Disability Services Act (Administration of Part II of the Act) Guidelines 2013

Link to law: https://www.comlaw.gov.au/Details/F2013L02002

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Disability Services Act (Administration of Part II of the Act) Guidelines 2013
 
 
 
Disability Services Act 1986
I, Senator the Hon Mitch Fifield, Assistant Minister for Social Services, make these Guidelines under subsection 5(1) of the Disability Services Act 1986.
Dated 22 November 2013
 
 
 
Mitch Fifield
Assistant Minister for Social Services
 
 
Contents
Part 1        Preliminary   3
1        Name of Guidelines  3
2        Commencement 3
3        Authority  3
4        Revocation  3
5        Purpose of these Guidelines  3
6        Definitions  4
Part 2        Approval of additional classes of services  5
7        Consultation before approving an additional class of services  5
8        Considerations before approving an additional class of services  5
9        When the Minister approves an additional class of services  5
Part 3        Matters relevant to making grants  7
10      Grants in relation to which this Part applies  7
11      Other policy and legislative requirements applying to the making of grants  7
12      Minister may establish funding priorities  7
13      Process for determining priorities for making grants  7
14      Applications for grants to be in writing  8
15      Assessing applications for grants  8
16      Approving applications for grants  8
17      Plans to be provided for applications for eligible services  8
18      Plans to be provided for applications for employment and advocacy services  8
19      Giving notice of intention to obtain certificate of compliance  9
20      Determining and varying the day by which an organisation must obtain certificate of compliance  9
21      Certificates of compliance  10
22      Application for varying the day determined by the Minister  10
Part 4        Development of standards, key performance indicators, performance monitoring processes and           processes for applying sanctions  11
23      Determining standards, key performance indicators and processes  11
Part 5        Miscellaneous  11
24      Availability of information  11
25      Delegation  11
 
 
Part 1                 Preliminary
1              Name of Guidelines
                These Guidelines are the Disability Services Act (Administration of Part II of the Act) Guidelines 2013.
Note 1   These Guidelines do not apply to the administration of any State or Territory Disability Services Act.
Note 2   For matters relating to rehabilitation programs, see the Disability Services (Rehabilitation Programs) Guidelines 2007.
2              Commencement
                These Guidelines commence as provided under section 5 of the Act.
3              Authority
                These Guidelines are made under subsection 5(1) of the Act.  
4              Revocation
                The Disability Services (Administration of Part II of the Act) Guidelines 2002 are revoked under subsection 5(1) of the Act.
 
Note   Subsection 33(3) of the Acts Interpretation Act 1901 provides that where an Act confers a power to make, grant, or issue any instrument of a legislative or administrative character, the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend or vary such instrument.
5              Purpose of these Guidelines
         (1)   The purpose of these Guidelines, in relation to Part II of the Act, is:
                (a)    to promote fair, open, consistent and accountable decision-making;
               (b)    to inform the community of:
                          (i)    the decision-making processes to be followed; and
                         (ii)    the factors to be considered in making decisions under the Act;
                (c)    to assist interested parties in their applications for grants;
               (d)    to promote and encourage the provision of services in areas and communities of greatest relative need;
                (e)    to facilitate the development of services for people most in need;
                (f)    to maintain continuity of service; and
               (g)    to promote the efficient and effective administration of Part II of the Act.
         (2)   These Guidelines provide direction for administering the Act, with due regard to:
                (a)    the limited resources available to provide services and programs under the Act;
               (b)    the need to consider equity and merit in allocating those resources; and
                (c)    the need to consider the rights and best interests of people with disability supported by those resources.
6              Definitions
         (1)   In these Guidelines, unless the contrary intention appears:
Act means the Disability Services Act 1986.
                grant means a grant of financial assistance under sections 10, 12, 12AD or 13 of the Act.
National Disability Agreement means the agreement, between the Commonwealth and the States and Territories, which provides the national framework and key areas of reform relating to the provision of government support to services for people with disability.
officer of the Department means an Australian Public Service employee in the Department responsible for performing functions under these Guidelines.
organisation means a State or an eligible organisation.
service provider means an organisation receiving a grant of financial assistance, under Part II of the Act, to provide a service for persons in the target group.
target group has the meaning given by subsection 8(1) of the Act.
          (2)  If words that are used in these Guidelines are not included under section 6, those words have the same meaning as in the Act.
        
                                     
Part 2                 Approval of additional classes of services
7              Consultation before approving an additional class of services
                Before the Minister approves an additional class of services under section 9 or 9A of the Act, he or she must ensure that an adequate number of people with a disability, their families and advocates, service providers and interested others are consulted to enable the Minister to determine:
                (a)    the extent to which approving the proposed class of services will further the objects set out in section 3 of the Act and the principles and objectives formulated under section 5 of the Act; and
               (b)    the extent to which services included in the proposed class of services will meet the needs of people with a disability.
8              Considerations before approving an additional class of services
         (1)   Before the Minister approves an additional class of services under section 9 or 9A of the Act, he or she must:
                (a)    consider the results of the consultation conducted under section 7; and
               (b)    be satisfied that the proposed class of services will be sufficiently flexible to be responsive to the needs of a wide range of people in the target group; and
                (c)    be satisfied that services included in the proposed class of services would be cost effective; and
               (d)    be satisfied that any provisions of the National Disability Agreement applicable to the approving of additional classes of services have been complied with.
         (2)   However, paragraph (1)(b) does not preclude a class of services from including individual services that make use of a specific service delivery approach that is only appropriate for people with particular functional support needs.
9              When the Minister approves an additional class of services
                When the Minister approves an additional class of services under section 9 or 9A of the Act, he or she must:
                (a)    set out in the approval a definition or description (or both, if appropriate) of the additional class of services; and
               (b)    if the additional class of services is an eligible service:
                          (i)    consider whether the eligibility standards are appropriate for that class of services; and
                         (ii)    if the standards are not appropriate — determine standards under paragraph 5A(1)(a) of the Act that are appropriate; and
                (c)    if the additional class of services is an employment service:
                          (i)    consider whether the applicable standards, and the key performance indicators approved for those standards, are appropriate for that class of services; and
                         (ii)    if the standards are not appropriate — determine standards under paragraph 5A(1)(b) of the Act that are appropriate; and
                        (iii)    if the key performance indicators are not appropriate — approve key performance indicators under subsection 5A (2) of the Act that are appropriate.
 
Note   Before the Minister determines standards, and approves key performance indicators, under section 5A of the Act, the Minister must comply with section 23 regarding consultation.
 
Part 3                 Matters relevant to making grants
10            Grants in relation to which this Part applies
                This Part applies in relation to grants of financial assistance under sections 10, 12, 12AD and 13 of the Act.
11            Other policy and legislative requirements applying to the making of grants
         (1)   Any grant to which  this Part applies must have regard to:
                (a)    applicable policies and legislation;
               (b)    guidelines that apply to a granting activity, such as grant guidelines;
                (c)    applicable departmental grants specific process requirements; and
               (d)    any other relevant matter.
12            Minister may establish funding priorities
         (1)   The Minister may approve and publicly make known funding priorities in each State for the making of grants.
         (2)   The funding priorities approved by the Minister under subsection (1) may include:
                (a)    services that ensure a priority of access to specified populations of people with a disability (for example, people of Aboriginal and Torres Strait Islander descent, people from non-English speaking backgrounds, people with higher support needs, people with aged or frail carers, people in rural or remote areas); or
               (b)    services for specified geographic regions or localities; or
                (c)    specified classes of services; or
               (d)    services that have specified characteristics or meet specified criteria; or
                (e)    a combination of any of the services mentioned in paragraphs (a) to (d).
13            Process for determining priorities for making grants
                Before the Minister approves any funding priorities under section 12, the Minister must:
                (a)    consider the results of any consultation with people with a disability, their families and advocates, service providers and interested others to provide the Minister with an indication of appropriate funding priorities for the making of grants; and
               (b)    consider the available statistical data on the existing supply of, and need for, disability services; and
                (c)    if the State and Commonwealth have signed a bilateral agreement under the National Disability Agreement, consider the results of any joint planning processes conducted in accordance with those agreements.
14            Applications for grants to be in writing
                 An organisation wishing to receive a grant of financial assistance must make a written application to the Department.
15            Assessing applications for grants
                An application for a grant must be considered against the available moneys for making grants, having regard to:
                (a)    the requirements set out in the Act; and
               (b)    the purpose for which the money has been made available; and
                (c)    any selection criteria.
16            Approving applications for grants
                In approving the making of a grant, the Minister may decide to make a grant for a higher or lower amount than applied for.
17            Plans to be provided for applications for eligible services
                If subparagraph 10(3)(b)(i) of the Act is relevant to the Minister’s decision whether or not to make the grant, the organisation applying for the grant must provide a sound and practical plan for enabling the organisation to meet, within a reasonable time-frame, the eligibility standards in respect of the provision of the service, that:
                (a)    specifies the steps to be taken to enable the organisation to meet the standards; and
               (b)    specifies the person or persons (by reference to the person’s position in the organisation) who will be responsible for implementing the steps; and
                (c)    indicates the target days for completing the steps.
Note  Under subparagraph 10(3)(b)(i) of the Act, the Minister must not approve the making of a grant to a State or eligible organisation that is not meeting the eligibility standards in respect of the provision of a service, unless the Minister is satisfied the organisation will meet the eligibility standards in respect of the provision of the service by the day determined by the Minister which, under subsection 10(4A) of the Act, cannot be more than 12 months later than the day on which the Minister approves the making of the grant.
18            Plans to be provided for applications for employment and advocacy services
                For the purposes of a determination by the Minister under subparagraph 12AD(2)(b)(ii) or 13(2)(b)(ii) of the Act, the organisation applying for the grant must provide a sound and practical plan for obtaining, with a reasonable time-frame, a certificate of compliance in respect of the service, that:
                (a)    states the progress (if any) made for obtaining the certificate; and
               (b)    specifies the steps to be taken for obtaining the certificate; and
                (c)    specifies the person or persons (by reference to the person’s position in the organisation) who will be responsible for implementing the steps; and
               (d)    indicates the target days for completing the steps (including the target day by which the certificate will be obtained).
Note 1   Under subparagraph 12AD(2)(b)(ii) of the Act, the Minister must not approve the making of a grant to a State or organisation not holding a current certificate of compliance, unless the Minister is satisfied the organisation has given a notice stating its intention to seek to obtain a certificate of compliance on or before the day determined by the Minister which, under subsection 12AD(4) of the Act, cannot be later than 12 months after the day on which the grant is approved.
Note 2   Under subparagraph 13(2)(b)(ii) of the Act, the Minister must not approve the making of a grant to a State or organisation not holding a current certificate of compliance, unless the organisation has given a notice stating its intention to seek to obtain a certificate of compliance on or before the day determined by the Minister which, under subsection 13(3) of the Act, cannot be later than 18 months after the day on which the grant is approved.
19            Giving notice of intention to obtain certificate of compliance
                For subparagraph 12AD(2)(b)(ii) and 13(2)(b)(ii) of the Act, the written notice to the Minister must be:
                (a)    in a form approved by the Secretary for the purpose of this paragraph; and
               (b)    given to the Department.
Note   Under subparagraph 12AD(2)(b)(ii) and 13(2)(b)(ii) of the Act, the Minister must not approve the making of a grant unless the notice has been given.
20            Determining and varying the day by which an organisation must obtain certificate of compliance
         (1)   In making or varying a determination, for the purposes of subparagraph 12AD(2)(b)(ii) and 13(2)(b)(ii) of the Act, fixing a day by which an organisation must obtain a certificate of compliance in respect of the service for which the grant is sought, the Minister may take into account:
                (a)    the progress made by the organisation for obtaining the certificate, as stated in the plan provided by the organisation under section 17, 18 or 22; and
               (b)    the steps to be taken by the organisation for obtaining the certificate, as stated in the plan; and
                (c)    whether the organisation can reasonably be expected to obtain the certificate by the target day stated in the plan, or by an earlier or later day.
Note 1   Under subsection 12AD(4) of the Act, the day specified in the determination, or in a determination as varied, cannot be later than 12 months after the day on which the grant is approved.
Note 2   Under subsection 13(3) of the Act, the day specified in the determination, or in a determination as varied, cannot be later than 18 months after the day on which the determination is made.
         (2)   If the Minister proposes to make or vary a determination fixing a day that that is prior to the target day indicated by the organisation, the organisation must be notified of the proposed day and be invited to make comment for consideration by the Minister before the Minister makes or varies the determination.
21            Certificates of compliance
                For sections 12AD and 13 of the Act, an organisation is taken to be holding a current certificate of compliance if:
                (a)    the accredited certification body has, under subsection 6D(3) or 6DA(3) of the Act, notified the Secretary of the giving of the certificate; and
               (b)    the Secretary has not been notified of any revocation of the certificate.
22            Application for varying the day determined by the Minister
         (1)   If an organisation receiving a grant under sections 12AD and 13 of the Act is unable to obtain a certificate of compliance, in respect of the service for which the grant is made, by the day determined by the Minister to be the day by which the organisation must obtain the certificate, and the organisation wishes to receive any payment of the grant on or after that day, the organisation must apply in writing to the Department for variation of the day determined by the Minister.
         (2)   The application must include:
                (a)    the reasons for not being able to obtain the certificate by the determined day; and
               (b)    a sound and practical plan for obtaining the certificate by the new day, that:
                          (i)    states the progress made for obtaining the certificate; and
                         (ii)    specifies the steps to be taken for obtaining the certificate; and
                        (iii)    specifies the person or persons (by reference to the person’s position in the organisation) who will be responsible for implementing the steps; and
                        (iv)    indicates the target days for completing the steps (including the new target day by which the certificate will be obtained).
Note 1   Under subsection 12AD(4) of the Act, the day specified in the determination, or in a determination as varied, cannot be later than 12 months after the day on which the grant is approved.
Note 2   Under subsection 13(3) of the Act, the day specified in the determination, or in a determination as varied, cannot be later than 18 months after the day on which the grant is approved.
 
Part 4                 Development of standards, key performance indicators, performance monitoring processes and processes for applying sanctions
23            Determining standards, key performance indicators and processes
                The Minister must ensure that State and Territory governments and an adequate number of people with a disability, their families and advocates, service providers and interested others are consulted so that the Minister can establish the broad views of these groups, before he or she:
                (a)    determines standards under paragraph 5A(1)(a), (b) and (ba) of the Act; or
               (b)    approves key performance indicators, under subsection 5A(2) of the Act, for any such standards; or
                (c)    makes an order under paragraph 14F(b) of the Act relating to the operation and function of the Disability Standards Review Panel under section 14C of the Act.
Part 5                 Miscellaneous
24            Availability of information
                An officer of the Department must, upon request, provide members of the public with a copy of the following:
                (a)    any application forms that have been made available for lodging applications for grants;
               (b)    a statement of the closing dates for lodging applications for grants, if applicable;
                (c)    a statement of any funding priorities for making grants;
               (d)    a statement of any selection criteria that will be considered when assessing applications for grants.
 
Note   Officers of the Department are required to comply with the Privacy Act 1988.
25            Delegation
                The Secretary may, in writing, delegate any or all of his or her powers under paragraph 19(a) to an officer of the Department.