NDIS Service Provision and Guardianship

OPG guardians do not sign service agreements but may provide letters of consent for a service to be provided, if the guardian considers it necessary. This is consistent with the obligations of NDIS service providers under the scheme and the role and function of guardians under the Guardianship and Administration Act 1995 (TAS) to encourage represented persons to become capable of making reasonable judgements relating to their person.

It is the responsibility of providers to seek consent to service/a service agreement prior to the expiry of the plan taking into account the timeframe below. Responding to service agreements is not considered urgent by the OPG.

The OPG will aim to review and respond to requests for consent to service within 10 working days.

The OPG will not consent to service unless:

• A service agreement has been received via the support coordinator with confirmation that the proposed agreement is consistent with the person’s NDIS plan
• The provider confirms in the email that the support coordinator has seen/discussed/or confirmed that the services in the agreement are consistent with the participant’s NDIS plan, and
• It has been agreed with the guardian that the participant is unable to sign the service agreement themselves.

It is the OPG and the NDIS Quality and Safeguard Commission’s expectation that organisations providing on-going services will provide continuity of support to a participant when a new plan commences and until an agreement is signed or services are consented to by the guardian. It is not considered a matter of urgency for a guardian to provide a letter of consent to a service agreement to meet a provider’s internal timeframes or performance indicators.

Guardians do not consent to the submission of SIL supports to the NDIA, but do require confirmation that the proposed supports have been discussed with the support coordinator.

It is the OPG’s expectation that providers will include the participant wherever possible in the development and review of SIL supports. If the participant is able to agree to their SIL supports then the guardian will not ‘consent’ to the submission of this document on their behalf.

It is not the role of an OPG guardian to meet service providers’ organisational requirements, for example, signing care/support plans, signing information / welcome packs or audit participation requests.

In the first instance, the participant should be encouraged and supported to agree to and sign their support plan wherever possible. Guardians are generally satisfied to receive evidence of person-centred support (such as a support plan). A guardian is required by law to act in the best interests of the represented person. If a guardian has a concern it will be addressed with the provider, otherwise they will file the support plan as evidence of the service being provided.

Should it be necessary for an NDIS decision to be appealed at the AAT, the participant will require Support Coordination assistance to access specialised support. A guardian from the Office of the Public Guardian (with NDIS decision-making authority) is able to make decisions regarding an appeal if the participant is unable to do so with support, however Office of the Public Guardian guardians are unable to represent the participant at hearing.

Legal Aid Tasmania and Advocacy Tasmania are trained and funded by the Commonwealth Government to support participants through the NDIS appeals process. Further information can be found on the Legal Aid Tasmania website (legalaid.tas.gov.au) and the Advocacy Tasmania website (Advocacy Tasmania - Need help to have your say : Advocacy Tasmania).

Legal Aid Tasmania can be contacted on 1300 366 611.

Advocacy Tasmania can be contacted on 1800 005 131 or emailing helpline@yoursaytas.org

The current practice of the OPG is for guardians to support the participant to acknowledge service agreements as much as possible and to provide a letter of consent for a service (in lieu of signing a service agreement directly) as a last resort. This aligns the requirements of NDIS service providers with the role and function of guardians under Tasmanian legislation to encourage represented persons to become capable of making reasonable judgements relating to their person.

The following is a guide for support coordinators working with OPG guardians.

A guardian’s consent for service is not required when:

• The participant can accept or refuse a particular service themselves or be supported by an advocate to do so
• Contacting specific service providers for matters pertaining to plan implementation
• Making referrals and/or selecting services where the service is funded in the plan, the support is needed and the support coordinator believes it is a suitable match

A guardian’s decision may be required:

• When implementation of a service is contentious or high risk
• When the participant objects to a service or refuses to sign a service agreement and is at risk if the service is not implemented
• When the person cannot provide informed consent and there is no other way to implement the support without a decision from the guardian

You can learn more about NDIS decision-making and guardianship from our information sheet and our easy-read guide to NDIS decision-making.

Expectations of support coordinators:

• To support and engage with and support the participant to make their own decisions about services and sign their own service agreements in the first instance and whenever possible
• To raise issues or concerns about quality of service, timeliness of service delivery or conflicts of interest with providers directly and with the guardian where necessary (e.g. when a matter cannot be resolved)
• To monitor plan expenditure, identify the need for and seek plan reviews when supports are not meeting the participant’s needs
• To obtain consent/complete the necessary authorities (either with the participant or the guardian depending on the circumstances) to receive plan information
• To provide all allied health, assessment and review reports to the guardian in a timely manner once received
• To provide plan review reports at least three days in advance of a plan review where the guardian is required to attend
• To seek clarification from the guardian if unsure about whether a particular issue requires a substitute decision on the person’s behalf

Although a participant may have a guardian appointed, it is not always necessary for the guardian to consent to services for the participant, particularly if it is non-complex and uncontentious. The aim is to develop the skills of the participant to exercise as much choice and control of their plan as possible. If in doubt, please clarify with the relevant guardian.

OPG guardians do not have a case management role and do not need to be involved in the day to day operation of a person’s supports and plan implementation once consent to a service is provided.

When should I contact the guardian?

Generally speaking, the guardian does not need to be informed or included in every correspondence about a participant’s supports/services or implementation of the plan. The guardian should be contacted directly when a decision needs to be made, significant advocacy is required or there are situations of significant risk that cannot be mitigated by current supports.

Do I need to seek a guardian’s consent to make a referral for each service that is funded in a participant’s NDIS plan?

No. It is the expectation of the guardian that the support coordinator is well versed in the services available and accessible to the participant and can recommend an appropriate match. However feedback can be provided as to why the particular service is felt to be appropriate. If the person is objecting to a particular service or it is contentious, then it may be appropriate for the guardian to make a formal decision or provide substitute consent.

I haven’t got a copy of the plan, can the guardian provide me a copy?

Guardians cannot access the participant’s plan via the portal. Support coordinators can request the guardian sign a completed ‘consent to share plan details’ form and then contact the NDIA directly to obtain a copy of the plan.

Given processing times, it is best that this form is completed at the commencement of support or when the guardian advises they have been appointed. It is expected that support coordinators will be proactive in seeking consent to receive the plan, either via the use of the form or at the plan review.

If a plan is delayed/overdue, support coordinators should contact the NDIA, not the guardian.

A plan still hasn’t been approved, can the guardian follow this up?

Guardians do not have the capacity to follow up approval of plans. It is expected that where urgent circumstances of significant risk exist, the support coordinator will make the NDIA aware of this in the first instance either via the participant’s planner or the 1800 number. If further concerns or escalations of risk remain without response then the guardian should be informed.

Can the guardian approve the use of plan funds or a particular claim by a provider?

Funding arrangements are strictly between the NDIA and the service provider. The support coordinator’s role is to ensure the implementation of the participant’s plan is reasonable and necessary and within the budgets outlined in the plan. The guardian’s role is to provide consent for a particular service to be delivered. If a change to a service (e.g. additional allied health hours) is required after a service has commenced, is affordable under the plan and non-contentious then it is not necessary to seek additional permission or consent from the guardian.

More information is available in the NDIS and supported and substitute decision making section.