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A big day for the rights of people with intellectual disability – part 2

To Whom It Should Concern – Part 2

An alarming concern of individuals, families, advocates and support staff is that reported abuse is frequently not properly investigated and addressed by the current system. Many complaints of abuse have not been addressed due to authorities not taking such complaints seriously and undertaking a full investigation.

We acknowledge that such investigations present a range of difficulties for investigators, but this should never be used a reason for failing to investigate and determine the merits of abuse complaints.

There is little doubt that a national inquiry into the abuse of people with disability in institutional settings has merit. It presents an opportunity for this dark issue to be brought out into the light. Organisations responsible for standards of service and the well being of people with disability for which they receive tax payer’s dollars should be held accountable for abuse that happens as a result of their service.

The media statement by the Disability Advocacy Network of Australia quite rightly emphasises the failure of mainstream governance and quality assurance mechanisms to protect the basic rights of people with significant disability. Governance processes, standards audits of services, internal complaint procedures, incident reports, and many other provider processes are important but clearly insufficient.

One of the most needed solutions is an abuse response system – external to disability service providers – that individuals, families, service staff, advocates or “whistleblowers” can bring complaints and concerns to, knowing that allegations of abuse WILL be investigated.

There needs to be confidence that someone with authority WILL actively investigate complaints of abuse.

Today’s refusal by the Federal Government to respond to calls from the community to hold a national inquiry into the abuse of people with disability – by relying on the Victorian government’s commitment to an inquiry – is a failure of national political leadership.

It begs the question as to how the federal government can expect organisations to provide support which prevents and eliminates abuse when the federal government shows a complete disregard for the urgency to act. This sends the wrong message to potential abusers.

What we need is a review of federal priorities. It only requires the change of one word . . “Stop the boats abuse”.

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A big day for the equal rights of people with intellectual disability – part 1

To Whom It Should Concern – Part 1

Monday 24th November 2014 has been a big day for standing up for the equal rights of people with intellectual disability.

First, the Senate rejected the Government’s bill to introduce the BSWAT Payment Scheme Bill. This Bill was an unjust remedy by the Government to address the discrimination in how the wages of thousands of people with intellectual disability in Australian Disability Enterprises (formerly sheltered workshops) are determined. A discrimination brought to light by two men with disability.

Second, the Australian Law Reform Commission proposed reform to Commonwealth and State laws to ensure that supported decision making is encouraged with the right support; and that representative decision-makers are appointed only as a last resort. The need to be supported in making decisions has never been more pertinent given the NDIS and the emphasis on choice and control.

Third, ABC 4 Corners exposed sexual abuses of people with disability by carers employed by Yooralla, and a governance culture that was inadequate to protect people with disability from this abuse.

The 4 Corners program highlight a number of characteristics of people with significant disability which are apparent. Characteristics that are under-recognised but common across the events of the day.

1. People with significant disability are vulnerable to abuse, neglect and discrimination . .  be it physical, sexual abuse or abuse of equal rights in employment.

2. People with significant disability are “easily led”. People with disability can be used and abused to meet the needs of others at the expense of their rights.

3. People with significant disability are sometimes unable to give valid consent – even after the best supported decision making support.

4. People with significant intellectual disability in segregated employment or accommodation services may have heightened vulnerability because “those who are watching” are just as vulnerable as the people targeted for abuse.

4. People with significant disability often have great difficulty in reporting abuse on their own.

When these “facts” or “characteristics” are considered carefully, there is a strong basis for accommodations and safeguards that are put in place rather than reliance on typical due processes or governance that may be acceptable in other circumstances.

For example, many employees with intellectual disability in ADEs are highly vulnerable to the interests of ADE staff and employers. Many employees in ADEs are easily led to vote for a certified agreement when valid consent is questionable.  It is not a coincidence that people with intellectual disability are subject to discriminatory employment practices in how award wages are assessed.

The Senate decision to reject the BSWAT Bill will ensure that the independence of the Federal Court will ensure that people with intellectual disability – discriminated by the Commonwealth and ADEs – are properly compensated. In other words, why would we let the “discriminator” determine the quantum of compensation and the process or redress. We must also note that some of the sexual abuse identified by 4 Corners involved employees in ADEs. This is not to suggest a juxtaposition between ADEs and abuse – but to point out that people with intellectual disability are vulnerable and this is vulnerability is heightened when grouped with others people with disability in segregated places.

We must also begin to recognise that Australia spends substantial amounts of money on disability support services – and this will only increase under the NDIS. As we saw in the 4 Corners report, there was evidence of “scamming” with clients that did not exist. I have also listened to families who are heavily marketed by disability services competing for the cash families bring to providers when they register for support. This means that – more than ever – advocacy and safeguards against abuse are important(!)

Unfortunately the “angelic” image of disability services is naive.

As 4 Corners point out, there are clearly service providers and staff who are impeccable in their competence and fidelity with the rights and dignity of people with intellectual disability. While addressing the very serious issues of abuse across all disability services we must support those services and staff who are doing ‘the right thing’.

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Travelling to another country when on the Disability Support Pension

 There is a rule for how long a person can travel to another country and still get paid the disability pension.

This is called ‘portability’.

The Government wants to change the rule.

The government wants to limit the time a person can be in another country and paid the disability pension to 28 days for every 12 month period.

The government is currently asking the Commonwealth parliament to approve this rule change.

What is the current portability rule?

A person will continue to be paid the disability pension when in another country for a time limit of 6 weeks.

There are exceptions to the rule.

Some people who get the disability pension can stay in another country and be paid the disability pension without any time limit.

This is called ‘unlimited portability’.

People who get the DSP are eligible for unlimited portability if they are;

  • assessed as having a severe impairment and no future work capacity,
  • terminally ill,
  • paid under Australia’s international social security agreements and assessed as severely disabled, or
  • assessed as manifestly eligible for the disability pension.

The government is not changing these exceptions to the rule.

What does this mean for people with intellectual disability?

A person with intellectual disability manifestly qualifies for the disability pension if they have an IQ of less than 70.

A person who manifestly qualifies for the disability pension meets the eligibility for unlimited portability of their pension, without need for assessment of their impairment or work capacity.

People with intellectual disability and their families can plan overseas travel knowing that pension eligibility and payments will continue without change.

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Who am I?

Who am I?

Who am I, is a very loaded and contested question for people with disability. A question of identity.

For decades people with disability have had this personal question answered by others. Their identity as a person with disability has been described and viewed by people without a disability. I was prompted to think about this by Andrew Solomon as I read his book, Far from the Tree. An inquiry into identity, or more rightly identities; how some children are born with an identity that sharply contrasts with the identity of their parents, or the identity that their parents wish for them.

Andrew Solomon looks at groups of people who fall ‘far from the family tree’ and how they relate to their families and the community. The groups that he looks at include people with Down Syndrome, people who are deaf, people of short stature and people with multiple disabilities. A fascinating book from a man who himself fell ‘far from his family tree’.

Andrew Solomon uses the concepts of vertical identity and horizontal identity as the framework for his discussion, the vertical being the family, the horizontal being the person’s peer group – those others who they identify with as being members of their community.

Identity whether defined by us or others is closely linked to the language we use to describe ourselves or others; it is language which includes, affirms my identity as a member of my community or excludes me from my community by segregating me or hiding me from public view.

Over the last 10 years identity has become a crucial issue for people with disability as the conceptualisation of disability as a medical condition to be fixed/cured was challenged by the social model of disability which attempted to describe a person with disability as an interaction between the disabling aspects of society and the impairment of the person. The emphasis became not on the person with disability but on society and the identities of people with disability became subsumed under a generic catchall ‘people with disabilities’ as the focus was on society. This strong reaction to the medical approach was needed to bring about the conceptual change that was necessary but in the creation of the vertical ‘disability’ identity people lost the horizontal connection with their peer group, with people who have the same distinct life experiences as themselves.

The social model of disability is now being challenged by the human rights framework that is asserted by all people who are ‘different’. Whether it is a question of gender, race, sexual orientation, etc, the right to be different and to be accepted as different (no matter how far you fall from the tree) is a dominant movement within our society and people with all types of disability are members of the movement, the right to be different.

When ‘disability’ becomes the dominant identity, as opposed to a person with Down Syndrome or a person with autism, what happens is that they become invisible. Disability is represented by the articulate person in a wheelchair, the media get comment from the blind person who wears a suit. The come to represent all people with disability and other groups become invisible. This is not to say that people in wheelchairs or suits do not have a role or right to speak but that right only extends to their experience as a person who uses a wheelchair or who is blind. A person with Down Syndrome, for example, has a right to speak on their own behalf about their life experiences.

The language of rights is different to the language of the medical or the social. Discrimination is experienced in the real lives of people. The experience of discrimination is personal and can only really be shared by people who have the same expectations, perceptions placed on them by others. Discrimination can not be defined or explained by medical terminology or broad social references only by the language of lived experience. As a community it is our responsibility to listen.

The use of old medical and social language will not be easily replaced. Just as there was not an acceptance of the change from medical identities to social identity the assertion of a right to define my own identity will be resisted by those who are unable to accept that people with disability have a unique voice or who will be unable to reliquish the power that comes with controlling the identities of others.

Just as homosexuality is no longer defined as a mental illness people with disability must not be defined as ‘diagnostic’ groups; just as all people with a different sexual orientation are not longer defined as being part of a generic homosexual/gay group but as as gay, lesbian, bi-sexual and transexual, people with disability must be defined by their lived experience as a person who is blind, as a person who uses a wheelchair, as a person living with intellectual disability. (1)

It may be convenient for the media and governments to see people with many disabilities as a homogenous group (or to narrow them down into acceptable social groups) but this is not their decision to make and we must give all peoples the right to define ourselves and who we identify with. How we measure the distance we ‘fall from the tree’ and who we ‘fall with’ is up to us to identify with.

Footnote:

(1)  the analogy of race could also be used, from immigrant, to ethnic, to Greek-Australian; as the lived experience of different groups is not identical. There will be some similarities but there will also be differences and within a rights framework these must be acknowledged.

Mark Pattison

Executive Director

Inclusion International

Editorial from Interaction Volume 24 Issue 4 – subscribe

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Minister Fifield must reward genuine effort not failure

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Real Businesses Pay Real Wages. 

Minister Fifield must reward genuine effort not failure. 

The announcement by Minister Fifield of an additional $173 million to support employees get fair wages in Australian Disability Enterprises (ADEs) is welcomed as a step forward by Inclusion Australia.

The announcement, however, does not resolve serious concerns about the treatment of employees with intellectual disability, nor the ongoing viability of ADEs.

We already have a productivity based wage assessment

The announcement fails to recognise that a fair productivity based award wage tool already exists – i.e. Supported Wage System (SWS).

The SWS is recognised by the industrial relations system; the Australian Human Rights Commission, the High and Federal Courts, people with disability and their representative organisations.

The only group to refuse to acknowledge the SWS has been National Disability Services (NDS) representing ADEs. A refusal without valid reason.

The question must be asked; why is Minister Fifield supporting the position of NDS when the evidence and support for the SWS is substantial? When is the Minister going to stand up for people with disabilities and not service providers with a history of discriminating against people with disabilities?

Our support for funding assistance is based on implementing the SWS

Inclusion Australia has repeatedly recognised that fair wages determined by SWS would increase wage costs for ADEs, and that the Commonwealth should provide temporary funding to assist ADEs make the transition.

It is concerning however that the Minister has agreed to pay this cost without requiring that wages are determined by the SWS.

The “future” productivity wage assessment tool being proposed is “unknown”. The refusal to accept the SWS opens the door for ADEs to argue for a wage assessment tool that once again unfairly discounts award wages. A risk which is not necessary.

 

Where is the funding for transition to work and open employment support services?

The Minister in the Australian (21/8/14) says that the government is committed to finding ways to increase employment opportunities for people with disability in the open workforce.

Where is the funding to support this commitment. There are thousands of young people with intellectual disability that can, with the right support, move from school to the open labour market. But specialist transition-to-work and open employment support is severely limited.

Inclusion Australia has proposed, based on current Australian best practise) the development of a national system of transition to work and open employment support for people with significant intellectual disability. What is needed is a funding commitment to make this happen.

The Minister must not reward failure or incompetence

The Minister must address the genuine efforts being made by ADEs under the ’10 Year Vision for Supported Employment’. ADEs that pay their employees using SWS must not be disadvantaged for doing the right thing.

For decades the Australian government has attempted to make a number of ADEs businesses by ‘throwing money’ at them. Today’s funding announcement must not be another exercise of propping up unviable businesses.

Inclusion Australia does not wish ADEs to close. Where ADEs are viable businesses paying real wages they must be supported to continue to provide employment to people with intellectual disability. Where ADEs are not viable the Commonwealth government must consider the option of those services becoming day services so that they can continue  to support people with disability.

The Australian government’s ’10 Year Vision for Supported Employment’ is now in its 3rd year. Inclusion Australia calls on Minister Fifield to release a progress report to demonstrate that this new funding will build on progress.

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Response to Welfare Reform paper

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Inclusion Australia agrees that the income support system should have a stronger employment focus.
An income support system focused on evidence based employment support can significantly increase employment participation and reduce reliance on income support.

To achieve such change requires an examination of our understanding about capacity to work and employment support needs, and how this relates to achieving paid work which reduces pension reliance.

Current programs and policies are out of step with evidence based practice and are not providing youth with intellectual disability with the opportunity to be included in the open labour market.

Our biggest challenge, however, is to address a culture of low expectations about people with intellectual disability and work.
The current pathway of pension, unemployment and alternative programs needs to shift to a pathway of inclusion, work and wages in the open labour market.

To demonstrate this shift in direction, we feature the stories of two young people with significant intellectual disability and the pathway they took to move from school to paid employment in the open labour market.

These stories illustrate that people with intellectual disability have the capacity to work in the open labour market when provided skilled support. This quality support, however, is currently limited to just a few locations.

It is our submission that the welfare review should set a new direction to progressively build evidence based transition-to-work and open employment support on a national scale for people with intellectual disability.

It is possible to progressively change the current low expectations, low work participation and high reliance on the pension, to a culture where inclusion, work and wages is a common part of the lives of all people with intellectual disability.

Download Inclusion Australia’s full submission