NDIS News & Analysis

Prisons and the NDIS

Team DSC

Thirsty for a dopamine reward, you scroll through Facebook and the first post you notice (thanks, algorithm) is from your Uncle Barry: a petition calling for harsher conditions for people in prison. You understand this is a sensitive topic but as a provider of disability supports, you know further punishing people in prison will disproportionately disadvantage people you work with.

Your million-times-edited reply starts with a story about a hypothetical person who lives with an intellectual disability, depression, and severe hearing loss – let’s call him Tom. Tom’s behaviours of concern were misunderstood by those in his life, leading to his imprisonment. Tom is now in a cell without access to hearing aids, psychology, or behaviour support. You are at a loss on how to reach him, given that you are not on his approved callers list. Even your Uncle Barry must admit it’s hard to make conditions much harsher than that.

But how common are stories like Tom’s in actuality? Well, let’s look at the numbers.

How many disabled people are locked up?

Tonnes. Best guesses about the proportion of disabled folk in Australian prisons range from 29% to 94% of the prison population, depending on how the social scientists slice it. Some samples include psychosocial disability, some count disabled people on remand – others don’t. At the intersection of identities like indigeneity and disability, the disadvantage increases exponentially. For example, a study from the Northern Territory estimates 94% of First Nations men in NT prisons live with severe hearing loss (Vanderpoll & Howard 2012: p. 4). Tom’s situation is not isolated; this is systemic.

How many NDIS participants are in prison?

As the government Agency tasked with promoting social and economic participation of disabled people, measuring how many participants are in prison (and for how many days in 12 months) would be a nifty stat for the Scheme Actuary to publish. Yet the quarterly reports do not touch on this. So, alas, I dove into other government reports.

Snapshot of incarcerated participants in Queensland

Since we don’t have national data, let’s zoom in on Queensland. Each state has different processes, so their performance may differ.

Queensland Corrective Services’ (QCS) Anti-Corruption Strategy 2020-2025 document on page 14 states,

in 2018-19 and 2019-20, QCS delivered a dedicated service to identify and support prisoners with disability to access the NDIS. During this time, more than 1750 prisoners/offenders who may be eligible for the NDIS were identified

Buried 432 pages deep in the Queensland Productivity Commission report into NDIS markets (2020) lies personal communication between the Commission and QCS, detailing that only 155 of 9,070 prisoners were flagged in their system as being NDIS participants as of September 2020. That’s only 1.7% of people in QLD prisons recorded as NDIS participants. Returning to the very broad 29%–94% range discussed above, there is likely a significant gap between the number of incarcerated disabled people and those receiving adequate supports.

Who’s responsible?

The Applied Principles and Tables of Support (APTOS) is an agreement between state, territory, and commonwealth governments. It outlines who’s responsible for supporting disabled people at each interface, including custodial and youth justice settings. It’s the kind of reading you can only tolerate with a beverage of choice in hand, drinking every time you’re utterly confused about who’s actually responsible.

“For people in a custodial setting”, the APTOS reads, “the only supports funded by the NDIS are those required due to the impact of the person’s impairment/s on their functional capacity and additional to reasonable adjustment” [drink].

NDIS supports are limited to:

  • aids and equipment;

  • Allied Health and other therapy directly related to a person’s disability, including for people with disability who have complex challenging behaviours;

  • disability specific capacity and skills building supports which relate to a person’s ability to live in the community after release;

  • supports to enable people to successfully re-enter the community; and

  • training for staff in custodial settings where this relates to an individual participant’s needs.

Smuggling disability supports into prison

General Managers of prisons or, in some cases, state governments are responsible for deciding who and what enters a prison. To get assistive technology to people like Tom, in addition to teeing up the AT assessment for approval by the NDIA, you will also need to gain approval from the prison administration for the equipment to enter the facility at all.

You may also need to smuggle yourself into prison to plan the supports a person would like before and after release. To visit, you will need to have a facility-specific entry form signed. Prisons also have different induction processes, so it’s important to call up the centre in advance. If the participant can communicate verbally, make sure you ask them to put you on their approved caller list. Depending on the state, some prisons have set up video calling as a temporary COVID measure.

While supporting someone in Tom’s situation, you may receive communication from a Justice Liaison Officer from the NDIA or a professional within the state system. Work closely with these professionals and with cultural liaison and activity officers in your state. These relationships may be key to getting the participant supports that they need. This interface can be complex, and sometimes people require high levels of (specialist) support coordination to ensure the right supports are in place.

Assertive Outreach

The Tune Review of the NDIS Act recommended that the NDIA could better reach under-represented cohorts using an assertive outreach approach. Assertive outreach involves supporting populations “who have not accessed disability support services or are reluctant to engage” (Tune Review 2019: 81). That assertive outreach has not yet resulted in equitable access and planning for disabled people in prison can only be described as a missed opportunity.

Putting the ‘I’ back in NDIS

Beyond the NDIA’s requirement to uphold the rights of people like Tom, assertive outreach for disabled people in prison would be a step toward returning the Scheme to its original intention: to act as an insurance model. Prison beds cost big bucks. And the Productivity Commission that gave rise to the NDIS in 2011 knew this intimately. To borrow their words, “The NDIS will generate profound economic benefits […] such as reduced ‘bedblock’ in hospitals [critical right now] and savings in the justice system through better community support of people with significant and enduring psychiatric disability” (my emphasis,The Productivity Commission2011: pp. 54–55). The savings associated with a reduction in prison beds and increase in socio-economic participation for disabled participants was a foundational building block of the NDIS. A return to this thinking may be what’s needed to disrupt narrow understandings of Scheme (un)sustainability.

Final verdict

If I were before a jury, I would be found guilty of presenting problems without solutions. As a non-indigenous, non-incarcerated, abled-bodied person, if I have learnt anything from Stuart Robert’s attempt to introduce Independent Assessments, it’s that solutions are best offered by the communities that are most affected. Disabled people like Tom with experience of incarceration (in all its variations) must get a seat – nay, must sit at the head – of the co-production table. Without such co-production and implementing the solutions that follow, we may be charged with systematically warehousing disabled people in prisons in Royal Commissions to come.