parents with disability to assist them in their parenting role.

Views were expressed that there needs to be a more comprehensive focus on disability in the child and youth protection system for children and young people, their families and carers.

This includes identifying disability and gathering data in a way that can be reviewed and evaluated to assist in shaping a systemic response. The rollout of the new CYPS client management system will help CYPS to better capture data on disability in the care and protection system, and to identify children, young people and parents who may need specific support as a result of their disability.

CYPS staff expressed interest in developing and strengthening their skills and capabilities in understanding how their work responds to people with disability. In particular, they expressed a need for better means by which to identify and understand needs.

What could we do?

Acting in the best interest of a child and ensuring their protection is a vital task for CYPS. The child’s safety must remain at the centre of their role.

In discussions with CYPS and the community, improvements were identified that may help overcome some of the difficulties encountered by children, young people and parents with disability. Central to these were helping to build a disability aware and responsive workforce.

Suggestions included:

• disability training and awareness raising for all workers CYPS and the youth justice system.
• A pilot program for CYPS workers is to be conducted in early 2019
• the inclusion of a disability view point in the annual therapeutic assessment of all children and young people in care
• the inclusion of a developmental assessment for all children and young people coming into care
• providing specific supports for parents of children with disability to assist them to manage challenging behaviour and emotional regulation
• providing specific parenting supports for parents with disability, drawing on examples and materials from other jurisdictions, including specific advocacy supports for parents for disability engaged in the child protection system.

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National Disability Insurance Scheme

What we know

The National Disability Insurance Scheme (NDIS) is administered by the National Disability Insurance Authority (NDIA)— a Commonwealth Government agency. All eligible NDIS participants in the ACT had transitioned to the NDIS by the end of 2016–17, although participant numbers continue to grow slowly as a result of new entrants. The scheme is still in the process of being rolled out across Australia, with NSW and South Australia having transitioned to ‘full scheme’ arrangements on 1 July 2018 and most jurisdictions to follow on 1 July 2019. The NDIS is an individual-based model (as opposed to a system-based model) and aims to provide individualised supports for people who have a permanent disability that significantly affects their ability to take part in everyday activities.

As at 30 June 2018 there were 6,141 people in the ACT with a current NDIS plan [132].  However, there are approximately 62,000 people in the ACT who identify as having a disability, which means there are more than 55,000 people with disability in the ACT who are not benefiting from the NDIS.

While the NDIS has proved a success for some people, issues with the scheme are well documented [133].  In terms of access to justice, the individualised approach has impacted on the overarching service system previously provided at state and territory level and there are issues about how the NDIS connects with state and territory systems such as justice, education, health and child protection.

In addition, the implementation of the NDIS has increased demand for legal advice and assistance services, particularly to support eligibility disputes and review processes [134].  While the NDIA directly funds advocacy supports for people appealing a decision to the Administrative Appeals Tribunal, all jurisdictions have seen a strain placed on existing advocacy and legal support services as participants seek assistance in navigating a complex and bureaucratic system for which the NDIA does not provide funding. A number of jurisdictions, including the ACT, have provided increased funding for individual advocacy services as a result.

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What we heard

Consultations revealed that the NDIS individualised funding model has led to an absence of support and advice services which were previously available through block funding [135].  This includes a centralised intake and information agency as well as the Intensive Treatment and Support Service (ITAS) which supported people with dual diagnosis, of psychosocial and intellectual disability combined with complex needs and who were at risk of criminally offending. This gap inevitably impacts on people with disability and creates a climate for increased legal need.

We also heard that for detainees who are eligible for a NDIS plan there may be significant delays in supports under the plan being reinstated after release. While ACT Corrective Services works with the NDIA to ensure transitional supports are in place this may be crisis supports only due to delays in the NDIA’s processes. In some instances, the absence of NDIS supports may adversely impact on a detainee’s release either on bail or on parole.

For detainees without a NDIS plan at the time they enter custody, who then require a referral, the position is that their eligibility cannot be determined until they are released from custody. Making a referral just before or on release is particularly challenging for people with cognitive impairment. We heard too about difficulties for detainees contacting the NDIA from custody given the limited telephone times and often the lack of skills to communicate effectively.

Consultations also revealed that meeting the needs of people with disability in detention was sometimes adversely impacted by the reluctance of non-government service providers to provide services in a custodial setting.

In highlighting service gaps, submissions received to the consultation process stressed the need for a quality, safeguarding and oversight mechanism for any service system for people with disability to ensure their rights are supported. This concern may be addressed by the NDIS Quality and Safeguards Commission which formally commenced on 1 July 2018 and which will become the primary channel for complaints about NDIS services in the ACT from 1 July 2019.

The Human Rights Commission’s Disability and Community Services Commissioner will also continue to provide oversight of disability services, while the Human Services Registrar in the Community Services Directorate will continue to regulate eligible non-NDIS disability service providers. In addition, the ACT Senior Practitioner for the elimination and reduction of restrictive practices was established in 2018 to work with the disability, education and child protection sectors to promote positive behaviour support and reduce and eliminate the use of practices that restrict the freedom of a person with disability. Legislation has also recently been amended to ensure that the Official Visitors for Disability Services are able to visit people living in disability accommodation or reliant on services funded by the NDIS.

What could we do?

States and territories are already working with the Commonwealth to address issues, including criminal justice interface issues, with the NDIS. The Disability Justice Strategy will continue to engage in this process.

If a Disability Justice Service were to be established (see Chapter 1, Service Models and support workers) then such a service may act to mitigate communication and other criminal justice interface issues with the NDIA/NDIS.

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What's Next?

The development of the ACT Government’s Disability Justice Strategy will be strongly based on the synthesis of consultation, research and information on the successes of other jurisdictions. There needs to be a cultural change in the ways the ACT justice system addresses the needs of people with disability. The better the system supports people with disability the better justice issues will be identified, and the better people will be able to navigate the system.

The ACT Government’s strategy is an aspirational document that captures the potentials of what could happen in the ways the ACT could support people with disability. The success of the Strategy depends on a range of factors to make it happen. Although formal consultation is closed we are open to receiving feedback or further information on the access to justice needs of people with disability in the ACT. We will continue to work with stakeholders across the Government and community to identify the necessary actions
to improve the access to justice for people with disability in the ACT.

Progress of the ACT strategy depends on the goodwill of many people. It relies on the goodwill of justice agencies willingness to make cultural change; it relies on government to resource the necessary actions such as training and materials, and plain language versions of documents, forms and information; finally, it relies on the goodwill of people with disability, their families and allies to advise us on their experience that we may continue to seeking new and better ways of providing people with disability fair and equal access to justice in the ACT.

To register to receive project updates, please email: ACTDisabilityjustice@act.gov.au and find out more about the Disability Justice Strategy and other initiatives, policies and projects in Canberra, please visit: www.yoursay.act.gov.au

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Further documents that you may be of interest

• Disability Justice Plan, South Australia
• Disability Justice Plan for Tasmania 2017–2020, Tasmania
• The Justice Project, Law Council of Australia
• There are already good and positive actions taking place in the ACT that increase the opportunity for fair and equal access to
  justice for people with disability. A list of these activities can be found at Chapter 6, Disability Justice: What is working well? (see page 70).

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¹²¹ Law Council of Australia, The Justice Project, People with Disability (Part 1) 4

¹²² Professor Eileen Baldry et al 2012, Lifecourse Institutional Costs of Homelessness for Vulnerable Groups, p. 6

¹²³ <www.education.act.gov.au/the-future-of-education/home/resources/The-Future-of-Education-An-ACT-Education-Strategy-for-the-Next-Ten-Years, 7>.

¹²⁴ Australian Human Rights Commission, Willing to Work, 239.

¹²⁵ The Law Council of Australia, The Justice Project, People with Disability (Part 1) 4.

¹²⁶126 Ibid.

¹²⁷ 127 Eileen Baldry et al, University of NSW 2012, Lifecourse Institutional Costs of Homelessness for Vulnerable Groups, p. 6.

¹²⁸ Law Council of Australia, The Justice Report, People with Disability, pp. 52–53

¹²⁹ Independent review October 2017

¹³⁰ Australian Institute of Health and Welfare 2018, Young people in child protection and under youth justice supervision 1 July 2013 to 30 June 2017.

¹³¹ Currie J and Tekin E 2006, Does child abuse cause crime?

¹³² Australian Department of Human Services, <www.ndis.gov.au/about-us/our-sites>.

¹³³ See the inquiry by the Joint Standing Committee on the National Disability Insurance Scheme — General Issues around the implementation and performance of the NDIS (accepting submissions as at November 2018).

¹³⁴ Productivity Commission, Access to Justice Arrangements, 742.

¹³⁵ Independent review October 2017.

Part 2 Chapter 6 - What is Working Well?

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